Civics 101 Episodes - Civics 101: A Podcast (2024)

On June 14 2024, the Supreme Court ruled that bump stocks are no longer illegal, reversing an order from Donald Trump and the ATF that was passed in the wake of the Las Vegas shootings. The words "Second Amendment" do not appear in the opinion, concurring opinion, or dissent. And yet, within minutes of the ruling, every news agency was calling it a Second Amendment case. So what is the Second Amendment?

It's short. 27 words. Words which have been interpreted and reinterpreted by historians, activists, judges, and philosophers. What did it mean when it was written? What does it mean right now? And what happened in between?

Today's episode features Saul Cornell, professor of history at Fordham University and author of A Well Regulated Militia, Alexandra Filindra, professor of political science at University of Illinois Chicago and author of Race, Rights, and Rifles, and Jake Charles, lecturing fellow and executive director of the Center for Firearms Law at Duke Law.

Transcript

Nick Capodice: Hello, everyone. Nick here. We got an episode on the Second Amendment today. I am recording these words on Friday, June 14th, 2024. On this day, just a few hours ago, the Supreme Court handed down their decision in Garland v Cargill.

Archival: Good morning. I'm Whit Johnson in New York. We're coming on the air because the Supreme Court has just issued its ruling and a Second Amendment gun control case challenging the country's ban on bump stocks. Those are the attachments. [00:00:30]

Nick Capodice: Let me give you a little back story to that case. In October 2017, Las Vegas, Nevada, A man fired more than 1000 bullets into a festival crowd. He killed 60 people, he injured about 400 more. And he did this in about ten minutes. Now, machine guns are not legal in the United States. You can't own one. And this has been the case since 1934, when Congress passed legislation banning machine guns [00:01:00] in response to the 1930s. Right, Tommy? Guns, prohibition, organized crime. You've seen the movie. Congress saw that certain guns were killing people. And in response, they passed a law banning them. No machine guns, no grenades, etc.. So back to 2017. This mass murder was possible due to a device called a bump stock. A bump stock is like 100 bucks. Essentially what they do is they replace [00:01:30] the butt of a rifle, and they use the recoil of a shot to fire another shot over and over very quickly until the magazine is empty. So in the wake of this horrific tragedy, the ATF, the Bureau of Alcohol, Tobacco and Firearms, they reclassified guns with bump stocks as machine guns and therefore illegal to own. This action was done through an executive order by then-President Donald Trump, I have his exact tweet quote. “As I promised today, the Department of Justice will issue the rule banning bump stocks with a mandated comment period. We will ban all devices that turn legal weapons into illegal machine guns.” End quote, end tweet. So bump stocks were made illegal to own, and a lot of people who own them, destroyed them or willingly turned them in.

Nick Capodice: One of those people [00:02:30] was Michael Cargill. Cargill then filed a lawsuit challenging the ATF regulation. This lawsuit moved up the chain, moved through the courts. It was granted cert, it was argued this February in the Supreme Court. And today, the court ruled in A63 decision along ideological lines, that a gun with a bump stock is not a machine gun. Overturning the Trump era ban. Justice Clarence Thomas wrote the opinion where he said, quote, this case asks [00:03:00] whether a bump stock an accessory for a semiautomatic rifle that allows the shooter to rapidly reengage the trigger and therefore achieve a high rate of fire, converts the rifle into a machine gun. We hold that it does not, and therefore affirm. So today we are playing our episode on the Second Amendment. This is one of the amendments we hear the most about, but not usually the full thing. We hear pull quotes, right? Like right to bear arms or shall not be infringed. But here's the thing [00:03:30] in the opinion authored by Justice Thomas, the words Second Amendment are not mentioned once. Neither are right to bear arms or well-regulated militia, any of it. They don't even appear in Justice Sonia Sotomayor's dissent, though I will say this line did quote, when I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck. The only time those words came up were in one [00:04:00] single exchange during the Supreme Court argument in February. And here's the tape.

Archival: Okay. Last question. You haven't made a Second Amendment or constitutional avoidance argument, in your view, are bump stocks covered by the Second Amendment protected by the Second Amendment? But we.

Archival: Didn't argue that because courts are generally loath to decide constitutional questions when there's an easy statutory offering.

Archival: You didn't throw it in as constitutional avoidance, and I imagine that was a considered choice. I'm curious what what was behind that.

Archival: There's nothing that prevents [00:04:30] this court from invoking the constitutional avoidance cannon on the Second Amendment issue, because there is a question, at least, whether this falls within the dangerous and unusual weapons carve out in Heller. We don't have a position on that question because we didn't brief it.

Nick Capodice: So, yeah, it was an off ramp, a constitutional off ramp. The advocate for Cargill saw that off ramp, and he took it and it worked for him. But even though the words Second Amendment don't appear in the decision right this second on Twitter, the most [00:05:00] popular tag is shall not be infringed. So back to Justice Sotomayor and her duck. Just because the court doesn't say something, that doesn't mean it's not on everyone's minds. So here's the episode.

Charleton Heston: The right to keep and bear arms is the one right that allows rights to exist at all. Now, either you believe that you don't, and you must decide, because there's no such thing as a free [00:05:30] nation where police and military are allowed to force of arms, but individual citizens are not.

Saul Cornell: I often say, if we go back to what the founders thought about guns, it would be the worst nightmare for gun rights people and gun control people because you'd get rid of stand your ground. Your duty would be to retreat. The government would inspect your firearm in your home. It would penalize you if you picked the gun you want instead of the gun the government wanted for you. On the other hand, be more like living in Switzerland or Tel [00:06:00] Aviv because we would all be part of a well-regulated militia and we would have to drop everything at a minute's notice and report to muster.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And at the top you heard actor and former president of the NRA, Charlton Heston. There's going to be more of him later. And right after that, you heard Saul Cornell. He's a professor of history at Fordham University, and he wrote the book A Well-regulated Militia. Saul teaches popular constitutionalism in the early [00:06:30] Republic. And we talked to Saul because today we're talking about the Second Amendment, what it meant when it was ratified, what it means as of this moment, and what happened in between. We're also going to talk about the amendment and the Supreme Court, the NRA, and the truly unique relationship between our country and gun ownership.

Hannah McCarthy: All right. That's a lot. Yeah, that's a bit of a labyrinth. So can we just start with the words [00:07:00] what does the Second Amendment say?

Saul Cornell: So the Second Amendment, which is probably the most frequently invoked and poorly understood part of the first ten amendments, reads A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Hannah McCarthy: Okay. Saul said, frequently invoked and poorly understood. I mean, we have trouble whenever we try to understand the intent of the framers [00:07:30] in their historical context, and regardless of their intent, that kind of doesn't matter, because what matters is the people who interpret the Constitution, whose job it is to do so. The Supreme Court.

Nick Capodice: Yes, absolutely. When the Supreme Court says what something means, it means that as far as the law is concerned. But back to the intent. The NRA website says, quote, the founding fathers felt that citizens should be able to protect themselves against the government and any other threat to their well-being or personal freedom. [00:08:00] But, you know, you don't hear a lot of discourse about what the framers meant when they wrote the Seventh Amendment.

Hannah McCarthy: Yeah. I mean, you don't see, like, ranting YouTube videos about people talking about why a civil case involving $20 or more should be heard in front of a jury. But back to the Second amendment. Why is it so tough to interpret?

Saul Cornell: Modern Americans are quick to say, oh, how did they write such a bad amendment? I mean, how did they manage to screw it up so horribly? But in fact, if you're conversant with the way people talked and wrote about [00:08:30] the law in the 18th century, it makes a lot of sense. It uses a very common Latinate construction called the ablative absolute, and the best way to render it in modern English would be to say, because a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Hannah McCarthy: An ablative absolute.

Nick Capodice: Yeah, I don't want to go too deep into this, but I encourage everyone to look up an article called, quote, our Latinate Constitution. It's [00:09:00] all about how the framers emulated the style of Greek and Latin authors and philosophers. An ablative absolute is an adverbial modifier of the predicate that's not grammatically dependent on any word in the sentence, which I cannot wrap my head around. Hannah. But an example from a Latin textbook is having received the letter Caesar sends a messenger. Since a well-regulated militia is necessary, the right shall not be infringed.

Hannah McCarthy: Okay, so while we're doing [00:09:30] historical context, two terms I want to understand are militia and bear arms.

Nick Capodice: Absolutely. And I'd like to start with what a right to bear arms meant back then.

Saul Cornell: Most of the first state constitutions did not have a provision on the right to bear arms, which is shocking given our obsession about it today. And perhaps most interesting of all, when they did include such provision, they often included a balancing provision which protected the right [00:10:00] not to bear arms.

Hannah McCarthy: Why would you need that right not to bear arms? What does that mean?

Saul Cornell: Bearing arms in the 18th century was an obligation, and we're not used to thinking of rights as carrying obligations in modern American law. We generally think that if you have a right, it imposes an obligation on either the government or other people to respect that right.

Nick Capodice: In 1792, you were obliged, as a white male between the ages of 18 and 45 to buy, keep and maintain [00:10:30] your own military weapon, ammunition, backpack, all that stuff. You had to submit it for inspection, and you had to always be ready to report to serve your country if needed.

Hannah McCarthy: Okay, but why would someone need to have a right to not bear arms.

Nick Capodice: Because of their religion? These were religious pacifistes and were sort of touching on First Amendment territory here. But Saul gave me the example of the Quakers.

Saul Cornell: Quakers. By the time [00:11:00] that the Second Amendment was adopted, had won the ability in Pennsylvania not to bear arms. Because the Pennsylvania Constitution is one of those states with a provision that says you cannot be forced to bear arms. But that wasn't good enough for them. They felt that any support for militia, uh, activity or warlike behavior violated their peace testimony. I mean, they literally took the idea of turning the other cheek as you just turn the other cheek. You do not, uh, [00:11:30] you don't engage in warlike activity. You don't engage in any kind of violence, verbal or physical. Um, and these Quakers, uh, refused to even pay taxes to support the militia.

Nick Capodice: And if we're looking at it through the modern day lens of bearing arms as just having a weapon, the Quakers certainly did that. They were hunting with guns. They even manufactured guns. But at that time that wasn't bearing arms. If you were playing a drum in an army, [00:12:00] if you were carrying a stretcher that is bearing arms, it's supporting war.

Saul Cornell: It just shows you how different their world is and how most of the people who talk about the Second Amendment today are just essentially functionally illiterate in 18th century constitutional English. And what they do is they project backwards our obsessions and our understanding. And of course, in modern America, you know, having a Glock in your bedside table so you can kill people is how most people think of what it means to bear [00:12:30] arms.

Hannah McCarthy: All right, let's move on to a well regulated militia. How does a militia differ from, like, the US Army?

Nick Capodice: Okay, first, a quick clarifier. When we're talking about militia in this episode, we are not talking about what law enforcement today called the American militia movement. That's modern day paramilitary organizations. We're not talking about those. But this is interesting. The Continental Army, which fought the American Revolution, was disbanded almost [00:13:00] immediately after the war, and then state militias took their place and became our only ground army.

Hannah McCarthy: Nick, earlier you said that any white male between the ages of 18 and 45 could be called up to serve in a militia, so what's up with the white part?

Alexandra Filindra: So basically this is the definition of who is a citizen in Republican terms, who gets to be a citizen in these two dimensions of citizenship.

Nick Capodice: This is Alexandra Falindra. [00:13:30] She's a professor of political science at the University of Illinois at Chicago. She's also the author of the upcoming book Race Rights and Rifles. And Alexandra talked to me about republicanism. This is not related to the modern day Republican Party. Republicanism is the political ideology in early America that was the basis for our revolution and our foundational documents. And that ideology continues in the history that America is writing for itself [00:14:00] today.

Alexandra Filindra: Americans had to explain to themselves and to the world why it was that there were this race and gender based restrictions, right, to who gets to be a citizen. So you need a theory, because republicanism basically says that in order to be a good citizen, you have to be willing to die for the country. You have to be willing to use violence and bear arms for the purpose of the Republic. [00:14:30] So in the American context, the myth that was created was that white colonists proved themselves to be virtuous and therefore deserving of Republican citizenship because they fought to death at the revolution.

Nick Capodice: The Boston Tea Party, Shays Rebellion, the Revolution itself, the Confederacy in the US Civil War. These are violent anti-government uprisings, and [00:15:00] they have been spoken of with words like Patriot freedom fighters. Uh, one book was written that said the South had a, quote, honorable defeat.

Alexandra Filindra: And we see that over and over in American history when African Americans use violence and armed violence, it is described in the language of criminality. Whereas the guys who went to the insurrection on January [00:15:30] 6th, it was described in the language of liberty, freedom, don't tread on me, these high moral and political principles and these don't apply to African Americans in in this white male supremacist world. And this is how guns became symbolic and very potently symbolic of white good citizenship. [00:16:00]

Hannah McCarthy: Okay. So Alexandra is saying that it is uncommon to see instances of black Americans displaying arms. I'm thinking of the Black Panthers, for example. Right. Or using violence, and then hear it described as an act of patriotism. Right.

Nick Capodice: And to support her point, you can just read modern day responses or the lack thereof, from the NRA and NRA supported politicians regarding instances where police have killed legally armed [00:16:30] black Americans.

Hannah McCarthy: Okay, so getting back to the militia, that's not how we do things anymore. Nick. So what changed the system?

Nick Capodice: Well, frankly, the system changed due to its effectiveness or should I say ineffectiveness.

Alexandra Filindra: In reality, the militia was useless as a military organization. They were horrible because the states didn't have the money or the interest to train them, and because they were citizen soldiers, they [00:17:00] could vote out any politician who insisted on rigorous training. They like the trappings of military service because this is service in quotes. They like the uniforms and they like the weapons, and they run around doing drills with fancy weapons of the time and fancy uniforms, you know? But when it came to real training, they didn't want to do it.

Nick Capodice: There were enormous problems with militia members [00:17:30] deserting in the War of 1812. But. The biggest demonstration of the failings in the system was the Civil War.

Alexandra Filindra: In the Civil War. The militia showed how badly trained they were. They were constantly brawling and they weren't working with each other from different states because they didn't have any contact. They had no organizational training, and they were dropped.

Nick Capodice: And a group of officers from the New York State Militia who saw how terribly the militia had performed in the Civil War, devoted themselves [00:18:00] to the task of training them, specifically training them how to shoot better. Records from the Union estimated that its troops fired about 1000 rifle shots for each Confederate soldier hit.

Hannah McCarthy: So they weren't just ineffective, they were also, I would assume, costing a lot of money.

Nick Capodice: Yeah. So this new group of officers sent emissaries to other countries that had militias, Germany, the UK, Canada to see how they train their soldiers to shoot better. And [00:18:30] in 1871, this group was chartered in New York State as an association for the purpose of teaching marksmanship.

Hannah McCarthy: Is this going where I think it's going? An association that would teach people nationally how to properly use their rifles.

Nick Capodice: You got it. This is the birth of the NRA.

Alexandra Filindra: In the early 1900s when a very, very famous National Guardsman [00:19:00] was President Teddy Roosevelt. They were able to get out of Teddy Roosevelt a new law which provided a subsidy and a monopoly to the NRA for the purpose of training civilians in marksmanship. The federal government committed the provision of surplus weapons and ammunition for free or at cost, exclusively to the NRA and its members for the purpose of military [00:19:30] preparedness to morally and in terms of technical skills, create soldiers out of civilians. For the purposes of the draft, the NRA didn't become powerful. It was powerful because the NRA was basically the same thing as the National Guards.

Hannah McCarthy: What does she mean? That the NRA was the same thing as the National Guard?

Nick Capodice: Well, in 1903, the state militias were all renamed the National Guard, and they were exclusively [00:20:00] trained by the NRA. The heads of the National Guard were the heads of the NRA. Alexandra told me a story about a congressional hearings in the 1930s, where a guy testified in front of the House as the president of the NRA, and then two days later, the same guy testified in the Senate as the adjutant general of the National Guard.

Hannah McCarthy: Is that not kind of a conflict of interest?

Nick Capodice: I mean, it is, but honestly, nobody really cared much at the time because everyone was all in on this program of training [00:20:30] civilians to protect the government.

Hannah McCarthy: Did the program work?

Alexandra Filindra: No. Because the idea was, okay, we will get them young. We'll teach them how to use a gun. And then there will be so excited and morally, uh, uplifted by this that they'll want to be in the army. This didn't happen. This was hugely wasted money. And even though report after report showed that this was wasted money, the program exists today. It stopped being [00:21:00] a monopoly of the NRA in 1968. But for an entire century, basically, the NRA had a monopoly over this program that basically gave free guns and ammunition to citizens just for being members of the NRA and members of gun clubs.

Hannah McCarthy: What happened in 1968 that ended the NRA's monopoly?

Nick Capodice: A lot a lot happened in the 1960s. And [00:21:30] here's where we start to talk about how the Second Amendment legally affects us. And that's coming up right after the break here on Civics 101.

Hannah McCarthy: But first, a reminder that our show is public media and you are the public. Support it with a donation in any amount at our website, civics101podcast.org, or click the link in the show notes to make a donation right now.

Nick Capodice: All right, we're back. We're talking about the Second Amendment.

Hannah McCarthy: Now, Nick, we've [00:22:00] gotten into the history of the amendment, but now I'd really like to hear about the laws. You mentioned 1968. Is that the year of the first federal gun legislation?

Nick Capodice: Well I'd Love to go a little bit earlier than that. Here is Saul Cornell, professor of history at Fordham University and former director of the Second Amendment Research Center.

Saul Cornell: You can go back to the 14th century and the Statute of Northampton. Hundreds of years before guns even exist. And you have a law [00:22:30] in Britain saying you cannot go armed. In this case, it wouldn't be firearms before the king's ministers or in fairs or markets, because there is this notion that carrying arms in heavily populous areas is just not a good idea. Although in most parts of the world, the idea that modern American gun regulation would depend on a statute passed in the 14th century where there were no guns, makes most people in the rest of the English speaking world both laugh [00:23:00] and kind of shake their head like, what is going on with you people? Um, and what is this theory of originalism, where you actually care more about what was going on in 1328 than the massacres you see now with almost, uh, appalling frequency

Hannah McCarthy: Is Saul Implying that much of the world would be baffled by our devotion to adhering to these laws written so long ago.

Nick Capodice: I think he is. But we do focus on the intent of our framers specifically when it comes to the Second Amendment. So I'm going to get into it. During [00:23:30] the American Revolution, authorities would forcibly disarm you. If you didn't swear a loyalty oath to protect your government. You could hunt. You could keep a gun in your house. Though. In Boston in 1786, you couldn't keep a loaded gun there. And if it was a military issued gun, it had to be registered and regularly checked by your militia. But you were forbidden from having what we now call open carry guns just out and about when traveling or being in public places. And later on, these rules also extended to [00:24:00] places where, due to Hollywood, we tend not to think of as heavily restricted gun wise. Here's Alexander Filindra again.

Alexandra Filindra: Even then, you know you're carrying your arms. But if you went to the okay corral, the town required you in Arizona and Tombstone, Arizona, required you to leave your guns at the entry of the town before entering the town. So, no, no guns were allowed into the [00:24:30] town. Very, very regulated guns wise West.

Saul Cornell: the idea we have always carried guns everywhere all the time, is just another gun rights fantasy masquerading as history.

Hannah McCarthy: That's carrying guns in public, though. What about carrying a gun in secret?

Nick Capodice: Oh, legislators passed way more laws preventing that more than open carry.

Alexandra Filindra: Traditionally, in the 19th century, people were far more concerned about concealed carry than public carry. It's only the criminals who have guns that [00:25:00] can be hidden, because you know they're going to attack you when you don't expect it.

Nick Capodice: All of this legislation being it permitting open carry in certain circ*mstances or banning it in others, never comes to the federal level. As far as the Supreme Court is involved until the 1930s. Us v Miller 1939 Jack Miller violated the National Firearms Act of 1934 and carried a sawed off shotgun [00:25:30] across state lines, and.

Hannah McCarthy: And that was illegal at the time.

Nick Capodice: It was. In 1934. We were just coming off an enormous amount of armed violence in the era of prohibition and gang activity the Saint Valentine's Day massacre, the National Firearms Act, the NFA put an exorbitant tax on weapons used during that era. So I'm talking about the Thompson or the Tommy gun. Sawed off shotguns, silencers on pistols, explosives like grenades and bombs. [00:26:00] Now, the act initially included handguns as well. And interestingly, the NRA supported the National Firearms Act. They helped shape its wording. They agreed there's no place for Tommy guns and grenades in America, but they disagreed with the handgun restriction, so that was stripped out. But back to Jack Miller. Miller was caught with a sawed off shotgun, and he argued the NFA violated his Second Amendment rights.

Hannah McCarthy: So the Second Amendment finally got its day in court.

Nick Capodice: Yeah, [00:26:30] kinda. And it comes and goes pretty fast.

Hannah McCarthy: What was the decision?

Nick Capodice: It was unanimous. Miller lost all of the Supreme Court justices agreed the NFA is not unconstitutional because the Second Amendment has nothing to do with gun ownership outside the context of a well-regulated militia. Justice McReynolds wrote the opinion where he said, unless having a sawed off shotgun [00:27:00] has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

Hannah McCarthy: Okc that opinion seems to have very little to do with what I consider sort of prevailing interpretations of the Second Amendment. How long until we see a case where it's discussed with more detail and debate?

Nick Capodice: About 70 years. And before we talk about the more recent Supreme Court interpretation of the Second Amendment. [00:27:30] A lot of stuff happens in the US.

Alexandra Filindra: After several attempted assassinations against presidents, and after the successful assassination of Kennedy, and after the successful assassination of Bob Kennedy and the successful assassination of Martin Luther King, Malcolm X, you name it. But another problem was that Klan members and the Minutemen and other extremist organizations in the 60s became members of the NRA and [00:28:00] and got access to federal guns and ammunition to fight against the civil rights movement and also against the federal government. And that kind of became a problem. And the NRA was investigated.

Hannah McCarthy: What was the result of the investigation?

Nick Capodice: I don't know, because it's not public. Alexandra only had a summary of the investigation, and she's been trying to get her hands on the full report for a long time. She hasn't been able to. But shortly thereafter, Lyndon Johnson ended the NRA's monopoly on training the National [00:28:30] Guard, and he signed the 1968 Gun Control Act.

Archival: Today, we began to disarm the criminal and the careless and the insane and all of our people who are deeply concerned in this country about law and order, should hail this day.

Nick Capodice: Now that act banned mail order sales of shotguns and rifles, and it prohibited felons and drug users and people found mentally incompetent [00:29:00] from purchasing any guns. And this is where the NRA made a big pivot.

Jake Charles: So in the mid 1970s there was what's called the revolt at Cincinnati, um, with the National Rifle Association.

Nick Capodice: This is Jake Charles. He's the executive director at the center for Firearms Law at Duke University School of Law.

Jake Charles: And what that refers to is a moment in time where hardliners in the NRA, who thought the NRA was being kind of too [00:29:30] cozy with those who were in favor of regulations, uh, what at the time were kind of some, some fairly mild regulations the hardliners thought the NRA was not taking, um, uh, enough of a stance for the Second Amendment. And so, uh, they took over the organization. And the organization after that point became the organization that we know it today, which is an organization that is opposed to most forms of gun regulation.

Nick Capodice: The revolt of Cincinnati was in 1977, and I don't [00:30:00] think I can overstate its importance. So again, in the late 1960s, the NRA was not politically powerful. It was fairly flexible about gun regulation. But at their convention in 1977, the hardliners who opposed any gun legislation whatsoever outnumbered those who were open to regulation. New leaders indeed took over, and there was an adoption of a do not give one inch mentality towards firearm legislation. [00:30:30] And very quickly the NRA's focus shifted. It was no longer just about hunting or marksmanship, but something else entirely. It was about opposition to gun legislation, and it was about mobilizing voters.

Archival: And this is where the NRA organizes its million plus members. This is headquarters in Washington. Bush computerized, heavily staffed, well-funded and geared for action. Friend and [00:31:00] foe agree the NRA's power to scare congressmen lies in its ability to mobilize its members in any congressional district, at the touch of a computer button.

Jake Charles: To what we see then is the NRA in 1980 is endorsing Ronald Reagan to the first time the NRA endorsed a presidential candidate. Um, Ronald Reagan returned the favor once he was in office, and he became a very pro gun president. Um, and so the 80s, we see the, uh, Congress [00:31:30] enacts the Firearm Owners Protection Act, which provides a lot of, um, rolls back some of the federal regulations. There have been on guns and protects gun rights a lot. Keep fast forwarding. The gun rights movement becomes, uh, kind of more powerful. The NRA becomes more powerful. We start to see these, uh, challenges to what had been the prevailing interpretation of the Second Amendment for at least 100 years, which was that it was tied to the militia.

Nick Capodice: And this is when we started to hear things like this.

Charleton Heston: So it's not unreasonable that with one lost [00:32:00] generation, we could lose the Second Amendment forever because we didn't teach them what the battle's all about. We didn't strike that spark in their hearts that lights the fire for freedom.

Nick Capodice: That, again, was Charlton Heston, five term president of the NRA and an NRA produced short film called A Torch with No Flame.

Hannah McCarthy: Are you saying that until the 1980s, the Second Amendment was not really talked about [00:32:30] as pertaining to an individual's right to own a gun?

Nick Capodice: That is what I'm saying. It was not. I watched an episode of 60 minutes from 1977 on the inner workings and beliefs of the NRA and the Second Amendment wasn't mentioned even once, and I was quite shocked to learn about this. Hannah. And I was so shocked that I asked Jake that exact question. Was this interpretation new?

Jake Charles: Yes, I think that's I think that's a fair way to put it [00:33:00] at the NRA's kind of energizing moment in the 70s, and with Reagan's presidency in the 80s was first or not first, but at least alongside advocates, we saw, uh, legal scholars publishing and we saw, um, gun rights activists publishing in law reviews and in legal journals. Arguments for the Second Amendment had been misinterpreted, um, for the past hundred years by the federal courts. And that actually does protect an individual, right? Um, they claim to discover a lost history that hadn't been there before and that everyone had overlooked [00:33:30] when they were interpreting the Second Amendment, and that it actually protects an individual right unconnected to any service in a militia. So it's certainly, um, has not been the prevailing view throughout American history. There's really strenuous debate about how much of it is recovering, what had been an old view that was lost and how much of. It is creating a new view that responds to current concerns.

Hannah McCarthy: So basically the NRA is not just lobbying members of Congress. They're contributing a new philosophy to the academic and legal discourse. [00:34:00]

Nick Capodice: They are. But as Jake said, there is to this day debate about whether this philosophy is completely new or it existed hundreds of years ago and were just bringing it up again. And to add to this thought, former Chief Justice of the Supreme Court Warren Burger, in an interview with PBS in 1991, said that the gun lobby's modern day interpretation of the Second Amendment was, quote, one of the greatest pieces of fraud. I repeat the word fraud on the American public by [00:34:30] special interest groups that I have ever seen in my lifetime, end quote. And all this brings us to the next Supreme Court decision invoking the Second Amendment, District of Columbia v Heller.

Archival: We will hear argument today in case 072 90 District of Columbia versus Heller. Mr. Dellinger, good morning, Mr. Chief Justice, and may it please the court. The Second amendment Was a direct response [00:35:00] to concern over article one, section eight of the Constitution, which gave the new...

Nick Capodice: And by 2008, there had been a few federal laws regarding guns and lots of state and municipal restrictions. The big ones that I should mention here are the Brady Handgun Violence Prevention Act, often called just the Brady Bill from 1993. That requires instant background checks to be performed when anybody buys a gun. Now, there are loopholes to this. By the way, a study in 2017 found [00:35:30] that 22% of gun purchases happen without a background check. And when we're looking at state and municipal gun laws, the relevant one in this case is one from 1975. It's a law that forbid residents of Washington, D.C. from keeping handguns in their homes. Dick Anthony Heller was one of six parties in this case. He was a police officer who used a gun at work, but he said he wasn't allowed to have one in his home. The case was argued in March of 2008, and [00:36:00] the court issued its opinion three months later.

Archival: Our opinion is very lengthy, examining in detail the text and history of the Second Amendment.

Hannah McCarthy: How did they rule for Heller?

Nick Capodice: For the view that the Second Amendment protects your right to own a gun in your home.

Jake Charles: And in Heller, the Supreme Court endorses that view by a vote of 5 to 4. So it's the five more conservative justices on the side of the Second Amendment protects its individual right, and the four more liberal justices who look at [00:36:30] the same history, the same sources that the majority looks, looks at and says, actually, it's tied to a militia. It's not an individual right, unconnected to what that prefatory clause says it's connected to. Right. And what the court said in Heller, at least the five justices in the majority, what they said was the militia was the reason for the codification of the Second Amendment. This is the reason they drafted it and put it in the Constitution. But their reasons for putting it in there don't restrict what the scope of the right was. And so what they said, the scope [00:37:00] of the right is, is this second clause, the right of the people to keep and bear arms? And what Justice Scalia said, writing for the majority, was that self-defense is at that core of the right of the people to keep and bear arms. It might not have been the reason that they put it in there, the reason they, um, ratified the Second Amendment. But that was the core of the right that they were protecting.

Nick Capodice: And now, because the Supreme Court is the interpreter of the words in our Constitution, the Second Amendment is about our right to own a gun, [00:37:30] regardless of our involvement with the militia.

Hannah McCarthy: All right. The Heller decision allows handgun ownership federally. But as we see with so many Supreme Court decisions, you know, it often takes some time for that decision to apply to all the states. And this matters a lot, because state laws are the ones that actually affect our lives. Right.

Nick Capodice: And the Heller decision took two years to apply to all the states, which it did in another 5 to 4 ruling, almost the same justices except in the minority. You got Justice Sotomayor [00:38:00] instead of the now retired Justice Souter. And this is a case called McDonald v City of Chicago. Chicago being another city where handgun ownership was restricted. And this opinion was written by Justice Alito.

Saul Cornell: And in the McDonnell decision, which was the case that applied Heller to the states and to localities, incorporated the Second Amendment, to use a phrase, uh, familiar to those of you who study the Constitution out there. Um, so Justice Alito says, well, clearly, [00:38:30] you know, they decided to rewrite these provisions and take away the focus on the militia. So therefore it's an individual right, which fair enough. But he stops reading right in the middle of the sentence, because the very next line in all these state constitutions is an the legislature shall have the right to regulate arms in public.

Nick Capodice: For example, in his opinion, justice Alito references the Texas Constitution of 1869, which does say, quote, every person shall have the right to keep and bear arms in the lawful defense of himself for the [00:39:00] state. But there is no mention of the second half of the sentence which says, quote, under such regulations as the legislature may prescribe.

Saul Cornell: So literally you have the originalists being textualist to the point in the text where it contradicts what they want to do. What tends to happen in American constitutional law all too often is we invoke history. But the history that we use to construct our law is a kind of bizarre combination of mythology, ignorance [00:39:30] and, um, anachronism, which is a fairly potent co*cktail if you're mixing one up. You know, one part ignorance, one part anachronism, um, and one part myth. I mean, it's a heady brew, but it's, um, it's not really what historians understand the past to be. I mean, the the basic principle we start with as historians is if you're not a little confused by how differently they approach [00:40:00] something, you're probably not understanding what they meant.

Hannah McCarthy: Now, this is an episode about the Second Amendment and its history and its interpretation in the courts and the public discourse, but it is also about America's relationship to guns. Now, when the Constitution was written, our framers were wary of parties, right? They were wary of factions, even though they happened [00:40:30] almost immediately. And over the years, gun regulation has indeed become a partisan topic.

Nick Capodice: It has a very partisan topic, and it's grown more partisan over the last 30 years. A quick example in 1992, the NRA donated to the campaigns of candidates for the House and a 6040 split 60% to Republicans, 40% to Democrats. But in 2016, Republican candidates received 98.4% of such [00:41:00] donations.

Hannah McCarthy: Nick, what's next? If we are so deeply divided on this, what can we expect in the next 50 years?

Nick Capodice: Well, since Jake Charles teaches a class at Duke just on the Second Amendment, I asked him what his students say. Do any of them change their mind.

Jake Charles: So I think most of my students come into. Uh, to class thinking that, um, gun regulations are totally fine and that the Heller decision [00:41:30] is bogus. Um, I think by the end of class, they're both conflicted about both of those, um, from the kind of that side of the aisle in that, uh, you know, there is an ambiguous history there, right? There are things you can point to in the founding era, um, these concerns about tyranny, these protections, um, for, uh, you know, individual to defend themselves. And so there's lots of there's maybe more evidence than they have thought there would be when they just look at the Second Amendment, they're more conflicted [00:42:00] about these regulations over particular people possessing firearms. They you know, most of them, I think, get to that point in the class and they say, well, if we're going to have this right, it's got to be available to everybody. It doesn't make sense to limit it to these classes. That's just, uh, you know, it's just racist or classist. Um, on the other side, I think, um, what a lot of my students who are against regulation are strong Second Amendment supporters come away a little more conflicted about. Is that the fact we're not talking about are you for the Second Amendment or are you for gun regulation? [00:42:30] It's always throughout American history been been both. There has been a strong gun culture. There has been a strong regulation culture. Um, and so it's not just this monolith of, of are you for gun regulation, it's this particular proposal. Are you for this particular proposal? And a lot of them say, well, yeah, not everyone should have guns.

Hannah McCarthy: So [00:43:00] from a constitutional Second Amendment viewpoint, Nick, are things going to change? Did your guests talk about how we can consider gun rights in the light of America being the mass shooting capital of the world?

Nick Capodice: Yeah, they did. Alexandra Filindra said she didn't think anything would change anytime soon, as gun control is such a volatile topic that nobody, specifically, no Republican running for Congress, would dare talk [00:43:30] about restricting access to guns because they'd be primaried out.

Nick Capodice: Now, [00:44:00] Jake said there are certain regulations that his students on both sides of the debate agree upon, specifically red flag laws. Those are laws that allow the police, family members or coworkers to petition the state court to disarm someone they believe is a danger to themselves or others. And finally, [00:44:30] Saul said, we're not going to get anywhere if we don't talk about it.

Saul Cornell: Um, so any reasonable approach to the problem of gun violence in America, because it is a uniquely American problem, at least in the industrial democracies of the world, has to both recognize that gun ownership, private gun ownership is a deeply rooted tradition and value in American life, but so is gun regulation. So the logical and reasonable [00:45:00] argument we should be having is, are there any things we could be doing that would reduce the toll and horror of gun violence that doesn't impose an unreasonable cost on those people who want to have guns? And is it possible to formulate policies that make it more difficult for people? We don't want to have guns to have them. That, again, only minimally burden those who want [00:45:30] to have guns. That would be a calm, thoughtful, productive discussion, which we never have had as a country in my lifetime and which would be nice to have.

Nick Capodice: This [00:46:00] episode was written and produced by me Nick Capodice with Hannah McCarthy. Christina Phillips is her senior producer and Rebecca LaVoy, our executive producer. Music. In this episode by Frances Wells, Peter Sandberg, Otto Hacker, Apollo. Site of wonders Damma beats. Peerless Golden age radio. Major tweaks Fabian tell pictures of a floating world. I love using [00:46:30] that song. Cooper Canal blue Dot sessions, those tried and true war horses and the man, the myth, the legend Chris Zabriskie. Civics 101 is a production of NPR, New Hampshire Public Radio.

Made possible in part by the Corporation for Public Broadcasting.

Today we break down flags that have been in the news; from variations on the American flag to revolutionary flags like the Gadsden Flag and the "Appeal to Heaven" pine tree flag.

These flags do not change in their design, but the meaning of these flags certainly does change.

For more flaggery, click here to hear our show about the history of the American flag and SCOTUS cases surrounding it, and click here to learn about why Nick thinks the NH flag is so terrible.

BONUS: Check out Hannah and Nick on NPR’s It’s Been a Minute - Conservatives want to burn flags too!

Listen:

Transcript

Archive: That girl. You can't claim us. We live here. 500 million of us. Do you have a flag?

Archive: This morning, Supreme Court Justice Samuel Alito is under fire. The New York Times obtaining this photo of an American flag flying upside down.

Archive: A new report of a flag flying outside his new Jersey beach house, according to the New York Times, the so-called appeal to Heaven flag, the.

Archive: Upside down flag was a symbol associated with former President Trump's false claims of election fraud. Going forward.

Archive: It is possible that that flag, Don't Tread on Me could be outlawed in the workplace.

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 flags.

Hannah McCarthy: You do love talking about flags.

Nick Capodice: Nick I do. I am indeed a fan of vexillology. Hannah. That is the study of flags. And we could go on and on about the standard 50-star American flag that bedeck our nation. But we've got to drop some links first.

Hannah McCarthy: Yeah. So one of the very first things that Nick and I did together was an episode on the history of the United States flag and the Supreme Court cases about saluting it, not saluting it, burning it, etc. and we will put a link to that episode in the show notes short version of that story. Betsy Ross maybe didn't create it, and you do have a constitutional right to burn it.

Nick Capodice: And while we're playing our Golden Flag oldies, I just got to mention many years ago I did a piece on the New Hampshire state flag and why I feel it's just so terrible. Spoiler alert it's what's referred to as a seal on a bedsheet flag, and it's the only state flag with a location no longer in the state. It's depicting.

Hannah McCarthy: Uh, in real quick. I do feel like we should say, you know, on the terribleness of a flag. While you might personally, subjectively find any flag perfectly great, just wonderful as a thing, a flag serves a purpose beyond just decoration. And vexillology does assess flags.

Nick Capodice: Yeah. NAVA. The North American Vexillological Association ranked New Hampshire's flag 63rd place out of the 72 state and territory flags on the continent of North America. There's a link to that episode also down there in the show notes, just in case you can't get enough flag.

Hannah McCarthy: So we're not talking about, you know, the known standard US flag. And we are also not talking about state flags. So what are we talking about today?

Nick Capodice: We are talking about variations on the US flag and symbolic flags, flags that have been in the news lately. These are flags with historical political significance and American past and present. Specifically, we're talking about flags whose meanings have changed in the course of our history. Now, I'm not going to be talking about recent flags that were created for civil rights and social movements, like th e myriad varieties of pride flags, Black Lives Matter flags, thin blue, green slash, red line flags, etc..

Hannah McCarthy: Another day.

Nick Capodice: Another day, and another flag I'm not going to get into. Today is quite possibly the most controversial flag in the country. Robert E Lee's battle flag. That is what is referred to now just as the Confederate flag.

Hannah McCarthy: And you're not going to talk about that one.

Nick Capodice: I am not. That flag has a lot of scholarship and sensitivities around it, and it deserves a fully researched episode all of its own. So back to the flags we are going to talk about. Many of our listeners have probably already guessed why we're doing an episode about this right now.

Hannah McCarthy: Yep.

Archive: Now, since the news broke, several legal scholars have been questioning whether Alito showed bias here and damaged his credibility. Of course, even the perception of a conflict of interest could be problematic and undermine faith in the courts.

Nick Capodice: Have you been following this story?

Hannah McCarthy: I have a little bit.

Nick Capodice: Do you want to fill everyone in in case they're not familiar with it? Yeah.

Hannah McCarthy: Uh, happily so. In May of 2024, Supreme Court Justice Samuel Alito did not recuse himself from two separate cases tied to the attack on the Capitol on January 6th. Recusing yourself as a justice or a judge means taking yourself out of the equation in a court case. So you would not sit as a justice or a judge, hear the arguments and issue your opinion or your ruling. And this happens when someone may have had experiences or has connections that could potentially prevent them from being objective when it comes to the subject of a case. So Samuel Alito was asked by several Democrats in the House and the Senate to recuse himself due to evidence that two controversial flags flew at his residences an upside-down American flag during the week of President Biden's inauguration, and a, quote unquote, appeal to heaven flag that flew for an undetermined period of time. Yeah.

Nick Capodice: And I'm going to talk more about the Justice Alito story and both of those flags a little bit later. But just to get started, just to prime the engine a little bit, let's start this journey with some variations on Old Glory itself.

Hannah McCarthy: I know that song. That's your grand old flag.

Nick Capodice: That's it, written by that Yankee Doodle Dandy himself, George M Cohan. That is the first song from a musical, Hannah, to sell over a million copies of sheet music. Wow. George M Cohan was apparently visiting Gettysburg, and there was a Civil War vet standing next to him with a folded flag, and the veteran said, she's a grand. The old rag, ain't she?

