What is the Department of Education?

Dismantling the Department of Ed? It's been tried before.

During his campaign, Donald Trump promised several times that he woulddo just that. So today we wanted to explore what such a dismantling would look like, as well as what the DoED does in the first place. 

Turns out, while the Department does an awful lot of things, there is much for which it is criticized that it does not do. Taking us through its creation, its history, and its powers is Adam Laats, professor of Education at Binghamton University. 

Link to our episodes on School Lunch here and here.

And here are some good resources for anyone who wants to know a little more about Jonestown. My 8th grade report is, sadly, unavailable:

https://www.npr.org/2017/04/11/523348069/nearly-40-years-later-jonestown-offers-a-lesson-in-demagoguery

https://www.nytimes.com/1979/11/18/archives/jonestown-the-survivors-story-jonestown.html

Transcript

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

Nick Capodice: I do have a quick interruption that's not related to education. Is there any chance in your room you have a different chair?

Adam Laats: Oh, this one's squeaky.

Nick Capodice: Yeah.

Adam Laats: Yeah, it's. Well, um.

Nick Capodice: You don't have to.

Adam Laats: You got time? I'll get a different chair.

Nick Capodice: Look at that old chair. Shut up. You're listening to Civics 101 Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy, and.

Nick Capodice: Today we are talking about the United States Department of Education.

Hannah McCarthy: Who is that in that squeaky chair just now?

Nick Capodice: That was. That was repeat. Civics 101 guest, Adam Laats.

Adam Laats: Yeah, yeah, I'm Adam Laats. I'm a professor of education and history at SUNY Binghamton.

Nick Capodice: Uh, Adam got another chair, by the way, so we were all set.

Adam Laats: All right. How's this one?

Nick Capodice: Fantastic. I would like it if you came in with, like, a series of progressively older chairs. Enough about chairs, Hannah. Let us talk about the Department of Education and some quick abbreviation clearing up. When we say the Doe, we are usually referring to the Department of Energy. So we can't say it for education. Most folks say Department of Ed or Doe ed. I'm going to say d o e d a few times today, even though I'm not sure if it's right.

Hannah McCarthy: And I know the Department of Education has been in the news as of late, primarily because president elect Donald Trump has stated that he plans to dismantle it.

Archive: And one other thing I'll be doing very early in the administration is closing up the Department of Education in Washington, D.C..

Nick Capodice: Yep. He has. And we are going to get to that, as well as his nominee for secretary.

Archive: The woman he has chosen to lead that charge, Linda McMahon, a well known businesswoman who helped to build the wrestling empire WWE. Can McMahon, if confirmed, bring the changes the president elect is looking for?

Hannah McCarthy: But as of right now, January 2025, the DoD is not DOA. So before we talk about why someone would want to dismantle it, what does the Department of Education do? Why was it was it created in the first place?

Nick Capodice: Absolutely, Hannah, but I have to say up front that this story takes a lot of pretty bonkers twists and turns.

Adam Laats: Is it? I don't know how much normal people know. Like, there's a there's a suicide cult involved. Like, do we want to talk about that suicide cult?

Nick Capodice: Yeah, and that is just the beginning.

Adam Laats: There's also, uh, anti-brotherhood school movement. Like we can't teach the children that humans are all brothers. That's part of the story also. And bombing, blowing, blowing up schools is part of it.

Hannah McCarthy: Wow. Okay.

Nick Capodice: But before all that, to your question, what does the deed.

Adam Laats: Do people, even if they know a lot about education and the United States, the Department of Education, I think is, is sort of mysterious because it doesn't do what I think a smart layperson would think. It doesn't actually decide much about what's going to go on in K-12 schools or colleges for that matter.

Nick Capodice: So, Hannah, pretty quickly this interview became about what the department doesn't do. Now, there is an awful lot that they do do, but it is not what I had thought.

Adam Laats: That's the way the US works, which is different from like almost everywhere else. That's all, you know, district and state level, like mostly states. Like what's the curriculum going to be? Are there are we going to have history tests like in New York to graduate? That's all state. And even like almost all of the money is local. So the the federal Department of Education doesn't pay for schools. It doesn't decide what's going to go on in schools because it's so new. You know, only since the Carter administration, it exists as a kind of mishmash of different pre existing federal programs that got put together under Carter as a as a new cabinet level post. And it matters. I mean, it matters that it's in the cabinet instead of like as part of the Department of Health, Education and welfare. Like, it's symbolically super important that Carter Carter did the same thing with energy. You know, we're going to emphasize how much this matters to us by making this a cabinet level post that matters, but it doesn't do what I think a informed, intelligent observer would think, which is it doesn't decide what's going to happen in K-12 schools or colleges.

Hannah McCarthy: Now, just to clarify, the Department of Education does not decide what is taught in schools.

Nick Capodice: Not in the slightest.

Hannah McCarthy: I mean, I'm fairly sure that most people do think that the Department of Ed is in charge of all of that. I mean, if I'm not mistaken, much of the current outrage toward the department is tied to what schools teach and how they teach it, as well as how our schools are doing compared to other nations schools.

Nick Capodice: Yeah, and politicians reinforce that thought. At the Conservative Political Action Conference last year, Donald Trump said, quote, across the country, we need to implement strict prohibitions on teaching inappropriate racial, sexual and political material to America's schoolchildren in any form whatsoever.

Archive: And if federal bureaucrats are going to push this radicalism, we should abolish the Department of Education.

Nick Capodice: But that aside, Adam says, one of the reasons why people might take issue with the department is due to people's interpretation of how schools are doing, generally in the United States.

Adam Laats: Gallup polls over and over. And this has been, you know, from the 80s till now, they've asked people, how do you think America's schools are doing? And large majority, 75%, 80% are like, oh, they're doing terrible. Like, what grade would you give them D. And then the follow up question, um, how are your kids schools doing? Oh, fantastic. Hey. And in the same proportion 80% go A or B for their kids schools. 80% go D or worse for the school in general. America's schools are fantastic. Not all of them. But America's schools in huge proportions are very beloved by the people who use them. What's not beloved is this idea of a distant educational bureaucracy. And before the Department of Education, there were other bugbears out there for conservatives, and there are some for progressives, too. So, for example, ask a progressive what the danger is for school, and they have a list of distant, bureaucratic, well-funded entities the Heritage Foundation. For conservatives, it's been things like Teachers College at Columbia University where, you know, left wing professors were spreading these ideas. John Dewey as like a an idea has always been seen as like, you know, harming local schools. Once there's a Department of Education, it takes on all