Hannah McCarthy: Oh, grand old rag. You know, that's that's charming and a very special way. It's, like, very personal. He should have used that in the song instead.

Nick Capodice: Well, he tried to, but a horde of people and organizations objected to him calling it a rag, even a grand old one. So he changed it.

Hannah McCarthy: I mean, it was a song for the people, right? You got to give them what they want.

Nick Capodice: You know, it's funny. That's exactly what he said, Hannah.

Hannah McCarthy: Oh, there you go.

Nick Capodice: The first flag I want to talk about today is the 13 star, 13 stripe American flag.

Hannah McCarthy: This is our first flag. Yes?

Nick Capodice: Some people call it our second because there was a flag from 1775 called the Colonial colors that had the 13 stripes. And instead of stars, a Union Jack in the canton. The canton, by the way, is the square on the upper left side of the flag. But the 13 stars and 13 stripes is our official first flag.

Hannah McCarthy: I still can't get over that fun little fact that they initially planned to add a new star and a new stripe for each new state.

Nick Capodice: Can you even imagine 50 stars and 50 stripes?

Hannah McCarthy: So is there some deal with the 13 star flag these days?

Nick Capodice: Yeah, so this is often called the Betsy Ross flag. It's fairly common to see it in the United States. And you're going to hear this refrain a lot today. It has since in different times, in different years, been tied to white supremacist groups.

Archive: We've been talking this morning about Nike after the company pulled its sneakers with the Betsy Ross American flag following complaints from Colin Kaepernick, of course, sponsored by Nike. And now Dom Shoe has some new details and developments on the story that have just happened this morning. Dom.

Archive: It is. It was only a matter of time, Andrew, right before it got political and now it's getting political.

Nick Capodice: In 2019, Nike was planning to release a new sneaker, the air Max. One quick strike. They were going to release it on the 4th of July and they had the Betsy Ross flag upon it. Former NFL star Colin Kaepernick publicly expressed his displeasure that Nike was releasing a shoe with a flag from an era of slavery.

Hannah McCarthy: So how is it that this flag came to be associated with white supremacist groups? Is it because it is from an era of enslavement?

Nick Capodice: Yeah, this is sort of a gray area. Hannah, one of the first of many. Today, the Betsy Ross flag has been flown by the Ku Klux Klan. It's been flown by the modern day militia movement, and it was flown by insurrectionists on January 6th. At the same time, according to the Anti-Defamation League, if we had like a scale of offensive modern day symbolism of flags, this Betsy Ross flag would rank on the lower side, one of their researchers said, quote, we view it as essentially an innocuous historical flag. It's not a thing in the white supremacist movement, end quote. And while we're at it now, is as good a time as any to get a great big wanging qualifier out here. Hannah. You, your friends or your neighbors might fly some of these flags for your own personal reasons. And as an American citizen, you can. You have a right to fly any flag that you want, maybe a flag you love. And that means something to you got tied up with the movement that you don't agree with. All I'm saying today is that the symbolism attached to a flag is not static. It develops, it changes, and sometimes you don't have any control over that.

Hannah McCarthy: So back to the Stars and Stripes. When do new stars get added to our flag?

Nick Capodice: On the next 4th of July, after a state is admitted to the Union. A new star is added. In the case of multiple states being added over the course of a year, which has happened a few times. A new star was added for each new state. We have had 27 variations so far, not counting Grampa Simpson's 49 Star Flag.

Archive: I'll be deep in the cold, cold ground before I'd recognize Missouri.

Hannah McCarthy: Something that always really got me when I saw a flag in the wild was one of those variations, Nick. There was this house that I always walked by that had a flag with 33 stars in a diamond pattern. And I looked it up, and apparently it was the Fort Sumter flag. Do you know why a house in New England would be flying that flag?

Nick Capodice: That was the flag that was knocked down when the Confederate Army attacked Fort Sumter. One article about the Fort Sumter flag read, quote, it was said that when the Stars and Stripes went down at Sumter, it went up in every loyal town and county in the States. Every window shutter is tied with red, white and blue. Even dogs are wrapped up in the Star Spangled Banner. The demand for flags is so great that manufacturers cannot supply them fast enough.

Hannah McCarthy: But do you know why, Nick? Why a house in New Hampshire would be flying that flag in 2024?

Nick Capodice: I honestly don't know. The only way to know for sure is to knock on their door and ask.

Hannah McCarthy: I do always wonder. I wonder if that could ever be interpreted as an invitation to come knock on the door and be like, hey, what's that flag about?

Nick Capodice: I think it is. I think a flag is a statement, and it's like an invitation to have somebody ask you what it's about.

Hannah McCarthy: Yeah, well we're journalists. Okay. Last American flag variation before we move on to other flags, can we talk about the history of inverting it?

Nick Capodice: You want to go into the Upside Down? I think we should. All right. In January of 2021, the month of President Biden's inauguration, an upside-down flag was flown at the home of Supreme Court Justice Samuel Alito.

Hannah McCarthy: A flag was flown is what we in the world of letters call passive voice, Nick.

Nick Capodice: I have been guilty of slipping into passive voice. Hannah, but this time it's on purpose. It's actively passive. Justice Alito has given several conflicting explanations as to why and when and how this flag flew, but the one commonality is that it was not he but his wife, Martha Ann Alito, that was responsible. And when members of Congress asked Alito to recuse himself from the upcoming insurrection cases, he refused, saying, quote, my wife is fond of flying flags.

Hannah McCarthy: So putting this particular interpersonal incident aside, what is the story of the inverted flag itself?

Nick Capodice: Well, it all goes back to the code. The US flag code. On Flag Day, June 14th, 1923, the National Flag Code was created. It became public law in 1942. And this code says what you can and you can't do with the US flag. And it has violated thousands of times every single day.

Hannah McCarthy: Every single day.

Nick Capodice: Every single day. For example, Hannah, the code prohibits wearing of the flag, having it on clothing or bedding, dipping it to anybody or anything. And my personal favorite, it should quote never be used for advertising purposes in any manner whatsoever.

Hannah McCarthy: Oh come on, that would put every store out of business.

Nick Capodice: Every car dealership would be in trouble. And finally, back to the code. The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property. And this upside down usage goes way back hundreds of years. Sailors would fly upside down flags to say they were sinking or they were under attack.

Hannah McCarthy: It seems to me that the upside down flag shifted from military distress to political or social commentary pretty quickly. I mean, I have seen footage of Vietnam War protesters flying it, Iraq War protesters too, and tied to Alito. Again, abortion rights advocates all over the country hung the flag upside down in the wake of the Dobbs decision that overturned Roe v Wade. I think a lot of people, Nick, would also say that, you know, if this is a flag to show distress when it comes to life or property. In all of these cases, these individuals are flying a flag in relation to distress over life or property.

Nick Capodice: Yeah, than is a very good point. Some other recent examples here. It was flown at so-called Stop the Steal protests by people refusing to accept the will of the voters in 2020. And just this month, when Donald Trump was found guilty of 34 felony charges, conservative Member of Congress Marjorie Taylor Greene and conservative organization the Heritage Foundation tweeted pictures of an upside down flag. We've got to take a quick break, but when we come back, we're going to get into a few more flags, from rattlesnakes to pine trees.

Hannah McCarthy: But before that break, I am just going to flag that Civics 101 relies on listener support to operate. And if you are hearing these words, well, that's you. If you are so inclined, consider making a gift to our show at our website, civics101podcast.org. And thank you. We're back. We're talking flags here on Civics 101 and Nick. You promised me snakes and pine trees.

Nick Capodice: I did indeed.

Nick Capodice: Which of those do you want to do first?

Hannah McCarthy: Let's do trees, because I'm fairly sure a tree flag is also tied to Justice Alito. And I think we should just get that out of the way.

Nick Capodice: You got it. The next flag. An appeal to heaven. So what is called the appeal to heaven flag has those words. And a lone, tall green pine tree on a white background. This flag has a fascinating history involving something called the Pine Tree Riot, which I'm going to tell you about before I get to how it was adopted by the far right and Christian nationalists in particular. So here we go. Pine Tree Riot, 1772. Pine Tree Riot. Throw back a flagon of ale and you know about the British using trees from New England to make their tall, tall ships. Right.

Hannah McCarthy: Uh do I ever. I believe that I told you this story, Nick. England's greatest strength was their navy. And they ran out of trees and the forests of Maine, Massachusetts and New Hampshire. Well, they had a lot of trees.

Nick Capodice: They sure did. They had a lot of tall, tall trees. And England wanted all of them. So they sent surveyors of the King's Woods to go about the colonies and mark any tree with a 12 inch or greater circumference, with a symbol that is known as the broad arrow. That tree is now the property of the king, and you would get heavily fined if you cut down one of those trees yourself to, you know, build something.

Hannah McCarthy: I can imagine this was pretty unpopular with the people of the colonies, extremely unpopular.

Nick Capodice: There were lots of small demonstrations about this law in the early 1700s, but the big one came in 1772, when a surveyor found a bunch of cut down trees with that mark on them in a sawmill in Ware, New Hampshire. The mill owners refused to pay the fine, and the sheriff, Benjamin Whiting, came to arrest them. The night that Whiting arrived, a group of 30 men covered their faces in soot. To disguise themselves. They sneaked into his tavern, maimed the faces of his horses, broke into his room, and beat him with tree branches. One lash for every tree in question. And I tell you this whole long story, Hannah, because this act of direct rebellion against the British, this was before the Boston Tea Party and quite possibly a contributor to its inspiration. Later, during the revolution, two warships launched from the Charles River, and they had this flag with the green pine tree and those words an appeal to heaven. Those words come from John Locke, his second treatise on government. The line is, quote, where the body of the people, or any single man is deprived of their right, or is under the exercise of power without a right, and have no appeal on earth, then they have a liberty to appeal to heaven. This flag has hung in a lot of different collections around the country. Notably, it flew in San Francisco. It was put up in the 1960s and it was taken down just last week.

Hannah McCarthy: Did they take it down after the Alito story broke?

Nick Capodice: They did. The San Francisco Parks Department said that they had this flag in the first place because it was a historical revolutionary flag. But, quote, it has since been adopted by a different group, one that doesn't represent the city's values. So we made the decision to swap it out with the American flag, end quote.

Hannah McCarthy: Okay, so you said that this flag has since become tied to Christian nationalism, originally an anti-British pine tree flag. How did that adoption happen?

Nick Capodice: It was a gradual development. It started in the late aughts, 2009, with the birth of the Tea Party movement.

Hannah McCarthy: Okay, and the Tea Party movement. That is indeed in reference to the Boston Tea Party. A big part of this movement is revolution. And this was a revolutionary flag. Except this new Tea Party wasn't against unjust governance by a body across the ocean. It was against, you know, quote unquote, big government here in the United States under the leadership of President Barack Obama, the first Black president of this country.

Nick Capodice: And then in 2015, this flag got a big boost thanks to a Christian author and pastor named Dutch Sheets.

Archive: When it looks like there is no way, what do you do? You believe when you're a Valley forge and it looks like it's all over, what do you do? You appeal to heaven.

Nick Capodice: Dutch Sheets is a leader in a movement called the New Apostolic Reformation. This movement openly advocates for Christian dominion over all. It is the fastest growing Christian group in the country, with an estimated 33 million adherents, including Congresswoman Marjorie Taylor Greene and Lauren Boebert, and Speaker of the House Mike Johnson, who has an appeal to Heaven flag hanging right outside his office.

Archive: The appeal to Heaven flag is a critical, important part of American history. It's it's something that I've always revered since I've been a young man. I had people misuse our symbols all the time. It doesn't mean we don't use the symbols anymore.

Nick Capodice: I want to get back to this pastor. Dutch Sheets. Sheets did a nationwide tour in 2015 named the appeal to Heaven tour, and I've seen videos of his speeches. He holds the flag up in front of him. This tour was given in direct response to the Supreme Court's findings in Obergefell v Hodges, the marriage equality case. It was also in response to myriad abortion cases all across the country. Sheets said, quote, it is not settled law until God says it's settled law and we're going to change these things. There's got to be a hope that comes if we appeal to heaven.

Archive: If when they planted that cross on the beach there at Plymouth Rock and dedicated this nation to God, wrote that covenant agreement, the Mayflower Compact and dedicated this soil to the furthering of the gospel. If God was really in that covenant and he was really behind this, maybe, just maybe, if he's in it, we're going to win.

Hannah McCarthy: This flag also grew to be associated with Donald Trump, right? Yes. Okay. So then if I have to guess, it also became associated with the stop the Steal movement, because I know that it was flown at the insurrection on January 6th, which is why it's such a big deal that it was flown at the home of a Supreme Court justice.

Nick Capodice: Yeah, I think you can still see it on Google Street View, by the way. All right, Hannah, one more flag before we respectfully fold this episode up and put it in the fire. We're going to round it out today with a timber rattlesnake and four famous words "don't tread on me."

Hannah McCarthy: Quick reminder to our listeners. Civics 101 is produced by New Hampshire Public Radio, and you do see this flag quite a lot in New Hampshire.

Nick Capodice: You sure do. Bumper stickers, houses. It's all over the place, and we're going to get to why in a second. This bright yellow flag is known as the Gadsden flag.

Hannah McCarthy: Am I wrong? Is is Benjamin Franklin tied to this somehow?

Nick Capodice: Yeah. Whenever an American animal metaphor happens, Ben F shows up. The snake, the pigeon, the turkey.

Speaker14: The turkey.

Speaker15: The turkey is the truly noble bird.

Nick Capodice: Ben Franklin is all over this one, starting with a satirical letter in the Pennsylvania Gazette that he wrote, Britain was sending convicted felons to the colonies, and Franklin suggested in return he would mail them a crate of rattlesnakes in a more serious vein, in 1754 he published what we now call the rattlesnake cartoon.

Hannah McCarthy: Oh, I have seen this cartoon. It's the rattlesnake chopped into several pieces, each piece being one of the seven colonies with the words join or die below. Basically, the colonies have to stop just looking out for themselves and unite against common enemies.

Nick Capodice: That's the one. What I didn't know was that this was the very first political cartoon published in an American newspaper. Really? Yeah. Christopher Gadsden was a member of the Continental Congress from South Carolina. He was an enslaver. He constructed Gadsden's Wharf in Charleston. That's the war for an estimated 40% of enslaved people were brought to the United States. In 1775. He commissioned the design of the flag that we know today the Gadsden flag, the Don't Tread on Me flag. The snake faces left, and it has 13 rattles on its tail, representing the 13 colonies.

Hannah McCarthy: All right, so what ends up happening with the Gadsden flag?

Nick Capodice: A lot happens. We're going to jump ahead to the 1970s, when the Gadsden flag was adopted by the Libertarian Party.

Archive: Should someone have to have a government-issued license to drive a car?

Archive: Hell no.

Archive: What's next? Requiring a license to make toast in your own damn toaster?

Nick Capodice: The Libertarian Party believes in very limited government. That clip, by the way, was from the libertarian presidential debates in 2016. So the Don't Tread on Me represents an individual's rights instead of the nation's unified strength. In New Hampshire, something called the Free State Project, they use this flag, and sometimes they use a porcupine instead of a rattler.

Hannah McCarthy: For those who are not familiar, the Free State Project is a movement encouraging 20,000 libertarians to relocate to New Hampshire and from there secede from the union based on a provision that some people think that they are misinterpreting. Up to this point, New Hampshire has not seceded from the Union. You probably would have heard about it, but the state has become a magnet for libertarians who now play a fairly large role in the New Hampshire state government and to some extent shaped the culture.

Nick Capodice: And just like the appeal to Heaven flag, the Gadsden flag became part of the anti-establishment symbolism of the Tea Party in 2009 2010, and this flag is far more prevalent than the pine tree flag in American culture and debate. In 2014, a couple murdered two police officers in Las Vegas, and they covered one of the dead bodies of the officers with the Gadsden flag. It was flown at many protests in the wake of the 2020 election. And yes, it was flown both inside and outside the Capitol building during the January 6th attacks.

Hannah McCarthy: So we talk about the First Amendment a lot on this show. We talk about the First Amendment a lot in this country. Uh, but this is making me specifically think of a student's right to freedom of expression at school. I'm remembering some time last year that this flag in particular was a part of a student speech controversy.

Nick Capodice: It was in August 2023, a seventh grader in Colorado Springs was removed from school due to his refusal to remove patches sewn onto his backpack. There were a half a dozen featuring semiautomatic weapons, and another one being the Don't Tread on Me flag.

Archive: This situation got a ton of attention online a few months ago. Now that's seventh grader Jayden Rodriguez is suing, saying the school is infringing on his right to free speech.

Nick Capodice: This caused a national uproar. Members of Congress denounced the school's actions. The Democratic governor of Colorado stepped in himself to say, this flag had a long and storied history, and the student was allowed to keep the patch on his bag.

Archive: For the boy's mother. Her recording was seen by millions of people on social media, which struck a nerve with a nation. In an ongoing conversation over how some of America's more controversial history should be taught or portrayed.

Hannah McCarthy: So what's really interesting to me about all of this is that you've got these images on cloth, right? That image does not change, but its meaning does. Flags are symbols, but symbols of what? That's up to you, right? Symbols are a graphic language, and language means different things in different contexts. And so it really becomes about, well, what movement is flying the flag to represent that right. To represent distress, to represent revolutionary spirit, to represent I am being tread upon. And it's really the person who is holding it up. And the movement that they are from that brings this association upon this symbol. So there's there's symbolism and then there's association and they're two very different things.

Nick Capodice: Yeah. And one thing I found really interesting when sort of researching the flags for this episode is times that movements do change the symbol like they do alter the graphic language specifically with the Gadsden flag. Uh, abortion rights activists have flown a version of the Don't Tread on Me flag, where the rattlesnake is coiled into the shape of a uterus. And in the 1990s, a queer self-defense group in San Francisco. They put the snake on top of a rainbow flag.

Hannah McCarthy: I think also this makes me think, Nick, that you know, the long history of these flags and the fact that every American has the right to fly these flags, uh, it means that these flags can be a very out loud, very public symbol and at the same time be a kind of secret handshake. Right? It's all about your own context. If you're in the know, if you see a flag that you know means something because your own community is saying that, it means that then you know that that person is flying it to say, I'm with you. It's really it's all about the context. It's all about, you know, how this flag language is used.

Nick Capodice: How do you want to end this one, Hannah?

Hannah McCarthy: How do you want to end it? It's your episode.

Nick Capodice: Well, I didn't go into the Pride flag in this episode because it didn't sort of fit with the theme. But, you know, I did write it in June, so I guess happy Pride month.

Hannah McCarthy: Yeah, happy Pride babies.

All right. Cool.

Nick Capodice: That's all the flags I'm going to wave today. This episode is made by me. Nick Capodice with you. Hannah McCarthy. Thank you. Our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music in this episode by Bijou broke for free. Lennon, Hutton. Apollo, Francis. Wells, Diana. Oates. Starlight. Fabian. Tell. Howard, Harper. Barnes, Ben. Elson, twin Musicom, Kevin McCloud, maiden, Blue Dot Sessions, Joe Calling, and Chris Zabriskie. Civics 101 is a production of NHPR New Hampshire Public Radio.

This is the story of what happens (and what's happening) when the American workforce tries to get a seat at the table. Our guides to strikes, unions and the labor movement are Kim Kelly, journalist and author of Fight Like Hell: The Untold History of American Labor, Eric Loomis professor of History at the University of Rhode Island and author of A History of America in Ten Strikes and our friend Andrew Swan, an 8th Grade Social Studies teacher in Newton, MA among many other things.

Transcript

Hannah McCarthy: [00:00:02] Nick, there's a certain film that I did not encounter till much too late in life. Largely, I believe, because Disney films of all kinds, live action and animated alike, simply struggled to thrive in the McCarthy house, with two significant exceptions.

Nick Capodice: [00:00:19] All right, I have a handful of questions here, but what are those exceptions?

Hannah McCarthy: [00:00:24] 101 Dalmatians. The primary reason I thought that Scotland Yard was a farm until I [00:00:30] was a grown adult, and Robinhood, the primary reason my first ever crush was on an animated fox.

Nick Capodice: [00:00:36] Oo de lally. Golly, what an admission. Hanna, we're just going to. Let's just leave that right there.

Hannah McCarthy: [00:00:42] But the movie I'm talking about. Which, given my outsized love for musical theater and newspapers, surely would have been in regular rotation, is Newsies.

Newsies: [00:00:56] If we don't show papes, then nobody sells papes.

Nick Capodice: [00:00:59] Oh, [00:01:00] we are in the same boat on that one, McCarthy. But once I found it, it sure found me.

Hannah McCarthy: [00:01:05] Now you really can make a musical about anything and everything.

Nick Capodice: [00:01:10] Chess, for example.

Chess: The Musical: [00:01:12] One town's very like another when your head's down over your pieces, brother.

Hannah McCarthy: [00:01:17] I was once in a musical called Urinetown. Not you are in town, but urine like pee.

[00:01:24] I run the only toilet in this part of town, you see. So if you gotta.

Urinetown: [00:01:29] Go, [00:01:30] you got to go through me.

Nick Capodice: [00:01:32] Billy the Kid and the green baize vampire. What's that? Uh, it's mostly about snooker. Kind of like Margaret Thatcher, too, but. Yeah, snooker.

Billy the Kid and the Green Baize Vampire: [00:01:44] Billy the Kid and the green baize vampire.

Hannah McCarthy: [00:01:50] All right, but, Newsies, it is about a strike.

Newsies: [00:01:54] Just because we only make pennies. Don't give nobody the right to rub our noses [00:02:00] in it.

Eric Loomis: [00:02:00] It doesn't matter. You can't just strike.

[00:02:04]

Hannah McCarthy: [00:02:05] Specifically, it is about a bunch of kids newsboys in New York City in 1899, who were essentially protesting the cost of a bundle of papers.

Nick Capodice: [00:02:14] And this really happened, right?

Hannah McCarthy: [00:02:16] It really did. The Newsboys strike was a real thing. William Randolph Hearst and Joseph Pulitzer never heard of him. They were news magnates who started charging newsboys an extra $0.10 to buy a bundle of 100 papers. [00:02:30]

Newsies: [00:02:30] Do we roll over and let Pulitzer pick our pockets?

Hannah McCarthy: [00:02:33] But the cost to the reader, like the cost to buy a single paper from these kids, was only $0.01. It had been before and after the price hike. So these boys, who were mostly from immigrant families with very little income, were bringing home less cash. So they went on strike. Strike. It is a whole thing. Watch the movie, go see the show, read a book. But circulation plummeted.

Nick Capodice: [00:02:58] Headlines don't sell papers. Mccarthy. [00:03:00] Newsies sell papers.

Newsies: [00:03:01] They can't just change the rules when they feel like it. No, we do the work.

Newsies: [00:03:05] So we get a say.

Hannah McCarthy: [00:03:10] Uh. But, Nick. As you might remember, this strike did not end in a perfect victory.

Nick Capodice: [00:03:21] Oh, yeah. The kids wanted the price of the bundles lowered, and Hearst and Pulitzer were like, uh, no, no, we're basically American royalty, [00:03:30] and we do what we want.

Hannah McCarthy: [00:03:31] Yeah. The strike ended. Instead, in a compromise, a bundle of 100 papers would remain at $0.60. But if the boys had any papers left at the end of the day, the news outlets would buy them back. And here's why I bring this up. This strike, though flashy, sometimes violent, publicly effective, painful for the news magnates [00:04:00] and interesting enough to warrant a Disney musical starring Christian Bale did not succeed the way it was intended. And that, my friend, is something I want you to keep in mind in today's episode when it gets to the point of employee versus employer, success is a relative term. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:04:25] I'm Nick Capodice.

Hannah McCarthy: [00:04:25] And today we're talking strikes.

Nick Capodice: [00:04:34] All [00:04:30] right, Hannah, we got to fess up here. We did not come up with this episode. Our beloved friend did.

Hannah McCarthy: [00:04:42] Sing us in Swan.

Andrew Swan: [00:04:46] My name is Andrew Swan. I'm an eighth grade social studies teacher in Newton, Massachusetts. And, uh, this winter we had a kind of an epic sort of event. And I thought, you know what? This is a civics thing. Found out and [00:05:00] and nixed numbers and let them know, hey, we're in the middle of a big, uh, teacher strike here in, in Newton. And, uh, I don't know, you want to do an episode about it.

Hannah McCarthy: [00:05:08] Leave it to a teacher to turn his own strike into a teachable civics moment. Which, by the way, Andrew is already doing for his students.

Andrew Swan: [00:05:15] I can feast on this for years. Sometimes it's a struggle just to make government seem relevant for students. And I've got years of eighth graders who are going to be coming up where I can say, hey, remember that strike, remember what that was like? Yeah, that's [00:05:30] about civics. That's about budget. That's about laws. That's about people getting elected. Uh, that's about people who aren't even elected.

Hannah McCarthy: [00:05:38] Okay. So when Andrew says a big teacher strike, he means a big teacher strike.

News Archival: [00:05:45] Students in Newton were home from school for the fifth day as their teachers strike for higher pay and better working conditions. This strike is one of the longest of its kind in recent Massachusetts history. Picketing outside the statehouse this morning, teachers argued.

Hannah McCarthy: [00:05:59] So [00:06:00] I already told you that a successful strike is not necessarily, or often a big victory. We'll get into that more later. For now, there's another big, important thing to remember about strikes. It's a.

Andrew Swan: [00:06:13] Mess. Someone told me a strike is supposed to hurt, and that makes some sense to me now. A strike does hurt.

Nick Capodice: [00:06:21] Yeah. You know, this is something major that came out of our conversation with Andrew when he says a strike hurts. I really think he means [00:06:30] everybody. A strike is not something that most people actively want. It is an act of last resort.

Andrew Swan: [00:06:38] This community will not be the same. For a long time it was basically pushing the big red button. It was the nuclear option. And so it took so long for unions to even, like, discuss it. I've been working here for 20 something years. It's been the strike word's been thrown around before, but we never got really even close.

Hannah McCarthy: [00:06:56] We're going to hear from Andrew throughout this episode, but let's [00:07:00] stick with this idea, this act of last resort idea for a moment, because I'm just realizing that we actually haven't said what a strike is. So I'm going to introduce another guest.

Kim Kelly: [00:07:11] So the strike is is kind of the, uh, the nuclear option in a way. Nobody, nobody wants to go on strike.

Hannah McCarthy: [00:07:19] This is Kim Kelly.

Kim Kelly: [00:07:20] I'm a journalist and author based in Philadelphia. I am a labor reporter first and foremost. And my most recent [00:07:30] book, well, my first book, Fight Like Hell The Untold History of American Labor, uh, just came out in paperback this past summer.

Nick Capodice: [00:07:38] Okay. And judging from the name of the book, Kim is pro labor movement, right?

Hannah McCarthy: [00:07:43] She sure is. And we'll talk more about that point of view in just a moment. But we have to define strikes first.

Kim Kelly: [00:07:51] A strike is when a group of workers decide to collectively withhold their labor. And the less nerdy way of saying that is essentially, [00:08:00] folks don't go into work that day or the next day or until their demands, usually in the context of a union contract, are met.

News Archival: [00:08:13] For the first time ever, letter carriers went on strike.

News Archival: [00:08:16] We cannot take it any longer. Either they give us what we should have, or we will stay out on strike until hell freezes over all the way. For the next few days.

News Archival: [00:08:26] We'll be carrying picket signs. If they want to put me in jail, [00:08:30] put me in jail. But they haven't got a jail big enough to put all of us in.

Kim Kelly: [00:08:39] You know, you hit the bricks. Take this job and shove it. Not working here no more.

Nick Capodice: [00:08:43] I want to ask. Kim says that a strike usually happens in the context of a union. Does that mean you don't have to have a union in order to strike?

Kim Kelly: [00:08:53] So you don't have to be part of a union to go on strike? That's the most typical format we see, [00:09:00] because there are specific legal protections that unionized workers do have. It's called protected concerted activity. If you go on strike as a part of, uh, your union's negotiation process for your union contract, you can't be fired. You can't, you know, face retaliation for that legally. That's not to say it doesn't happen, but if you're in a group of your coworkers who aren't unionized, still have a reason to strike, you have some demands that aren't being met. Your workplace is unsafe. [00:09:30] Uh, there is an incident that wasn't addressed properly. You can still walk out. It just might be a little riskier because you don't have the same legal protections that unionized workers do.

Hannah McCarthy: [00:09:40] So let's start with the big picture labor law. People in the United States have been fighting for better conditions, better pay, etc. for a long, long time. But real serious labor laws did not come into play in the US until really the 1930s. Fdr was president, Americans were getting [00:10:00] a new deal, and bam, here comes Social Security, minimum wage, overtime, child labor laws, the weekend. A lot of that came from the 1938 Fair Labor Standards Act. But for the purposes of this episode, we want to focus on the National Labor Relations Act. That's 1935. That was the one that gave us protected concerted activity.

Nick Capodice: [00:10:27] And that is what Kim mentioned earlier. The law that means [00:10:30] you can't be fired or retaliated against. Right.

Hannah McCarthy: [00:10:33] And the no retaliation thing that didn't exactly take immediately. I'm going to get into that. I do just want to mention, though, Kim said, that a strike is when you withhold your labor and the Nlra, the National Labor Relations Act protects that. It calls it the right to strike, but it also restricts that, right?

Nick Capodice: [00:10:54] As in like you can strike but you can't, I don't know, destroy [00:11:00] all the hats in the hat factory.

Hannah McCarthy: [00:11:02] That is actually a perfect example. Violence and or destruction are not lawful forms of strike. They make a strike unprotected, meaning you can be fired. You can be retaliated against. Other things that make a strike unlawful, preventing people from entering or leaving a workplace or staging a sit down, a sit down. You show up to work and you just sit there not [00:11:30] working. Anything that deprives your employer of their property in some way and their business is their property. The Supreme Court decided that is not a protected strike. There's also something called a sick out. Tons of people call in sick and a slow down. You do your job, you just do it really slowly. Slow downs are not protected by the Nlra. Sick outs are a little more complicated, but lots of states do prohibit [00:12:00] them. Uh, other things you go on strike to try to force your employer to stop doing business with some other employer. That would be unlawful. And then, um, one big thing, you or your employer can put a no strike provision in your union contract that would make certain strikes, but not all strikes unlawful.

Nick Capodice: [00:12:22] Wait, but why would anybody agree to that?

Hannah McCarthy: [00:12:25] Oh. All right, well, for one thing, it is a standard [00:12:30] clause. In fact, the Nlra requires that unions discuss this no strike provision during contract negotiations. So sometimes what ends up happening is that there is a no strike clause, but it's got caveats like, okay, we won't strike unless x, Y or Z. Um, but to really answer your question, why would anyone agree with that? Ending a negotiation, getting to a contract? It [00:13:00] is difficult. It is time consuming and it is the goal. So concessions do happen a lot.

Nick Capodice: [00:13:09] Okay, so you have a right to strike, but if you want to do it with guaranteed legal protection, it's actually a very narrow thing.

Hannah McCarthy: [00:13:19] That said, and this is a big one, the Nlra does leave one door wide open. If your workplace has really dangerous conditions [00:13:30] or is engaging in labor practices that are super unfair or in violation of your contract, you can have a protected strike. Even if you have, you know, a no strike clause.

Nick Capodice: [00:13:40] That one does feel pretty significant.

Hannah McCarthy: [00:13:42] But Nick, here's the big kicker illegal strikes still happen and I'm not going to bury the lead. The Newton teacher's strike Andrew Swan's union strike was one such strike. But I'm getting ahead of myself [00:14:00] because for a long time, pretty much all strikes were illegal.

Kim Kelly: [00:14:05] For very, very long time. Striking was just outright seen as an illegal activity. I mean, you would have, you know, strike breakers and cops showing up with a picket lines, and you'd have people, workers who were on strike, being arrested and thrown into jail or assaulted.

News Archival: [00:14:20] The industrial dispute has now reached an extremely serious position. The strikers, numbering over 4000 under cover of darkness, attacked the mills.

Kim Kelly: [00:14:27] Like it was. They could get pretty ugly.

News Archival: [00:14:30] The [00:14:30] authorities were eventually compelled to use firearms. The ambulance company of the Rhode Island National Guard set up a field hospital, which was quickly working to capacity. The Moshassuck Cemetery in the Central Falls saw some of the fiercest fighting.

Kim Kelly: [00:14:42] It really took so much organizing to get to a point where unions were even legal and strikes like having that protected concerted activity, uh, kind of that right enshrined. That was a really, really, really big deal. And it took a lot [00:15:00] of work to get there. It has nothing to do with the Constitution. It was centuries, lifetimes of struggle that got us to that point.

Nick Capodice: [00:15:07] Okay. Yes. Give me the history. How did we get to this idea of protection for workers who strike?

Hannah McCarthy: [00:15:14] I'm going to bring in our third guest here.

Eric Loomis: [00:15:16] Well, you begin to see strikes in the 1830s there smaller ones before that. But the first strikes, they're really matter in some ways in American history are in the 1830s.

Hannah McCarthy: [00:15:25] This is Eric Loomis.

Eric Loomis: [00:15:27] History professor at the University of Rhode Island and the [00:15:30] author of A History of America in Ten Strikes.

Hannah McCarthy: [00:15:32] I want to take a moment right now to flag that over the course of the interviews that I did for this episode, I talked to people who have a perspective about the labor movement. Both Kim and Eric have their own versions of that, so I asked Eric outright what he thought about that, given the fact that being pro-labor or pro-union is seen as a Partizan stance, and listeners to this show would hear partizanship in that perspective. [00:16:00]

Eric Loomis: [00:16:00] Well, uh, that's a great question. I mean, I think that, uh, certainly labor historians are quite likely to be on the side of the labor movement. Right? They want to see the labor movement succeed. And, um, I mean, look like we all get interested in what we study based on our personal life experiences. And I don't really see any way to completely avoid some kind of political perspective, because even if you take the position on whatever it is that you talk about or work on that you know, I stay out of the politics and I just, you know, talk [00:16:30] about things as they are or whatever that is implicitly an acceptance of the politics as they are.

Hannah McCarthy: [00:16:35] Eric did add that he is an historian, and he finds evidence of what happened and writes about it.

Eric Loomis: [00:16:42] You know, that's different than being a hack. Um, you know, I'm not creating histories that are just like, fulfill my personal political positions or, or anything like that. That would be bad. Um, but at the same time, I think that when we're talking about something like the labor movement, which is inherently seen as Partizan to talk about the labor movement [00:17:00] or to be a pro-union does not necessarily mean that you want to destroy capitalism or something like that. I mean, you know, in our society, whatever 1st May think of, of the system of capitalism, um, in our society, it is in the interest of workers to keep their jobs and keep their factory open because they need to get paid whatever.

Hannah McCarthy: [00:17:16] Way you cut it, though, the Pew Research Center says that 75% of Democrats view unions positively, and 61% of Republicans view unions negatively. Unions and strikes and the labor movement [00:17:30] are not exactly a cold button political issue. And I will take this opportunity to also disclose that Nick and I are both part of a union Sag-Aftra. Uh, and I disclose this because people do feel a certain way about workers unionizing and striking. It is a subject with strong partizan divides. So if you're listening to this and you're like, this sounds pro-union and that makes it political, I understand [00:18:00] why you see it that way. And Nick and I are just going to do our best to understand how it all works. And then I will talk a bit more about the politics later on. Okay. Moving on. This whole walking off the job thing, if you, like me, were once an eight year old girl in New England with a large collection of children's historical fiction novels, well, you already know where we're headed.

Eric Loomis: [00:18:24] Probably the first major labor movement that [00:18:30] really begins to, uh, gain attention is that of the Lowell Mill girls who were, uh, a bunch of mostly young women, uh, who are laboring in an experimental town called Lowell, Massachusetts, which was set up to kind of provide these young women with education. And they were recruiting young women who came off of farms and things like that, not some immigrants or some people at really struggling to survive and would take any wages. And because of this, you had this weird juxtaposition where you had, uh, women who had a [00:19:00] certain sense of cultural power, but at the same time that the working conditions were world. And so they begin to protest and they begin to form unions around this.

Hannah McCarthy: [00:19:07] So you can go and read Lyddie for the 17th time, or you can see if your mom finally threw away your Dear America collection, featuring the particularly dog eared, so far from home colon diary of Mary Driscoll, an Irish Mill Girl, Lowell, Massachusetts, 1847. Or you can take my word for it. The conditions were bad, and the girls made a big stink and got a bunch of press and. [00:19:30]

Eric Loomis: [00:19:33] And it it doesn't really succeed. And the Lowell experiment kind of fails in the face of massive competition from, uh, other factories who were happy to employ the most desperate workers at the lowest possible wages.

Nick Capodice: [00:19:46] You know, I don't really factor in their failure when I think of the Lowell mill strikes. There's such a, like, buzzword catchall for unions and striking. Yeah.

Hannah McCarthy: [00:19:58] And, you know, that's actually a [00:20:00] really good point because you're talking about the impact of the moment itself. You know, historically or in terms of, you know, the image of strikes or the power of the worker. And and when you look at the long arc of striking and labor movements in America, these Lowell Mill girls were an example of workers, young single women, very vulnerable workers taking a stand against someone in power. I should say they did kind of get [00:20:30] something out of it. You know, in addition to my devotional attention as a child.

Eric Loomis: [00:20:34] It does, for instance, force the state of Massachusetts to investigate the working conditions in the mills. And in about 1845, which for the time was, um, you know, remarkable. Okay.

Nick Capodice: [00:20:45] So I know we've got a long way to go till we get to the 1930s, but are there any real successes along the way?

Eric Loomis: [00:20:52] So probably 1865, um, in the steel industry, you have these guys [00:21:00] who were called Steel Puddlers, which are basically like dudes working with molten iron. You know, this is pretty dangerous work. And they're able to they're able to strike and win a union contract, uh, which is the first, like, real union contract in American history. It's not a big strike or a huge, huge thing at the time. Uh, but that's an early example of that.

Nick Capodice: [00:21:21] And I take it this was more of the exception than the rule.

Eric Loomis: [00:21:25] It's very difficult in the 19th century for workers to win strikes. There are many, [00:21:30] many, many strikes. Um, and workers do win at the local level sometimes. Um, a lot of these are around things like control over the work process, like, can I do my job my way, or are you going to tell me how to do my job? And that's a lot of these battles. It's hard to teach today because it's like today's population is not used to having any autonomy at work. Right. And so the fact that this used to be a thing is something that's hard for people to imagine, but most of [00:22:00] the big strikes end up being losses really, during the 19th century, like the like the largest strikes.

Hannah McCarthy: [00:22:04] This is not to say there were not other successes, but truth be told, striking could be way more dangerous than the working conditions themselves.

Eric Loomis: [00:22:15] For much of the 19th century. In the early 20th century, the the arm of the government, the police force, where they're talking about the US military, the National Guard or state militias or local police forces or privatized police groups like Pinkertons and many others would [00:22:30] engage in open violence against workers. Uh, and the courts would back them up on this. And so, uh, it absolutely was dangerous to go on strike. I mean, you know, strikers killed, um, people would take, you know, random shots into groups of strikers and, you know, kill 1 or 2 of them. Um, you would see in 1877 and 1894, the US government, the US military call is called out by the president of the United States to break up railroad strikes. Um, there are so many examples of [00:23:00] police killing workers during this era. I mean, it's incredibly common. Um, and so, yeah, it really is not until the 20th century. And, uh, really, there is still significant violence against strikers, murderous violence by employers up until about 1937. So it really takes a long time for that to be sort of cleared out.

Nick Capodice: [00:23:23] It hold up 1937. That's two years after strikes became federally protected action. 1935 [00:23:30] was the Nlra.

Hannah McCarthy: [00:23:31] Here we have stumbled into an oft repeated truism of American law your rights and protections don't mean much unless someone enforces them.

Eric Loomis: [00:23:42] The last major piece of American labor violence from employers is in 1937, something called Memorial Day massacre. Um, where a bunch of steel, uh, owners decide that, um, they are going to fight against what becomes later the United Steelworkers of America from organizing their factories, [00:24:00] uh, and, uh, outside of Chicago on the South Side. They just opened fire and about ten, ten workers were killed. It's actually filmed. It was.

Nick Capodice: [00:24:07] Filmed.

Hannah McCarthy: [00:24:08] Uh, it gets better. Which is to say, it gets worse.

News Archival: [00:24:12] 70,000 steelworkers strike for union recognition. Seven are killed on war. On the labor front, these amazing, exclusive Paramount Pictures show the battle raging between the forces of law and 1500 hot tempered workers.

Hannah McCarthy: [00:24:24] Paramount news had a cameraman there that day, and he did indeed capture the police, [00:24:30] opening fire on union organizers, and Paramount suppressed the film. A coroner ruled the deaths justifiable homicide. No police were ever prosecuted, and then later on, but not too much later on, a reporter uncovered the film, reported on it. There was a Senate investigation. They screened the footage and there was national outrage.

Nick Capodice: [00:24:55] National outrage, sure. But it sounds like even having [00:25:00] a federal law for protected concerted activity didn't actually provide protected, concerted activity. So it.

Eric Loomis: [00:25:08] Really took. And then with the courts changing as well, after FDR's attempt to pack the courts, it really changes the entire tenor of what employers can do. They're certainly not happy about it. But then what happens is that World War Two takes place. And because the government needs. Smooth production during World War Two without strikes. [00:25:30] They basically do this complicated thing where they get workers and employers to all agree that the employers will effectively allow the unions to exist, even in companies where they didn't have unions before. And this is how this is how the super duper anti-union companies like Ford or the steel industry gets organized in exchange for workers saying we won't strike during the war. So it's that that moment of but yes, the FDR, the court packing, but then World War Two, and then that creates the conditions [00:26:00] by which you have really the peak of the labor movement in the mid 20th century.

Hannah McCarthy: [00:26:03] Okay. So an example of where they did not have unions before the Ford Motor Company, the whole steel industry, extremely anti-union places that were essentially strong armed into allowing unions to exist. But also part of the deal was, well, you can exist, sure, but you need to agree not to strike while there's a war on.

Nick Capodice: [00:26:26] All right. So both national and global shifts because, you know, [00:26:30] hello, World War two. But also Eric mentioned FDR trying to pack the courts, which is shorthand for the president didn't like what the judiciary was doing. So he said, all right, I'm going to dilute you with people who agree with me. So the judiciary said, no, wait, don't do that. We like being small and powerful, but okay, we'll pivot our politics for a bit. Correct.

Hannah McCarthy: [00:26:53] Pressure on the court system meant that real legal protections could actually happen. So during this period of [00:27:00] the labor movement, you had certain huge unions working hard to not just have power in the workplace, but to have power in the government as well, to get laws passed.

Eric Loomis: [00:27:13] They wanted to play a role in the federal government, in the state government, to pass laws that were pro-worker. Um, and the success of that is mixed. Um, in the end, the labor movement is never truly strong enough in the United States to do that in the way that say, it'll happen [00:27:30] in Britain under the Labor Party or it happens in Germany. Um, but, uh, nonetheless, um, at the very minimum, they become significant players within the Democratic Party. Um, and, you know, and this this has a transformative effect on people's workplaces, right? It both in terms of the amount of money that they're making when they start to get these good union contracts and all the benefits that arise from it, but also in terms of control over and the attempt to exert power at the workplace, which [00:28:00] in some ways is the more controversial side of this.

Nick Capodice: [00:28:02] As in having power in the workplace is the controversial side. Um, I.

Eric Loomis: [00:28:07] Would argue that the real objection of employers to unions is not about the money. Yes, in American society, um, power and respect, uh, is filtered through money. Um, but, um, the real challenge was over. Who has power on that shop floor to determine how you do your job?

Hannah McCarthy: [00:28:24] There's a lot of tension between unionized workers and the guys in charge. Does the foreman [00:28:30] get to tell you how to do your job, or do you get to decide what your job looks like? And even when unions get a new contract, the companies don't want to enforce that contract because it strips them of their absolute power.

Nick Capodice: [00:28:43] Okay, this is really interesting because I'm going to hazard that plenty of people hear unionizing and strikes even today and think, well, that's greed. They just want more money. They always want more money. But it sounds like Eric is saying that while that's certainly a part of it, [00:29:00] things like when or if you get to take a lunch break or how long that break is, or how many sick days you get, or whether you're allowed to work from home, things like that were at the core of these power struggles.

Hannah McCarthy: [00:29:11] Yeah. You know, money is one thing. Control is quite another. $3 more an hour might be palatable, but parental leave on top of that, not so fast. So look, I know we're talking about unions here and this is an episode about strikes. But in order to get to where we are [00:29:30] today with strikes, this is a huge part of it because power in the workplace for the workers. That is perhaps obviously unpopular with the employers. And then for someone post-World War Two America, it becomes downright un-American. That's after the break.

Nick Capodice: [00:29:56] But before that break, a reminder that Civics 101 is listener [00:30:00] supported and that's you. So if you like our show and you support our mission to continue unpacking all the aspects of democracy, give whatever you can at our website, civics101podcast.org. And thank you. We are back. We're talking about strikes here on Civics 101 and Hannah. Before the break, you told me you were going to get to strikes today in America like [00:30:30] the one our friend Andrew Swan participated in.

Hannah McCarthy: [00:30:33] Sure did. So here is something about Andrew's strike.

Andrew Swan: [00:30:36] It was illegal. There have been some other districts in the past few years in Massachusetts. We were not the first even this school year, but we'd certainly been the longest. And the trend is the judge imposes fines and increases those fines each day, doubling them or otherwise incrementally, like every 10,000 more every day or something like that. And it's the union that has to pay, not the individual teachers.

Nick Capodice: [00:30:59] I really should have [00:31:00] asked Andrew more about this when we talked to him. I think in the end, it cost the teachers union $625,000. But what made that teacher strike illegal?

Hannah McCarthy: [00:31:11] Well, specifically, what made it illegal is in 1973, Massachusetts law that prohibits public employees, including teachers, from going on strike. But this law is not unique to Massachusetts. Here's Eric Loomis again.

Eric Loomis: [00:31:26] About 80% of public sector workers in this country do not have the right to strike. [00:31:30]

Nick Capodice: [00:31:30] Okay. Wow. 80% of public sector workers. So basically we are talking about government employees.

Eric Loomis: [00:31:37] Federal workers do not have the right to strike. Most state workers do not have the right to strike. And there are attempts in some of these states to gain the right to strike for public sector employees, but most don't have the right to strike. Now, that doesn't per se mean they never do.

Nick Capodice: [00:31:55] And I think the point is here and correct me if I'm wrong, it's not a good thing [00:32:00] if firefighters or city clerks or mayors or what have you, just don't show up.

Hannah McCarthy: [00:32:06] The point is, I think probably a little more complicated than that, but that is part of the point.

Andrew Swan: [00:32:12] We are not supposed to be able to go on strike in Massachusetts. I think this goes back to 1919. The police union went on strike, and then that got wrapped up in the Red scare movement of, uh oh, socialism, but also a practical matter of, well, if there's no police, that's bad. Uh, if there if the fire [00:32:30] department goes on strike, that's bad too. And to a different degree when teachers go on strike. Well, now we have children spilling out of houses, um, and needing somewhere to be.

Nick Capodice: [00:32:41] Wow. All right, hang on. Now we're talking about the Red scare. As in, we're afraid of communism, and striking could lead to that. I mean.

Hannah McCarthy: [00:32:51] People banding together against power. Hello, comrade. That is a joke. That's a that's a communist joke. [00:33:00] All right, so Andrew is talking about the first red scare in the US.

Nick Capodice: [00:33:04] The first red scare. Can you do that real quick?

Hannah McCarthy: [00:33:07] Not really. No, I can't do that real quick. So instead, I'll put that on the list of episodes to make. But here is what I want you to know the 1919 1920 Red scare.

Archival: [00:33:19] There are other communists who don't show their real faces, who work more silently.

Hannah McCarthy: [00:33:26] Lumped socialism and communism and violence [00:33:30] and anarchy and antiwar sentiment and the labor movement and unions and strikes into the same category.

Archival: [00:33:39] Their goal is the overthrow of our government. There is no doubt as to where a real communist loyalty dress.

Hannah McCarthy: [00:33:47] And the government, specifically the attorney general, with the help of J. Edgar Hoover, did some appalling things that eventually put an end to that red scare. But [00:34:00] come the second Red scare in America, J. Edgar knows who to target. And he's got friends in high places. Remember how I told you that strikes went from being a problem for employers to being a problem for American values? Here's Kim Kelley.

Kim Kelly: [00:34:21] I mean, the 60s with the second Red scare and all the the blacklisting in Hollywood and the Cold War era [00:34:30] panic around communism, where a lot of union organizers and union folks were kind of tarred with like a red brush.

Hannah McCarthy: [00:34:38] So that's one factor. You know, I recently heard some other McCarthy make a joke about Joseph McCarthy, and they said, no relation. And I think I probably need to stop making that joke. But yeah, widespread demonization of those who asserted their protected concerted activity, which frankly, wasn't hard to do given the first Red scare and the association made between unions strikes and un-American [00:35:00] activities. And even when that Red scare came to an end, two things remained a vague notion of unions being anti-American government and the strong notion and reality of a business industry, American government alliance.

Eric Loomis: [00:35:22] And so you still see this just vociferous anti-labor mentality among American employers. Americans, I mean, all, all nations have [00:35:30] their own set of myths, right? We all, as nations tell ourselves stories. And those stories may or may not be true. But, you know, the idea of the self-made man and the right of the individual to control their business is a deeply seated myth in the United States. So I think that, you know, one thing, when I was writing my book that I really wanted to consider is what are the conditions under which workers are able to successfully strike and win? And basically what it comes down to, [00:36:00] and I think this holds almost true throughout all of American history. Is that one thing that makes America, again, a little different than some of these Western European nations is that the government corporate alliance is so traditionally strong in this country. The only real exception to that today was only partial, was that period from the 30s to the 70s. As soon as Reagan takes over, that is reestablished very quickly and you have massive union busting in this nation, and that has continued through the present Ronald Reagan.

Nick Capodice: [00:36:30] I [00:36:30] mean, we have to talk about Ronald Reagan.

Kim Kelly: [00:36:32] There's really a moment during the, the 80s when Ronald Reagan was in office, that we saw the biggest modern shift around the way that strikes and striking workers are treated.

Hannah McCarthy: [00:36:45] We do indeed have to talk about Ronald Reagan. So Eric Loomis mentioned that period from the 30s through the 70s. That's what Kim was talking about before the labor movement, FDR, the National Labor Relations Act, the [00:37:00] dawn of protected strikes, and a brief degree of deference to unions.

Kim Kelly: [00:37:06] Because there is a very long tradition of corporations or company employers, bosses kind of respecting that, right. They wouldn't necessarily bring in replacement workers scabs, as they're called. They would try and work with the union a little bit. But after Ronald Reagan broke this strike, the PATCO, the air traffic controllers strike, he essentially just fired [00:37:30] everybody and brought in replacement workers and blacklisted the workers that were involved.

Archival: [00:37:35] I must tell those who fail to report for duty that this morning they are in violation of the law, and if they do not report for work within 48 hours, they have forfeited their jobs and will be terminated. End of statement.

Hannah McCarthy: [00:37:53] This was a huge moment in strike history in America. Reagan, who, [00:38:00] by the way, was the president of his own union.

Nick Capodice: [00:38:03] In fact, Reagan was the president of our own union, kind of sag before the after. Yeah.

Hannah McCarthy: [00:38:11] Reagan himself organized a union strike, and it succeeded.

Archival: [00:38:16] Indeed, as president of my own union, I led the first strike ever called by that union. I guess I'm maybe the first one to ever hold this office who is a lifetime member of an AFL-CIO union.

Hannah McCarthy: [00:38:28] But the president of America [00:38:30] is a little different than the president of SAG. In 1981, Reagan fired over 11,000 air traffic controllers and banned them from federal jobs. And the majority of Americans supported this. By the way, they did not think that air traffic controllers should be allowed to strike.

Nick Capodice: [00:38:47] Why were they striking in the first place?

Hannah McCarthy: [00:38:49] Well, as you might imagine, the job is stressful. Uh, also, airlines had recently been deregulated by President Jimmy Carter.

Archival: [00:38:57] I deregulated, we deregulated [00:39:00] the airlines and the railroads and trucking. We deregulated the banks and banking. We deregulated deregulated communications, television and radio. We deregulated oil and gas.

Hannah McCarthy: [00:39:13] And air travel was way, way up.

Nick Capodice: [00:39:16] Way, way up in the air.

Hannah McCarthy: [00:39:18] Very good. So these employees were developing high blood pressure. They were developing ulcers. Uh, reportedly only about 10% of them ever stayed on the job long enough to retire from it. [00:39:30] And so they were asking for shorter work weeks and more pay. They were really tired, and it was ruining their health. So when they didn't get what they needed, they went on strike. And Reagan said, get back to work or you're fired.

News Archival: [00:39:44] But like the rest of the families here at union headquarters, he still believes the walkout was necessary in view of the stressful working conditions and high burnout rate.

News Archival: [00:39:54] As far as the prospect of unemployment. We all realize when we made this move that that possibility was there, but we feel so strongly [00:40:00] about what we're doing that we're willing to face that that.

Kim Kelly: [00:40:03] Moment really saw a shift in the way that bosses and striking workers interacted with each other and became a lot more, uh, a lot more animosity, a lot, a lot less willingness, I think, for bosses to, to work with strikers. And now we see even though there are these legal protections, it can still get ugly. When workers decide to go on strike, it's still a big sacrifice. It's still a risk.

Nick Capodice: [00:40:28] Hang on. So this moment with Reagan, [00:40:30] this changed the way that employers respond to unions and strikes.

Kim Kelly: [00:40:35] A lot of anti-labor and anti-union corporations and bosses at that time saw that and realized, oh, so we don't necessarily have to play ball either. And now it's it's it can get a little ugly when when striking workers try and take their destinies into their own hands and exercise their legal rights, there are ways they can try and skirt that law. Like they can bring in replacement [00:41:00] workers. And then after the strike, they can retaliate against you or try and find ways to to make your job less attractive. They can try and prevent you from coming back at all.

Hannah McCarthy: [00:41:13] So we talked about the National Labor Relations Act. There is something that goes along with it. The National Labor Relations Board. They are the ones who make sure labor law is being followed, [00:41:30] and they file charges against employers who don't follow those laws. But it's not like the NLRB can say, hey, you broke the law. You need to pay a massive fine. It can order an employer to, for example, bargain over a contract in good faith, or to offer back pay to employees who have been fired for union activities. In some cases, it can even order the employer to pay union expenses. But honestly, that is not much of a threat [00:42:00] when your company's net revenue is hundreds of billions of dollars a year.

Kim Kelly: [00:42:05] The monetary penalties they face for somewhere like Amazon or Tesla or Starbucks aren't really what they need to be to really get those companies to behave themselves. So employers some employers do find ways to punish people that go out on strike.

Nick Capodice: [00:42:21] That is just fascinating, right? In the 1930s, FDR forced a sea change that gave the National Labor Relations Act [00:42:30] sharper teeth. And then in the 1980s, Reagan forced one that basically did the opposite.

Hannah McCarthy: [00:42:36] Which again, brings us to this question about politicization and strikes. Those air traffic controllers were engaging in an illegal strike according to their own contract. Now, whether the courts would have decided their working conditions warranted a strike anyway, we. Cannot know. The point is, Reagan was absolutely within his rights to do what he did, but [00:43:00] he didn't have to do it. His action was both legal and political, and with it came a new era of pro and anti-union sentiment meets politics, and unions and strikes remain a highly politicized subject among both politicians and voters to this day.

Kim Kelly: [00:43:20] That moment specifically kind of prompted what we've seen in terms of the the Republican Party in this embrace of so-called [00:43:30] right to work laws.

Hannah McCarthy: [00:43:31] Okay, right to work laws. This one I will try to do fairly quickly. So there's a human rights concept called right to work. This is not that a right to work law says you cannot require employees of a unionized workplace to pay fees to or join the union. Now, federal law says you cannot force someone to join a union, period. But unions have something called a security agreement that might say you need to pay dues [00:44:00] or fees as a condition of employment.

Nick Capodice: [00:44:02] And right to work laws make that illegal.

Hannah McCarthy: [00:44:05] Right? So basically, you can be represented by the union in contract negotiations and benefit from them without actually paying for it. Now unions call these employees free riders and argue that it's bad for the strength of the union. You know, less support literally and politically, less power to secure better wages and working conditions. And by the way, in 2018, the Supreme Court said that charging fees for representation [00:44:30] to nonmembers is unconstitutional in the public sector. So we're talking about the private sector here. So these laws are called right to work. But unions argue that they are opposed to negotiating power and therefore opposed to workers and worker protections.

News Archival: [00:44:46] Billy Dijck's is the president of Tennessee's AFL-CIO. He says this constitutional amendment is another attempt to use government and big business to control people.

News Archival: [00:44:55] If you go back and look at the South in general, you know you can go way [00:45:00] on back.

News Archival: [00:45:01] It's always been about cheap labor, and that has that has been always been a way to control working people.

Kim Kelly: [00:45:08] So there's a lot of tension there. And as we've seen more conservative, uh, governments and administrations rise to power up and down over the past course of US history, there's a ton of corporate Democrats who are not representing workers. The current system is really skewed against labor and against workers, no [00:45:30] matter how many, you know, campaign commercials you see with whatever politician in a hard hat or with a union logo on it.

Nick Capodice: [00:45:37] Which I feel we should point out, pretty much every politician, regardless of party affiliation, does.

Hannah McCarthy: [00:45:43] And then there are the people in the union themselves. That is a whole other kind of multi-party system. There's the story that gets told about unions, and then there are the actual unions.

Kim Kelly: [00:45:56] For a very long time, unions and union workers and union organizers [00:46:00] have been demonized in this country because a lot of them have come from the lefty tradition with different tendencies there, and a lot haven't to. This is the one thing about unions that I think is really important for folks outside of the labor world bubble to understand is that they're not a monolith. There's no one typical union worker in this country. Every person who's involved in a union has their own perspective, political views and background. I mean, [00:46:30] I've covered a ton of stories in Alabama and in the Deep South, in Appalachia, of coal miners who are way more conservative than I am, for example, or some other union folks I know. But they love their union. They stick to their guns like they're dyed in the wool union folks. And then you see very progressive or lefty folks involved in unions, too. It's you can't really paint the labor movement with one brush in that way, though of course there have been it has tended to be a little bit more progressive because [00:47:00] it's a space where we're trying to advance workers rights, and that tends to be diametrically opposed to the interests of capital, who would rather make money instead of investing in safety and health care and decent wages and all those things that labor really wants to win for the workers.

Nick Capodice: [00:47:19] I mean, that opens up a whole other can of worms about the politicization of progressivism.

Hannah McCarthy: [00:47:25] Another topic for another day. All right. So strikes Post-reagan. [00:47:30] It isn't like it was during that period between the mid 1930s and the 1970s. But the law, the Nlra is still in place. Employers and politicians might be a lot less friendly and tolerant about it, but strikes, with some exceptions, are still legal.

Kim Kelly: [00:47:50] There are a lot of different ways that. Workers can try and negotiate with their employers or try to get their demands met. The strike is kind of comes [00:48:00] at the end of a series of escalations, and usually strikes are happening within the context of union negotiations, during which the unionized workers and the boss will sit down and try and agree on a new contract, the new employment contract. And during the course of that process, some bosses will try and drag it out or will straight up refuse to meet some of the workers, asks, or will find other ways to try and just not play ball. And [00:48:30] when that happens and they reach a stalemate and there's no progress being made, that's when the union can start, you know, taking some steps. You can start by calling a strike authorization vote. And that's not going on strike. But that is the union's leadership asking the members, hey, if we call a strike, like, do you want to do that? Because unions are democratic institutions.

Nick Capodice: [00:48:55] This is an interesting point. You do have to vote to do something in a union. [00:49:00] And I mean, before you can even do that, you need a majority of qualified employees, aka not managers, to vote to unionize. That is Democratic.

Hannah McCarthy: [00:49:11] And striking, which again, nobody actually wants has its democratic process.

Kim Kelly: [00:49:17] No one's just standing up and saying, I declare a strike, right? Like there's this process. And if majority of the workers decide that, yeah, they're down to authorize a strike, if it comes to that, then that's something they can show the employer and say, [00:49:30] hey, you know, we're we're not bluffing. If you want to take that and think about it, when you come to the bargaining table next, and if it doesn't work, if there's no progress made, then they can start preparing for a strike. They can make it known to the media and to the bosses, hey, we're talking about this. And then by the time the strike comes, well, the boss had all these opportunities to try and find a decent compromise to to address these concerns, [00:50:00] to meet these demands. And by then when the strikes happen and it's on, it's seldom something that just appears right. Unless there's workers decide to have like a limited strike, like one day strike to protest something or to try and kind of spook the owners into behaving like it's there are a lot of different ways you can approach a strike. And obviously it comes down to what the workers want to do because it's their union. They are the union.

Nick Capodice: [00:50:41] So [00:50:30] you have painted a way more complicated picture of strikes and politics and unions and history than I thought we were going to get into here. Hannah.

Hannah McCarthy: [00:50:50] Yeah. Short winded and to the point. Mccarthy. That's what they call me.

Nick Capodice: [00:50:54] I do want to come back to something that you said at the very beginning, though. Back when I thought [00:51:00] this was going to be just like a fun romp about Newsies. That was.

Hannah McCarthy: [00:51:03] The carrot. The rest of the episode was the stick on Apollo.

Nick Capodice: [00:51:07] This thing about strikes only being kind of successful even when they are successful. I mean, obviously that has something to do with politics and labor protections and who really has power in this employer employee dynamic. But I feel like it's also wrapped up in this idea that nobody wants them. And then that thing Andrew said to us strikes [00:51:30] hurt.

Speaker14: [00:51:31] Okay.

Hannah McCarthy: [00:51:33] Yeah, the hurt part. I'm going to let Andrew explain to us what happened in his unions illegal strike.

Andrew Swan: [00:51:41] So like most strikes, it had to do with teacher salary. We have three year contracts. So it involves the increases to keep up with inflation. But there were a number of things that the union and the district were disagreeing about, about things particularly in terms of medical leave for parents, things like class sizes that are also put [00:52:00] into the contract. So it also had to do with things for the staff and the learning experience for students as well. That would be in the contract language. So contracts last for three years and ours had expired June 2023 during the summer. So everyone's salaries and steps and things were were all getting paid the same as we were the previous year, did not keep up with inflation, and inflation is a thing.

Hannah McCarthy: [00:52:25] So before this teachers union makes the choice to strike, it goes [00:52:30] through 16 months of negotiation.

Andrew Swan: [00:52:32] We were concerned that it was just going to drag on and on and on like that. There was not much incentive, the way the law is for the districts to change their their minds. In fact, they can just drag it out.

Nick Capodice: [00:52:44] Oh yeah, the dragging it out thing. This is a really common tactic for contract negotiations.

Hannah McCarthy: [00:52:50] Yeah, in no small part because the employers tend to have way more money and leverage than the employees. Now, to be clear, dragging out a union negotiation. [00:53:00] It is super expensive on both sides. Nobody likes it. We've been saying that a lot in this episode. So with this teachers union, it was going to be a strike. And what happens when teachers strike.

Andrew Swan: [00:53:19] So before we did the strike, I opened up for students to ask questions, and I couldn't answer all of them. Uh, but I collected their questions. And one thing they were wondering was, is [00:53:30] this going to be like the pandemic? Is this going are we going to be on zoom? Are we are they going to get substitutes to replace you all? And of course, we struggle to get enough substitutes now, let alone filling an entire building. What it looked like for them, frankly, was day to day to day being home. Some of the older kids probably dealing with babysitting for younger siblings, a lot of families struggling for childcare. The point was to pressure not just the decision makers, but influencers like the parents [00:54:00] to say, hey, settle this up so my kids can go back to school. Unfortunately, the students themselves are caught in the middle because they don't have the political power.

Hannah McCarthy: [00:54:08] Oh, and one major element of a strike that I haven't really covered here the press, the type of coverage you get can make a huge difference.

Andrew Swan: [00:54:17] Pretty much every story that I ever saw on the TV news, and a lot of the ones in newspapers like the Boston Globe were focused on the family impact, not what the teachers or the unions were trying to [00:54:30] get, but did seem very much family focused. Uh, families who have students with severe special needs, what it's like for them. Uh, families who now it's day eight of trying to find, like, child care coverage. What's that like for you? That's that was the journalistic angle that I noticed and very little that was sort of. Well, what are the teachers actually asking for? Or how do politics actually work?

News Archival: [00:54:53] Parents in Newton are fighting back tonight. There's even a court motion to force schools to reopen during the teacher strike. [00:55:00] Thank you for joining us. I'm David Wade and I'm Lisa Hughes.

News Archival: [00:55:02] Classes in Newton are canceled again tomorrow. That will be eight days of lost learning. You know, it's the longest.

Nick Capodice: [00:55:08] Andrew is already saying that strikes hurt and that they're supposed to. And certainly any parent who had a kid in school during the Covid 19 pandemic, shutdowns and remote learning knows the hurt of not being able to send your kid to school, I sure do. And it's one thing when you've got a deadly virus and state or district government to blame. It [00:55:30] is a very different thing when you can blame the teachers.

Hannah McCarthy: [00:55:33] Or at least blame the union, which to clarify is the teachers. And in the case of Newton, Massachusetts, after this strike ended, a group of parents sued the union for damages. This is from their statement. They cited, quote, learning loss for the students, emotional distress for the students and parents, and out of pocket costs for parents like tutors, camps, daycare, babysitters, burned vacation and sick days and [00:56:00] missed work shifts, unquote. These parents estimate those damages to exceed $25 million, and that would be in addition to the money the union has already paid.

Andrew Swan: [00:56:11] Some families and even some students may see us differently as like, oh, you're just in it for the money. So they, you know, they respect us less or they're going to treat us differently. And a lot of that's invisible. Was it worth it in [00:56:30] terms of the numbers on the page, the increased amount that I'd be getting and the teaching assistants will be getting each year is more than what the city was offering at first. It's about 20 or 30% more than what they were offering. At first. It's not a big amount. Basically went from a 2% per year increase to a 2.5 or 1 year, 3% increase. It's it's not a lot. And maybe it's not fair to sort of compare. It definitely costs the union [00:57:00] there were fines. That's the other civics connection is a judge was making decisions every day increasing the fines. Our union cannot afford a strike for a very long time because it had some savings to be able to pay some of those fines. So we may have a weaker union going forward with a district that knows that we won't go on strike again.

Nick Capodice: [00:57:20] Which if I can read between the lines here, a weak union that cannot go on strike means a union with less serious leverage in negotiations. [00:57:30] Yeah.

Hannah McCarthy: [00:57:31] So, you know, that's that's that that's the lot of hurt for the success. Yes. But a success that maybe wasn't a slam dunk. And I just wanted to know at the end of the day, what did it feel like for a social studies teacher, someone who teaches stuff like labor movements to be a part of it?

Andrew Swan: [00:57:52] So there's the saying right about like, teachers are in it, not for the income, but for the outcome. Or, you know, it's a calling. [00:58:00] It's not a job that's true to some degree and disrespectful to another degree. We're professionals. We have to jump through a lot of hoops in terms of degrees and licensure, and then maintaining all that to be able to keep these jobs. Society has deemed it fairly important, or at least in American history, that we have a public, some kind of public education system, whether it's the one room schoolhouse [00:58:30] or all the way up to the the mega urban districts. So the feeling of having to justify one's self, to be able to have a continued income that keeps up with inflation, which is really what we were one of the main things we were looking for here. It did seem very strange.

Nick Capodice: [00:58:50] Uh, you know, if there is one thing that I definitely am, it's pro teacher. So. So this one is tough.

Hannah McCarthy: [00:58:59] Yeah, but Andrew [00:59:00] did say that in the midst of it, he did actually feel valued.

Andrew Swan: [00:59:05] When you're in the middle of it and when you're surrounded by so many other educators out on the street all chanting the same kind of thing, uh, getting those honks from people driving by, it does end up in that moment, especially ends up feeling quite validating, uh, because usually what I do is happening in this echo chamber of a classroom with the the door physically open or closed. It's [00:59:30] really usually between me and the kids. But being out in the public in that sort of teacher role, and I think for a lot of us did end up, especially in the moment of it as we were on stage in a way out there, um, and on the news and on on camera and in the newspapers and so on. It did feel like, yeah, this is an important role that we provide. This is something that society should and or pretty sure does continue to wanting us to do. And we [01:00:00] can't just raise our prices like a small business owner can do to keep up with inflation. We can't march down to the corner office and say, hey, we need a raise or expect a yearly bonus or something. Like in many other kinds of roles, when negotiations fall apart, you come to a very drastic kind of option to be able to say, this is who we are, because the alternative would be just rolling over and saying, hey, pay us whatever you want, and then you're likely to get more people leaving this profession, and we need [01:00:30] more good people coming in and staying in. And yes, sure, teaching is a calling. You know, we're in it for the outcome as well as the income, but we need the income as well, or else it's not sustainable because that's capitalism. That's just real life.

Hannah McCarthy: [01:01:01] All [01:01:00] right, so, uh, we've come to the end, Nick. That's it. That strikes.

Nick Capodice: [01:01:08] Well. But. But what do you think about all this, Hannah?

Hannah McCarthy: [01:01:14] What do I.

Hannah McCarthy: [01:01:15] Think? Okay, okay, so I've thought a lot about the democracy aspect that we talked a little bit about earlier. And, uh, so I do think that so many of the gains [01:01:30] that we, the people have made here in these United States are often because we have, at the very least, asked for them repeatedly, if not demanded them, if not, you know, taken to the streets or the polls and said, hey, give me this, or you don't have my support anymore. And that's built into the structure of American democracy, because we do not roll over and say, pay us whatever [01:02:00] you want or, you know, give me whatever rights you want to give me or make me as safe as you think I should be.

Nick Capodice: [01:02:07] You being the government or whomever happens to be in charge. Yeah.

Hannah McCarthy: [01:02:11] Uh, because a lot of the time, the only incentive the people in charge have to give us what we want is the fact that if they don't, we will do something about it. Like we won't vote for them or we won't work for them, which would mean that they have nothing to be in charge of. And many would say that a rising [01:02:30] tide lifts all boats. You know, if we're talking about work and industry, that doesn't have to deal with paying its workers more or giving them more or better benefits will be richer, and so it will be stronger. And so the worker will be richer and stronger. But when the worker doesn't feel that, when they don't feel lifted or richer or stronger, they have this option sometimes to do what people in America do when they feel [01:03:00] not taken care of by the people in charge, they can organize and they can demand it. And, you know, striking may not be in the Constitution, but the right to petition for a redress of grievances is.

Nick Capodice: [01:03:17] Petition the government.

Hannah McCarthy: [01:03:19] Petition the government. Yeah. But I guess what I'm trying to say, um, is that, you know, it's about like going to the person in power and saying, [01:03:30] I think this should be better. And, you know, you got to give it to me. And basically that makes me think that striking is both literally and spiritually a very democratic and very American thing.

Nick Capodice: [01:03:47] I like that. I think that's a good way to wrap this all up. Love it or hate it, it's democracy.

Hannah McCarthy: [01:04:04] This [01:04:00] episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoi is our executive producer. Music. In this episode by Claude Cygnet, superintendent Mick. Cupcakes. Damar. Beats, Amber. Jean, Henri. Arduino, Timothy. Infinite. Fabian. Tell. Luella. Gren. Wilson, Andreas. Dahlback, Ryan, James. Carr. Site of wonders, Elliot. Holmes, Maddie. Maguire, [01:04:30] Celino LM. Styles Dajana, Gustav, Krista Briski, basics and a lot. You also heard excerpts from Newsies, the musical chess, the Musical, Urinetown the Musical, and Billy the Kid and the Green Baize Vampire The Musical. You can get more of everything we have ever made, and you can contact us to tell us how you feel about our episodes, America, or really anything else at our website civics101podcast.org. [01:05:00] Civics 101 is a production of NPR, New Hampshire Public Radio. All right for last little something. Unions, like many organizations, know the value of a song to bring people together and remind them why they're there. This one from 1914 or 15, is called Solidarity Forever. The words are by Ralph Joseph Chaplin, and it is set to the tune of John Brown's Body. Or, if you [01:05:30] prefer, Battle Hymn of the Republic. It is sung by my very own brother, Jack McCarthy. Local 349 carpenters and joiners, accompanied by his friend Cooper Formant .

Jack McCarthy: [01:05:43] Now we stand out, cast and starving at the wonders we have made. But the union makes us strong. Solidarity forever, solidarity [01:06:00] forever. Solidarity forever. For the Union makes us strong. Is there aught we hold in common with the greedy parasite. Who would lash us into serfdom and would crush us with his might? Is there anything left for us to do but organize and fight while the Union makes us strong? [01:06:30] Solidarity forever. Solidarity forever. Solidarity forever. For the Union makes us strong in our hands. There is a power greater than their hoarded gold. Greater than the might of atoms magnified a thousand fold. We can bring to birth [01:07:00] a new world from the ashes of the old. While the union makes us strong. Solidarity forever. Ever. Solidarity forever. Solidarity forever for the union makes us strong. Whew! That [01:07:30] was fun. Make sure you mentioned that I'm in the union too.

Hannah McCarthy: [01:07:33] I will.

Cooper Formant: [01:07:34] Are you?

Jack McCarthy: [01:07:34] I'm in the union now.

Cooper Formant: [01:07:36] What? The Maine?

Jack McCarthy: [01:07:37] Yeah. The main. The main union.

Made possible in part by the Corporation for Public Broadcasting.

The Smithsonian National Zoological Park in Washington, DC is sometimes called “the people’s zoo.” That’s because it’s the only zoo in the country to be created by an act of US Congress, and admission is free.

But why did our federal government create a national zoo in the first place?

Outside/In producer Felix Poon has the scoop – from its surprising origins in the near-extinction of bison, to a look at its modern-day mission of conservation, we’re going on a field trip to learn all about the National Zoo.

Support our public radio show today and you can get our new misinformation/disinformation tote bag! Click here to take a peek at it.

Transcript

Note: This transcript is AI-generated and may contain errors.

Hannah McCarthy: This is Civics 101. I’m Hannah McCarthy

Felix Poon: So this is where all the magic happens

Bill Clements: Yeah, we’re kind of the heartbeat of the operation

Hannah McCarthy: Last month - our show’s team went to Washington D.C. - A producer from NHPR’s other weekly podcast - Outside/In joined us there. That producer is Felix Poon. And he got a tour of a food prep facility that’s in many ways, like any other industrial kitchen.

Bill Clements: Large refrigeration units. All the prep tables. We have six different stations where people will work.

Hannah McCarthy: but in some other ways, this kitchen was…a bit different…for instance, they make special cakes…

Bill Clements: frozen ice cakes, we can make them out of blood and meat.

Hannah McCarthy: And they’re conscious about protein

Bill Clements: Those are pinky mice.

Felix Poon: Wow, so they’re like, little mice the size of my thumb. Smaller than my thumb.

Bill Clements: Like your pinky tip.

[MUX SWELL]

<<NUTGRAPH>>

Hannah McCarthy: You’ve probably guessed it by now – Felix is behind the scenes in the food prep at the zoo – your zoo, to be exact - if you happen to be a resident of the United States.

This is the Smithsonian National Zoological Park, … the only one in the country created by an act of Congress.

Daniel Frank: we have taken those animals in, and bred them, and reintroduced them back into their native environment

Hannah McCarthy: I'm Hannah McCarthy, and today on Civics 101 - a crossover with our colleagues at Outside/In, as producer Felix Poon takes us - along with host Nate Hegyi - on a behind the scenes look at our nation’s zoo – from elephant pedicures to the elephant in the room: the ethical questions that arise around keeping animals in captivity.

Stay tuned!

Zoey Knox: Keep a look out for lions and tigers and bears.

Felix Poon: Oh my!

Zoey Knox: Exactly.

__________________

Felix Poon: Nate, do you remember when I went to DC last month?

Nate Hegyi: I do remember when you went, I was following breathlessly as NHPR posted Tik Tok videos of you standing…I wouldn’t say awkwardly, I would say actually quite confidently. You were confident in carrying yourself. It was muah. Very good, very good. So yes, I remember.

Felix Poon: People go to zoos to see the animals, but I actually think the people-watching is the best part.

Young man: so what kind of questions you trying to ask us?

Felix Poon: What’s your favorite animal in the zoo?

Young man: My favorite animal in the zoo is her.

Young woman: [laughter]

Young man: She like, like, kind of like, can’t be tamed, but I try, you know. Try to protect her. Stuff like that

Young woman: alright, c’mon, let’s go

Young man: but have a blessed day sir.

Felix Poon: Okay you too.

[CROSSFADE]

Felix Poon: The national zoo is just a 12 minute drive from the White House, but it’s located in Rock Creek Park, more than two-and-a-half square miles of forest. So in a way the zoo feels like this transition space between city-dwelling humans and animals.

Wit: Wit and this is my dad Ethan. And this is Gustavo! Gustavo decir hola!

Felix Poon: Hi Gustavo! What’s your favorite animal Gustavo?

Wit: Gus, are you nervous? It’s just media, you gotta get used to media. You’re in DC.

Nate Hegyi: I still get nervous when a microphone is stuck in my face, so, so I get it.

Felix Poon: So the zoo is quasi-wooded, but you’re sharing the walkway with young couples, families, and school groups, like this middle school from Maryland, where the kids are autistic and non-verbal.

Felix Poon: What was your favorite animal?

Teacher 1: So she talks with her communication device.

Teacher 2: Exactly.

Teacher 1: So, Did you like the elephants?

Student via device: No

Teacher 1: Was they stinky?

Student via device: Yes

Teacher 2: Mmhmm, there you go.

Nate Hegyi: That’s great.

Felix Poon: So anyway, the national Zoo, it’s a pretty diverse cross-section of America – which is pretty fitting, because it’s the National Zoo, it’s funded by our federal tax dollars – in fact 70% of its operating budget comes from federal funds.

Nate Hegyi: Wow.

Felix Poon: It’s the only zoo that would close if there was a government shutdown.

Federal funding means it’s policed by its own federal law enforcement,

Nate Hegyi: Wait, so there’s just National Zoo Park Police, their own law enforcement.

Felix Poon: Yeah.

Nate Hegyi: For some reason I just imagine them wearing like, zebra outfits. Like referees?

Felix Poon: No they look like regular police, but with like, zoo police patches with like a green border around it.

Nate Hegyi: Okay.

Felix Poon: Anyways this is essentially the people’s zoo. It belongs to us just like the Capitol does, just like the White House, and so it’s free to visit.

Nate Hegyi: Is it really free?

Felix Poon: Yeah when was the last time you went to a zoo that was free?

Nate Hegyi: I didn’t realize that.

Felix Poon: Plus international diplomacy gets a stage here.

In 1972 for example, President Nixon visited China, and it was this historic visit that broke decades of isolation between the two countries.

And after the trip, China gave two pandas to the US as a sign of our thawing relationship, and they wound up at the National Zoo.

Pat Nixon: Which all children, whatever age, will enjoy. And I include myself in that category.

First lady Pat Nixon was a huge fan.

Pat Nixon: And, I think panda-monium is going to break out right here at the zoo. Thank you very much.

Nate Hegyi: I bet you she thought she was so clever with that one. Pandemonium.

Felix Poon: Yeah, These pandas were a gift , but future pandas starting in 1984 were loaned from China – at a cost of a million dollars a year for two pandas.

Can you imagine signing a rental agreement for a couple pandas, Nate?

Nate Hegyi: I just didn’t realize we were paying China, two million dollars did you say, or one million?

Felix Poon: A million dollars for two pandas.

Nate Hegyi: I’m just really surprised we’re paying a foreign country a million dollars a year to rent pandas.

Felix Poon: Yeah so that money goes to panda conservation in China, and the fact that it’s a rental means China ultimately owns them and can recall them in case their populations dwindle too low there…

…or if relations between the two countries aren’t so hot which is

Nate Hegyi: Kinda like right now? Yeah.

Felix Poon: probably what played a role in recent decisions not to renew any of our panda leases that expired recently. So when I was there, no pandas at the people’s zoo.

Man 1: China took ‘em. Took ‘em back. No more pandas.

Man 2: Why did we walk down this way? There’s no animals…

Nate Hegyi: We gotta get Antony Blinken on that one. Gotta get those pandas back.

Felix Poon: Well actually there’s news that the San Diego zoo is gonna get a couple pandas back from China. So maybe things are looking up.

Nate Hegyi: Okay. Panda diplomacy?

Felix Poon: Exactly.

[MUX SWELL]

Felix Poon: So why do you think our federal government decided to create a National Zoo to begin with? Any guesses?

Nate Hegyi: Uh, to bring joy to the hearts of millions of American children. Right?

Felix Poon: That’s a great guess, I mean I think it does bring joy to the hearts of millions of children.

Nate Hegyi: it does. That was the only reason, right? Moving along!

Felix Poon: It was actually started for a different reason. And that story starts with a taxidermist named William Temple Hornaday.

William Hornaday Voiceover: Upon opening my eyes one morning I saw a saucy and inquisitive jackal sitting coolly upon the top of the bank, looking down into our boat…

As I reached for my rifle he gracefully retired, and I stole quickly and quietly up the bank…

So Hornaday is one of these over-the-top 19th century characters who spent his youth cavorting across the world killing exotic animals.

He’s got kind of a Colonel Sanders meets Teddy Roosevelt vibe. His first book, “Two Years in the Jungle,” is basically a chronicle of him shooting his way across India.

William Hornaday Voiceover: She was within fifteen paces of me when I fired, but the thundering report, the smoke, and two zinc balls crashing into her skull, close to her brain, stopped her charge

Nate Hegyi: Okay, I don’t think we need that level of detail.

Felix Poon: I mean he’s got books and books of this stuff. Because he actually saw his taxidermy as a form of conservation. Like, lots of species were on the verge of extinction, in some cases because of overhunting. But stuffing them, for him, was his way of preserving them for future generations.

Nate Hegyi: Oh that makes complete sense. You know, just, they’re almost extinct, why not kill a few more?

William Hornaday Voiceover: This specimen was an old female - no doubt the

mother of the two smaller bears. Unfortunately for science…the hair was worn off her back until the skin was quite bare.

She furnished a fine skeleton, however.

Nate Hegyi: Man, Hornaday. I get it, it’s 19th century. But even this guy feels a little bit. I think that’s how he’s justifying going on his multi-country shootin’ spree.

[MUX IN]

Felix Poon: And this brings me to the subject of bison. So throughout the 1800s, bison were systematically slaughtered in the American West.

They were decimated in large part because of a settler strategy against Indigenous tribes.

It’s estimated there were somewhere around 60 million bison in the year 1800 - but by 1886, when Hornaday was out West, he guessed there were only a few hundred left.

William Hornaday Voiceover: “In a few more years, when the whitened bones of the last bleaching skeleton shall have been picked up and shipped East for commercial uses, nothing will remain of him save… a few museum specimens, and regret for his fate.”

So… after killing and stuffing several more – supposedly with a heavy heart – Hornaday wrote a whole book about their extermination.

He argued that the remaining herds should be protected in the newly established Yellowstone National Park.

And he also collected a few not-stuffed, living bison to bring back to Washington D.C.

Those became the first specimens in the Smithsonian National Museum’s “Department of Living Animals.”

Nate Hegyi: That’s a great name. Feels like it should be in a comic book. The department of living animals.

Felix Poon: Right it’s the federal DOLA.

Nate Hegyi: The DOLA.

Felix Poon: Anyways, a few years later, with Hornaday’s help lobbying Congress, was officially turned into The National Zoo.

Felix Poon: Are these considered small or big for bison?

Zoey Knox: I don’t know

Felix Poon: Let’s wait for that loud whatever the heck that is to go by.

[obnoxious trash carts ambi]

Felix Poon: So there’s still a bison exhibit at the National Zoo – which I visited with NHPR’s engagement producer, Zoey Knox, and it turns out it’s right next to an outdoor food court.

Kids: buffalo wings! Buffalo wings! Wanna go to the buffalo wings?

Felix Poon: So these are the animals that started the zoo.

Zoey Knox: These are the animals that started it all…

Nate Hegyi: I hope that food court by the way isn’t like selling buffalo burgers and buffalo wings.

Felix Poon: They don’t, I don’t know that they actually serve buffalo wings. I appreciate the kids’ double entendre there.

Anyways, as for Hornaday…

You know Hornaday’s legacy is that he’s a celebrated hero for wildlife conservation – for the wildlife protection laws he lobbied for and helped pass (for example), but especially for his work with bison, because after starting the National Zoo he went on to become the director the Bronx Zoo where he bred and then successfully reintroduced several herds back to the plains.

Nate Hegyi: Doesn’t this kind of feel like, I don’t know. Hornaday was kind of like, part of the problem. And then, he’s like, alright we’ve a lmost wiped them all out. We’ll save a couple so people can look at ‘em at Yellowstone. And a few more so people can see ‘em them at the zoo.

Felix Poon: Nate you don’t even know the half of it, because there’s a whole another part of his legacy. Which is the fact that Hornaday was racist.

Nate Hegyi: Really? A 19th century white hunter racist?

Felix Poon: Yeah, Hornaday actually exhibited a human being at the Bronx Zoo.

Felix Poon:, a Black, Congolese man by the name of Ota Benga.

Felix Poon: Yeah, basically a missionary named Samuel Verner brought Benga to the zoo, where Hornaday housed him at the Primate House alongside an orangutan.

Nate Hegyi: Jesus. That’s horrible.

Felix Poon: And he was defensive about it. When Black clergymen expressed their outrage, Hornaday accused them of just looking for “newspaper notoriety.”

Felix Poon: So the Bronx Zoo did like officially apologize in 2020, during the racial reckoning that was happening. And other institutions removed his name from things like plaques and awards that they named after Hornaday.

You know I feel like it’s, like. It’s a lot like what our nation’s capital represents. Right? Congress. The Supreme Court. The Smithsonian, the national Zoo. These are all beloved institutions that are important to our nation’s democracy. And yet, they’re steeped, they’re rooted in racist colonialism so we’re kind of left in present day to try to disentangle it all.

[MUX]

Hannah McCarthy: HANNAH HERE - YOU’RE LISTENING TO A SPECIAL CROSSOVER EDITION OF OUTSIDE/IN ON CIVICS 101. WHEN WE COME BACK GROM THE BREAK - WE’LL HEAR MORE FROM FELIX AND NATE ON HOW ZOOS HAVE CHANGED…AND HOW THEY HAVEN’T. THAT’S WHEN CIVICS 101 RETURNS.

_________

Hannah McCarthy: WE’RE BACK WITH CIVICS 101. TODAY, OUR FRIENDS AND COLLEAGUES FROM OUTSIDE/IN ARE TALKING ABOUT THE NATIONAL ZOO - THE PEOPLE’S ZOO - SOMETHING PRODUCER FELIX POON LEARNED A LOT ABOUT ON OUR RECENT TRIP TO WASHINGTON D.C. LET’S GET RIGHT BACK TO IT.

Nate Hegyi: This is Outside/In, I’m Nate Hegyi - here with producer Felix Poon, who has been giving us the inside scoop on the Smithsonian National Zoological Park, ie: the National Zoo.

Felix Poon: So Zoos have come a long way. They used to be called menageries – basically exotic wildlife prisons that were the personal collections of royalty or rich people.

Nate Hegyi: Did you just call it a wildlife prison?

Felix Poon: I mean literally, animals were held in small jail cells with very little space to move.

Nate Hegyi: Yeah, I guess that’s pretty accurate.

Felix Poon: And then fast forward to today, and there are still some private zoos that are pretty horrendous.

Like, do you remember Tiger King Nate?

Nate Hegyi: Oh yeah, of course, who doesn’t?

Felix Poon: But the big accredited zoos most people are familiar with have much higher standards of care and treatment.

Trainer: Bosie, foot. Good girl!

Felix Poon: Is she getting a pedicure right now?

Felix Poon: We’re at the elephant enclosure at the National Zoo, and a big Asian elephant has lifted her hind foot up through an opening in the fence for a couple zookeepers.

Elephant manager: This would lead to an actual pedicure. We check their feet everyday and if they need their nails trimmed or that callus on the bottom of their foot cleaned out that’s exactly what we would do.

Bosie had one the other day so this is just following up with that care she got.

Nate Hegyi: Is she clicker training?

Felix Poon: Yeah yeah, that was a clicker. They use that to–

Nate Hegyi: they do clicker training, I use the same with my dog.

Felix Poon: Yeah anyways, nowadays there are accreditation standards for animal welfare set by the Association of Zoos and Aquariums, or the A-Z-A.

To get accredited, zoos have to prove that their animals are getting proper vet care, that their enclosures give them some variety, and that they’re thinking about the social lives of social animals. For example elephants, AZA-accredited zoos have to have at least three females, or two males, or three elephants of mixed gender.

You know, elephants need friends, otherwise they’re not happy.

Kara: They do a lot of swatting at it with their feet or biting at it. I’m not gonna award that. I’m just gonna wait for calm behavior and for them to just touch their nose to the target.

Felix Poon: This is Kara Ingraham. She’s one of the zookeepers in the small mammal house, and she’s showing us how she trains the meerkats with food, kind of like how you’d train a dog. In this case she’s teaching them to recognize their names by using this small plastic pole with a ball on it. She wants the meerkat whose name she calls to touch their nose to it for food.

Archie, target. Good.

So each one of them has a cup of meat. Oscar, target.

So after they do the correct behavior, they each get a little meatball.

Louie, target. Good boy.

Nate Hegyi: Is this a public show?

Felix Poon: No they usually do meerkat training behind the scenes where visitors can’t really see.

Nate Hegyi: So it’s not like a song and dance thing, it’s actual training.

Felix Poon: When do they get the worms?

KI: So we tend to use the worms more for kind of hide in the sand, or put inside puzzle feeders. Kind of encourage those natural kind of digging and foraging and hunting behaviors.

If you guys wanna get some audio of the worm crunching, I’ll probably put a bunch of worms down.

[meerkats eating worms ambi]

Nate Hegyi: Oh man Felix this is making me hungry. Meatballs and worms for lunch today.

[MUX IN]

Felix Poon: Okay so I wanna talk about the elephant in the room now.

Nate Hegyi: Before you even wrote this script you were like, I’m definitely using “elephant in the room.”

Felix Poon: Alright, do you think zoos are good for animals as a whole? Or bad? What do you think?

Nate Hegyi: It’s complicated. We did an episode a couple of years ago about Happy the elephant,and if my memory serves me correctly, Happy was not very happy. And there was an argument about animal consciousness and what rights do animals have. Should animals have the same rights as humans.

I think it’s incredibly complicated. And it’s probably based on the intelligence of the animal? Feels really weird to say that. But that’s what I’m going with.

Felix Poon: So let’s put that aside for now. Let’s start with the pro-zoo camp.

So aside from trying to take good care of their animals, the National Zoo also does conservation work. In fact, conservation is a requirement for AZA accreditation. And zoos have literally helped save species from extinction.

Like, here’s Daniel Frank, an animal keeper with the National Zoo.

Daniel Frank: So as recently as less than 30 years ago black footed ferrets were believed to be fully extinct.

Felix Poon: And the Smithsonian National Zoo played a part along with other conservation agencies to try to save these animals.

Daniel Frank: And what we have done is we have taken those animals in, and bred them, and reintroduced them back into their native environment, where there’s now I believe over a thousand animals we’ve reintroduced into the wild.

And AZA-accredited zoos do research work too. Here at the National Zoo, Public Affairs Specialist Ellie Tahmaseb showed me these big collars.

Ellie Tahmaseb: So this is a radio-tracking collar for an elephant.

It’s quite large. It’s a little smaller than a tractor tire I would say.

Their scientists did tracking studies in Myanmar and their research uncovered elephant poaching, which they’re hoping might lead to law enforcement to crack down on this.

In other cases, zoos are taking in animals that probably wouldn't’ survive in the wild.

Daniel Frank: Polar bears typically historically would be able to raise two cubs at a time. That’s a species normative thing for them to do. Because food is harder to find for them, and the sea ice melts sooner they’re not able to hunt and meet the needs of two cubs at a time. More often than not they have to abandon one cub.

Daniel Frank told me about a polar bear cub that was rescued and rehabilitated by the Alaska Zoo.

Daniel Frank: Because of the time she had with humans and because she never had enough time with her mother she was not a candidate for rerelease. But what she now serves the purpose of just like any ambassador species here that’s a rescue, is that they each tell an individual story.

Nate Hegyi: You know, the same thing actually just happened a couple of weeks ago here in Montana. Um, someone shot and killed a grizzly bear, a sow and her cubs went to a zoo. So zoos strike me as, like, part rehabilitation center for animals that can't survive in the wild. Part conservation helper. Um, is that is that about it? If you're going to be in, like, the pro zoo camp?

Felix Poon: Also that zoos expose the public to wildlife, especially for city dwellers who might not otherwise see animals. Right. Like some people say, that exposure can inspire people to care about or to be more involved in the natural world.

Nate Hegyi: I'll tell you what, Felix. Uh, I fall squarely in the inspired by zoo camp. Uh, we went to a zoo growing up a lot. This was the Henry Vilas Zoo in Madison, Wisconsin, which also has a pretty sordid history. Um, uh, specifically in the way they treated their elephants. They used to have their elephants in small compounds with, uh, chains around their legs.

Felix Poon: That's depressing.

Nate Hegyi: Yes. And at the same time, I can point to that zoo as being one of the reasons why I'm an environmental reporter.

Felix Poon: Now, there you go.

Nate Hegyi: Because it was my first exposure to wild animals. So I see why they can inspire. And at the same time, I think we're about to get into some of the negatives of zoos.

Felix Poon: We are. We sure are. Uh, you know, zoos aren’t exactly spending most of their money on conservation.

Like the amount that AZA accredited zoos and aquariums spend on conservation, it's just 5% of the amount they spend on operations and construction.

So, you know, to put things in perspective. Plus, there's evidence that some zoo animals are not very excited to be there. Big cats pacing back and forth, giraffes licking their lips nonstop. Yeah. Researchers have documented these compulsive behaviors in zoo animals that seem to be coping mechanisms against boredom, especially in some of the bigger, more charismatic animals that so many people go there to see.

Nate Hegyi: Well, yeah, because some of these animals are used to migrating, you know, uh, hundreds of miles in a year between wintering grounds and summering grounds. And, yeah, it goes back to kind of my argument earlier of like, maybe not all animals should be in a zoo

Felix Poon: And then the other thing some people say is that just like in some animal shelters, zoo animals do sometimes get euthanized for a number of reasons.

Nate Hegyi: What do they get euthanized for, like old age or, there was that one gorilla that was shot. Do you know what I'm talking about? And became a meme? Yeah.

Felix Poon: You're thinking of Harambe.

Nate Hegyi: Yeah.

Felix Poon: So basically for those who don’t know, a little boy fell into Harambe’s enclosure and a zoo worker shot and killed Harambe to protect the boy’s life

Nate Hegyi: Yeah, but then became, like, this huge controversy. And like, there were internet memes and, like, songs

Singer: I want you to come back, is that so much to ask? Harambe.

Nate Hegyi: I mean it became like a whole thing.

Felix Poon: The other uses of euthanasia are, uh, you know, animals are bred at zoos, and apparently sometimes there's too many of them. So zoos will then euthanize their surplus stock, quote unquote.

It happens a lot more in Europe, but sometimes it happens here in the US too.

Nate Hegyi: Did not know that.

[MUX]

Felix Poon: So I think the answer is that as much as we may want to frame zoos as being good for animals, which they are definitely a lot better than they used to be, at the end of the day, they're still really about us, about our entertainment and education, right?

Like a lot of us are willing to accept these as trade offs because without zoos, most animals would just exist in our heads as these abstract concepts from what we see in books and movies.

Kids: Oh oh! Ah ah!

Parent: Okay, alright alright

Kid: Its diet is fruit from–

Nate Hegyi: that brought up some memories. I remember doing that in front of the, uh, in, like, these are like, embarrassing memories that they're bringing up. I remember, like, watching little kids, like, slam their hands on the glass. One of the chimps got so angry that it ended up breaking the glass,

The question I'd have to ask myself is if I if I ever had a child, would I take them to the zoo? And, I don't know

Felix Poon: You know, I think as much as people like the idea of being exposed to pure wilderness or seeing wildlife in their natural habitat. Truth is, institutions play a big role in mediating our relationship with nature.

Nate Hegyi: Which Isn't necessarily a bad thing. You know, like state wildlife agencies, uh, have rules about animals so that we don't hunt them to extinction. And national parks have rules about how you can behave there so you don't end up, you know, climbing on top of a bison and getting killed. So, like, there's there's a good reason why we have agencies mediating our relationship with with animals.

Felix Poon: Maybe the National Zoo is is a good example, right. A taxpayer funded zoo in Washington DC where anybody can come in for free, see some of the most incredible animals on our planet, and then go grab some cow's milk that's been mixed with sugar and then flash frozen with liquid nitrogen.

Zoey Knox: It’s better than I remembered

Felix Poon: Yeah? Maybe they made some improvements. They figured out the dippin’ dots.

Zoey Knox: It lives up to the memory, it’s actually quite good.

[MUX]

Nate Hegyi: That’s it for the show, we’d love to hear about your experiences with the zoo. Have you been to the national zoo?

Shoot us an email or send us a voice memo to outsidein@nhpr.org. We’d love to hear from you.

And speaking of animals, you should know that our second ever Outside/In mug just dropped. It features an original illustration of an almost magical species… the Mexican salamander, also known as the axolotl.

Because here at Outside/In, we like to axolotl questions.

If you want one – and you want to support journalism and public radio while you’re at it – head to outsideinradio.org/donate.

<<CREDITS>>

Hannah McCarthy: This episode was reported and produced by Felix Poon. It was edited by Taylor Quimby and hosted by Nate Hegyi.

The Outside/In team also includes Justine Paradise.

Rebecca Lavoie is Director of On-Demand Audio. Taylor Quimby is Outside/In’s Executive Producer.

Special thanks to my co-host Nick Capodice for doing those William Hornaday voiceovers, btw.

If you want to learn more about the National zoo - see some videos from Felix’s visit there, and more - visit outside in radio dot org.

Music in this episode was by Blue Dot sessions, and Jules Gaia.

Theme music by Breakmaster Cylinder.

Outside/In and Civics 101 are productions of NHPR - New Hampshire Public Radio

Today on Civics 101 we talk about truth, bias, and objectivity in reporting. I visited Barbara Sprunt, reporter at the Washington desk at NPR, who told me what it's like to cover Capitol Hill.

Barbara told me about her schedule, what to listen for when interviewing members of Congress, and what she says to accusations of political bias.

Support our public radio show today and you can get our new misinformation/disinformation tote bag! Click here to take a peek at it.

Transcript

Civics 101_NPR final.mp3

Speaker1: Hey.

Nick Capodice: Sorry, I'm a little burned it down. Otherwise, shake your hands. I'm so sorry. Can I carry something? No.

Barbara Sprunt: you've got, like, all things considered. Over here. Morning edition, over here. I come in to the office like, a couple times a week. Because it's really the only time I get to see everyone here who doesn't work on the Hill. Um, but when Congress is in session, I'm usually on the hill.

Nick Capodice: You're listening to Civics 101 I'm Nick Capodice [00:00:30] and today we are talking about what it's like to report on Congress. And yes, Hannah's voice is still barely audible after recovering from the flu. So this bird is flying solo. What do you think about that? No other host today. No buddy on the microphone. And you know what? I'm gonna say it. It's probably for the best, because in our episodes, one [00:01:00] of us usually explains something to the other person. Like, that's our format, right? And this episode is about journalism. And how the heck would I explain journalism to Hannah McCarthy, one of the finest journalists I know? So it's going to be all right. We at Civics 101 all went to Washington, D.C. for a week this spring, and I was slightly nervous going into the underbelly of the National Archives or, you know, visiting the Australian Embassy. But this [00:01:30] building was the one I was most nervous to enter, and I don't really understand why. Maybe you can figure it out and explain it to me later. This building is the headquarters of NPR, National Public Radio. And before I launch into the interview, I want to really quickly outline the structure of public radio in the United States, just in case there's anybody out there who doesn't understand it. I sure didn't when I started here in 2017. I grew up listening to it. I grew up listening [00:02:00] to Car Talk, music from the hearts of space, and this song by BJ Leiderman

Nick Capodice: But I didn't know what public radio was exactly. Like. I knew it worked differently than commercial outlets like CNN or CBS, and that it was member supported, but it was still a little foggy. So here is how it works. N [00:02:30]HPR, my employer, the people who make Civics 101, that is what's called a member station of NPR, National Public Radio. There are about a thousand of these member stations in the US. Half of them are run by colleges or universities. They're independently owned and run. They can and they usually do purchase news programs like Morning Edition or All Things Considered from NPR. It's like how your local TV station, they have their own news program, [00:03:00] but then they air these national news shows like Dateline. But as long as they work within a certain set of guidelines, member stations can do whatever they want. They can have local news reporting, they can make their own shows, podcasts, anything. Now, NPR has a colossal newsroom. They are highly respected. They've got bureaus all over the world, and they also rely on the reporters and programing from these respective member stations. It's like an ecosystem of news sharing. [00:03:30] So Hannah and I have been on NPR talking about Civics 101, and we've had NPR journalists on the show talking about various political topics. But I had never been in the building before until now, when I finally got to ask a congressional reporter, what is it that you do? And this is my tour guide and interview subject and all around very kind person.

Barbara Sprunt: My name is Barbara Sprunt, and I cover Congress here at NPR.

Nick Capodice: Barbara has worked at NPR [00:04:00] for ten years, and she's reported at the Washington desk for the last four. This is the first time I've held a microphone in like five years. So thank you. Yeah, thank you very much. It's got this is my friend's microphone. It's got dead cat on it for like at a base one on one level. Like, what do you do now. Like what's your job.

Barbara Sprunt: Day to day. There's sort of like a, a tentative structure that has helped me sort of figure out what my day is and what my, what my week is. So usually, like, folks come back, folks like, lawmakers come back on Monday nights [00:04:30] like they're gone for the weekend. They go back to their district or their state and, um, and then they come back around, you know, afternoon on Monday. So sometimes there will be votes on Monday night.

Nick Capodice: You can see this in action for yourself. By the way, if you go to clerk House.gov, you can search for legislation by date. So the Monday after I talked to Barbara, April 29th, there were indeed two bills voted on around 7 p.m. the Privacy Enhancing Technology Research Act and the Fire Weather Development [00:05:00] Act. I invite you to check those bills out yourself if you're interested. And they both passed via the tried and true method of voting under suspension of the rules with the two thirds majority. So that's Monday night, Tuesday.

Barbara Sprunt: You've got some like pretty standard meetings of the Republican conference in the morning. There's Senate lunches at 2:00, 2:00 ish on on Tuesdays. And basically that just means like they're all getting lunch and we all know that they're getting lunch. So then we all know [00:05:30] that they'll come out eventually. And that's when we can ask some questions. So, you know, a lot of it ends up being knowing where to stand, knowing where to wait and knowing who you're looking for.

Nick Capodice: I did not know about the Senate's Tuesday lunches. These are a long standing tradition. They go back to the 1950s and honestly, it seems not entirely unlike like a high school lunch. Uh, the senators get food at a buffet, and they sit at tables through the unspoken laws [00:06:00] of cliques and friendships. Congressional staff and the press are not allowed at these lunches. This is where the senators plan out their week, what they're going to do. And no surprise, the Democrats and the Republicans usually sit on opposite sides of the cafeteria. Sometimes, apparently, there is some rather touchy back and forth between these two sides of the room. I do not want to paint a picture here that it's like the gym dance in West Side Story all the time. Sometimes there is some true reaching across the buffet and this [00:06:30] lunchroom, some private conference rooms, and a very specific Senate only elevator. Those are like a few of the only places that Barbara is not allowed to go.

Barbara Sprunt: The access is incredible. You know, you are allowed almost everywhere that lawmakers are. You have a lot of ability to just like go up to them politely and ask them questions. It just it's it's a game changer for trying to like, understand what's going on, move the needle forward on various news fronts, [00:07:00] and also just get to know the lawmakers, but also like their staff. And that's a really, I think, rewarding and fun experience, very different from, say like the white House. Like I have a lot more access to Chuck Schumer than say, I do have Joe Biden. So as it should be, I think. But, you know.

Nick Capodice: One thing I wanted to know is how on earth does a reporter know who everyone is? There's 535 of them. How does she remember their names?

Barbara Sprunt: I have flash cards still, you know, to try to understand. [00:07:30] Like, who are all these members? Some of them look the same, frankly. And so you have to, like I study every night trying to do a better job of recognizing people in the hallways. There's so many more people on the on the house side. I use less flash cards on the Senate side than I do on the House side. I think there are a lot of people who have covered Congress for a long time, who are very confident, who don't need to prep, and I admire them. And but I am not that person, and I need to prep. And so I keep like a [00:08:00] list of questions and I keep, um, you know, because I also think, like, you don't want to have a moment where you've finally, like, pulled aside this member and then you have like, they actually have time and you only have 1 or 2 questions. And so I try to have a list of questions. I try to have a list when I go to a particular stakeout. Like, who do I want to talk to? Who could tell me a piece of the puzzle that I don't yet have?

Nick Capodice: Because Barbara has the DC press pass, she [00:08:30] has a massive advantage over somebody like me or you listening to this show right now. She can go to the Speaker's lobby every day. That's where the press meets up with representatives. She can just walk right up to a member of Congress and say, hey, why did you do this? Why did you vote for that? Tell me all your thoughts on H.R. 8017. However, she gave me some tips. You, too can get your finger on the pulse of Congress.

Barbara Sprunt: I think it's just helpful [00:09:00] to reach out to offices to get on email lists. I mean, that's and if you're not in the building, that's a really good way of like figuring out, like, where are these lawmakers? Like what legislation are they pushing or introducing? Who are they working with? Because sometimes it will say like co-sponsored, you know, this bill with so and so um, and then also, you know, there's a lot of reporting that can be done when lawmakers go back to their districts, there's working periods, and we're in a recess right now. Lawmakers [00:09:30] go back home. And often, especially in an election year, which we are in, uh, you know, they'll have, um, ceremonies and they'll have, you know, ribbon cuttings and they'll open new centers, you know, anything to sort of move the needle on their campaign, I think, do things for their district. I gather around the ribbon.

Archival: Gather around the ribbon. And the congressman and the senator are going to pick up these very attractive saws.

Barbara Sprunt: And that's a really great place to not only interview [00:10:00] the lawmaker, but also like their constituents.

Nick Capodice: One newsletter that Barbara said she relies on an awful lot is Congressional Quarterly and it's not free. But they do run a free website called Roll Call, which you should definitely check out. Their newsletter is not only the one that DC reporters subscribe to, but, you know, politicians and lobbyists as well. So it's pretty darn thorough. Another recommendation that is free is Pluribus News. That is a website [00:10:30] that focuses on state legislation. Because remember, state policy can eventually become federal policy. So Barbara said earlier, she does a lot of prep before she goes out and interviews members of the Congress. And I can see why there are a lot of them. And NPR has three congressional reporters.

Barbara Sprunt: It's sometimes funny because I'll I'll go, you know, on Big Story Days on the Hill, which you come every now and then, you [00:11:00] really can sense the, I guess, lack of size that we have compared to other outlets. I'll see, like NBC has like people at every door, you know, and CNN has their great staffs and I'm like, oh, man.

Nick Capodice: Barbara told me about her last Big story day. And that was right after the House passed the foreign aid bill on April 20th. So she ran over and spoke to Maxwell Frost, the Democratic representative from Florida. And then she ran over to talk to Marjorie Taylor Greene and Chip Roy, reps from Georgia and Texas, respectively

Barbara Sprunt: Who have [00:11:30] been really vocal about their displeasure with the speaker and the way that he's negotiated some of these recent deals. Now, the other part of that is Marjorie Taylor Greene and Chip Roy were also swarmed with lots of people like me in the in that particular day. And so, you know, sometimes you don't get your question answered when there's like 30 reporters surrounding one lawmaker.

Archival: Ma'am, why is the fight against Russia what you just said? Are you waiting to see if there will be more support in your conference before...Calling a motion to vacate? There is more support. [00:12:00] It's growing. I've said from the beginning, I'm going to be responsible with this.

Barbara Sprunt: The benefit of that is usually people are asking about the newsiest thing going on that day, which is what you need anyway. So if you have your mic, you're in a good place.

Nick Capodice: All right, to recap, if you're going to be a reporter on Capitol Hill, subscribe to newsletters, follow state legislation, and keep your mic out and turned on at all times. And also don't shout over other reporters asking questions. Barbara [00:12:30] told me about that later. That's just kind of gauche. All right. We've got to take a quick break. And when we come back, I'm going to delve into some weighty words like bias, objectivity, truth.

Archival: You want answers? I want The truth.

Nick Capodice: Hey. And while we're talking about newsletters, why don't you subscribe to ours? It's called extra credit. It is free as a bird. And you can check it out at our website, civics101podcast.org. Also, it's our podcast fund drive and we have a really cool new tote bag that we want to show [00:13:00] everyone. You can check that out too while you're there. All right.

Nick Capodice: We're back. I'm back.

Nick Capodice: Nick here alone today.

Nick Capodice: Talking about what it's like to be a congressional reporter for NPR. Uh, this is after I visited with Barbara Sprunt in DC. And now it is time for us to talk about the thing. The big thing.

Archival: Why don't you tell the people the truth for a change? The truth. The man wants [00:13:30] the truth. The truth. What is the truth? Said jesting Pilate and would not stay for an answer. The truth you want. What are you doing in the Senate?

Nick Capodice: So this is my personal takeaway from visiting Washington, D.C., and it's why I wanted to talk about getting the truth out of people to me. Washington, D.C. felt like a city of storytelling, not lies necessarily storytelling. And of course it is, right? [00:14:00] People go to D.C. to get stuff done, either for themselves or for the people they represent. And you get what you want by telling a good story. Politicians are remarkable storytellers. You know.

Archival: When I was young and growing up, I remember coming down the the steps into the kitchen.

Nick Capodice: And if they don't get anything done, they'll tell a good story to explain why.

Archival: House Republicans passed that. But in this deal that was cut, we don't do that. Why? Why? [00:14:30]

Nick Capodice: As a result, it can be pretty hard to get them to divert from that story to tell you something. And sometimes you can't get what you want.

Barbara Sprunt: I think this maybe is something that has been like in the ether in the last couple of years, more than I think before the idea of truth. And people have their, you know, we'll say, you know, this is my truth, this is their truth. And I think, like, my job is to think about what are the facts, because [00:15:00] I think that the truth, you know, with the capital T means different things to different people. And I don't want to get into the realm of being like, well, this is my truth. This is their truth. Like we're talking about x, y, z. I'm like, there are hard facts. Someone votes a certain way that's on the record. Um, someone comes out of a meeting where they're talking with their colleagues and they'll tell you, you know, you'll ask them, what was this meeting about, how was the reaction? And they'll tell you, and then you can go [00:15:30] to other lawmakers that were in that meeting and say, like I heard, there was like a lot of booze in this meeting or like people were, you know, very agitated, like, what was was that true? Was that your experience like. And you can I think like trust but verify, right. Like if someone is also at some point like this is not Joe Schmo on the side of the road talking to you. This is an elected representative of Congress. I asked them questions and I hear what they're saying. I try to, you know, parcel out what could [00:16:00] be the political motivation here or there, maybe ask a question about the political motivation and then go back and talk to their their colleagues. Sometimes there are questions that people don't want to answer. It's their right not to answer them, and it's our right to ask them anyway and then be told, politely or otherwise. I don't want to answer that question.

Nick Capodice: I asked Barbara what we should be looking out for. Like if we were congressional reporters, what should make our ears perk up a little? What should we be paying attention to?

Barbara Sprunt: There are these big [00:16:30] things that you have to cover, like spending fights like that's a big deal, not just at the Capitol, but what that means for everyone back home. But I am interested in bills, not the bills that are introduced just to make a point. And we'll never go anywhere. But I am interested in particular bills that have bipartisan, you know, co-sponsoring bipartisan support and even those that don't get across the finish line. I think that that can tell you, particularly if you see it as sort of like a trend on a particular issue, I think [00:17:00] that can tell you something about like what's bubbling beneath the surface that has teeth. Um, and, you know, maybe one day it will have even more teeth and then become something that, like, gets taken up more fully. I feel like it's safe to say that this is a very toxic environment, not only on the Hill, but, you know, it's toxic. I mean, sadly, I think it's toxic everywhere. And people are not talking to each other. They're talking past each other. And I think [00:17:30] that, um, I'm always interested in people who have relationships across the aisle in Congress.

Nick Capodice: The last thing I wanted to talk to Barbara about, and it's tied to bipartisanship or the lack thereof. It's tied to capital T truth. There are members of Congress and members of the public who have accused NPR of being left leaning. And in the news recently, an editor at NPR resigned after writing [00:18:00] an op ed that painted a similar picture. A picture, by the way, that many people who work there say isn't accurate. And this is also tied to the misconception that NPR is quote unquote, government funded, which is not accurate. We're going to get into that in another episode soon. So I asked Barbara, what do you say when these accusations of bias are levied against you?

Barbara Sprunt: Yeah, I mean, I am not registered with a party because I cover Republicans and Democrats and I don't, you know, [00:18:30] I would never want that. A party registration to, you know, like change the way that people think about approaching me in terms of work. I think that's true for a lot of political journalists. I also think that I can't represent a full organization. And I wouldn't want to, you know, because we're all different. We all have different, like, work products and, you know, opinions. And I can represent myself and I will tell people and have told people, you know, I am a fair reporter. I stand on my own [00:19:00] record. It's all online. You can see what I've done. I want to talk to you because I want to hear what you have to say. And I want people back home to hear what you have to say. And I wouldn't be approaching you if it wasn't in good faith. I think, you know, people can choose to believe that or not. Um, some do, some still don't want to do an interview, and that's their right. Nothing is meant as like a gotcha. I mean, you know, especially NPR, like, this is not, you know, this is not Comedy Central. And I'm just [00:19:30] really trying to understand, like, what do you think? And I'm going to try to represent what you think to other people the best that I can. I think as a small little tangent, I really feel that in a time when local news is being gutted and that's where everything matters. I mean, I'm not saying that what I, I think it's important covering the Hill, but there are also other people covering the hill. What's going on in local communities is not always covered by, you know, hundreds of other journalists, [00:20:00] certainly. And so that I think, is critical to keeping people informed. And I do feel like NPR offers something unique and critical in this environment. And I think, like the NPR ecosystem with member stations is, like, critical to keeping people informed on what's going on in their backyards. So that's my little, like, soapbox.

Nick Capodice: And I'm going to close out by echoing that point. I don't feel it's a political opinion for me to [00:20:30] say that wherever you live and whomever you choose to support as a political candidate, you should support local journalism wherever it is. Yes, Washington, D.C. is a magical place. To me. It is a place of stories and monument and power. But your states, your cities, your towns, they are, as the saying goes, laboratories of democracy. Legislation from D.C. [00:21:00] can and does trickle down to affect your daily life, but it can also go the other way.

Nick Capodice: Well, that is what it's like to cover Congress. This episode was made by me Nick Capodice. My co-host is Hannah McCarthy. Very much more on the mend than last week. Rebecca Lavoie is our executive producer and Christina Phillips our senior producer. Music in this [00:21:30] episode by Music in this episode by Ryan Kilkenny, Margareta, El Flaco Collective, Nych Caution, Hatamitsunami, Emily Sprague, Hanu Dixit, Timecrawler, Blue Dot Sessions, and Chris Zabrizke. I'm going to Car Talk this thing out. And as much as they hang their heads in shame every time they hear it. Civics 101 is a production of NHPR, [00:22:00] New Hampshire Public Radio.

Nick impersonating Click and Clack: The Honda Civic is the only car he could afford. Smoke billowing out of the back. Don't vote like my brother, don't vote like my brother.

Made possible in part by the Corporation for Public Broadcasting.

We started out by lining up on different sides of the street, then by saying our vote out loud. We've used many methods to vote, but most of them were corruptible by the party in power. But have we reached the pinnacle? Have we finally achieved the "perfect ballot?"

Today, Dan Cassino of Farleigh Dickinson University and Josh Pasek of the University of Michigan walk us through the history of ballot design, the ballot fiasco in 2000, and how some ballots continue to favor one candidate (or party) over the other.

Wanna look like the hippest Civics 101 fan in town? Click here to check out our new Misinformation/Disinformation/Propaganda tote bag!

Transcript:

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

Rebecca Lavoie: Hey, Nick.

Nick Capodice: Yes, Rebecca.

Rebecca Lavoie: So here we are taping an episode of Civics 101. And, you know, I think all the time about this podcast and how easy it sounds. You know what I'm talking about. You and Hannah do your work. You make it sound easy. I learn something every week when I listen to it. But because I work with you each and every week, I know it's not easy to make, right?

Nick Capodice: No, right.

Rebecca Lavoie: It takes weeks and weeks of research to put an episode together. Interviews. Sometimes we throw whole episodes out if we don't think they're going to work, or if we can't get the right interview and this work, this kind of journalism, it isn't cheap, and we can only get it done when listeners like you contribute to Civics 101 to keep our show going. Want to say something else, Nick?

Nick Capodice: Well, thank you, Rebecca. And let me just add that it's our podcast fundraiser, which means that if listeners give right now at the $10 a month level to support our mission to unpack how our democracy works, they get our brand new tote bag. It's really cool. You had a hand in designing it, right, Rebecca.

Rebecca Lavoie: I sure did. Listen, I can't help, uh, put a little tote bag together. I love a good public radio tote.

Nick Capodice: Yeah, it's a classic for a reason, but you can check it out and all the other gifts on our website, civics101podcast.org. Or just click the link in the show notes. And thanks.

Archive: You take this lever.

Archive: And when you do this, it. What happens?

Archive: Americans have a heritage of the vote no other nation on earth can match. Before the 2000 presidential election, most people thought Chad was the name of a person. You will register and count your own vote by returning this handle.

Archive: On Friday, a federal judge blocked New Jersey's primary ballot design. New Jersey has been using what's sometimes referred to as a county line system.

Archive: But out of every thousand people, some hurried, some nervous, some uninformed. How many do you think? Do it perfectly.

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

Rebecca Lavoie: I'm Rebecca Lavoie.

Nick Capodice: Rebecca Lavoie is subbing in for Hannah today because Hannah's got the flu. It's like Jamie's got a gun. Hannah's got the flu. Oh, nothing we can do.

Rebecca Lavoie: It's not anything like that for Hannah. Feel better soon? Yeah.

Nick Capodice: Feel better soon. Hannah, uh, Rebecca is our executive producer on the show, and she knows what she's doing. Uh, but today we are talking about punching the Chad, filling in the oval, tapping the screen and pulling the lever. Because we're talking about ballots.

Rebecca Lavoie: Wait a minute. Did you just say pulling the lever? Are there machines that still have levers?

Nick Capodice: I'll talk about pulling the lever to vote a little bit later. Who was it who said, give me a large enough lever and I can move the world?

Rebecca Lavoie: Uh, that was Archimedes.

Nick Capodice: Archimedes? Well, yeah. The OG man in the bathtub. Uh, we're not going as far back as Archimedes. But today we are going to talk about how we used to vote in the United States, how we got to our modern-day ballot system, and finally, how the design of our ballots still, even now, continues to be controversial. I'm going to even talk about a ballot design that was declared just last month, April 2024, to be unfair.

Rebecca Lavoie: Now, I can't wait for all of this, but I have to give a reading suggestion for anyone out there who's not familiar with how we used to vote. There's this brilliant piece by Jill Lepore from The New Yorker in 2008 titled Rock, paper, scissors. Please look that up. Yes.

Nick Capodice: It's fantastic. It's hilarious. It gets our highest recommendation.

Rebecca Lavoie: Okay, so let's get to it. Nick, how did we used to vote?

Dan Cassino: So in America, uh, the earliest types of voting we had were all public voting.

Nick Capodice: That there is none other than Dan Cassino, professor of political science at Fairleigh Dickinson University. I've used that music to introduce him no fewer than 12 times.

Dan Cassino: So this was basically two categories. One was where you would actually use some sort of marker, so people would actually take beans or marbles and put them in a barrel or put them, and then you would count the numbers that went in each one.

Nick Capodice: Fun bit of etymology here, Rebecca. This is where we get the word "ballot." It's from the Italian ballot meaning a little ball.

Rebecca Lavoie: Really?

Nick Capodice: Yeah. So what we think of as pieces of paper started as dropping balls in a jar. But there were some other fun variants.

Dan Cassino: In some states, I think up in New Hampshire, actually, they had basically people divide up on different sides of the street. So in your town, some people go on one side of street, some people go to the other side of street. And that would be you counting people on each side of the street. The most common, though, was we call viva voce.

Rebecca Lavoie: Viva voce. Does that mean voice vote?

Nick Capodice: Uh, technically funny enough, the translation is word of mouth.

Rebecca Lavoie: Okay, so, you know, I know a little something about that. We used to have a show called Word of Mouth here at NHPR, but, like, is that like, telling people who you're voting for? I don't really get it.

Dan Cassino: Voce. Voting simply means you would go in to the polling place and you would publicly announce who you were voting for, and the guys who are running the polls would then write down your name in the name of the people, everyone you were voting for. And this had the advantage. It's thought to be resistant to any sort of corruption because it's all public. We know exactly who voted for who, and it's a public declaration so everyone else can look at you and go, well, this guy lives in the town. They're saying who they want to vote for. They write it down and anyone afterwards can check the logs.

Rebecca Lavoie: This is completely different from our current system, and I can't imagine anybody being willing to do it this way today. But I just want to say that I can see some positives in the viva voce. You can? Yeah, for one, it's fraud-proof, right? Other people hear who you voted for, you have witnesses, and since there are logs, it'd be pretty dangerous to go back and fudge the numbers. Also, there's something kind of, I don't know, brave about it. Brazen. It's sort of like a fearless declaration. You're just walking in and saying who you're voting for. You're just saying where you stand politically. I kind of like that.

Nick Capodice: I feel the same way. Like it seems fun and brave. Like for this brief moment, you are called upon in public to give your civic opinion. But the downside is you're called upon in public to give your civic opinion.

Dan Cassino: That means you're not free to vote for whoever you want, because if you vote for the wrong person, you might get in trouble. So this is especially important when we're looking at 19th century American politics, where political parties are so important and you might be getting social benefits, you might be getting your job because you are affiliated with a certain political party. And therefore, if you vote against that political party, you're in trouble. Someone's gonna be asking you, what were you doing? Why were you doing this?

Rebecca Lavoie: Someone, like, say, I don't know, your local party boss?

Nick Capodice: Yeah. We're not talking about your neighbor who doesn't like your politics, getting mad at the signs you have in your yard. In an election in New York City, for example, your vote can have massive ramifications. A political machine like Tammany Hall, they could be responsible for your job, the jobs of your family members. Maybe you owe them money. You vote for a candidate other than the one you're quote unquote supposed to, and you are in trouble.

Rebecca Lavoie: Side note What is Tammany Hall, exactly?

Nick Capodice: I'm so glad you asked. Uh, the most famous boss of Tammany Hall, which is what we call a political machine, which is like a political party in power that just cannot be ousted no matter what. The most famous boss was Boss Tweed, William Meager Tweed, who had all the judges, all the cops, all the new Americans in his back pocket. And no matter what you did, you could not get them unelected.

Dan Cassino: So the viva voce voting was still used up until the middle part of the 19th century in a lot of districts. So even in the 1840s, 1850s, 1860s, we saw a number of states still using that. But most states by that point had switched over to printed ballots. Now, I know that sounds like what we do now. Oh, there's a printed ballot and you fill out who you want, but it's not. The idea was that the ballot was not printed by the state, by the government. Rather the ballot was printed by the political party.

Nick Capodice: Political party. Newspapers had preprinted ballots in them for their party. You could just cut it out on Election Day and take it to the polls. You've seen pictures of these early ballots, right, Rebecca?

Rebecca Lavoie: Oh, absolutely. They're not like a ballot we think of today - just names on like a sterile piece of paper. These were ornately designed. And weren't they colored differently for different parties? Yeah.

Nick Capodice: So you take your ballot, you'd walk to the ballot box. Everyone would see the color of the piece of paper that you put in it.

Dan Cassino: These ballots were sometimes just beautifully decorated. They used really interesting typography. They would put pictures of the candidates at the top. They would have slogans, often horribly racist and sexist slogans, but they'd have slogans on the ballots telling you who you were voting for when you voted for them. Almost. If they're doing their last minute, here's why you're supposed to vote for us. We promise we'll keep Chinese labor out of our out of our country. And imagine you say, well, I want to vote for, I don't know, James Buchanan for president, but I don't like the Senate candidate. What in the world are you supposed to do with that? You're going to go and cut out the name of the Senate candidate off that ballot, and Scotch tape another name on there? No you can't. Scotch tape doesn't exist. So there's no way to actually do this. There's no way to have a split ticket vote. So all voting is straight party line voting.

Rebecca Lavoie: So this is what we call now straight ticket voting, right?

Nick Capodice: Yeah. And that word ticket was used because these ballots looked a lot like train tickets.

Rebecca Lavoie: Really.

Nick Capodice: Yeah. So you'd walk in and if anyone important was watching, you'd hold your pink or your blue ticket nice and high before dropping it in the box and real quick, uh, there was also some drama about the box itself.

Rebecca Lavoie: Box drama.

Nick Capodice: Box drama.

Rebecca Lavoie: It was just like, wasn't it? Just like a box, like a big wooden box.

Nick Capodice: It was a big wooden box. And this was a problem in the 1800s, because people started to explore these boxes and find out that lots of them had secret wooden compartments with extra ballots inside of them, and people were doing a lot of their stuffing on the day. The ballots were really thin, like tissue paper thin, so it wasn't hard to fold up 10 or 20 of them and stuff them in the ballot slot.

Dan Cassino: So to avoid that sort of malfeasance, uh, they, they moved to transparent boxes. This also meant they had feedback on the day of the election for how many people were voting for which candidate.

Rebecca Lavoie: Oh, I think I see where this is going, where. So if it's 12:00 and you're noticing, say, a paucity of red ballots in the glass box, you're going to do whatever it takes to get more of them in there, right? Yep.

Dan Cassino: You got a telegram, you got a runner over from another say, oh, we don't have votes here. Okay, cool. Go out, round up some more people. We'll get some more people to come in and vote. This, as you might expect, also led to a great deal of malfeasance. Because what do you do if you run out of people supposed to vote? Well, you got somebody who previously voted. You get them to come back.

Nick Capodice: This is just a fun side note, Rebecca, but have you ever heard of the whisker vote?

Rebecca Lavoie: Whisker vote? No.

Nick Capodice: Supposedly, Tammany Hall was inordinately fond of voters who had a full beard because they were worth four votes. So, you know, the guy would go in and vote, go out. A party boss would tell him the name of a recently deceased person. He'd shave the bottom of his beard, vote again with that new name and so on, past muttonchops all the way to clean shaven.

Rebecca Lavoie: So it seems to me a wooden box or glass box, viva voce or a colored ticket. Our system of early American voting was pretty vulnerable to party corruption.

Nick Capodice: It was. And we didn't even get into the counting of the ballots. The party that won the last election was in charge of counting the ballots for the next election. What? Yeah. So there's like a famous Thomas Nast cartoon of Boss Tweed saying, as long as I count the votes, what are you going to do about it?

Rebecca Lavoie: Okay, so when did a shift finally come? Like, when did we start to move toward a system that we all know today? You know, the one that's more private, that's more secure?

Nick Capodice: Unsurprisingly, the shift comes during a movement of political reform in the late 19th century, a time of activism and adjustment to how we do things, the Progressive era.

Rebecca Lavoie: Nick, I think the Progressive era sneaks its way into your episodes almost as much as Richard Nixon does.

Nick Capodice: That's true. I cannot deny I'm not a crook.

Dan Cassino: And so we get a movement in the United States, really starting in California and Massachusetts. Uh, California is really a hotbed of early progressivism. Uh, again, because this is the period where they're basically rewriting their state constitution so they can put all these progressive ideals into their state constitution. And they say, we're not going to do this. We're going to standardize the ballots. And this is what first happens in the U.S., in California. Now, this does not mean that the state is going to print the ballots. No, don't be ridiculous. What this means is that they actually say you have to print your ballot only on white paper. It has to be a certain size of paper. And you can get this paper from the secretary of state's office. And so you either get it from the secretary of state's office or you can do it yourself. It has to be the exact same kind of paper. And the idea is that everyone's voting in the same color and size of paper. You can't tell who voted for who, so therefore you can't punish people or reward people for voting the way it's supposed to because you don't actually know how they voted.

Nick Capodice: Now, you'd still sign the back of the ballot. So it wasn't fully anonymous yet. But eventually California starts to print the ballots themselves. The state made the ballots, not the party. And that's the big change. And shortly thereafter, some states go the extra step. Taking a page out of an ally's book, our Democratic friend from over 10,000 miles away.

Nick Capodice: And this is an innovation we get from Australia, as we call it today, the Australian ballot. Australian ballot simply means it is a private ballot filled out in the polling place. It is printed by the government. So the vote is anonymous. You don't know who voted for whom. There's no way to link those back to each other. It's private, so you can't be penalized for voting one way or the other. And those are big innovations. And this is actually the, uh, this actually becomes a big debate in early, late 19th, early 20th century America about whether the Australian ballot or his detractors called it the kangaroo ballot can be a good innovation. Now, why would they be against this? Okay, maybe because you're a political party. You like giving your patronage jobs, but also because they say this is a ballot for cowards, right? Why do you need your ballot to be private? Aren't you proud of who you're voting for? Are you ashamed to stand up in front of your fellow countrymen and say who you're voting for? Right? Shouldn't you be proud of the people you're voting for? Shouldn't you know you're saying, oh, I want to vote for something so unpopular I will get in trouble. If I vote for this, then why are you voting for it? So maybe you shouldn't be doing this at all.

Nick Capodice: Regardless of its detractors, states started to use the Australian ballot and here we are. But before we jump ahead to modern ballot design, Dan told me one last story of ballot malfeasance. That involved an eventual president. And it happened in Texas in 1948.

Dan Cassino: There's one county where the sheriff is responsible for paying the poll tax for the voters and collecting their votes, and so you'd wait until the day after the election and say, all right, we're down by this many votes. I need you to get me this many. And he would go in and he would just say, yep, that many votes. We got them all there. And you know, Lyndon Johnson, you know this was this was common practice in Texas at the time. The Hill Country, Texas at the time, Lyndon Johnson was considered to be worse than everyone else because at one point he waited until three days after the election. Right. So everyone went in and said, okay, everyone got their extra votes from other people for the people supposed to. And Johnson was still losing. So he went back and then got his guys to find another couple boxes of ballots. You know, three days after the election that all happened to be cast in alphabetical order, that were enough to put him over the top in the election, earning him the name in the in the Senate of landslide Lyndon.

Rebecca Lavoie: Landslide Lyndon.

Nick Capodice: Yeah. Because he won by like 87 votes.

Rebecca Lavoie: And Johnson got away with this a box of votes in alphabetical order appearing at the last minute.

Nick Capodice: He he did get away with it. He became the president. Box 13 is the one that had those votes. And this Senate victory was challenged all the way up to the Supreme Court. And the Supreme Court said this is a state primary. It's run by a party. We have no business interfering with how the parties run their own elections. We've got to take a quick break here, after which I'll get to the lever that maybe didn't move the world, but it certainly affected an election in our lifetimes. And I'm also going to get to some ballot design issues that continue to sway voters to this very day.

Rebecca Lavoie: But before that break, a reminder that a donation to our listener-supported show in any amount is a vote for Civics 101 and our ceaseless quest to break down the basics of democracy. And you can make that donation on our website, civics101podcast.org. Or even easier, click the link right in your show notes. We're back. We're talking about ballots. And we were just about to talk about the lever.

Nick Capodice: Have you ever used a lever voting machine?

Rebecca Lavoie: I watched my mom use it when I was a kid, but I have not.

Nick Capodice: Have you? I did in the first election I voted in. I was going to college in Boston, not Cambridge, by the way. Boston. Can I make that? Can I make that joke?

Rebecca Lavoie: Well, if they don't like it, they're definitely going to tell you.

Nick Capodice: Okay, so that first vote that I made was a lever machine. Here to explain them again is Dan Cassino.

Dan Cassino: And these are basically voting machines that look like a steampunk slot machine because there's these little things and you have all these little levers you push, these little, you know, up or down, you switch the you put the switches to decide who you want to vote for. There's actually mechanism built in there to make sure you do not over vote. So you literally cannot vote for if it says vote for three out of five, the machine will not let you vote for more than three out of five. When you're all done, then you take this giant thing like you're doing a slot machine. You pull down on it, and as long as you do it hard enough, it makes the punches. And now you've got your vote. Uh, these are actually inspired by player pianos and sort of punch cards used in player pianos. Um, you think about it, it's the same mechanism, right? We have the thing to punch it in. We punch a certain pattern, and then that pattern of the punches, punch holes is used to count everything up.

Nick Capodice: So when I used it that one time, that was kind of like an airplane bathroom. Like I pulled the lever to start it and it closed the curtain behind me, and then I pulled the lever again when I was done and the curtain opened up again, it was absolutely thrilling.

Rebecca Lavoie: Okay, so the thrill aside, are there downsides to the lever machines?

Nick Capodice: Absolutely. There are downsides. So they're an improvement because they're easier to count. But some people couldn't reach the switches. Other people weren't strong enough to pull the lever. So you'd have to call somebody in to help you, you know, cast your vote. An alternative to lever machines was called a stylus machine. For these, you had like a little needle, you had your own stylus, and you just punched out the holes yourself.

Dan Cassino: Essentially directly creating the punch card that you would get out of the mechanical lever machine. The problem with this punch card voting is that, first off, it can be very confusing because in order to create the different columns of the punch cards, uh, to register all of your votes, which would actually have to do is have a ballot where options are printed on both the left and the right sides of it. So imagine this weird little book and you're voting in the middle. Candidate number one is listed on the top. Top row can number two is listed on the second row, but on the right side can number three is on the back in the third row on the left side. And so it was very, very easy to wind up voting for the wrong person, especially if it's Florida and it is full of very, very old people. Um, so this we in the year 2000, we actually have proven that this sort of overvote, uh, for some candidates because people voted punch the wrong punch card. Right. So Pat Buchanan got, uh, who was a very conservative candidate, 2000 election of Florida got way more votes from Jewish nursing homes than we would have expected because his name was listed. Looks like kind of where next to where Al Gore's name was.

Rebecca Lavoie: So we've been talking about the fact that we owe the 2000 election its own episode. But long story short, there was this recount triggered in Florida during the Bush Gore election because it was close enough to warrant a recount, and the Supreme Court ruled, 5 to 4 that that recount be stopped, which in effect handed George W Bush the presidency.

Nick Capodice: And one of the major issues was that all the different districts were determining in different ways how to count ballots that weren't a perfectly clear punch.

Dan Cassino: And so we get all these weird definitional arguments. What is an actual vote is a vote. If you tried to push out the Chad and failed. So we have an indented Chad. What if you pushed it through? But not all four corners of the Chad came off. Then we have a hanging Chad. Does that count as a vote or is the Chad off for it to be counted as a valid vote? The problem with this is not that these definitions are bad, although this is a stupid argument to be having. The problem is that in Florida in 2000, most famously because it was such a close election that different counties applied different standards and even sometimes different vote counters apply different standards. The hanging chads matter, indented chads matter, hanging chads, we don't know. It's all up in the air.

Archive: The chads that are being dimpled during the counting process that are then objected to and are now being counted are are tainted ballots.

Archive: There are dimpled ballots. There are ballots with creases. There were ballots with lipstick on them. There were ballots with handwriting on them.

Rebecca Lavoie: Okay, I know this stylus machines are pretty much gone, as are the lever machines these days. What we do now is fill in a little bubble, like we're taking the SATs and then slide it into a machine which reads it like a scantron, and it's spare. It feels spartan like names on a white piece of paper, and that feels about as fair as I can imagine it.

Nick Capodice: Yeah, it is spare. But let me ask you this. Rebecca, whose name should come first on a ballot.

Josh Pasek: So I've done research in the past on on candidate name order on the ballot. So it's is there an advantage to being listed first?

Nick Capodice: This is Josh Pasek. He's an associate professor of communication and media and political science at the University of Michigan. He studies how people make electoral choices, and he was recently called upon as an expert to testify on New Jersey's controversial primary ballot, which I'll get into a little bit later.

Josh Pasek: There has been a handful of sort of political science papers that have gone out and actually examined the results of being listed in various positions. And you can do this because there are some states that vary the order of candidates names with data from actual elections. And so we went out and we collected a whole pile of, um, results from various California elections where candidates are listed in different orders on the ballot. So in each assembly district, the candidates are listed in a different order and the top candidates put on the bottom, etc., and they sort of go around. And so you can say, well, how did candidate A perform when they were in first position versus when they were in some other position? And how about candidate B? And unsurprisingly, what you find when you do this and there have now been so many studies done of this, it's almost crazy. Um, it's a very well-established effect weight.

Rebecca Lavoie: But how crazy. I don't think I know a single person who has ever gone into a voting booth and made their choice for president because their name was first.

Nick Capodice: Yeah, that's fair. And Josh admits it's not an astronomical advantage for presidential elections. You're looking at a 0.3 to 0.5% increase due to name order. But if you go further down the ballot.

Rebecca Lavoie: You mean those local offices, the ones that you say over and over and over on the show, are like ten times more important to our actual daily lives than federal elections?

Nick Capodice: Yeah, those offices.

Josh Pasek: When you start dealing with something like, well, how much does a candidate in a primary election gain by being the first listed candidate for a, you know, for a nonpartisan judicial election? In those kinds of circ*mstances, it can be pretty big because people go into the ballot and they're like, are any of these people are what the heck is a comptroller? You know, there are things people vote for that they don't even really think about before they get there, because you get brought in by the, you know, the presidential and senatorial candidates. You don't really decide you're going to vote because, I mean, unless you know the guy because somebody is running for county freeholder, right? And so as you get down to those sort of lower on the ballot things, yeah, whatever seems like an acceptable option is fine.

Nick Capodice: Ballot fatigue is real. Rebecca, I felt it. You felt it. My phone got hot from googling the names of the seven people running for Registrar of Deeds, and sometimes you just make an uninformed choice. And the further down a ballot a contest is, the more the order of names matters.

Rebecca Lavoie: You know how I pick when I can't figure it out? Nick. Side story.

Nick Capodice: How do you do it?

Rebecca Lavoie: I kind of look at like, the signs on my neighbor's lawns and I'm like, if I know I agree with that neighbor,

Rebecca Lavoie: But how do we pick which name gets put first? How does that work?

Nick Capodice: All the states do it differently. Uh, some states do a completely random draw. California does something that I think is pretty hilarious. They randomized the alphabet and then they list the candidates in that new alphabet order. Uh, some states do regular alphabetical order within their party, which is also listed in alphabetical order.

Rebecca Lavoie: So that would give, like Alan Aardvark of the Alliance Party like a huge advantage. Right. Because he'd always be at the top.

Nick Capodice: Always. It's like ah, plumbing. And then you got states like Colorado, where the party whose candidate for governor got the most votes in the previous election, they go first. It's bonkers. It's all over the place. And I want to get back to something we talked about earlier. Okay. Name order effect for president is a really small number. So let's take Josh's lowest estimation 0.3% of the vote in Florida in 2000. The final count before the recount was canceled was about 500 votes more for George W Bush, which is a lot less than 0.3% of Florida's voting population. And close calls like that have happened since.

Josh Pasek: In the election in Michigan in 2016, that margin was also smaller than the third of a percentage point we'd expect for a presidential election. Right. So Michigan alone wasn't enough to be the complete decider? Um, you'd have needed to pull Pennsylvania 2 in 2016 for it to flip the result. Um, and Pennsylvania was a little bigger than a third of a percentage point, but not much.

Josh Pasek: Um, it was like about half a percentage point. But those two states were actually both in the margin where you'd say, well, it's possible that an order effect could have been this big.

Nick Capodice: And now finally we come to New Jersey's ballot design. So as a rule, ballots are usually designed in two ways. First, there's what's called an office block ballot. You have an office like senator, judge, sheriff, whatever. And below that office are all the names of who's running. And you pick one very straightforward. The other way is what's called a party column ballot. All the Democrats running for office are in one massive chunk, and the Republicans are in another chunk. And this system is what new Jersey was doing in their Democratic primary.

Rebecca Lavoie: Wait, I don't understand. Everyone on the ballot in a Democratic primary is a Democrat. So how on earth were they doing a party column ballot when they were all in the same party?

Josh Pasek: Primary election candidates aren't running like in separate parties. They're running in the same party. And so their thought was, okay, let's let candidates agree on a slogan to run together, and then they can get listed in the same party or column. So this is the basic strategy. Now how do you agree on a slogan? Well that's where the county parties stepped in in practice. And so whoever they endorsed was imbued with the potential to run with the county party label, the name of the county party underneath them. And so the, you know, Camden County Democratic Party, or whatever it might be, would then have their label next to all of their candidates, and those candidates would get listed together in a column.

Nick Capodice: This large group is referred to as the county line. This is a pre-picked group of candidates at the very front of the ballot. And if you weren't part of that group, you'd be in the next column, which is like a much smaller group and so on all down the line. And if you weren't with any of these groups, you'd be way out there.

Josh Pasek: And so what happens is you have sort of all the Senate candidates listed together. And then if you've got a House candidate who's not with one of the say for Senate candidates who are running, the earliest they can be listed is column five. Oh, and now if you have a, you know, a county clerk who's not listed with any of the Senate candidates or either of the already unbracketed House candidates, they're listed over in column seven. And so you can have like a candidate in column one and column two, and then nobody else till column seven. And people in new Jersey politics started referring to candidates placed out there as being listed in ballot siberia. Which is a hilarious term, but arguably reflects kind of, well, the idea that those people might be sort of hard to even notice on the ballot there.

Rebecca Lavoie: How did this affect who people voted for? I mean, I imagine the county line had, you know, a pretty strong advantage, but how strong was that advantage?

Josh Pasek: So I ran a study, right. We checked out what would happen, um. Or what? You know, what happened when we in this case sent voters a text message, um, that then linked them to a version of the ballot that either was this new Jersey ballot with randomly placed candidates for Senate and House, um, or was sort of a traditional ballot that has sort of each office separately. And we looked at how many people chose the candidate, each candidate, when they were in the county-endorsed line position versus when they were placed somewhere else. And the answer was it was, you know, well into the double digits. It was a huge effect.

Rebecca Lavoie: That is massive.

Nick Capodice: Absolutely.

Rebecca Lavoie: Huge. And you said this ballot went to court because of that advantage.

Nick Capodice: It did in April 2024. And a district judge issued an injunction to eliminate the county line ballot. However, this injunction only applies to this upcoming election 2024, and it only applies to the Democratic primary. However, it could have a ripple effect to all new Jersey ballots.

Rebecca Lavoie: When is the new Jersey primary?

Nick Capodice: June 6th, and I honestly don't know if all the county clerks and all the different districts in new Jersey will change the ballots in time. So we're going to just see. Before we wrap up here, there's one last thing I want to mention about ballots. And it's not their design necessarily. I want to get back to how we count them. Dan told me that no matter what system we use, there is going to be a margin of error. And yes, it's an admittedly small one these days using this optical scantron system, but Dan wanted to make sure I understood. The problem isn't that there is a margin of error. The problem is that there is no consistency among all the voting districts on how to address that margin of error.

Dan Cassino: And so we found out from Florida in 2000 is if essentially the margin of error of the voting system is larger than the margin in the election, then it doesn't matter how you voted, then it's going to come down to lawyers suing each other over who actually winds up winning, and what rules you're going to use to decide who winds up winning. So at a certain margin, then the lawyers are the one who decide who actually won an election.

Rebecca Lavoie: So it sounds like, as in so many things, it all comes down to consistency.

Nick Capodice: Yeah, consistency. Turns out democracy has a lot in common with parenting, predicting the weather and your favorite restaurant.

Music in this episode by ProtelR, Coconut Monkeyrocket, El Flaco Collective, Spring Gang, Rand Aldo, Hatamitsunami, Raymond Grouse, HoliznaCC0, KiLoKaz, Scott Holmes, Scott Gratton, Blue Dot Sessions, Yung Kartz and the man I pull the lever for every week, Chris Zabriskie. Civics 101 is a production of NHPR

Today we explore coins, shells, greenbacks, the Mint, all things tied to American currency.

Our guides are Stephen Mihm, professor at the University of Georgia and author of A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States, Ellen Feingold, curator at the National Numismatic Collection at the Smithsonian, and Todd Martin from the U.S. Mint.

Hey, check out our snazzy new tote bag! Make a $5 a month or $60 one time gift to the show and it's yours!

Episode Resources and Lesson Plans

Graphic Organizer for episode

Parts of a Coin: from the US Mint

Symbols and numbers on the dollar bill: from The Bureau of Engraving and Printing

Field Trip to the Money Factory: See how our bills are made, from usa.gov.

Have a civics question? Click here to ask and we’ll do our best to answer!

TRANSCRIPT

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

Civics 101: Money

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

Nick Capodice: [00:00:03] OK, your levels sound good, professor, Are you ready to jump in?

Stephen Mihm: [00:00:07] Absolutely. Absolutely.

Nick Capodice: [00:00:09] So my first question, and maybe it's foolish to start with this one, but what is money?

Stephen Mihm: [00:00:21] (laughs) Do you really want me to try to answer that?

Nick Capodice: [00:00:48] This is Civics 101, the podcast refresher course on the basics of how our democracy works. I'm Nick Capodice.

Hannah McCarthy: [00:00:53] I'm Hannah McCarthy.

Nick Capodice: [00:00:55] And yeah, today we're talking about it. Talking about money. American money [00:01:00]. Its history, bills, coins, the Mint, you name it.

Hannah McCarthy: [00:01:06] Did you get an answer from him?

Nick Capodice: [00:01:08] I did. That is Stephen Mihm, by the way, he's a professor of history at the University of Georgia, and he wrote a book called A Nation of Counterfeiters, Capitalists, Con Men and the Making of the United States. And he is the first guest on Civics 101 to deal with natural disaster.

Stephen Mihm: [00:01:24] I don't mean to be trouble here, but Athens, Clark County is under a tornado warning. Tornado warning for us means that there is a likelihood there is a tornado in our area...

Nick Capodice: [00:01:34] And Stephen stuck it out through a tornado warning so he could tell me about money. And sometimes in this episode, you're going to hear him talking and you'll hear a little siren in the background. But back to my broad question. So money is this thing we all have or we want to have. It's something we need to carry out our daily life. But have you ever just wondered what it is?

Nick Capodice: [00:01:56] Stephen told me that money, in its classic sense, consists of three [00:02:00] things. Number one, it has to store value. It has to hold its value over time. It can't rot like a banana. Two, unit of account. That means its value is measurable. It's countable and it's the same everywhere, right. No dollars worth more than any other dollar. And three medium of exchange. That means it is something that is generally accepted to be exchanged for goods and services.

Hannah McCarthy: [00:02:23] All right. Gotcha.

Nick Capodice: [00:02:24] But Stephen also said.

Stephen Mihm: [00:02:25] That question, what is money, the answer will tell you a great deal about the person answering it and less about what money actually is. Anthropologists might invest money with cultural significance. That money originated not to meet economic needs, but rather originated out of something like either religious ritual or kinship relations or some way of creating reciprocity between social groups. Money, in other words, is is is [00:03:00] what you make of it. And what you make of it depends very much if you're asking an academic on your academic training.

Nick Capodice: [00:03:07] And I asked that same question to Ellen Feingold. She is the curator of the National Numismatic Collection at Smithsonian.

Hannah McCarthy: [00:03:13] And what does numismatic mean?

Nick Capodice: [00:03:15] A numismatist is somebody who collects and studies money.

Ellen Feingold: [00:03:18] I prefer a simpler definition of money, and that is money is anything that can be used to make a payment. And really, any object can serve that purpose as long as it has an agreed upon value and is trusted for use in transactions.

Nick Capodice: [00:03:32] And in the past in world history, that's been shells, beads, giant stones with holes in them. And in America today, we're talking about coins, bills, credit cards, cryptocurrency and any of the myriad ways that banks electronically handle our accounts.

Hannah McCarthy: [00:03:46] How did we start using money in America? Was a dollar always this green thing with George Washington on it?

Nick Capodice: [00:03:53] No. Oh, not by a long shot.

Stephen Mihm: [00:03:55] Before the United States was created as an actual bonafide independent nation, [00:04:00] America and the colonies that would become the United States experimented with monetary substitutes in ways that actually marked the United States, or what became the United States, as very unusual. In other words, one of the first and really arguably the first state issued paper currencies in the Western world at least came in Massachusetts.

Nick Capodice: [00:04:23] So Massachusetts had no way to pay its soldiers.

Stephen Mihm: [00:04:27] And ultimately hit upon this very interesting idea of issuing what were effectively IOUs that would derive their value, interestingly enough, from the fact that they could be used down the line to pay taxes.

Nick Capodice: [00:04:42] But when we just started out as a nation, we used other people's money.

Stephen Mihm: [00:04:48] A motley assortment of coins made in other countries, either Spain or more likely Spanish colonies like Mexico or Bolivia, [00:05:00] what have you. To compound this confusion from our modern day perspective, if you were in Massachusetts, a Massachusetts pound might not be the same as a British pound.

Hannah McCarthy: [00:05:16] This sounds impossible.

Nick Capodice: [00:05:17] It does. And it was. And that's why we started to make some changes in 1776.

Stephen Mihm: [00:05:22] During the American Revolution, though, there was there was a desire to create a new currency. So that's really where it dates to. And this was a currency known as the dollar. But again, this dollar was not a truly novel creation. It was a dollar pegged to the Spanish peso. That is one reason why the American dollar is divided in the way that it's divided say, in quarters and originally also in 8ths and in halves, because the Spanish peso is divided into 8ths. And this made total sense. I mean, it was. Basically, we were lazy [00:06:00] and we're like, look, there's already a currency out there, most of us handle these silver coins. Let's just roll with this.

Nick Capodice: [00:06:06] The peso.

Hannah McCarthy: [00:06:09] I never knew the peso was to thank for the dollar.

Nick Capodice: [00:06:12] Right. But speaking of the dollar, let's get back to the paper currency. It caught on really quickly with merchants because there wasn't a lot of money around.

Stephen Mihm: [00:06:22] It's hard for us to understand now this problem which bedeviled the colonies. And that problem was that there was literally a shortage of money. Not a shortage of wealth, but a shortage of things that could be used as tokens to move between people and economic transactions. So people might have huge amounts of silver in the form of, say, plates and teapots and the like sitting on their mantel. But they had no money. The paper money solved this problem. It was a way [00:07:00] of making economic transactions move smoothly and operate, you know, with less friction than they would when you have to engage in barter or try to pay for a cow with a teapot. In which case, you know, there's a problem making change and and so on and so forth.

Nick Capodice: [00:07:18] But the biggest problem with all these paper bills at the time was forgery.

Ellen Feingold: [00:07:23] The colonial notes were, were were were often targets for counterfeiting. And that could be by American colonists. That could be by British troops, that could be by anyone who had an interest in taking advantage of those banknotes. Many of the notes had a statement on them that stated the legal penalty for counterfeiting, they said "to counterfeit is death." Many states went to, well, early colonies, went to great lengths to try to make their notes hard to copy. And one of the most famous examples of this comes from Benjamin Franklin.

Stephen Mihm: [00:07:54] Ben Franklin, who is the kind of where's Waldo of colonial America, he's everywhere, he devised [00:08:00] these paper notes that used a very kind of proprietary process to take a leaf and turn it into an engraving. And every leaf's veins are unique. So it was kind of this nature looking like a nature print on the back of his currency.

Hannah McCarthy: [00:08:19] Were counterfeiters actually killed?

Nick Capodice: [00:08:22] No. I mean, it was the technical penalty in a lot of states. But Stephen said it very rarely happened. Sometimes colonial authorities later hired counterfeiters to make bills for them. And the Secret Service, which today we think of their primary function as protecting the president, that agency was created specifically to deal with forgeries. It was that massive of a threat to our economy.

Hannah McCarthy: [00:08:43] Do they still do that?

Nick Capodice: [00:08:44] They do. If you're making some funny money, the Secret Service just might show up at your door. But it's harder today than it was even in Franklin's time. We've got color changing ink, watermarks, thread that glows in ultraviolet light. It's very sophisticated.

Hannah McCarthy: [00:09:05] All [00:09:00] right, when did we start to print a federal greenback dollar?

Nick Capodice: [00:09:11] Civil war.

Ellen Feingold: [00:09:16] So in 1861, beginning of the Civil War, the federal government decides to get into the business of printing money mainly to pay for the war. So, they produce what are called demand notes. And they have this vibrant greenback. And they have an intricate design, though not nearly as intricate as the designs become over time. And that quickly evolves into a variety of types of notes, over the decades that follow. And what really unites the design of these notes is a consistent use of... Of green ink.

Nick Capodice: [00:09:51] And Ellen told me an interesting story about George Washington's face being printed on these.

Ellen Feingold: [00:09:56] George Washington is currently on the $1 bill. And the predecessor [00:10:00] of that bill is a $1 silver certificate. George Washington, when he first appears on that note, does not appear by himself. He actually appears alongside Martha Washington in 1896. And in fact, 10 years earlier, that same denomination, the 1886 silver certificate, actually featured Martha Washington by herself. It's the only example of a... Of a historic American woman being featured on a federal banknote in a portrait on her own.

Nick Capodice: [00:10:31] That's the last time there was a woman on our paper currency. But in 2016, then Secretary of the Treasury Jack Lew announced that Harriet Tubman was going to replace Andrew Jackson, a slave owner, on the front of the $20 bill. It actually initially was going to replace Hamilton on the $10 bill but after the musical his popularity skyrocketed and they put an end to that. Today, Steven Mnuchin, our current Secretary of the Treasury, has not yet committed to the Harriet [00:11:00] Tubman change.

Ellen Feingold: [00:11:00] Something I collected recently, that's now on display in our gallery The Value of Money, is a 3-D stamp produced by a man named Dano Wall. And it is a stamp of Harriet Tubman. And individuals can use this stamp to stamp Harriet's portrait on $20 bills, thereby replacing Andrew Jackson with Harriet Tubman.

Hannah McCarthy: [00:11:27] Is that legal?

Nick Capodice: [00:11:28] Good question. Did you grew up hearing that it's illegal to deface money? Like you're not allowed to mess with money.

Hannah McCarthy: [00:11:34] Yeah, I always had a sense that you like...You shouldn't rip a dollar bill in half or something like that.

Nick Capodice: [00:11:38] Right. Right. It's not legal to rip a dollar bill in half because that's defacing or destroying currency. It's it's in the U.S. code that you're not allowed to do that.But to Ellen's knowledge, nobody has been reprimanded for stamping money or writing on money because scholars are currently debating what defacing means.

Hannah McCarthy: [00:11:56] And who is actually making our money today?

Nick Capodice: [00:11:59] Starting [00:12:00] in 1913, the Congress put the Federal Reserve in charge of money production and the value of the bills produced was tied to a specific amount of gold. This is called the gold standard. We don't do this anymore. I'll talk more about that a little bit. The Federal Reserve is in charge of money, but the bills are printed by the Bureau of Engraving and Printing. Whose web site is the delightfully named moneyfactory. gov. Do you have any dollars on you?

Hannah McCarthy: [00:12:25] I can go get one.

Nick Capodice: [00:12:25] I don't have any cash on me! We're a cashless society. Oh, thank you. What's this?

Hannah McCarthy: [00:12:30] A nice fresh dollar bill.

Nick Capodice: [00:12:30] Look at this dollar bill.`I've never been to either a place that prints bills or a Mint.Have you visited one of these?

Hannah McCarthy: [00:12:39] I think I have.

Nick Capodice: [00:12:41] Where?

Hannah McCarthy: [00:12:41] In Massachusetts.

Nick Capodice: [00:12:43] So the Bureau of Engraving and Printing has two locations that print money, those are in DC and Fort Knox. They send that money to 12 federal banks. If you were in Boton, that’s the A bank. So if you look at this dollar bill on the left side, to the left of George Washington, it has a big A on it. That says which of the 12 banks it came from. [00:13:00]

Hannah McCarthy: [00:12:59] No way!

[00:13:00] Yeah, so A is Boston. B is New York. C is Philadelphia. You could look up the whole list online. And when it comes to the Mint, I spoke with Todd Martin. He's the Chief of Corporate Communications at the U.S. Mint. He told me the six things that are on every coin-.

Todd Martin: [00:13:14] Which are liberty, in God we trust, United States of America, E Pluribus Unum- which is Latin for " out of many, one"-the domination, and the year that the coin was produced.

Nick Capodice: [00:13:29] And there's one more feature to look for. It's the Mint mark. This is like that letter on the dollar bill. It's a tiny letter on the head side that tells you where it was made-.

Todd Martin: [00:13:37] P for Philadelphia and D for Denver.

Nick Capodice: [00:13:42] The Federal Reserve, our National Bank, decides how many bills and coins to make every year. That's what puts money into circulation so you can have it in your wallet and your back pocket. But far and away, the most fascinating thing I learned about the Mint from Todd- and this doesn't happen with the Bureau of Engraving and Printing, by [00:14:00] the way- is that the Mint makes coins and they shipped them to the Federal Reserve. The Federal Reserve buys them from the U.S. Mint at the rate of a penny for a penny. Five cents for a nickel. Twenty five cents for a quarter. Do you understand what I'm saying?

Hannah McCarthy: [00:14:19] No. They make a penny.

Nick Capodice: [00:14:22] Yeah.

Hannah McCarthy: [00:14:23] And then they sell it for a penny?

Nick Capodice: [00:14:25] Right. They sell the Federal Reserve a copper-ish piece of metal. That's a penny. And the Federal Reserve pays them a cent for it. So- and that's how the Mint pays for itself.

Hannah McCarthy: [00:14:37] Ok. I want to get back to this. Right? This dollar bill in my hand here. Does it represent anything? Is there like a piece of gold in a vault somewhere? Do you know what I mean- like what does this mean?

Ellen Feingold: [00:14:52] It means that you trust the federal government.So it's fiduciary or fiat currency, which [00:15:00] means that it's money because the law says it is. And because you choose to trust the federal government and trust the law that establishes our national currency system.

Hannah McCarthy: [00:15:09] When did that change happen? When did we stop using notes to represent silver or gold, and start using fiat currency, and just trust that this dollar is what it says it is? Who did that?

Stephen Mihm: [00:15:21] FDR did- Franklin Delano Roosevelt.

Franklin Delano Roosevelt: [00:15:24] Therefore, the United States must take firmly in it's own hands the control of the gold value of our dollar.

Stephen Mihm: [00:15:32] You know, when people think about FDR and the New Deal, they always think about like Civilian Conservation Corps, you know, public works projects and WPA or what have you. But one of the most momentous revolutionary things he did was to sever and put an end to the gold standard. And he did that quite dramatically. It became illegal to own gold. In order for a currency that [00:16:00]is a fiat currency to work you've got to stamp out other- the competition. And in this case, holding gold would have been a very potent way of competing with the nation's currency. So it became illegal. There was a executive order. Gold was confiscated. And you got paper money in return at a fixed rate.

Nick Capodice: [00:16:20] But we kept using gold to represent the value of the dollar internationally until-.

[00:16:26] I directed Secretary Connally to suspend temporarily the convertibility of the dollar into gold or other reserve assets-

Nick Capodice: [00:16:33] President Richard Nixon.In 1971, he announced that the U.S. would no longer convert dollars to gold at a fixed value. And that ended all official ties to the gold standard. Now, we have to be careful with fiat currency, because now that our money isn't tied to a gold standard, inflation- which means our money is worth less- can happen if you print too much of it. If you're making too much money. And finally, in 1975, it became legal to own [00:17:00] gold again.

Hannah McCarthy: [00:17:00] So this dollar only means a dollar because I believe that it does?

Nick Capodice: [00:17:08] You got it right on the money. So the next time you look at the number in your bank account remember that it only has value because everyone else agrees that it does. Are the levels okay? They seem fine they seem fine.

Hannah McCarthy: [00:17:19] They seem fine to me.

Nick Capodice: [00:17:19] Alright let's go! Let's go! Five, six, seven, eight Put it in the bank. Today's episode is produced by me, Nick Capodice, with you Hannah McCarthy, thank you.

Hannah McCarthy: [00:17:29] You're welcome.

Nick Capodice: [00:17:29] Our staff includes Jacqui Fulton, who asked if blue jeans are used to make our dollars and we all laughed and it turns out it was TRUE.

Hannah McCarthy: [00:17:29] Erika Janik is our Executive Producer and has been waiting to do an episode on the Mint for two years.

Nick Capodice: [00:17:34] Maureen McMurray is a hip hip hip hip lady.

Hannah McCarthy: [00:17:38] Music in this episode by South London, Hi Fi, Broke for Free, Blue Dot Sessions, Matt Harris, Sara the Instrumentalist- no-.

Nick Capodice: [00:17:44] Sarah the Illstrumentalist.

Hannah McCarthy: [00:17:45] Yep. Sarah the Illstrumentalist. Rachel Collier, RKVC, and that wonderful 1910s band, the Weems.

Nick Capodice: [00:17:52] There is just so much, good heavens, to learn about our bills and our coins. What is on them and why it's addictive. And now I can't stop [00:18:00] looking at serial numbers on my dollars. To join my newfound obsession visit our website Civic101podcast.org where we put links to our favorite explainers on money.

Hannah McCarthy: [00:18:10] Civics 101 is supported in part by the Corporation for Public Broadcasting. And it is a production of NHPR, New Hampshire Public Radio.

Host Nick Capodice talks to co-host Hannah McCarthy about what it's like having real access to the Supreme Court. (Spoiler alert: those chairs lean WAY back!)

And then the pair pays a very emotional visit to the Lincoln Memorial.

Transcript:

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

Nick Capodice: Doo doo doo doo doo. Oh! You.

Nick Capodice: They are listening to Civics 101 I'm Nick Capodice. So for those of you who have been following along over the past couple of days, you know that we've been sort of sending dispatches from our whirlwind trip to Washington, D.C. in fact, it's not over. I'm still traveling. I'm on the road. Where am I? I'm leaving Manchester, driving a car in New Hampshire, Manchester Regional International Airport. So we've talked with you all about like, who we were going to go visit and who we were going to talk to and the institutions we were going to explore and unpack. But there is some tape that I hadn't shared from the trip that I wanted to share with everyone. Uh, two pieces of tape. And that's what stay is. Two pieces of tape. Some of you may know already on Wednesday, Hannah got a much-coveted press pass to go and hear arguments at the United States Supreme Court. And she did. And I waited outside with bated breath for her to emerge to hear about it. It was a blast, by the way, hanging outside the Supreme Court. And emerge. She did. And before anything, you know, we had another place to go. We had a tight schedule in D.C. so we had to, like immediately start walking towards the white House. So what I did was pull out my recorder and just turn it on and say, what was it like in there? What was it like in this place that we have talked about dozens of times on the show, but not actually been in? And here's what she said. So we talk about the Supreme Court a lot on the show, and you actually went to it for the first time in your life. And I got to know what it was like.

Hannah McCarthy: So it's a funny thing. Like, I wouldn't say I was nervous. I was I was mostly nothing but excited. I wasn't interviewing anybody. I couldn't even bring in my microphone because you're not allowed to bring it into the courtroom. Right? All you can have is pen and paper. And it was just this, like, sort of very classic experience of being a member of the press. You show up, you go into the press room, there are other journalists there. We're all there for the same reason, to sit silently in a room and let a total of 11 people speak pretty much the entire time. It was truly wonderful because the whole thing is like designed with the press in mind, right? It's not like you're in no way a nuisance. You're you're part of the show, basically.

Nick Capodice: So I want to know, like stepping in that front door or the side door, like the special press entrance. You know what happens?

Hannah McCarthy: You go through a metal detector. It was funny. The person was like, do you have any water or anything? And I was like, oh, I do. Can I check it out here? And he was like, no, you got to step outside to do that. And then he goes, oh wait, you press. And I was like, yeah. And he was like, oh, you're good. Go on in. So you walk in, then you have to talk to another security guy and mind you, like, I think if I were a regular it would be a lot easier. But I talked to another security guy and he was like, got to go down that hall. You'll go into that room, you'll ask for your badge. And I did that and everyone was unbelievably helpful. It was all just like crafted to make sure we got there. Right. So I'm sitting in this press room, which looks like a newsroom, and there are wooden cubicles all over, but I'm not allowed to go there because I'm not a regular. I don't have a quote unquote hard pass. And you can kind of tell the hard pass holders from the day pass holders, because the hard pass holders, they were wearing more expensive clothing, like like they just seemed like regulars.

Hannah McCarthy: They were chatting, they were comfortable, their hair looked great. And just this ease of like, yeah, we do this every day. And so but I'm sitting at a table with a bunch of, you would think, like mostly young journalists. It's not that, but it's I think it was a lot of like first timers or like I come here every now and then, but not very often. And we're chatting. And there was definitely this kind of excitement that I think comes along with doing something as a member of the press, where you're not inured to it yet. I've become inured to so many elements of being a journalist, and I think that's important to get really comfortable and feel like you should be there and you have to do your job. And so this first time of being in the Supreme Court, there was definitely this element of like, all right, keep it cool. Keep it cool like you're supposed to be here. Just do your work.

Nick Capodice: But didn't anybody see your like, sense of abject excitement and curiosity and, you know, you're like, Civics 101 ness of it and say, oh, this person needs, like, a little extra help.

Hannah McCarthy: No, I mean, I was very honest about it, though. And I asked later on, someone who regularly covered the Supreme Court. I was like, got any note taking tips? Because, like, I did not practice my shorthand before this and everyone was really kind.

Nick Capodice: All right, so you're inside. You get a seat. Tell me what? Like the room was like. Tell me what it was like seeing, you know, the justice's file in what happened next.

Hannah McCarthy: Okay, so they walk you down the hall and up this long marble staircase, past all of the members of the public who've been waiting in line outside to also go in. And the members of the public are getting this spiel about where to put their bags and everything, and you just get to march past, like, you just sort of flow past and you're going to a different part of this space. And it was I know I keep saying this, but yet again, it is necessary for this place to facilitate the free exercise of the press. Right? So you go up these stairs, you go through another metal detector. And at this point, all you have is your notebook and your pens and your day pass or your hard pass. You are walk into this room and oh, by the way, they also like check your notebook the way they would check a bag.

Nick Capodice: Wait, really? Like like don't write anything in it.

Hannah McCarthy: No, no. They look through it to make sure that you haven't secreted anything into the court. Oh. Um, yeah.

Nick Capodice: Like a little mini tape recorder or something.

Hannah McCarthy: Yeah, exactly. And then you go in and there are two rows of chairs in this hall that's adjacent to the courtroom. Now, the courtroom is a big square, right. And there are four giant marble columns along each wall. And so there are like two rows of chairs. And then there are these little groups of chairs sort of tucked in between the columns. And then in front of that, there are two courtroom benches where the regulars get to sit, the people, members of the press who were there all the time. And so I got to sit in one of those little groups of chairs, partially obscured view, you know, but still you are craning your neck and you see the nine chairs.

Nick Capodice: Can you tell me what the chairs look like?

Hannah McCarthy: They are these very tall, these like, high backed leather and wooden chairs, which I later came to learn lean way back.

Nick Capodice: I want to know about that recline.

Hannah McCarthy: Yeah, I will tell you about that. And, um, and you're sitting there and you're chatting with other journalists, and the courtroom is in front of you, so. Right. You're sitting against a wall, you're perpendicular to the courtroom. Um, and there are members of the public and other people who are permitted to be there to watch the case, to watch the arguments. And then you hear this. So, you know, there's like quiet, quiet chattering in the room and you hear. Coming out of some person's mouth, which means shut up! Be quiet. It's about time. There's a giant clock over the bench. The nine justices bench, I mean. And then we wait and we're chatting and chatting. Chattering again gets a little louder. And then again you hear, shush! And this time one of the security guards in there basically explained what was going to happen. You must remain seated, except for, of course, when the justices enter. Yep. And, um, at the end, you will be an officer will take you where you need to go. And then there's like this electronic ding. And. This woman and I forget the name of the role, but you hear? Oyez, oyez, oyez.

Nick Capodice: And she's the chanter. I think it's the chanter.

Hannah McCarthy: Yeah. And the justices come in and, Nick, I'm telling you, the first experience I have is not. Oh, wow. It's. Oh, right. Those are people. Oh, those are just people.

Nick Capodice: These guys. Yeah.

Hannah McCarthy: And you've seen their faces a million times. If you're someone like me, you've heard their voices a million times, and it's there's still some excitement, but very quickly it's down to business. And there's like the coded language of the courtroom.

Nick Capodice: What do you mean by that?

Hannah McCarthy: Well, I mean, so the justices. So you stand, the justices come in, they sit, you sit. And, you know, God save this honorable court. Oh, there's like a there's a bar ceremony.

Nick Capodice: Wait, What do you mean, a bar?

Hannah McCarthy: I had no idea this happened, Nick. So there are lawyers who are being admitted to the bar. Oh, my goodness. Admittances. And someone who's already a lawyer stands up and is like, you know, Onorable. Uh, Chief Justice Roberts, I'm gonna mess up the words.

Nick Capodice: I submit these names.

Hannah McCarthy: Yeah. And the justices, without fail, are like, you know, we welcome so and so to the bar.

Nick Capodice: Oh, I think.

Hannah McCarthy: Those are some some.

Nick Capodice: Samoans. Yeah. Simoleons. Samoa's real quick. I want to if you're looking at Michelangelo's chapel, there's like, a little buzz in the crowd and there's a man who stands there and just goes Silencio. Yeah. And then it gets quiet for a minute. It feels like that's what this show is like. Yeah. All right, so the bar ceremony happens.

Hannah McCarthy: Yeah, I have to share. There was one delightful moment where one woman who's already a lawyer stands up and she says, um, I'd like to submit my daughter so and so. Oh, and the Chief Justice Roberts is like, you know, we welcome your daughter.

Nick Capodice: Did the crowd go Aww?

Hannah McCarthy: There was a little giggle because how often do you break with form? Right. Yeah. But the coded language is like. There are words that indicate to the advocates who are going to get up and present the arguments that say, okay, now go. Okay. So it's like counselor, advocate, like I actually don't remember. I'll have to listen back to the tape. Um, not my tape. The tape of the courtroom. And that person goes and now, technically, the advocates for each side, which is what we call the lawyers, have half an hour. Do they use half an hour? No. What do you think?

Nick Capodice: I think they use every second and then go a little more, maybe.

Hannah McCarthy: Okay, so it's half an hour for the advocate to present half an hour for the justices to question. What do you think is more important?

Nick Capodice: Questioning.

Hannah McCarthy: Yeah, they rattle it off as quickly as possible. So the advocate representing Turner was his last name representing the state of Idaho goes. And this is when I learned that those seats go way back. Lean way back. Because here let's cross hold on a second. Just so this is where I learned that the seats lean way back, because I notice that Clarence Thomas is leaning so far back you can barely see him. He's almost like under the desk. Wow. And then I noticed that Alito is also starting to lean way back. Right. It's very interesting. And Clarence Thomas mostly has his head in his hand. And Alito is doing a lot of like, bouncing back and forth. Yeah. So I'm going to go into more details of like what actually happened during the oral arguments in our episode on this. I won't get into that now, but I do just want to share, um, you know, so there's the advocate for Idaho, the advocate for the United States. Advocate Prelogar.

Nick Capodice: Right. She's the solicitor general.

Hannah McCarthy: I think they both go. Right. But I just want to say the excitement that you feel suddenly you do have to do your job. What's my job? To sit, observe and take notes, but also because I cannot live transcribe everything that's going on. It's some of the most active listening I've ever done, and I interview people on a daily basis because you have to like, let your brain take in a full sentence and decide what of that you're going to put down on the page. Now, of course, you get those oral arguments later, but if you're a member of the press who immediately goes back to the press room, which so many did and wrote a breakdown which is just like so exciting and so like, it must require such sharp, quick work, you know? So you have to be able to get that out really quickly and kind of break down what you believe you saw, because no one's making any decisions. You just have to say, well, based on my understanding of all of these justices, everything I know about them, everything they said, this is where it seems like they're leaning, right. So so the excitement kind of dies down and gives way to like, the pain in your wrist because you just you're writing furiously.

Nick Capodice: We don't write that much anymore.

Hannah McCarthy: No, no. Coming out of that courtroom, it was like I had a true moment where I felt like I could happily spend the rest of my life doing exactly this, because there was this feeling being in that court, listening to these arguments happen that was so deeply satisfying to me as someone who really, really likes to read or listen to oral arguments and read or listen to the ways that justices break things down, the sheer pleasure of having that mental experience in that moment and feeling. I think I described this to you, but there's no way you can replicate the experience of being a human being in the same room as another human being. There are things that you feel, you know, the magical frisson.

Nick Capodice: Yeah, we've listened on Oyez to thousands, you know, of arguments over the years, hundreds of arguments over the years. I should say. This is so that's what I wanted to know is like, what's it like? It's like there is a difference. Seeing it in person.

Hannah McCarthy: There's a huge difference because you can hear tone, there's hearing tone, and then there's watching even the subtlest of body language. And of course, these justices are so practiced, right. They also, though, are in positions of such power that they could kind of give everything away. And I feel like it would be okay, like, but you could absolutely. Whatever annoyance you might have heard on a piece of tape to see annoyance, to see frustration, or to see gentleness. To see a justice. Basically, noticing that an advocate wasn't going far enough was maybe not expressing themselves clearly. A justice might say. It seems to me that what you're saying is this right? Giving that advocate something, or you might have a justice using that same turn of phrase in a completely different way, basically saying like so it seems to me that what you're saying is this. And like, yeah, you could hear that in the tape, but it's just so different when you're actually in the room. And it's also so different because you're, you're in a room with so many people, all of whom shift ever so slightly and take their breath ever so slightly. When something means something, you hear the entire press area right furiously when something's important. So let's just say I was writing one thing, and suddenly I hear everyone writing furiously. I'm like, I gotta go. Yeah, yeah. So.

Nick Capodice: Was there any laughter at any point? Would anybody, like, crack a joke?

Hannah McCarthy: I yeah, yeah. There was a moment where the advocate for the US, the Solicitor general, and she's being asked a question by, I believe, either Gorsuch or Amy Coney Barrett. And the way that they phrased something almost made it sound as though, um, Texas law could somehow, like, meaningfully. Basically, it prompted the advocate to say, essentially, to be clear, like our jurisdiction overrides their jurisdiction because I represent the United States of America, and that's Texas. And there was a quick little you know, we all know that.

Nick Capodice: Yeah, the federal law is supreme to state law, basically.

Hannah McCarthy: I mean, that was the whole that was a big part of this case. Yeah. And it is fascinating being in a courtroom where that is essentially being debated and the ways in which it was being debated. With The advocate for Idaho often coming back to an idea of essentially state sovereignty and federalism. And ooh, and an advocate tries to explain federalism to a justice of the Supreme Court. That's an interesting moment, because that justice is like, yeah, I know.

Nick Capodice: I am well aware.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: Any last thoughts you have about the day in the court? Your day in court? You're going to have your day in court. Mccarthy and you had it. Anything that surprised you later on that night thinking about it?

Hannah McCarthy: No, but not something that came to me later. But I, I definitely think that anyone who has any interest in what goes on in there and or any either strong or weak preconceived notions, be it Fury or Worshipfulness, I strongly encourage you to go to any one of these if you can, because being a part of the process, seeing it in person will either reaffirm for you exactly what you think you feel or it will make you. It's sort of the saucer that cools the tea. I think that an experience like that could very likely temper or shift your perspective in a way that you will only find helpful, right? It will only make you a more informed person who better understands what is happening.

Nick Capodice: It's like our whole lives we've been listening to the live album and you actually got to go to the concert, right?

Hannah McCarthy: Yeah, yeah.

Nick Capodice: All right. That's when Hannah had her day in court. Uh, we've got to take a quick break here on Civics 101. When we come back, I'm going to share another. Nick asks Hannah questions. Piece of tape. And it's about a place that's very important. It's important to our nation. It's important to our show. But it has a special import to Hannah specifically. And I wanted to ask her why. And that's coming up right after the break on Civics 101. 20. We're back. You're listening to Civics 101.

Nick Capodice: You're listening to Nick shouting into his phone while he's driving in a car. Reporting on our whirlwind field trip to Washington, D.C., Hannah started working at Civics 101, I think in 2016. I'm sorry if I got that wrong, Hannah. I started in 2017. Neither of us were hosts. We were, you know, producers. I was doing education, outreach and a little bit of production. Um, she was reporting on other stuff. And then we became co-hosts. And pretty early on, Hannah let me know that there is a place in Washington, D.C. that without fail. brings her to a place of real capital T true emotion. More than any other monument, any memorial, any holding place of a foundational document. And this place is the Lincoln Memorial. So what I wanted to do in our last night in town was go there with her and ask her why. What is it about this place? And she told me.

Nick Capodice: If this were a normal radio show. I'd ask tell me what you see. Describe the scene for our listeners.

Hannah McCarthy: If we were a normal radio show. Oh, some of the stairs are under construction. It makes it no less grand. Well, I will tell you what I see. I see a temple that we built to honor. Some would say a man, given the fact that there is a massive statue of him inside, much like Zeus. But you know what? For me. Yeah, because is life not what we make of it. For me, this is not a temple dedicated to a person I know. It's called the Lincoln Memorial. Yeah, but I think we are a nation founded on ideas that did come from the mouths of pretty much men. But the thing of it is, like, all those men die, and a lot of them did really bad stuff, and still they leave behind things sometimes that the people who continue to live in this nation, generation after generation after generation, are allowed to decide what to do with. So talk about life being what you make of it. I know so many of us feel disempowered, but over the long arc, or rather brief arc of United States history, I would have to say that a lot of it has been what we demanded, what we made of it.

Nick Capodice: It's not what was given to us, it was not what was granted to us and our foundational documents. It's what we fought for and kept the idea of, I mean, I can say a more perfect union, but it really is.

Nick Capodice: Did you ever have to memorize the Gettysburg Address and perform? I didn't either. I used to read Ripley's Believe It or Not like the old 1950s editions. Big surprise right? And one of them was it was a picture of Abraham Lincoln looking really mean. And it said Lincoln was wrong.

Nick Capodice: And I was like, oh my God, what was he wrong about? And it said, he said, the world will little note nor long remember what we say here.

Nick Capodice: And it's the most famous speech in history.

Hannah McCarthy: I actually think the the world will little note nor long remember if that. Is that exactly what it is?

Nick Capodice: I mean, I just I don't remember it so well. I think it is where we can see it on the wall. Hold on.

Hannah McCarthy: The world will little note nor long remember what we say here. But it can never forget what they did here. Just because this speech is carved into stone in a temple. I don't think that that means will little note nor long remember these words that I'm saying right now. And even if it does, he's right. Because he understands. Maybe. Maybe he understands that history is very long. Things crumble and fall. I don't think that he necessarily thought that perhaps the human species would. Not always be a part of Earth's history. But the important point is like, I think maybe that whole sentiment is captured in the way that I feel about all of this, which is that perhaps actual words are remembered, but I, I surely hope that while we know who said it, we're not actually worshiping the animal who issued those sentiments like we are worshiping, perhaps, or we're respecting. We're honoring what came from the words that that animal happened to speak out loud. I'm not calling Abraham Lincoln an animal. I'm saying that we are all flesh and blood and just highly evolved animals, and some of us do remarkable things.

Hannah McCarthy: And yes, many of us are rightfully honored. And I'm not saying Lincoln shouldn't be rightfully honored, but I am saying so many people take issue with Lincoln as a human being. Every human being does bad stuff. Every human being does things that we can say, get rid of them like they're the worst. That. But like you could even say that negates it all, but but it doesn't negate it all because someone heard words. Someone was a leader and did a bunch of stuff, and it resulted in, first and foremost for him, the preservation of the union. That might have been the chief goal of the person who, in effect, like, fostered and led the Union's victory in the Civil War until his death. But it was also that this country was continuing to practice the most disgusting, abhorrent, horrifying, the sort of thing that we should be self-flagellating over. We were doing it and we got rid of it. We fought a war because of it. People say it wasn't because of that or it was because of the economy. What was the economy based on? Just out of curiosity.

Nick Capodice: One of the reasons we're here is because you told me that you always cry when you come to the Lincoln. And I, you know. Why is that? What is it about this place? That fills you with emotion.

Hannah McCarthy: I think every time I've been here, and I think sometimes I remember it and I say, you know, we're like the first time I was here as an adult. I wasn't wondering how far those principles and those foundations could be pushed. And I have wondered it since. But actually, standing here, I'm feeling the exact same way I've always felt in this space, which is it's so fragile. And, um. And I think this place exists. To remind us. Of how fragile it is. I'm not talking about patriotism. I actually don't know what patriotism means. But I think sometimes even pretending like this country is what we hope it is, or could be, is sometimes the only thing that keeps it afloat. And being in a space like this, I feel like you are face to face with the the brutal truth that all it takes is for someone to bucket. Right? And then there could very well go. I can't fully explain it. I'm a cynic in a lot of ways. I'll tell you, art doesn't really make me cry. And if I cry at a movie, it's totally by surprise. Certainly, like a building ought not make me cry. Especially a building so teeming with loud people who, by and large. You know, I think a lot of them aren't paying a lot of attention. I'm glad they're here. This is just a myth.

Hannah McCarthy: We're standing in a myth. But that's at the aged heart of anything that functions is myth, you know? And sometimes it functions for good and sometimes it functions for ill. And I suppose being in a temple that I think is reminding us. I don't know, a very important feeling that we ought to have, that this was hard won, and it will be hard to keep, and it could be easily gone, and that there are important ideas that people do something with. And and it's not individuals. It's not lawmakers, even for better or for worse, whether they like it or not, this country is full of people. They do a lot of work to support us, but we also repeatedly demand a lot. And sometimes the cries get loud enough. And whether you like what the cries are for or not. That is sometimes what can bend things, I guess I don't know, or maybe it's just the threat of war, and maybe it's just the threat of the loss of power. Maybe it's all just a cynical as you want it to be. All I know is that I come into this space. It's a kind of emotional experience that I can't compare to any other I've ever had in my entire life. In this space. I've never felt anything like what I feel.

Hannah McCarthy: When I'm here. I was, you know, like, why do I stand here and cry? Because of my mother and father. My grandparents and the people who taught me. At least what they thought was right and what I continued to think was right. And then eventually I. I took a job. Trying to teach people. The truth, because I think that's essential to a functioning everything life, you know, not just a functioning country. I think it's essential to a functioning mind. That's it. I got nothing else for you.

Nick Capodice: That's good. Also look around you.

Hannah McCarthy: Yeah, yeah. The kids. Yeah.

Nick Capodice: Well, that is it for this dispatch from DC. I mean, I'm not technically in DC and I'm sad I'm not in DC. I'm miserable. I had such a fun time there. The whole team had a blast. We did a lot, a lot, a lot of stuff. Uh, stay tuned to the coming weeks. You're going to hear a bunch of episodes of people we interviewed on our trip there. Uh, they're going to be great, I promise. This episode was produced by the inimitable Rebecca Lavoie, our executive producer, and so, so, so much more. And I am Nick Capodice for Hannah McCarthy and senior producer Christina Phillips. Music in this episode from Epidemic Sound and by Chris Zabriskie. Civics 101 is a production of NPR, New Hampshire Public Radio. All right.

Nick Capodice: Back on the road.

You might think you know why Marbury v. Madison is important: it set the precedent whereby the Supreme Court decides whether laws are constitutional or not, a power known as judicial review. But what else does this landmark decision say? And why is this case from more than two hundred years ago cited so prominently in former president Donald Trump's current Supreme Court brief?

In this episode, host Hannah McCarthy "Hansplains" the connection between this famous case and current events, with the help of Quinnipiac University's Wayne Unger.

For reference, here’s more about Baker v. Carr, the case Hannah talks about in the episode.

Transcript:

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

Hannah McCarthy: Hello, everyone.

Nick Capodice: Hannah.

Hannah McCarthy: Hello. Hi. We're at it again. Here we go. Welcome back to another round of Hannah Hansplains things to people who know more than me most of the time. I am Hannah McCarthy.

Rebecca Lavoie: I'm Rebecca Lavoie,

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Christina Phillips,

Hannah McCarthy: And this is Civics 101, the podcast where on occasion, we sit around a table and gab about the state of the country on mic instead of via furious texting on the group chat. And today I want to talk about a Supreme Court case from 221 years ago and a Supreme Court case from two days in the future.

Nick Capodice: Oh, wow.

Hannah McCarthy: Yeah. So the case from 221 years ago, some would say it's old news, but it's news that still makes a difference to this day. 1803 Marbury versus Madison. I am not going to lay out the whole thing right here. Don't worry about that. But does anyone here have a summary? Rebecca Lavoie!

Christina Phillips: Yeah. Both of their hands went up like the most excited children.

Hannah McCarthy: But, Nick, we know Rebecca's never on.

Nick Capodice: Let her go ahead. I've done enough on this.

Rebecca Lavoie: This is one that I actually know. Okay. And only in part because I watched John Adams on HBO. Okay, so I know that when Jefferson beat John Adams for the presidency before John Adams left office, he and Congress passed a law that allowed him to basically create all these new judgeships. And Marbury was appointed to be, I think, a justice of the peace in Washington, D.C.. And then when Jefferson became president, those papers were never delivered so that Marbury could get his judgeship. And he was mad about it. He didn't like it at all. So he went to the Supreme Court and said, I need those papers to be delivered. And they, in a unanimous decision, not only said he ruled for Marbury, but they also said the entire law was unconstitutional, thereby setting the precedent that the Supreme Court could declare a law unconstitutional.

Hannah McCarthy: And in fact, the court said, While Madison is breaking the law, we can't even talk about it. That's right. Because like so. So Marbury is right. But we cannot force anyone to issue a writ of mandamus because this law is unconstitutional.

Rebecca Lavoie: That's right. And Marbury never got to be a judge.

Nick Capodice: His whole life. He just wanted to be a judge.

Rebecca Lavoie: That's all he wanted.

Christina Phillips: I'm glad to know. What? How you say mandamus now, because I was like mandamus. Mandamus? Yeah. I think it's like.

Rebecca Lavoie: It's like certiorari

Nick Capodice: Yes, sir. certiorari

Rebecca Lavoie: Right.

Nick Capodice: Of mandamus. Sounds like Matt Damon.

Archive: How do you like them apples?

Hannah McCarthy: Let me ask you this. When the court said this law, this law that Congress passed right before Jefferson came in is unconstitutional, what was the court doing?

Nick Capodice: Is this the magical expression, judicial review? That's right.

Nick Capodice: Yeah. What is it?

Nick Capodice: It's that the judicial branch doesn't do stuff. That's the executive branch's job. Judicial review means that it is their job to interpret the Constitution and to decide what laws are constitutional or not. They can't make you do something, but they can tell you that a law should or should not exist.

Christina Phillips: It was the first time that judicial review was applied, right? Like so before the Constitution was kind of seen as symbolic, and this was the first time that it was like, oh no, the law of the Constitution is above the law written by Congress.

Nick Capodice: Yeah, it was the Supreme Court giving itself the power to which we now associate it today.

Nick Capodice: There it.

Hannah McCarthy: Is. Okay. So that's the big thing with Marbury versus Madison. The Supreme Court, as had been hinted of before but never actually stated explicitly, was like, actually, yeah, we do have the crown of judicial review. We get to interpret the Constitution. So what does this have to do with this future case that I'm talking about? Kind of nothing in terms of judicial review, but a lot in terms of Marbury versus Madison. So I was reading through Marbury versus Madison a few weeks ago, as you do, and.

Rebecca Lavoie: In the tub with a glass of wine.

Hannah McCarthy: Enjoying myself, relaxing, unwinding after a long day, um, and I came across some passages that I had never paid attention to before because Marbury versus Madison judicial review. Fascinating. That's the point of it, right? And I'm reading these paragraphs in the opinion, and I'm thinking to myself, I kind of laughed. I was like, you know, if I were the lawyer of a former president facing criminal charges, I would probably try something like this. Like what I was reading, in the opinion of Marbury versus Madison from 1803. So, Rebecca, can I ask you to read one paragraph in particular? This is the one that, like, got me thinking.

Rebecca Lavoie: So here's the quote from John Marshall. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion, questions in their nature, political or which are by the Constitution and laws submitted to the executive, can never be made in this court.

Nick Capodice: Hmm.

Christina Phillips: Ooh!

Hannah McCarthy: Anyone have any little shinings of thought before we dig in here?

Nick Capodice: I just want to say I never knew this was part of Marbury versus Madison. I just always. I always tied it to the judicial review. Not to this question of politics.

Rebecca Lavoie: Yeah, but they're basically saying they can't decide political matters.

Hannah McCarthy: That's what I'm saying. Yeah, yeah. But a big, important part of that, Rebecca, is not to inquire how the executive or executive officers perform duties in.

Rebecca Lavoie: Which they have a discretion. Yeah, yeah. Wow. That's a big deal.

Hannah McCarthy: Big deal.

Rebecca Lavoie: And we've heard echoes of that in some of the court cases that we've heard in recent news, where it's like when somebody is president, they have alleged presidential immunity, maybe. And that's kind of maybe what this is hinting at a little bit.

Nick Capodice: Yeah. You are not saying that in the upcoming case about former President Donald Trump, people are looking at Marbury versus Madison as precedent.

Hannah McCarthy: I am it is it is cited quite a bit. So the Supreme Court case, two days in the future. Can anyone tell me what this case is that I'm referring to?

Christina Phillips: This is the question of presidential immunity, whether or not Trump is immune from criminal charges for actions he took leading up to January 6th and the riot on the Capitol, and whether he can be prosecuted by the Justice Department. Yep.

Hannah McCarthy: So I read the brief that former President Donald Trump's lawyers actually did send to the Supreme Court in anticipation of this trial. And lo and behold, former President Trump's lawyers are quoting Marbury versus Madison like it is going out of style.

Nick Capodice: Wow.

Hannah McCarthy: So my question is, what is this like? What's going on? What does it mean to say that the Supreme Court is not to inquire how the executive performs duties in which they have a discretion? So I talked to someone smarter than me. Shall we hear from him?

Nick Capodice: Yes. Sure. Please.

Wayne Unger: So the political question doctrine is essentially made by the Supreme Court. It's it's law made by the Supreme Court that says there are some cases, some legal issues that are better left to the other branches of the federal government, such as the executive branch and the legislative branch. And there are various reasons for why that is. So, for example, the political question doctrine has been invoked when it comes to, say, sterm military actions. When the president has the very clear mandate as commander in chief, the court decides, hey, it's probably best that we don't interfere when, for example, the executive branch has a clearly granted constitutional authority.

Hannah McCarthy: So that is Professor Wayne Unger, assistant professor at Quinnipiac University School of Law. And a major shout out to Wayne for saving my hide, because I was hunched over attempting to make sure I knew what I was talking about today. And he was like, yeah, I got you. So any initial thoughts about what you just heard from Wayne? He's talking about something called the political question doctrine, and that is what we call this idea about the Supreme Court not having anything to do with ruling on issuing opinions on the official duties of a president.

Rebecca Lavoie: I guess my initial thought is, how do you define official duties of the president? Right. So is there a job description for the president of the United States? And when do you decide that the president is coloring outside of those lines?

Hannah McCarthy: That's a great question. Yeah. But as Nick and I have talked about in the past, the only job description for the president is in the Constitution, first and foremost, to uphold that the Constitution. And then, you know, there are a lot of laws that Congress has passed that have to do with the functioning of the United States, that the president has to abide by. But we know the president is commander in chief, for example, and the head of the executive branch, which is huge.

Nick Capodice: What's interesting to me is that when it comes to Congress, like there is so much more in the Constitution about what falls under the purview of the legislative branch. And there's quite a bit less about what the president is responsible for doing. And there's like nothing about what the Supreme Court is responsible for doing. So I just feel like when it gets to what can the president do? There's going to be a lot of interpretation as opposed to just taking the words in the Constitution itself.

Hannah McCarthy: So this political question doctrine thing, we have the court saying, you know, yes, Marbury is do this, but no, we can't order anyone to do it. Why can't we order anyone to do it? Well, because this law is unconstitutional, but also because. Is this is a political question. And the court at this particular time is looking at Adams and Jefferson and Madison and Marbury, and they're like, no way. Like we are not messing around with all of.

Rebecca Lavoie: This, right? Because it was just an election. And this act was passed in part to frustrate Jefferson. Right?

Nick Capodice: Oh, yeah. Absolutely. It was a political act. You know, some say that Jefferson threw the things in a fire. Yeah. I don't know if that's true or not.

Nick Capodice: But so.

Wayne Unger: The Supreme Court is basically like, I don't want to touch this, you know, like because the ramifications could fall on us. Like we made a big mistake and everybody's going to get really mad. So this dynamic is if the Chief Justice had said, you must deliver the commission that authorizes Marbury to take his position, it was a good chance that Marbury would not have received it because Thomas Jefferson and James Madison would have refused to deliver it. So that is the dynamic that kind of set up the kind of origin, so to speak, of the political question doctrine, where there are some actions that article three, the federal courts should not wade into and stop short of doing because of a political reason of sorts.

Hannah McCarthy: Right. It's a political question. It's kind of murky, but the court doesn't want to wade into it. But obviously it's the Supreme Court. They can't just say, well, this is political. We can't do anything about that. So, you know, even though these are just like six dudes meeting in whatever space in the new Capitol building they were allowed to meet in, because it's 1803, the court is new. They don't have their own space. They are still the highest court in the land. They have to have a reason for why they're doing things. So the political question doctrine is born now. Does everyone feel like they get what the political question doctrine is?

Nick Capodice: I do, but I wouldn't mind hearing you say it one more time.

Hannah McCarthy: All right. I'm going to have Wayne weigh in here before we keep going. How about that?

Wayne Unger: The political question doctrine is, in a way, very intangible. I, of course, don't use that in the literal sense of intangibility versus tangibility, but I say it as a kind of loose standard, right? Where the federal courts loosely apply it. Sometimes they rigidly stick to it, sometimes they deviate from it. When something could be a political question. I'll give you an example, because I teach constitutional law to first year law students. Political question that doctrine is, is oftentimes difficult for first year law students to understand because, well, you could make an argument that a case before the court is a political question, and then you can make another argument that it is not a political question. And then the court ultimately has to decide whether it is or is not. All of that is to say there is great debate as far as what is a political question or not.

Rebecca Lavoie: Did this come up in Bush v Gore?

Nick Capodice: We're going to get to Bush v Gore.

Hannah McCarthy: So this is Bush v Gore comes up.

Archive: It's slightly detached.

Archive: Democrats charge a confusing ballot layout, let voters to think they were punching the ballot for al Gore when they were actually voting for Reform Party candidate Pat Buchanan.

Archive: 3500 people did not vote for Pat Buchanan. Come on. This is heavily Democratic, Palm Beach County.

Archive: It is a ballot that was approved by an elected Democratic official. And hey, guess what? There were no complaints until after the election.

Hannah McCarthy: What I want everyone to remember over the course of this episode is that the court just gets to decide what it's going to do. It gets to decide what is best and why, where it gets to weigh in and where it doesn't. And there is this principle established in Marbury versus Madison. Does it mean that they have to rigidly adhere to various interpretations of it? No.

Nick Capodice: I do not think that there is a Supreme Court case that we have talked about on this show. Out of like 20 that could not be argued, was political in nature, like every single one.

Hannah McCarthy: And to be absolutely clear, the political question doctrine as laid out in Marbury versus Madison is specific to the executive and official acts of the executive and executive officers. Okay? It is not separate from that. It's not all notions that could be remotely political. It has to do specifically with the executive branch. Got it. And kind of messing with the executive branch. So I do want to say the court did actually refine what makes a political question a political question. It's in a case called Baker v Carr 1962. I am not going to go over the specifics now because I think I would bore you guys, but I'm going to put it in the web post for this episode in case people want to know what these political questions are. But Wayne said he uses an example with his first year law students right to try to explain the political question doctrine. And this is an example of the court weighing in on something the president did in the course of his duties, his official duties. Right, which include following the law. That is a duty, right? Does anyone here remember Biden v Nebraska 2023?

Nick Capodice: I mean, we probably all do in this room. Sure. Wasn't this the, uh, forgiveness of student loans case that went before the Supreme Court and the Supreme Court said, you can't do that tonight?

Archive: The Supreme Court dealing a major defeat to President Biden, striking down his plan to erase more than $400 billion in federal student loan debt. Chief Justice.

Hannah McCarthy: So the Heroes act had a provision that allowed the Secretary of Education to waive or modify certain financial assistance programs. Biden is promising anywhere between 10 and $20,000 of student loan debt forgiveness for all people who are having their loans facilitated by the federal government. Right. And so this is what happened in that case.

Wayne Unger: As the Biden administration argued before the Supreme Court, there was a statute that gave him the authority to the words or modify or waive that federal student loan program. And so that's what the Biden administration invoked. They said, hey, this is the act, the Heroes act, specifically this statute. And these are the words that give us the authority to cancel these student loans. And those words were waive or modify. And, of course, the discussion before the Supreme Court for that case was, well, what is a waiver and what is a modification? And whether a cancellation of 10 or $20,000 per borrower is a modification or something totally different. And ultimately the court said, no, it's not a modification, it's not a waiver. So it's not within the zone of authority that Congress gave the president of the United States.

Hannah McCarthy: So some other examples of the court weighing in on the acts of a president, because the court does, and the specifics of the criminal charges and immunity question in this Trump case in 2024, that's new. But a lot of the basics of this Trump case are not at all new.

Wayne Unger: So this is not the first case where immunity, broadly defined, is before the United States Supreme Court. There have been several cases before the Supreme Court that the Supreme Court has decided that establish some level of immunity in different circ*mstances. For example, in Clinton v Jones, the court decided that there is no constitutional immunity for a president of the United States for unofficial acts applied in the civil context. So civil and unofficial, no immunity. And then you have criminal and kind of a criminal investigation whether a president is immune from a criminal investigation. In short, we've had a couple of criminal subpoenas issued to presidents of the United States, and the court has said, no, you are not above the law. You have to respond to the subpoena, one of them being Nixon v Fitzgerald, another one being the Watergate tapes, where in that case, Nixon said, I'm not going to disclose the tapes. And that worked its way up to the Supreme Court. And the Supreme Court says a broad claim of immunity does not supersede the very specific ask to produce these tapes to further, you know, in the administration of criminal justice.

Hannah McCarthy: So I want to mention you heard Nixon v Fitzgerald. That's different from the Watergate case, right. And importantly, different to and Trump's lawyers make sure to cite Nixon v Fitzgerald specifically. Yes, but not the Watergate case basically. Yeah. Yeah. And uh, the Nixon v Fitzgerald case very specifically uses the term absolute immunity.

Christina Phillips: Remind me what Nixon v Fitzgerald was specifically.

Hannah McCarthy: So what happened is that Nixon fired someone after they testified about, like, a really messy way in which the Air Force was building an airplane. This person testified before Congress and said that it's inefficient and it's a misuse of funds, essentially. So this person sued for wrongful termination damages. And the Supreme Court said, we're sorry, but Nixon is immune because this was an official act, even if it was an official act on the outer perimeter of Nixon's duties as president. Um. So Trump's lawyers are arguing first and foremost in their brief. The Supreme Court told us way back in Marbury versus Madison that they cannot, as in the court, cannot weigh in on the official acts of a president. Okay, Christina, can you read the first mention of Marbury versus Madison in this brief for us?

Christina Phillips: So in Marbury versus Madison, this court held that a president's official acts, quote, can never be examined by the courts, end quote, a doctrine that this court has reaffirmed over two centuries.

Hannah McCarthy: All right. So this brief submitted by Trump's lawyers says this five times, quote, can never be examinable by the courts. I want to say, I think this is important, that this is taken a little out of context. Now, I read Marbury versus Madison. I've read it several times. This quote two things. One is used in reference to an officer of the executive branch, not the president. You could argue that that doesn't have a meaningful difference, because the whole point is that the officer is executing the will of the president. Okay. So yeah. So even though Marbury versus Madison doesn't explicitly say presidential acts can never be examinable by the court, that's the implication, right? But number two, this passage being quoted by Trump's lawyers is immediately followed by a quote, but.

Nick Capodice: Oh, there it is.

Hannah McCarthy: And I'm going to get to that. First of all, though, Rebecca, here we go. Official acts. Right. This is a term that does not exist anywhere in Marbury versus Madison. At no point do they use the phrase official acts. What do we think it means? What do we think the official act of a president is?

Rebecca Lavoie: I'll be honest, it seems like it could be loose, like a thing that you expect a president to do. Sign laws, meet with people, engage in conversations about the budget, give speeches, you know, talk about policy. I mean, a broad variety of things, right? But like, there are supposed to be things that you are not supposed to do as an official act of president, like your campaign for your next presidency is not supposed to be an official act. Right? Like you're raising money is not supposed to be an official act. There are things that we know are not supposed to be, but I'm not sure that's a definition of things that are official acts.

Nick Capodice: Right?

Nick Capodice: The word official acts means related to the office. Right? So these are acts that are in the office of the president. So my question is, is like eating a meal. Part of the office of a president is like sleeping like all these things that you do while you're president. Can they be called official because you're doing them while you are in the office?

Hannah McCarthy: I think that's a great question.

Hannah McCarthy: I don't know the answer to the eating thing.

Nick Capodice: Yeah, I shouldn't have brought that up.

Nick Capodice: But again, it feels like official acts. What is official and what is unofficial that's laid out in the Constitution and the Constitution is pretty barren on what the official acts of the president are.

Christina Phillips: Well, I think that the thing that you brought up with Marbury versus Madison, that the fact that it feels a little out of context because Marbury versus Madison is specifically talking about an official carrying out an act that the president gave them to do, like the president said, you should do this. And if we're thinking about this Trump immunity case in the January 6th, like a lot of the things that are cited in that case are former President Trump telling people to do things or getting on calls with his official staff and people that he works with that he employs. And so that feels like an official act. If it's something that, like he is telling somebody else to do or he's doing with people that are under him in Marbury.

Hannah McCarthy: Versus Madison itself, the opinion references quote duties in which they have a discretion, they being the president, quote, the will of the president. And actually, Nick, if I could have you read just one last paragraph, I think this one lays it out in a pretty straightforward way. I see it as like, this is a baby Supreme Court trying to figure everything out. This is kind of how they're trying to define what a presidential act is.

Nick Capodice: By the Constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion and is accountable only to his country, in his political character and to his own conscience.

Nick Capodice: Oh, wow.

Rebecca Lavoie: It's not getting tighter. It's getting looser.

Hannah McCarthy: The but's coming. The big old. Okay.

Nick Capodice: Yeah. Where's the big old?

Hannah McCarthy: But I'm gonna get to the big old but, but yeah, I thought this was really, really interesting because when I first read this in Marbury versus Madison, I felt like the will of the president, his discretion, his conscience. That's so much wiggle room.

Nick Capodice: Yeah, it's like Magna Carta. It's like the divine right of God has blessed your conscience to understand what to do.

Nick Capodice: Yeah, but.

Hannah McCarthy: I think what's also really important is that the Supreme Court starts to talk about later in Marbury versus Madison, that the president is doing things for the country and not addressing individual rights. And once we start thinking about the rights of the people, things get a little more complicated. And in actual fact, John Marshall complicates it. That's part of his.

Rebecca Lavoie: But I love the optimism of 18th and early 19th century elected people and people on the Supreme Court. Like, you could not write something like this or think something like this. If you ever suspected that someone would be elected to the presidency, that would take this idea and use it just to their complete advantage right there, assuming that everybody who's going to be elected to this office ever is going to be a good person and completely live by these ideals. And that's really optimistic. And I kind of love that.

Hannah McCarthy: I think that's there. I mean, when I was reading Nixon v Fitzgerald, the court is like, you know, it seems like in granting absolute immunity for civil cases that there's no recourse when it comes to the president doing something that someone feels like is an injury. But of course, there's lots of recourse. There's impeachment. And then one of the things they note, they essentially say, like, the president has a duty to the people and wouldn't want to embarrass him.

Rebecca Lavoie: Never, ever, ever. No, no president would ever, like, step over any lines of any kind. Right. Wow.

Christina Phillips: There's a whole lot of like, you know, assuming that feelings matter in this situation and I.

Rebecca Lavoie: And dignity. Yeah. And, you know, decorum and all the things that's like, it's like everybody's going to be George Washington. Everybody's going to be Thomas Jefferson. It's always going to be like sending a message by horseback. So the message has to be really important, like the assumptions of just the times are just really astonishing to read now.

Hannah McCarthy: Yeah. When they later refine Marbury versus Madison political question doctrine in Baker v Carr in 1962, the sixth thing under the political question doctrine, like what makes it something that the court can't mess with, is if multiple branches disagreeing on something would cause great embarrassment. Wow, we can't do anything about it. And it's like, what does that mean? How do you define great embarrassment?

Rebecca Lavoie: It means that, like England looks at us and goes.

Nick Capodice: We told you so.

Hannah McCarthy: Okay, so I keep promising that I'm going to get to that thing that big. But in Marbury versus Madison, and I promise I am almost there. But before we get there, we need to take a quick break. And one thing I ask of you, fair listener, if you have ever heard the show and have learned a little something, like maybe the things hidden in famous Supreme Court decisions that you never knew were there, consider making a donation to Civics 101 to support our work. This show costs a lot to make, and it's made at a public radio station where resources are scarce and good journalism matters. Above all else, you can pitch in to keep Civics 101 coming your way at civics101podcast.org or by clicking the link in your show notes.

Hannah McCarthy: We'll be right back.

Hannah McCarthy: Welcome back to Civics 101. I'm Hannah McCarthy, and today on this special Roundtable Hands Plains edition of the show, we are digging into what Marbury versus Madison has to do with the Supreme Court case happening in two days, involving former President Donald Trump, and whether he has immunity around acts leading up to the January 6th riot at the Capitol. Before the break, we were talking about what makes an official act. I should just say. I mean, I could tell you all of the details of it, but Trump's lawyers go through every single one of his criminal allegations, and they basically say, all of this is under the umbrella of official acts. Like you were saying, Christina. So like he tweeted about election fraud. That was a paramount federal concern had to be addressed by government officials, asked the Attorney general and the Department of Justice to investigate he suspected election crimes. That was within his rights and duties. Right. He told state officials to exercise their official responsibilities given the suspected fraud. What could be wrong with that? He told the vice president, the vice president's office and Congress to act according to their official duties in the face of widespread fraud, and at one point, the brief mentions the fact that Trump had lots of data, lots of information pertaining to this widespread fraud. So it was grounded. It was based in something. The suspicion. Then Trump spurred people to come up with alternate electors to help the vice president in his official duties. So all official duties, official duties, official duties.

Rebecca Lavoie: Not about reelection, about executing the job right.

Hannah McCarthy: Especially in the face of crime. Got it. So the brief also says that the court has reaffirmed the political question doctrine as late as Nixon v Fitzgerald. And the logic is that the president needs to focus on his job without being bothered by legal threats. Quote, because of the singular importance of the president's duties, diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government, unquote. But importantly, this is about, again, a quote here, merely private suits for damages based on a president's official acts, private suits, civil cases.

Rebecca Lavoie: I'm just going to say a lot of the language in this. It sounds a lot like the qualified immunity language around police officers, right, that they can't be worried about what will happen while they're performing the duties of their job as a police officer. It's the same language.

Hannah McCarthy: Yeah. Wayne actually talked about qualified immunity. I just didn't have space for it because this is a long one. But exactly right. Qualified immunity, that's the whole idea. And so Trump's lawyers, when they're talking about this criminal stuff, they're like, well, criminal suits are even more dire and really, really, really should not be allowed to mess with the president's official acts. We especially shouldn't allow a president to be taken up on criminal charges. And this brief says Justice Brett Kavanaugh agrees with US.

Wayne Unger: Justice Brett Kavanaugh when he was on the D.C. Circuit Court of Appeals. So then Judge Kavanaugh, he wrote a law review article for the Minnesota Law Review that argued for a deferral. What he meant by that is civil cases and criminal cases against the president of the United States. A sitting president of the United States should be deferred until after that president leaves office because of the demands of the job. It would interfere with the person who has been elected the president and fulfilling the duties under article two of the United States Constitution. And there's some, again, there's some reasonableness and validity to that. But the Trump brief kind of goes down this route where it implies that Justice Kavanaugh, then Judge Kavanaugh, supported absolute immunity. That's not true, because he says in his article, Brett Kavanaugh, that criminal prosecution should be deferred until after a president leaves office, which is based on the fundamental premise that a president can be held criminally liable. Because if we think about it, why would he make an argument that you should defer criminal prosecution if he believed that the president is immune from criminal liability? Right. You wouldn't make that argument.

Hannah McCarthy: I should clarify that Professor Wayne Ungar did write an article. I can't remember the exact title of it, but it was essentially, if my law student submitted this brief, I would give them enough. Oh, wow. If you look at the actual legal, historical, constitutional, and first person account evidence. The question before the court is not actually does the political question doctrine apply here? The question is right, like all Supreme Court cases have like usually one. Big question, maybe a couple of bullet points after that. But the question with this case is, quote, does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office? And if so, to what extent? But of course, to answer that, especially given the brief that Trump's lawyers submitted the political question doctrine, they say it's a major factor. So it's likely that the court can't ignore that will have to wrestle with that. Right. Because the lawyers are saying that the Supreme Court already established that it cannot review the official actions of a president.

Wayne Unger: Well, Marbury versus Madison, as he quotes and as we highlighted, there is language in that case that says there are certain acts by the president of the United States that are not reviewable by the court, but where he misses is the very next sentence in the Marbury versus Madison opinion. And that very next sentence says, but but there are some circ*mstances in which we can review. So Trump's attorneys made it appear, or Trump's brief makes it appear, that it's a hard, bright line rule that article three courts cannot review presidential actions, when in fact that is just fundamentally wrong because article three courts review presidential actions all of the time.

Nick Capodice: What?

Hannah McCarthy: That's the big but.

Nick Capodice: But what are they, though?

Wayne Unger: What are they? Do you know the things like what are the what are the instances in which the court can do it?

Hannah McCarthy: Well, the example that he gives is the Biden case. But regularly the court is like, can the president do that?

Nick Capodice: Yeah. Let me look.

Hannah McCarthy: Let me look at the law that they were abiding by. Right. And the big but in Marbury versus Madison.

Rebecca Lavoie: Yeah. So we're waiting for remember.

Hannah McCarthy: How I told you that there was a little bit of cherry picking in terms of can never be examinable by the courts? Yes. So Marshall is talking about a case in which an officer does something in his role in the executive branch, and someone takes issue with it. Now, Marshall says that this officer who did whatever someone takes issue with as his duties were prescribed by that act, this is the act under which he's acting. Right. So in the case of this, they're talking about Congress establishes the Department of Foreign Affairs. There's a Department of Foreign Affairs officer. They do something. Someone takes issue with what they do. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is an executive officer. He is the mere organ by whom that will is communicated. The acts of such an officer as an officer can never be examinable by the courts. But when the legislature proceeds to impose on that officer other duties, when he is directed peremptorily to perform certain acts, when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law, is amenable to the laws for his conduct, and cannot, at his discretion, sport away the vested rights of others.

Rebecca Lavoie: Oh.

Hannah McCarthy: So that's an important but.

Rebecca Lavoie: That's a big but.

Hannah McCarthy: Yeah, because the president can do a lot of things. But there are also a lot of laws. And someone within the executive branch is acting according to the will of the president. Let's not question that. However, those laws often pertain to the proper execution of an American person's rights. Yes, if you do not facilitate that properly, if you in fact deprive someone of their rights in what you're doing, that is a different story altogether. So that's what's so important about the but.

Rebecca Lavoie: So this is where the rights of the voter come into play, right? My rights to have my vote be counted properly. That's what they're talking about. If this section applies in this case, that's what's being discussed. Right?

Hannah McCarthy: I would say if any of the justices bring up this section, that would be the implication, right, that we are talking about the rights of the voters. And I think that Trump and Trump's lawyers would say I was protecting the right of the voters. There was fraud. I was making sure that there wasn't fraud in this sacred space of the election. Or someone could say, well, actually, you were depriving voters of their will of their right. Right. Let's think about what the court might say. Right.

Nick Capodice: I got predictions.

Hannah McCarthy: You have predictions.

Nick Capodice: I got predictions til Sunday.

Nick Capodice: What do you got?

Nick Capodice: I think it's kind of bonkers that we're all sitting in a room and talking about Marbury versus Madison. As if this is the gold. This is the gold jewel that we must all cling to for the rest of our lives.

Rebecca Lavoie: 1803 man.

Nick Capodice: 1803 yeah, yeah, we're talking about Twitter, and we're talking about rigged elections, and we're talking about all this stuff that John Marshall could never have considered. That's. It's just one little thing I want to throw out there. What I think the court is going to do is what a lot of administrations have done, or what Congress has done in the past, which is to say, okay, maybe he's not the president now, because if he were the president, you know, he would be immune. It's when they're out that we shouldn't we can investigate it like Brett Kavanaugh said. But there's an election coming up, and I feel like the court will say, not now. We can't talk about it because there's an election coming.

Rebecca Lavoie: Because he could be the president.

Nick Capodice: Because he could be the president again soon, just like the Republican Party did for Supreme Court justices. You know, an election either just happened or is going to happen real soon or isn't going to happen soon enough.

Rebecca Lavoie: But it's always about to happen...

Wayne Unger: Yeah it's like Christmas. Yeah. So I think that the Supreme Court is going to sort of punt it and to say, like, we can only sort of look at this when the election is over, because right now it could kind of maybe still be part of that office.

Christina Phillips: Well, what I think is interesting about that is that the decision to take up this case in the first place is already kind of doing that, because the Supreme Court, they could have let the D.C. circuit court decision stand, which is applied specifically to Trump and this this case with Trump. And they could have still taken this issue up later, but then also taking up the decision now, as opposed to in December when Jack Smith originally asked them to if they take it up in April, they make a decision maybe in May. There's still three months on that seven month preparation period left for both sides to prepare their case, which means that the case would go before a jury like the earliest. Probably like September, but most likely October November. So they've already sort of kind of done that. Like no matter what, they end up deciding, just the fact that they took it up in the first place. It's already sort of made it kind of irrelevant in terms of Trump in a lot of ways, because they could still say, I mean, I guess if he if he's not reelected and they make a decision like saying that no, you're not immune, that would allow this case to go forward and then have precedent for the rest of history. But if he gets reelected, he still has the power, even if he was not immune from prosecution to now, as the head of the Justice Department, essentially overseeing it be like, don't continue with this.

Hannah McCarthy: Rebecca, do you have any predictions?

Rebecca Lavoie: I don't, you know why? Why? Because this court many times has not surprised me and in some cases has very much surprised me. So I am not going to throw a take into the mix.

Nick Capodice: Okay.

Hannah McCarthy: So if we look at this in terms of political question doctrine and immunity charges, right. Let's say that the court does not agree with Trump's lawyers. Marbury versus Madison claim. Let's say they decide that everything you're listing here that you say is an official duty isn't one, not even an outer perimeter duty. That would mean that they're saying that they can weigh in. That's just one step, and they might do that or they might not. They could also say, you're right, these are official duties. But we have only said that the president is immune in civil liability cases related to official duties. We haven't actually made a hard and fast decision about criminal liability. And, you know, moving on to the immunity question, we have to ultimately, no matter what, unless they remand, the court probably will say something about immunity. And not just that absolute immunity.

Wayne Unger: There are reasonable arguments that the president should be entitled to some level of immunity, because there are decisions that need to be made by the president, which are very tough, and we can acknowledge and respect those. But I think fundamentally to say that the president of the United States is absolutely immune from criminal prosecution is just wrong and flawed in so many different ways. Also, the Supreme Court's opinions related to immunity, both civil immunity as well as whether they're immune from answering criminal subpoenas, all indicate that the president is not absolutely immune in the criminal justice system.

Hannah McCarthy: A little bit to your point, Nick. Right. You know, what kind of ruling could the court issue? It doesn't have to be broad. You know, Rebecca, you brought up Bush v Gore earlier.

Nick Capodice: Oh, it could be super duper wuper narrow. Right? It only has to do with this one day.

Wayne Unger: Bush v Gore, of course, was a very narrow decision where the court expressly said this applies here and here only, and it's possible for the Supreme Court to do the same with the immunity case. It's possible for the Supreme Court to say, we're going to essentially find immunity with Donald Trump and his actions related to January 6th, but only now because there could be a circ*mstance down the road where, you know, we don't want the president to have immunity.

Hannah McCarthy: The other thing to consider is this is the chance for this Supreme Court, those nine justices to rule big on a big thing, right? The criminal prosecution of a former president for things he did while he was still president. They can make it small if they want, or they could make it big.

Wayne Unger: But the other immunity cases that have come before the Supreme Court, presidential immunity, for example, Clinton v Jones, Nixon v Fitzgerald, the court has had opportunities to narrowly rule in a case, but instead they decided that they're going to set a legal standard that still applies today. It is somewhat of a broader standard or a broader ruling. In this particular case, I would think. And this is, again, a suspicion, and the court could chart its own path here and disagree with me. But I would think that the court would say, no, we should probably set a standard that is applicable beyond this particular circ*mstance.

Hannah McCarthy: So I think that's one of the reasons that this is really important to focus on. So like kind of regardless of what happens with Trump, the Supreme Court is going to decide about criminal immunity or not. You know, like Wayne said. But like you got this right in front of you. This is a career-defining moment. I'm curious to see what nine human beings decide to do.

Rebecca Lavoie: Let's look at it this way. This court has made some very big swings in the last couple of years, so maybe we shouldn't be surprised if they make a really big swing this time, right?

Hannah McCarthy: That's all I've got. That's what's going on. I cannot wait to see what the justices have to say about the political question doctrine. I know it sounds silly because this is also a question about absolute immunity. Right? But when you have the chance to affirm what, like is a presidential act in a new way, you know, refine what a 221 year old doctrine actually means? And, you know, when it was first established, it was at this time when the court was trying to tread lightly in politics and preserve the rule of law and the separation of powers. But today's court is just as wary of being accused of being political. Right. So I just think that this is something fascinating to watch.

Hannah McCarthy: This episode was produced by me, Hannah McCarthy, and Rebecca Lavoie. Nick Capodice is my co-host. Christina Phillips is our senior producer. If you like Civics 101. If you want more Civics 101, you can check it all out at our website civics101podcast.org. While you're there, you can also subscribe to our newsletter. It's where we put all of the cool stuff that does not end up in the episodes, and I swear it is not annoying and we don't try to sell you anything. Music. In this episode by P.W. io, Victor Lundberg, twin Musicom, arc du Soleil, Chris Zabriskie, Arthur Benson, Adeline Paik, and Helliniko Civics 101 is a production of NPR, New Hampshire Public Radio.

Nick Capodice: Do you want your theme song to be kind of like butt rock, or do you want it to be like a girl kind of explaining stuff?

Hannah McCarthy: You've been saying butt rock a lot lately.

Rebecca Lavoie: I want it to be jaunty. I think it should be like jaunty. Like.

Nick Capodice: Like, yeah.

Hannah McCarthy: I think jaunty. More so folky.

Nick Capodice: But it's just like. It's like Lynyrd Skynyrd. Yeah, yeah, it's two T's. It's like, I don't know, it's.

Rebecca Lavoie: Like uncle Rock.

Nick Capodice: Uncle Rock?

Hannah McCarthy: Sure. You mean like hair metal.

Nick Capodice: Or kind of like.

Nick Capodice: Yeah, like like poison.

Christina Phillips: Yeah. You know, like I just spent all day working on my car in my garage, and.

Nick Capodice: Now Rock is shaking your head back and forth kind of thing.

Rebecca Lavoie: I think it should be more like the women from, um, the magic Garden and the chuckle patch. Oh, I love it.

Nick Capodice: Like that's much better. Folky. Yeah.

Rebecca Lavoie: Hansplain.

Nick Capodice: There it is. There it is.

Today we're talking RNC and DNC. The committees, not the conventions. What do they do? Who decides who chairs them? And what does it mean to a national committee when someone can post a message on social media that has more impact than thousands of mailbox flyers?

Today's guests are Boris Heersink and Marjorie Hershey, who take us from a few folks setting up a convention to a massive organization that tries (and sometimes fails) to wrangle a party's identity.

Transcript

C101 RNC and DNC.mp3

Archival: So the Trump campaign is pretty much taking over. The Republican National Committee, at least for senior staffers, were fired yesterday, according to two sources familiar with the matter.

Archival: DNC put out a diss track, uh, directed at Lara Trump, the co-chair of the RNC, who released her own music the same day as Cowboy Carter. Just play it real quick.

Archival: The RNC met in Houston last week to install a new pair of leaders selected specifically by the former president.

Nick Capodice: You're [00:00:30] listening to Civics 101 I'm Nick Capodice

Hannah McCarthy: I'm Hannah McCarthy,

Nick Capodice: And today we are talking about committees. Not the ones in Congress. That was another episode we did. Today. It is all about the RNC and the DNC,

Hannah McCarthy: But we're not talking about the other RNC and DNC, the Republican and Democratic National Convention.

Nick Capodice: Yeah, I can't believe we finally done it. Hannah, we have hit an initialism that is exactly the same as another extremely relevant initialism. Rnc [00:01:00] and DNC are short for both parties national committees as well as their national conventions.

Hannah McCarthy: And if anyone out there wants to know about the national conventions, we did an episode on those a while back and we will put a link to that in the show notes.

Nick Capodice: You know I like that episode a lot.

Hannah McCarthy: Oh, thank you.

Nick Capodice: Partially because it features the copyright free banger known as stomps and claps. Man, it gets you going. You know, let's do this. And you know what? You know what? I feel bad for anyone who clicked on this episode thinking [00:01:30] it would be about the conventions, but the committees are connected to the convention, so they'll get a little shout out today. But for the rest of this episode, when I say RNC and DNC, I am talking about the committees.

Hannah McCarthy: Okay, Nick, can you put the kibosh on the claps?

Nick Capodice: Alright, claps kibashed.

Hannah McCarthy: let's get to the committees. What are they and what do they do?

Boris Heersink: The national committees are. The only organizations actually represent the entirety of the party across all 50 states.

Marjorie Hershey: The national committees have had a long history [00:02:00] in which their role within the party is is certainly increased, but it's increased in very different ways between the Republicans and the Democrats.

Boris Heersink: My name is Boris Heersink. I'm an associate professor of political science at Fordham University in New York.

Marjorie Hershey: My name is Marjorie Hershey. I am a professor of political science emerita at Indiana University. I specialize in political parties and campaigns, and I've been doing it since God was born.

Nick Capodice: Marjorie and Boris are [00:02:30] two of the few political scientists who write about the national committees, and people don't write about them a whole lot, because they're one of those things that you forget about for a couple of years, you know, like outdated voting machines or the census, and then suddenly, wham, everybody cares all at once.

Hannah McCarthy: Well, we care especially about the census, bless its little decennial heart. What do these committees do?

Nick Capodice: They do a lot of things nowadays, but that is a relatively recent phenomenon.

Boris Heersink: They start [00:03:00] out as just organizing national conventions. So for the first couple of decades, that's basically all they do. They get together once every four years, a couple months before the convention starts. They figure out, where are we going to meet, what are the rules? They invite people to be part of it. Afterwards, they sort of shut down everything again, like they pay off all the bills. They make sure that everything's sort of arranged well, and then they sort of, you know, go in hibernation for a couple of years, and then during the next election cycle, they get back.

Nick Capodice: They're kind of like a big circus, you know, they just like [00:03:30] roll into town every four years. They got this big whiz bang convention in the summer, and then everyone packs up the tent. Now, there are hundreds of staff in these committees nowadays, but long ago they were much smaller.

Marjorie Hershey: The national committees in the past really were just the national chair and his or her briefcase. They moved wherever the national chair moved. They really did very, very little. This began to change in the Republican [00:04:00] Party, particularly in the 1960s, because the Republicans at that time had been the minor party for a good 30 years. They were really tired of being in the minority.

Archival: The latest figures show President Johnson nearly 41.75 million, Senator Goldwater nearly 26 and one quarter million.

Nick Capodice: And the chair of the RNC, Ray bliss, frustrated with the failed attempt to elect Barry Goldwater, thought the RNC should [00:04:30] do a little bit more. And what bliss had noticed is that interest groups were raising a lot of money using this newfangled thing called computerized direct mail.

Archival: Friend and foe agree. The NRA's power to scare congressmen lies in its ability to mobilize its members in any congressional district at the touch of a computer button.

Nick Capodice: And he thought, hey, could we, the Republican Party, do the same thing?

Marjorie Hershey: You get mailing lists from various groups [00:05:00] that you think have some affinity with you and your candidates for the Republicans, gun owners, business people, groups like that, and you send computerized messages to them at that time using postal mail that stirred them up. You know, something with an opening paragraph that would say something like, you know, while you are reading this paragraph of 5000 children will be killed in the womb and the only way you can. Do [00:05:30] something about it is by sending $100 to this particular organization.

Nick Capodice: So the RNC starts to raise a ton of money this way, and they start to win more elections.

Hannah McCarthy: And did the DNC look at this and basically say, I'll have what she's having.

Nick Capodice: They didn't, at least at first, to be honest. They were going through their own issues at this time, the majority of Democrats were insisting that the party should stand for civil rights and LBJ's Voting Rights Act.

Marjorie Hershey: That ran [00:06:00] into real, headlong objection from a good chunk of the Democratic Party, which was the South. The South had been a little more than a third of the national democratic vote, really, for decades and decades, the South was not in the slightest enthused because the the South constituted the white South. So there was a bit of a revolt inside the Democratic Party in 1964 over civil rights. [00:06:30] And the Democratic National Committee finessed that revolt by saying, okay, we'll we'll do a couple of minor steps now, but we promise that after 1968, we'll set up a reform commission, and we'll do more to get more voices heard.

Nick Capodice: The DNC instituted reforms that made the convention more representational. So they told these states, hey, you can't just send white delegates to the convention. [00:07:00] You have to send a diverse slate of delegates.

Marjorie Hershey: And for quite a long time, for about 20 years after that, the Democrats kept readjusting their national rules for nominating a president every four years because somebody objected to the last batch. Finally, in 1980, when Ronald Reagan won very substantially and then won reelection in a landslide, national Democrats looked around and said, you know, this isn't working, but [00:07:30] we'd better start raising money like the Republicans do. We had better, um, focus more on increasing our financial muscle. And that will help Democratic candidates more than perhaps even the increasing representation within the party will.

Nick Capodice: And just like that, the DNC and the RNC became fundraising powerhouses.

Hannah McCarthy: To be clear, when [00:08:00] you say the Democrats did this and the Republicans did that, do you mean the DNC and the RNC? Is the party, the committee.

Nick Capodice: Sort of.

Marjorie Hershey: There are three different groups of what might be considered the party, the Republican Party, for example, there is the National Committee and the state committees and the local parties. Those are what we call the party organization. Every election district in the country, [00:08:30] in theory, has its own party organization. The party organization is basically the the the bones of the party. It's what survives from one election to another.

Nick Capodice: You know the thing I reference too much Hannah

Hannah McCarthy: Are we talking the musical 1776 or The Cremation of Sam McGee?

Nick Capodice: No. Uh, the thing about the Senate being the saucer that cools the house.

Hannah McCarthy: Yeah! That thing.

Archival: Let us suppose that this this [00:09:00] teacup is our federal government as it exists.

Hannah McCarthy: Since the Senate has a longer time and only two members from each state, it cools the hot tempered, reactionary chamber of the house. I will say the only thing about the saucer idea is that, you know, people don't pour hot tea into their saucers anymore, so who understands it?

Nick Capodice: That's a fair gripe, Hannah. But just so, the National Committee corrals and cools all the hot tea of the hundreds of state and local committees. [00:09:30] But to your question, like what is the party? There are two additional groups outside of the organizations. The second group that Marjorie talked about is the party in government.

Marjorie Hershey: You know, if you were to ask people, what's the Republican Party? They might well say, and with good reason. Donald Trump, um, he has no party organization, office, but what's called the party in government. The folks who hold elected and appointed office in government are [00:10:00] also a major part of the party. And when people think of the party, they often think of those folks. And that party includes not only people like presidential and congressional candidates, but the party in government includes, for example, judges who identify as Republicans and who we may have, in fact, seen this year, on occasion, some people ruling in certain ways that reflect their partisanship.

Nick Capodice: And the third chunk [00:10:30] of the party is the party electorate.

Hannah McCarthy: As in me and you.

Nick Capodice: Me and you and everyone we know. Hannah. People who identify as Republicans, Democrats, libertarians, what have you.

Hannah McCarthy: But I don't feel that we are the party, aren't we, as voters, the target of the parties? They not. We choose a party platform, run campaigns, write and pass laws, etc.

Nick Capodice: that is true, except for one massive exception.

Marjorie Hershey: Party [00:11:00] leaders in the party organization don't choose who are going to be their candidates. There are an awful lot of people who think they do, who are still under the impression that somehow there's a boss somewhere who's sitting in a smoke filled room who says, this is going to be the candidate. And by the way, steal as many votes as you can.

Archival: The US Democratic Party is in turmoil as the convention to nominate Hillary Clinton as their presidential candidate gets underway today. Supporters of her rival, Bernie Sanders, have taken to the streets [00:11:30] in a row over leaked emails, appearing to suggest that party insiders had tried to scupper his campaign.

Marjorie Hershey: It hasn't been the case for almost a century because the so-called bosses don't have anything to boss with. They can't give the nomination to anybody. It's the primaries who decide who the party's candidates are.

Nick Capodice: Now we can't really talk about this, you know, on a podcast. But Hannah, do you have any, like, brand loyalties?

Hannah McCarthy: Uh, [00:12:00] I guess I do. I don't know, I don't know if I want to state an endorsem*nt for any of them at the moment. Why do you?

Nick Capodice: I have a few, and I swear I am not looking to secure advertisers here. I think I can get away with this. Uh, none greater than diamond crystal kosher salt. I have been proselytizing this salt for about a decade, and I'll talk about salt and cooking with anybody as long as they can stand. But like the people at diamond Crystal decide how to shape the box and how big to make the box and all that stuff. The committees, [00:12:30] these national committees are responsible for the party's brand.

Boris Heersink: Yeah So party brands are the basic idea that the average voter sort of has, at any given moment in time of what you can sort of expect if you vote for Democratic or Republican candidate. And so if we were to go out on the street and just talk to random people about sort of like different policies, that the Democrats have, different policies that Republicans have, some people might have no idea what we're talking about. Some people might have really intricate knowledge of, like, all the different [00:13:00] intra party debates and disagreements that that exist about different issues. But a lot of people probably will have a rough idea where the Democratic Party sort of falls on abortion or on health care. Uh, and they'll have a rough idea of where the Republican Party falls on those same issues or on taxation or on the role of government or things like that. And that rough idea is a really helpful tool, because it makes it a lot easier for us to vote.

Nick Capodice: Most people have [00:13:30] an idea of who they're going to pick for president before they step into the voting booth, but when you're in there and you're looking at a few dozen other names for a few dozen other offices, you might not know too much about who they are and what they stand for. But that party brand makes it a little bit easier. Because you trust a brand, you're going to pick someone with an R or a D next to their name.

Boris Heersink: Now, that might not be the best way to vote, and maybe we should do a better job as voters. Um, but, you know, [00:14:00] it's time consuming to inform yourself about candidates and about all the issues and all that. Um, and often the shortcut of sort of knowing I'm a Democrat, I like the Democratic Party. I'm going to assume that the candidate they come up with is better for me and vice versa for the Republican side is, uh, you know, pretty appealing to a lot of voters. It saves a lot of time. Um, the issue that the parties have, and this is where sort of the political science angle comes in, is that it's really hard to have a permanent party brand because [00:14:30] issues change. Uh, the people that vote for the party change the people that the party is trying to get to vote for them changes. And so what that understanding is with that image is that we have the party is never sort of set in stone. And so the parties have to continuously work to try to explain to us what their brand is. Um, and they're also continuously competing with all types of other sources that are trying to also basically do the same thing.

Nick Capodice: We've got to take a quick break, and when we get back, we're [00:15:00] going to talk about the waning in the powers of these committees over the last few years, as well as the recent shakeup in leadership at the RNC.

Hannah McCarthy: But before the break, we don't use a computerized mailing system, but we do send out an email, which I guess you could call a version of computerized mailing. Anyway, every two weeks we send out extra credit. It is our free newsletter where Nick and I talk about whatever the heck is on our minds at any given moment. Sign up for it at our website civics101podcast.org. [00:15:30]

Hannah McCarthy: We're back. We're talking about the RNC and the DNC. And Nick, can you sort of break down what happened within the RNC? A few weeks ago, somebody was ousted, right?

Nick Capodice: Yeah.

Archival: It's official. Donald Trump has solidified his takeover of the Republican National Committee. Ronna Romney [00:16:00] McDaniel, a Trump loyalist, has stepped down as chair after being pushed out by Trump. The man replacing her is North Carolina Republican Michael Whatley, an election denier who still embraces the big lie.

Hannah McCarthy: Now who chooses who is in charge of these committees?

Nick Capodice: First off, the head of a committee of the party that's in power is usually picked by the incumbent president. Joe Biden chooses who chairs the DNC. It's currently Jamie Harrison, who Biden picked in 2020, but the party [00:16:30] not in power. Here's Boris Heersink again.

Boris Heersink: This is a pretty extreme version of it, actually. This year, when a party is not in the white House, usually the national committee chair is independently elected by the committee, and that normally gives the committee chairs a little bit more power and a little bit more freedom to essentially do what they want to do. This year is really weird because, um, the previous national committee chair for the Republican Party just resigned.

Hannah McCarthy: Would it be fair to put giant air quotes around the word resigned?

Nick Capodice: I don't think anybody would [00:17:00] challenge that particular pantomime, Hannah. Uh, because, yes, on February 26th, 2024, the chair of the RNC, Ronna Romney McDaniel, resigned. After that, there was a brief scandal over her being hired as a paid contributor at NBC. Nbc quite quickly decided to un hire her. But going back to the RNC, it wasn't just McDaniel who resigned. Here is Margie Hershey again.

Marjorie Hershey: Former President Trump conducted a [00:17:30] purge of the Republican National Committee. He decided that although in 2020, the Republican National Committee was very helpful to him and certainly tried to be very helpful to him, that it didn't do enough. And so he not only installed a new head and co-chair of the Republican National Committee, the co-chair being his daughter in law, but he also fired or said they would have to reapply for their jobs, [00:18:00] at least 60 staff members. And of course, there are others who stayed. But using his term, bloodbath, there was basically a bloodbath within the Republican National Committee.

Boris Heersink: And so the current heads of the RNC are essentially Trump people who are essentially going to help co run the campaign from the RNC, which is quite unusual nowadays. It used to be more common, but it's pretty pretty uncommon now.

Hannah McCarthy: So the RNC is planning its convention this July. The DNC [00:18:30] is planning it for August. This is when the parties unveil, usually their platform, when they tell Americans what they are all about this election, do committees create the platform?

Boris Heersink: Sort of. So the platform is created by the national convention. Um, and so the delegates at the convention, um, have like sub committees that deal with those things, they vote on it. And the convention as a whole [00:19:00] has to approve the platform. So the Republicans in 2020 decided not to have a platform. They basically reused the 2016 platform, which was when they were in opposition. So the platform criticized the incumbent president, uh, who was Barack Obama, for doing all types of bad things. Um, in 2020, the Republicans basically just said, yeah, that same thing applies, uh, which is very weird.

Nick Capodice: And we don't know if the RNC is going to continue to just quote the 2016 platform in 2024. [00:19:30] It's completely up in the air what they're going to do.

Hannah McCarthy: Last thing I want to know, Nick. And it's sort of on the branding conversation that we had earlier. I feel like I have a pretty good handle on what the Democratic and Republican parties stand for, but I don't necessarily credit that to these committees. I think I credit to the thousands of things that I see each day in the news and hear on the radio, see on TV, see on social media. [00:20:00]

Nick Capodice: You're absolutely right to see it that way. Hannah, Boris said that this is a major, major alteration to how committees are involved in elections.

Boris Heersink: Definitely things have changed. Right. And so one of the big things that have changed, and this is sort of with my book is about is that for about a almost a century, you have national committees that are trying really hard to, um, sort of set the tone of what we think about when we think Democrats or Republicans. Right. And [00:20:30] there's not an easy way to sort of set that image in our minds. Like they can't just go to us and press a button and say, like, this is now what you think of when you hear Democrat. And so the only thing they can do essentially, is sort of throw ideas at us and hope that it hits. And the way that national committees can do that is through publicity.

Nick Capodice: The committees do ads, they mail stuff to people. The DNC even had a magazine for a while

Hannah McCarthy: A magazine??

Nick Capodice: A magazine, and that took a lot of work.

Boris Heersink: If you want to put out [00:21:00] a magazine, you need money, you need knowhow, you need technological sort of skills. You need staff to actually do all that work. And if you do a good job of that, you might be able to put out something that 100,000 people read every, every month. Now, with social media, you can reach 100,000 people in seconds for free. Um, and so the competition has become much stronger in terms of the publicity side of trying to sort of compete with other politicians. So you've got lots of politicians that are really popular on TikTok and [00:21:30] Twitter, or it used to be Twitter talking heads, pundits, um, your Tucker Carlson's other people on Fox News or MSNBC. Um, all these actors are sort of also signaling to voters what they think the party brand should be. And for national committees, it's just become really, really difficult to compete with that. So one of the things we've really seen over the last couple years, basically the last decade or so, is that both national committees have kind of accepted [00:22:00] that and have moved into a different direction now in terms of what they specialize in.

Hannah McCarthy: What exactly are they specializing in if they have handed the reins of party branding over to social media and the pundits?

Nick Capodice: They are specializing mostly in data collection these days. These committees have an unprecedented amount of data on voters. They know their party affiliation, who they've given money to if they voted at all in elections, not to mention myriad pieces of demographic information. [00:22:30] They study us, and they do that to learn the best way to convince us how to vote.

Archival: So when we talk about the DNC's data storage capabilities, what kind of information is being stored? Oh, everything. You can imagine the entire voter file from across the country. This is every voter and a record of whether they voted in the past. It's also all of the field data that the people who knock on your doors are collecting. The people who call you are collecting...

Nick Capodice: And [00:23:00] the last thing I want to touch on Hannah is about that. It's about voting. So you can protest. You can run for office yourself. But the vote, that vote in every election is a crucial part of civic participation. And what do we do if that vote is suppressed? Now, Marjorie said the national committees would not endorse attempts to stop people from casting their votes. However, the committees might not stand in the way. [00:23:30]

Marjorie Hershey: The party organizations really don't have the power to enforce small d democratic rules on their activists or their base, or their even their state parties. They can urge they can provide incentives, they can motivate. But in the end, if somebody wants to say, we're going to do everything we can to keep this group from voting in local elections. The National Party [00:24:00] can say, well, you know, that's not a great idea. But on the other hand, if it helps us elect candidates, we're going to be a little loath to object to it. And that's something we all need to pay attention to because, um, democracy does not enforce itself. It is enforced by the people who accept its rules. And, um, we are in a time period when those rules have been seriously questioned by a number [00:24:30] of people. And if we want to keep them, uh, you know, there have been any number of countries that have been democracies and lost them. We have the advantage that we have 200 plus years worth of experience with a democracy, but that doesn't guarantee that we will always have one that's, uh, that that's up to the eternal vigilance of the folks down at the grassroots.

Nick Capodice: All [00:25:00] right. You heard what she said. Pay attention. And remember, she's been doing it since God was born.

Nick Capodice: Well, that's the RNC and the DNC. If any of you out there ever want to hear me talk about salt, or you want a recitation of The Cremation of Sam McGee, I'm your man. This episode was made by me. Nick Capodice with you Hannah McCarthy. Thank you. As [00:25:30] always. Christina Phillips is our senior producer. Rebecca Lavoie our executive producer. Music in this episode by Hanu Dixit, Lobo Loco, Makiah, KieloKaz, Jesse Gallagher, Alexandra Woodward, Peter Sandberg, Spring Gang Fabian Tell Lena House, Scott Holmes, Twin Musicom, Cooper Cannell, and the guy I’d want to be the chair of MY committee on music, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. That's [00:26:00] why Civics 101 is proud to be a sponsor of flaky, delicious kosher Salt by My salt product.

Made possible in part by the Corporation for Public Broadcasting.

Deductions, credits, W2s, audits. It's complicated out there, so we break it down.

Most Americans need help to file our tax return each year - about 90% of people use technology like Turbo Tax, or hire a human tax preparer. Why does it feel like it takes degree in accounting, or the money to pay someone with a degree, or computer software, just to comply with the law?

We revisit our explainers on why our tax system is the way it is, and how to comply with it, just in time for April 15th.

By the way, did you make less than $79,000 in 2023? The government says you should be able to file federal income taxes for free… but not every tax software company makes that easy, or even possible, to do. Start here for government-approved tax filing software.

Listen:

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

Hannah McCarthy: [00:00:00] Hi, Nick.

Nick Capodice: [00:00:01] Hey, Hannah.

Hannah McCarthy: [00:00:02] Nick, why do we pay income taxes? Why are we expected to give some of the money we earn to the government?

Nick Capodice: [00:00:11] Whew. Well, I'm not a big time city lawyer, Hannah, but I feel like it's like the government is expected to do something for us in return for those taxes. Right? By making and enforcing laws, providing security and protection, giving us ways to live and work and travel safely, and to help us access basic things like food or shelter.

Hannah McCarthy: [00:00:38] Yeah, that's the idea. But there's also something really important about our tax system. We put a lot of emphasis on fairness.

Archival Sound: [00:00:48] How can you judge if a tax is fair to the taxpayer? Well, most people today accept the principle that a person should be taxed according to his ability to pay. As a result, we have a graduated or progressive income tax.

Joe Thorndike: [00:01:02] Look, I mean, no one likes paying taxes, right? We all have to do it because somebody has to pay the bills.

Hannah McCarthy: [00:01:08] This is Joe Thorndike. He's the director of the Tax History Project. Civics 101 talked to him back in 2017.

Joe Thorndike: [00:01:14] But that means that we want to make sure that everyone else is paying their fair share, right? I mean, that's the that's the central trope of tax paying in America, their fair share.

Hannah McCarthy: [00:01:24] The idea that the more you have, the more you are expected to contribute has been built into our income taxes from the beginning, and they're supposed to be one government agency that oversees it all the IRS.

Archival Sound: [00:01:39] The Internal Revenue Service, maintains a streamlined operating organization which handles yours.

Hannah McCarthy: [00:01:44] And this idea might make sense on paper, but in practice.

Archival Sound: [00:01:52] It is tax season, a dreaded time for some Americans feeling burdened as they complete forms that many argue have become too complicated.

Archival Sound: [00:02:01] The IRS kicked off this tax filing season with approximately 6 million unprocessed returns from last year.

Archival Sound: [00:02:08] This morning, an investigation reveals just how little some of the richest Americans pay in taxes.

Archival Sound: [00:02:13] It's wealthy taxpayers with less transparent sources of income who are less likely to pay. They can hire lawyers and accountants to help sidestep the tax collector.

Archival Sound: [00:02:22] Many lower income people paid for tax filing when their returns should have been free.

Hannah McCarthy: [00:02:29] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:02:30] I'm Nick Capodice.

Hannah McCarthy: [00:02:31] And today we're talking about paying income taxes and how the system we designed built around everyone paying their fair share actually works when politics, wealth and power get involved. By the way, if you're curious about why we have an income tax in the first place, we have got a whole episode on that. You can find it at our website, civics101podcast.org.

Nick Capodice: [00:03:02] Yeah, Hannah, I'd love to actually start with the IRS itself. I feel like they kind of get the fuzzy end of the lollipop. They're the one government agency that everyone loves to hate.

Joe Thorndike: [00:03:14] Well, you know, officially it's part of the Treasury Department. It is not the largest federal agency, but one of the largest. And more to the point, it's probably the most important for most regular Americans. This is the the main point of contact between Americans and the federal government. I mean, if you think about it, what other agency touches your life so directly, you know, and threatens to put you in jail regularly? I mean, it's it's unusual. Right?

Hannah McCarthy: [00:03:38] And the Internal Revenue Service actually used to be called the Bureau of Internal Revenue.

Nick Capodice: [00:03:43] Huh. So why did they change their name?

Joe Thorndike: [00:03:45] It was renamed in the 50s partly to just because they were in the middle of a big reorganization and wanted to communicate that, but also to try to say, hey, we're about service. You know, we're not all about putting people in jail. We're also about taxpayer service. And that is actually a big part of the agency's job because you'll hear this sometimes we have a voluntary tax system that means that our compliance is done by us, not by the agency. So they've got to be they've got to be helpful to us.

Speaker5: [00:04:12] It is only through your willingness to voluntarily fill out your personal and business returns and pay your taxes. But the job of collecting and processing is accomplished as quickly as it is.

Joe Thorndike: [00:04:25] I call it, you know, like fiscal citizenship is a way to think about it. And the IRS is the agency that that makes that real. It makes sure that we are all doing what we're supposed to do and that none of us are shirking our responsibilities.

Nick Capodice: [00:04:37] Okay, Joe says voluntary, but that implies that you can choose not to do it. And yeah, sure, you can choose not to pay your taxes, but that is against the law.

Hannah McCarthy: [00:04:48] It is. Think of it this way. Some of our taxes are compulsory. They are taken automatically out of a paycheck, like the payroll tax, for example, or added to the price of something like a sales tax. But our income tax is a little more complicated. You do have to pay it, but you have some freedom and responsibility about how much you pay and when you pay. All right.

Nick Capodice: [00:05:14] So is this why our income taxes aren't just automatic? Like we actually have to fill out a tax return.

Hannah McCarthy: [00:05:20] Tax returns are not exclusive to the United States, but they are unique here because of how complex they are. In some countries, income tax is a simple compulsory tax, and most people do not have to think much about it at all. Employers and financial institutions automatically deduct taxes from people's income and send it directly to the government.

Nick Capodice: [00:05:43] And that is withholding, right?

Hannah McCarthy: [00:05:44] That's what it's called. And the taxpayer might get a receipt at the end of the year, but there's not much else they need to worry about.

Nick Capodice: [00:05:52] But we have withholding here in the US.

Hannah McCarthy: [00:05:54] We do. The IRS does have a lot of information already about how much money you earn and how much you're paying in taxes, right out of those earnings throughout the year.

Eric Toder: [00:06:03] Now, they know a lot about what our income is because they get reports from our employers.

Hannah McCarthy: [00:06:10] This is Eric Toder. He's an institute fellow at the Urban-brookings Tax Policy Center. He worked in tax policy for the Treasury Department, at the IRS and in the Congressional Budget Office.

Eric Toder: [00:06:22] They get reports from our financial institutions about the interest and dividends we receive. We get reports about the retirement pensions we get. So those numbers go to the government as well as to the taxpayer.

Nick Capodice: [00:06:36] And then around tax season we get a receipt for that.

Hannah McCarthy: [00:06:39] Yeah.

Hannah McCarthy: [00:06:39] Like the W-2 which comes from your employer and says, hey, here's how much you made and here's how much you already paid in taxes.

Nick Capodice: [00:06:47] Okay. So part of filing your tax return is confirming those numbers. And then if you owe more to the government you pay it. Or sometimes sometimes you get money back.

Eric Toder: [00:06:58] But there are a lot of pieces of information. The government doesn't know if you're self-employed, if you run your own business, they don't know how much income you make. You get various deductions. Our tax system is very complicated. There's a lot of allowances. They don't know how much we gave to charity unless we tell them. So you can't claim that deduction. So there's a whole bunch of information that you need to supply.

Hannah McCarthy: [00:07:21] And that gets us to the two other steps of the tax return. The first is incentives. Like if you donate it to charity or bought an electric car, incentives usually make your tax bill go down, and a lot of times they show up as a refund or a check straight from the government. You may also get a refund if you paid too much in taxes during the year.

Nick Capodice: [00:07:45] All right. What's the second step?

Hannah McCarthy: [00:07:46] The second step is to report any additional income you earned that should be taxed. This usually makes your tax bill go up.

Nick Capodice: [00:07:55] All right. So when it comes to a voluntary tax you don't have to apply for incentives. But you can you do though have to report all of your taxable income. Even if it doesn't show up on your W-2.

Hannah McCarthy: [00:08:07] You do. And the IRS is supposed to help you do that correctly.

Beverly Moran: [00:08:12] So the Internal Revenue Service really is tasked with three different things.

Hannah McCarthy: [00:08:17] This is Beverly Moran. She's a professor of law and sociology at Vanderbilt University, where she focuses on federal income taxation.

Beverly Moran: [00:08:25] One thing is to get you those returns, get you to fill out those returns, process those returns, get you your money, get the money from you. And about a third of its budget goes to that. Another is be a friend, a helper, and a support to all the taxpayers who just want to comply. So be there to answer questions, provide lots of educational materials, and about a third of its budget goes to that. And then the other third is enforcement.

Nick Capodice: [00:08:59] Okay, I want to talk about enforcement for a little bit. Our Americans generally good about paying their taxes, because I feel like the looming threat of an audit has been part of our pop culture as long as I've been alive, and we hear all the time about people getting in trouble for not paying their taxes.

Joe Thorndike: [00:09:18] You know, Americans are really remarkably good about paying their taxes. We have very high compliance rates relative to other countries, but that doesn't mean we would if no one was looking over our shoulder.

Hannah McCarthy: [00:09:28] This is Joe Thorndike again.

Joe Thorndike: [00:09:30] It's a it's a delicate balance between enforcement and voluntary compliance supported by the agency with help, you know, and information. The agency has to do both. It has to make sure that we understand the rules and that we, you know, are trying to comply with them as best we can. They also have to do, you know, the the other side of that is the stick where they say, and if you don't do it, we're going to come for you.

Hannah McCarthy: [00:09:51] And here's Eric Toder.

Eric Toder: [00:09:52] As far as the compliance issues, our tax gap, according to IRS estimates, are roughly 15% of of taxes owed are not paid in a timely manner. Some of that money is recovered later by enforcement.

Nick Capodice: [00:10:08] So the tax gap just means the percentage of taxes that aren't actually paid. How much money is that?

Hannah McCarthy: [00:10:15] For 2021, the estimate was about $600 billion. Wow. Put another way, this is 3% of the GDP, the gross domestic product.

Nick Capodice: [00:10:24] That is not an insignificant amount, especially when entire government agencies are funded by a lot less than that. So what does this look like?

Eric Toder: [00:10:33] There are three components of the tax gap. There's people who have a responsibility to file but don't file in taxes and owe money. There's people who file their taxes or report their income or their tax liability incorrectly underreport how much they owe. And there's people who might report how much they owe but just don't pay.

Nick Capodice: [00:10:55] Which one of these is the most common.

Eric Toder: [00:10:56] Of those three components? About 80% is underreporting. So that's the biggest component. The biggest source of underreporting is in the individual income tax system and the self-employment part of payroll taxes. And the biggest group of people who underreport are small business people. Why is that? Well, if you're a wage earner, the government withholds wages from your paycheck and your employer sends a W-2 to the IRS so the IRS knows what your wages are. So the areas in which people can most easily avoid income is if they operate an independent business, they have self-employment income and don't get a 1099. And that's where, you know, especially if you're operating in cash, it's easy to hide your income.

Nick Capodice: [00:11:50] What does he mean by hiding your income?

Hannah McCarthy: [00:11:52] There are a lot of ways to hide your income. The most obvious example is simply not putting it into a financial institution, like a bank that will send that information to the IRS.

Nick Capodice: [00:12:04] So like instead of putting it in your bank account, you just keep it in the safe in the basem*nt.

Hannah McCarthy: [00:12:08] Sure. Or a metaphorical safe like a trust or a company you set up that may provide goods or services, but its real business is holding your wealth or opening an offshore account in another country that does not report to the IRS.

Nick Capodice: [00:12:24] Yeah, but the IRS still has ways of investigating that, right?

Hannah McCarthy: [00:12:27] They do. And that's where enforcement comes in, checking in on how much people or corporations claimed they earned an income and how much they paid an income taxes, and whether there is any discrepancy in between.

Nick Capodice: [00:12:40] Like, hypothetically, if someone said they only made 50 grand a year, but they just bought a $5 million house and a new car.

Hannah McCarthy: [00:12:48] That might be something to look into. Or if someone just does not fill out their taxes at all.

Eric Toder: [00:12:54] You know exactly how much you owe and those sources of income, how much you have to report. And if you're at all savvy, you know the government knows that, too. And they have computer matching programs that can check on you.

Nick Capodice: [00:13:07] So an audit.

Hannah McCarthy: [00:13:08] Sometimes it's not even officially called an audit. I think a lot of us have this idea in our minds that if there's an issue with our tax return, an IRS agent is going to show up at our door. But that's not the reality for a lot of people, especially when the issue is easy to fix. The IRS has ways of investigating your finances and then follows up if something does not seem right.

Eric Toder: [00:13:30] They don't have to send an IRS agent. They just can send you a letter. You reported this. Our records show you owe this. Please explain why you didn't pay. That's not even counted as an audit.

Hannah McCarthy: [00:13:41] A tax return might require a lot of information, meaning there are a lot of ways people can mess up their tax returns, intentionally or not. And the tax gap isn't just because of income taxes. There are other taxes like estate or gift taxes that contribute to that gap.

Nick Capodice: [00:13:59] Okay, so most of the tax gap is because of underreporting. And for someone like you or me, Hannah, this might not mean a full scale audit, but what about for like a corporation or someone who has millions or billions of dollars in income?

Hannah McCarthy: [00:14:15] Okay, so you are touching on an important distinction here, how tax enforcement, like an audit looks for the majority of Americans versus how tax enforcement looks for extremely wealthy people and corporations. About 28% of the tax gap comes from the top 1% of taxpayers. So wealthy individuals and corporations contribute to the tax gap in slightly different ways. But they both have one advantage that I want you to keep in mind that we, the average taxpayer, do not political clout and influence.

Nick Capodice: [00:14:52] All right. So how do the wealthiest Americans like Jeff Bezos, for example, the CEO of Amazon, one of the richest men in the world, somehow end up paying basically nothing in income taxes. How does that happen?

Hannah McCarthy: [00:15:06] They are really good at making their taxable income look smaller than it is.

Archival Sound: [00:15:12] News flash, John the super rich. They're not like us. The tax code is designed to favor the investment income of the mega wealthy over the regular earnings of everyone else.

Hannah McCarthy: [00:15:22] These individuals are more likely to have the type of wealth that is not subject to income tax in the first place, like stock and property.

Nick Capodice: [00:15:30] So they're making their billions in various ways that most of us aren't making money.

Hannah McCarthy: [00:15:35] And on top of that, they can afford to hire teams of tax experts that help them maximize the benefits of all of those incentives that lower their tax burden. These are incentives that we have to donating to charity or putting money in a retirement account like an IRA.

Nick Capodice: [00:15:52] All right. So if one of us had an IRA, we might put 4% of our income into it every year. And that's probably a few thousands of dollars a year, if you're lucky.

Hannah McCarthy: [00:16:00] Yeah. But if you're someone like Peter Thiel, the founder of PayPal, you might put millions of dollars into that IRA.

Archival Sound: [00:16:08] Tech mogul Peter Thiel turned a Roth IRA account into a $5 billion tax free piggy bank and not.

Hannah McCarthy: [00:16:17] Pay income taxes on it. And then you can withdraw that money later on. You may pay some fees for doing so, but it is exponentially cheaper than paying income taxes in the first place.

Nick Capodice: [00:16:29] And this is something that's come up in Congress. I remember there was legislation about capping these IRAs back in 2022.

Hannah McCarthy: [00:16:36] And that is the thing about taxes, right? They're political. Our tax policy is determined by elected officials. So when we find out that certain people might be exploiting tax policies in ways that go far beyond their intended purpose, it's up to politicians to patch the holes if they want to.

Beverly Moran: [00:16:58] And there's a big incentive for those people, the very wealthy people, not to have a strong IRS, because a third of what the IRS is supposed to do is let Congress know when this, you know, stuff is going on. Um, so that if it's legal, the law will be changed, pursue it. If it's not legal, right, expose it and punish it. So the fewer lawmen there are out there, right? The better for the gangsters to do what they want to do.

Eric Toder: [00:17:32] Now, there's also an issue with, uh, corporations, with large corporations, but that's a completely different problem. Large corporations generally do not hide their income, but they do engage in transactions to avoid tax, many of which are legal, but some of which cross the line, and some of which are arguably on one side of the line or the other side of the line. So in some sense, audits of large corporations are kind of like a bargaining game that the return the corporation submits as an opening bid. The IRS agent comes in and says, no, no, you owe this. And often this stays in the courts for years.

Hannah McCarthy: [00:18:21] So the IRS budget was a little less than $14 billion in 2022, but that money has to be split between collecting taxes, helping people file their tax returns, and enforcement. So only a fraction of that money can be spent investigating any one case. Now, put that up against an individual or corporation that has billions or even trillions of dollars.

Archival Sound: [00:18:46] When a formula or a computer code is registered abroad, say in Zug, a US company is allowed to claim that a lot of its taxable profits are there, even if most of its sales are in the US.

Hannah McCarthy: [00:18:59] For example, take a company like Microsoft. The IRS investigated Microsoft in 2012 for avoiding US taxes on $39 billion of profit, that it had moved to Puerto Rico. And Microsoft was like, this was a business decision, not a tax evasion scheme. But the IRS wanted to prove that it was done to avoid taxes. So they launched the most expensive IRS investigation to date.

Nick Capodice: [00:19:26] How'd it go?

Hannah McCarthy: [00:19:27] Well, Microsoft suddenly had IRS agents digging through their financials, but also emails about the behavior of the executives.

Archival Sound: [00:19:36] Microsoft products are primarily developed in the United States. They benefit from US research and development tax credits. Every time, though, a Microsoft product is sold, 47% of the sales price is sent to Puerto Rico.

Hannah McCarthy: [00:19:50] The IRS was being aggressive. It knew that it had the power to investigate, and it put as many resources as it could into doing that. And that scared Microsoft and other corporations like it that had not experienced the IRS investigating this aggressively.

Nick Capodice: [00:20:09] So what did Microsoft do?

Hannah McCarthy: [00:20:10] So Microsoft started lobbying Congress to remove some of the IRS's investigative powers, and other corporations joined in.

Nick Capodice: [00:20:19] And I got to just say, this is in 2012, just two years after the ruling in Citizens United, which gave corporations and wealthy individuals the ability to spend unlimited money on elections.

Hannah McCarthy: [00:20:30] Yep. An eight years later, while the IRS was still investigating Microsoft, Congress passed legislation that limited the IRS's ability to conduct these investigations. And by the way, ProPublica has done some amazing reporting on this and, more broadly, how corporate and private interests impact our tax laws. You can find a link to that in our show notes and at civics101podcast.org.

Nick Capodice: [00:20:53] And just going back to wealthy individuals for a minute, they also have the ability to put their hands on the legislative process. Yes.

Hannah McCarthy: [00:21:00] And indeed they do.

Archival Sound: [00:21:02] A new report finds the IRS is auditing people making more than $200,000 less than others.

Eric Toder: [00:21:09] But the IRS is doing less audits of corporations than they used to. They're doing less audits of high income taxpayers. They're doing less audits of partnerships.

Nick Capodice: [00:21:20] But what does that mean for you and me, the everyday people who just don't have a ton of wealth, who are just trying to follow the law, pay our taxes on time, and maybe, just maybe, get some of those incentives that we're entitled to.

Hannah McCarthy: [00:21:33] We'll get to that right after the break. But before we do, you hear the terms tax deductible donation quite a bit. And we're even talking about it on this particular episode. And I'm just here to remind you that you can make just that Civics 101 anytime you want. You can go to our website, click the donate button, and you can skim a little bit off the top of your taxes at the end of the year, and you know you'll be supporting a show about democracy and American government that truly believes that people should know the truth about the place where they live. So what's wrong with that?

Nick Capodice: [00:22:06] Nothing at all. You do it at Civics101podcast.org. All right, Hannah, so far we've talked about how the IRS is supposed to make sure everyone pays their taxes and help people do it, and that this idea of paying our fair share isn't quite as fair as it sounds, because wealthy individuals and corporations have been able to both weaken the IRS and influence tax policies that benefit them. So what effect has that had on the IRS and US?

Hannah McCarthy: [00:22:36] This is Eric Toder again.

Eric Toder: [00:22:38] Over the last ten years, there's been a substantial reduction in the funding of the IRS and in the resources available to the IRS.

Hannah McCarthy: [00:22:46] And funding cuts haven't just affected investigations. They've affected that other thing the IRS is supposed to do help people pay their taxes.

Archival Sound: [00:22:57] Fewer than 15,000 employees handled over 240 million calls in the first half of last year. That's just one person for every 16,000 calls.

Eric Toder: [00:23:08] Taxpayers get much worse service when they try to call. Call the IRS for for question making the phone aren't.

Hannah McCarthy: [00:23:15] Nearly everyone pays taxes. So our tax base is huge. That's a lot of people to worry about and a lot of complicated taxes. This is Beverly Moran. You know, if.

Beverly Moran: [00:23:27] You want to talk about stories. I used to do my taxes by hand, and I would do a lot of people's taxes by hand. And the reason why I would do it is because my job was to teach people about taxes. Right? So I felt like every year I should like, do my taxes, do some other people's taxes who are different situations, not rely on an accountant or software, like actually deal with the paperwork. This is how long ago it was. In 1990, I lived and worked in three different states. I sold a house and I bought a house, and my tax return was 58 pages long and doing it by hand, I had to make sure that every time a transfer like a number from page five to page 32 or whatever, it had to be right and whatever. And I just knew and I'm proud of my ability to do like math. In my head, I was like, no, I have to use software. And I felt defeated. Right now, if I have to use software, why are you asking? People who may not have access to computers, may not have access to a desk, or a place where they can keep a whole bunch of paperwork may be working 2 or 3 jobs. Why does a person like that have to make a decision in their life? Am I going to do my own taxes, or am I going to go to somebody else?

Nick Capodice: [00:25:06] And the IRS is trying to oversee all of this, while also dealing with political pressure and ups and downs and funding and resources.

Hannah McCarthy: [00:25:14] And the millions of us who are just trying to file a tax return to comply with the law and get the deductions and tax credits. We're entitled to those of us who don't necessarily have a tax expert on speed dial. We feel the effects.

Beverly Moran: [00:25:29] There's something called the Taxpayers Advocate, and one of the things that they do is they produce a report. I think it's every six months, sort of on what's the state of what's going on in terms of relationship between taxpayers and the IRS. Right. And they've reported that 90% of the phone calls that go into the IRS are never answered. And then the 10% that are answered, that doesn't mean that you necessarily got the right department or you're not cut off in the middle of the phone call, or you get the wrong answer. And on top of it, the IRS just reported that they're looking into software because what they discovered was that tax preparers have been buying software that allows them to jump to the head of the line, like, you know, when you call it 735 in the morning and you get told that, you know, there's a 30 minute wait and four hours later you're still on the phone. It's because these tax affairs are paid for software and they jump to the front of the line. So if you're just sitting there, a taxpayer, you don't know what benefits you have. Do you don't know if you've made a mistake. You can't get anybody on the phone.

Nick Capodice: [00:26:54] So you could spend an entire day or multiple days just trying to get help. And honestly, it just feels really unfair that it's so hard to be able to do something that you're legally obligated to do because there aren't enough resources to do it.

Beverly Moran: [00:27:09] The people at the IRS are not trying to hurt anybody, and yet you could understand why millions of people hate them. And it's not their fault. It's the fault of this system that they're in.

Hannah McCarthy: [00:27:22] 90% of taxpayers rely on the outside help of tax experts or software. You don't have to rely on help. You can fill out your tax forms by mail or over the phone, but many people do not do that. This gets us to how we ended up with the prevalence of tax preparation software. In the late 90s and early 2000, businesses offering tax software started popping up for anyone with access to a computer and the internet, and they helped you fill out your tax return. And in 2001, the IRS was tasked with overseeing tax preparation software. This is something people are clearly using, right? So the IRS should have some oversight. One of the mandates was to make sure the software was available and accessible for people who needed it.

Beverly Moran: [00:28:06] Congress passed a law saying that the Internal Revenue Service had to make sure that taxpayers could file their returns for free, and from that time to now, the rule has been that people who are below a certain income level should be able to go online and file their taxes for free.

Hannah McCarthy: [00:28:32] Basically, Congress passed a law that said that at least 70% of people had to have access to free tax preparation software. And to figure that out, the IRS calculates a max income that 70% of Americans fall under. So if your income was less than $79,000 in 2023, you qualify for a free tax return.

Nick Capodice: [00:28:57] Well, did the IRS develop its own software?

Hannah McCarthy: [00:28:59] Not exactly.

Beverly Moran: [00:29:00] What happened was that the IRS by that time was already being squeezed. Right. And so what it did was it made a contract with all these, not all of them, but about ten companies, so that those companies would provide the free filing.

Nick Capodice: [00:29:20] All right. So the IRS outsourced it.

Hannah McCarthy: [00:29:23] They did. These companies, many of which offer tax preparation software for free, normally agreed to have tax software that people could use for free, which people could find if they went to the IRS website. The problem is that these companies are just that, you know, they're businesses. They want to make money.

Nick Capodice: [00:29:42] Okay, but if 70% of people could go to the IRS website and find free tax filing software, what do these companies get out of it?

Hannah McCarthy: [00:29:50] Well, for one thing, they get name recognition. They get to advertise as a company that offers free filing, and that boosts the number of people who will seek them out without going through the IRS website, especially if they buy thousands of commercial spots. You might click on an ad or Google free tax return and end up on their website that way, and once they have you on their website, they can try to make you pay for tax services instead.

Beverly Moran: [00:30:16] And what happened? These companies, at least according to the Treasury Department, they put algorithms in their software that constantly moved people from the free site to the paid site. And you can just imagine if you've done the whole return, and now you see you're going to get a $2,000 refund. But all of a sudden, this return that you thought was free is $50. And they're telling you, oh, you don't even have to pay the $50. We'll take it out of your refund. You might just throw up your hands and say, okay, take the $50. You know, and that's what they're counting on.

Hannah McCarthy: [00:30:56] And we've got to give credit to ProPublica again, they did an investigation into the major software companies that proved that they were making it very, very hard to find and stay on the free file program. For example, TurboTax even went as far as removing its free file page from Google search results. So if you googled TurboTax or TurboTax Free File, you would never get a result that actually took you directly to that page.

Nick Capodice: [00:31:22] So basically, there is absolutely no way to get to the free file software unless you went through the IRS, even if you clicked on a link from TurboTax that said, hey, file your taxes for free.

Hannah McCarthy: [00:31:34] Exactly.

Nick Capodice: [00:31:34] Well, that that's like. That sounds patently illegal. I mean, if you're going to offer a certain software but make it basically impossible for people to get to that software, you're not really offering that software. Yeah.

Hannah McCarthy: [00:31:48] And the inspector general of the Treasury and the Taxpayer Advocate called these companies out. Congress investigated.

Beverly Moran: [00:31:55] And so the the government was trying to force these companies to do. Right. What did they do? They left the program, and then they went and did all sorts of advertising, which everybody seen like that free, free, free free, free free free.

Archival Sound: [00:32:12] That's right. Turbotax free is free, free, free, free free.

Beverly Moran: [00:32:16] And they did the same thing. So that's still 70% of people who file taxes are not talking about companies, but people, right should be eligible for that program. And less than 3% get a free return each year.

Hannah McCarthy: [00:32:35] By 2021, both H&R block and TurboTax had pulled out of the Free File program, so they are no longer mandated by the government to provide free tax filing for anyone. They may have free filing software as part of their business, and they may advertise it, but that does not mean it will be easy to find. However, this year, the IRS rolled out its own free file software for the first time. It's still in the pilot phase, but many people have been testing it out.

Nick Capodice: [00:33:05] But there are still other companies that are mandated to provide free filing software, right? Yes.

Hannah McCarthy: [00:33:11] And Beverly has some advice for how to find these services and some general wisdom for all of us taxpayers who are just trying to file our taxes correctly.

Beverly Moran: [00:33:20] Okay, so the first thing is, people should know that for most people, really and truly, you can go on the IRS website, you can get a company that will walk you through it. They give you two choices. One is they give you a return and you just fill it out yourself. And the other is it's it's like other software. They ask you questions and based on the answers to those questions, they fill in the amounts.

Nick Capodice: [00:33:53] So one is a more hands on approach where you fill in the answers and then they file the return for you.

Hannah McCarthy: [00:33:58] Yeah. Or they give you the paperwork that you need to fill out by yourself.

Beverly Moran: [00:34:02] It really is possible to get a free return. So you should not allow yourself to be deterred in that. You know, if it pops up and you're supposed to pay, you're on the wrong software and you need to just move over to the next software. If you don't have like, crazy things going on, like, um, you just inherited $1 million, the chances are very high that you have a right to a free return. Well, if I.

Nick Capodice: [00:34:28] Inherited $1 million, I think that my first phone call would be to an accountant to figure that out. Anyways.

Beverly Moran: [00:34:34] Number two, always go to the IRS website for the free file. Start at irs.gov. Do not do a search engine search because you will be guided to the wrong place.

Hannah McCarthy: [00:34:48] Our producer googled free file taxes and the first two results were ads for tax preparation software from TurboTax and H&R block that promised free online tax filing, which, as we just learned, they have no obligation to provide anymore. However, the first Non-ad result was Irs.gov number three.

Beverly Moran: [00:35:11] You should have all your quote unquote paperwork. And for most people, that paperwork is going to consist of W-2 forms. Don't be shocked if you only have a few pieces of paper. You're only supposed to have a few pieces of paper.

Nick Capodice: [00:35:29] Okay, have all your paperwork. What else?

Beverly Moran: [00:35:33] Also understand that if you're not John Dillinger.

Archival Sound: [00:35:39] This is John Dillinger, the greatest bank robber of all time.

Beverly Moran: [00:35:45] You really don't need to be that afraid of an audit. I mean, most of what you need to fear about an audit comes from the fact that the IRS is underfunded, which means that you should always make sure you have the name and the identification number of the person you talked to. You should keep track of phone numbers. If you put anything in the mail, you should make sure to keep a copy just because. Even though you're dealing with people of goodwill, they're sort of in chaos over there, and you don't want to get caught in the chaos, or you don't want to add that to their chaos or have their chaos come into your life.

Hannah McCarthy: [00:36:46] This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Jackie Fulton is our producer. Rebecca LaVoy is our executive producer. Music. In this episode by Beigel Pottington bear Anna moya Kiesza. Mama Zula 91 Nova Meter and Arc de Soleil. If you liked this episode, and even if you didn't, consider leaving us a review on Apple Podcasts or wherever you get your podcasts, we read them all. They really do help us. We love your feedback. Civics 101 is a production of NHPR, New Hampshire Public Radio.

[00:37:21] Woof woof woof. Woof!

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

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

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

Listen:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Listen:

TranscripT:

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

Hannah McCarthy: All right. Hello, everyone.

Nick Capodice: Hey, Hannah.

Rebecca Lavoie: Hello.

Christina Phillips: Hi.

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

Christina Phillips: I'm Christina Phillips.

Nick Capodice: I'm Nick Capodice,

Rebecca Lavoie: And I'm Rebecca Lavoie.

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

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

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

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

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

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

Rebecca Lavoie: You mean the presidential candidates?

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

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

Hannah McCarthy: Nick?

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

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

Nick Capodice: Some could drop...

Hannah McCarthy: Somebody could drop out. Somebody could.

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

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

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

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

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

Rebecca Lavoie: Let's do it.

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

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

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

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

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

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

Rebecca Lavoie: A cover of a cover.

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

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

Nick Capodice: This is good.

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

Rebecca Lavoie: That seems arbitrary.

Nick Capodice: Is this a nice round number?

Hannah McCarthy: If we're still around.

Nick Capodice: Would you have to say 50?

Rebecca Lavoie: 2054?

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

Nick Capodice: Was there drilling going on there?

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

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

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

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

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

Rebecca Lavoie: Good luck with that one.

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

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

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

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

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

Nick Capodice: Oh, yeah.

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

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

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

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

Rebecca Lavoie: Yeah, there was a commission.

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

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

Christina Phillips: Exactly, exactly.

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

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

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

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

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

Hannah McCarthy: Thank you for that caveat, Rebecca.

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

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

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

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

Christina Phillips: Drug prices?

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

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

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

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

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

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

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

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

Rebecca Lavoie: Across industries, right? Yeah.

Nick Capodice: Just getting rid of all the junk.

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

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

Rebecca Lavoie: Yeah.

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

Nick Capodice: Is this a DEI study?

Hannah McCarthy: No.

Rebecca Lavoie: What's the study?

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

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

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

Archive: I want the public school teachers a raise.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rebecca Lavoie: How?

Nick Capodice: Yeah, how I.

Christina Phillips: I Mean, this is like..

Hannah McCarthy: I'm not the candidate.

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

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

Rebecca Lavoie: Finish the wall.

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

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

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

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

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

Archive: Lincoln Riley was described as a shining light.

Archive: The Dean's List nursing student police.

Archive: Arrested 26 year old Jose Antonio.

Archive: Ibarra. Ibarra crossed into Texas illegally.

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

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

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

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

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

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

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

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

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

Hannah McCarthy: I know.

Hannah McCarthy: Okay.

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

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

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

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

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

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

Nick Capodice: Oh, interesting.

Rebecca Lavoie: Hello.

Nick Capodice: Yeah. Didn't know.

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

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

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

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

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

Nick Capodice: Oh, this is the big one.

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

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

Nick Capodice: It's you, rebecca.

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

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

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

Nick Capodice: Fire firing.

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

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

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

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

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

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

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

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

Hannah McCarthy: That's it.

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

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

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

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

Hannah McCarthy: You say that like once a week.

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

Nick Capodice: I do say that a lot.

Nick Capodice: Sorry. Everyone who knows me.

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

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

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

Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Made possible in part by the Corporation for Public Broadcasting.

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

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

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

Listen:

TranscripT:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Outside/In promo: If someone told you to jump off a cliff, would you do it? No. But there is something to be said about leaping into the unknown. That's what our podcast Outside In is all about. It's a safer way to explore all the weird, wonderful and uncomfortable questions you have about the natural world. Like what's it like to decompose. All of the germs and bacteria is an okay, baby, we got to get rid of this person. Or why the hell do we have lawns? Who the hell needs five acres of ornamental grass?

Outside/In promo: I'm Nate Hegyi, host of Outside/In, a podcast where curiosity and the natural world collide. Sometimes it's serious, sometimes it's ridiculous. But it's always a wild journey. Oh. That's outside slash in from New Hampshire Public Radio.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dred Scott v Sandford

Brown vs. Board of Education of Topeka

Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: I know that voice.

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

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

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

Hannah McCarthy: I'm Hannah McCarthy.

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: How much was he fined?

Nick Capodice: He was fined 100 bucks.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Made possible in part by the Corporation for Public Broadcasting.

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

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

Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Made possible in part by the Corporation for Public Broadcasting.

Listen to our full, two-part series from 2023 on the history of civics education, and the current legal and ideological debates around social studies happening in across the country today.

Walking us through the past, present, and future of social studies and civic education are Danielle Allen, James Bryant Conant University Professor at Harvard University, and Adam Laats, Historian and Professor of Teaching, Learning and Educational Leadership at Binghamton University. We also hear from Louise Dube, Executive Director of iCivics and member of the Implementation Consortium at Educating for American Democracy, Justin Reich, Director at MIT Teaching Systems Lab and host of the TeachLab podcast, and CherylAnne Amendola, Department Chair and teacher at Montclair Kimberly Academy and host of the podcast Teaching History Her Way.

Click here to subscribe to our newsletter!

Click here to make a donation to Civics 101.

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

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

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

Click here to subscribe to our newsletter!

Click here to make a donation to Civics 101.

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

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

Rebecca Lavoie: Christina Phillips.

Christina Phillips: Rebecca Lavoie.

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

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

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

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

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

Christina Phillips: And I'm Christina Phillips.

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

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

Rebecca Lavoie: It comes out every other week.

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

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

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

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

Christina Phillips: Yes.

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

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

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

Christina Phillips: Yeah.

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

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

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

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

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

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

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

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

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

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

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

Christina Phillips: I love that bold title.

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

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

Rebecca Lavoie: Email, you have to.

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

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

Christina Phillips: So then what happened?

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

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

Rebecca Lavoie: You know what happened then I.

Christina Phillips: Do, but tell me anyway.

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

Christina Phillips: Of course I do.

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

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

Rebecca Lavoie: You relate to it being fun?

Christina Phillips: Yeah. Sometimes. Yes. Wow.

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

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

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

Christina Phillips: I love that.

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

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

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

Christina Phillips: Oh yeah. All the time.

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

BREAK

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

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

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

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

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

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

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

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

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

Christina Phillips: And things may have changed since then.

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

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

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

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

Friends clip: Hey, how are you doing?

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

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

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

Rebecca Lavoie: What are the charges in this case?

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

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

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

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

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

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

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

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

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

Rebecca Lavoie: So what's.next?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: [00:22:33] Yeah. Which is interesting because elections are a check on the pardoning power. But when a president is set to leave office, that check doesn't really exist.

Brian Kalt: [00:22:43] So the voters are the ones who, at the end of the day, are holding the president accountable, even if the president himself is not up for reelection, there's the possibility of punishing his chosen successor or his party president. Ford, when he pardoned President Nixon, probably lost the election in 1976 because of it. And that's the way it's supposed to be. That's the voters holding the president accountable. They didn't think he should have pardoned Nixon, so they threw him out of office.

Archival - Ford: [00:23:16] Finally, I feel that Richard Nixon and his loved ones have suffered enough and will continue to suffer no matter what I do, no matter what we, as a great and good nation can do together to make his goal of peace come true.

Hannah McCarthy: [00:23:41] Are there other layers of accountability like impeachment?

Nick Capodice: [00:23:45] Yeah, and a president cannot pardon an impeachment. However.

Brian Kalt: [00:23:51] The main check on it impeachment as we've seen, isn't really realistic. It's hard to get 67 votes when we're in a political situation where the parties are so polarized and they don't agree on anything, and anything that unites, one party is going to unite the other party on the other side.

Nick Capodice: [00:24:11] Of course, there is also the option of a constitutional amendment which, given that it requires two thirds of either Congress or the states to even propose an amendment and then ratification by three quarters of the states is pretty darn unlikely.

Hannah McCarthy: [00:24:24] What about the courts? Could the Supreme Court rule that a pardon is a violation of the Constitution?

Nick Capodice: [00:24:30] Honestly, there isn't any real precedent for that. The Supreme Court has also said that someone pardoned for a federal crime could also be charged in state court, and that a person has the right to refuse a pardon. But so far, Scotus has not commented on whether a president can pardon themselves.

Hannah McCarthy: [00:24:49] Does that mean that we're just back to the voters.

Brian Kalt: [00:24:52] In an odd sort of way, President Trump campaigning on the idea that he will pardon the January 6th convicts and defendants, that he would pardon himself if he wins the election. That is basically the voters saying, yeah, you know, we're okay with that. So you can argue about the wisdom or the legitimacy or the deservingness of these folks. For parties, you can say maybe doesn't have the power to pardon himself, but he definitely could pardon all those other people. And if the voters approve it, that is legitimizing it in a way that pardons on your last day on your way out of office aren't. So it's it's kind of in a weird way more appropriate.

Hannah McCarthy: [00:25:39] It seems like Brian is kind of saying that when it comes to pardoning power, it really is up to voters to decide whether they think a president has the right to pardon someone. It's a political question rather than a legal one, at least as of right now.

Nick Capodice: [00:25:59] Yeah. And Brian is a constitutional scholar. He deals in legal interpretation. And he made a point to separate the legal interpretation from the political one, even when it comes to his own opinions.

Brian Kalt: [00:26:13] So thinking about presidents pardoning criminals who were convicted of basically supporting them too aggressively as a policy matter, I have a problem with that. I don't personally support pardoning duly convicted January 6th defendants, but I don't deny that the president has the power to do that. I wouldn't say that the pardons are invalid. I would say that it's a political question and people should respond politically to that.

Nick Capodice: [00:26:47] And on that note, I do want to take a second to talk about precedent. Whatever future presidents decide to do with their pardoning power will inform what subsequent future presidents do. Which brings us back to the first thing Brian said at the beginning of the show. Do you think the president should be able to pardon themselves, if you like that precedent? And is the answer the same if you don't?

Hannah McCarthy: [00:27:26] This episode was produced by Christina Phillips with help from me, Hannah McCarthy. Nick Capodice is my co-host and Rebecca Lavoie is our executive producer. Music in this episode by Chris Zabriskie. El Flaco Collective Ooh-ah. Ceza, Danial. Fadel, Matt large, rambutan, Zoro, Spring Gang, Volante, Mind Me, Hara, Noda and Apollo. You can get more at Civics 101. Yes it's true, we've got a website civics101podcast.org. And there you can find all of the rest of our episodes, transcripts, links to stuff, a means to contact us, and the place to sign up for our truly delightful newsletter. That's Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

Made possible in part by the Corporation for Public Broadcasting.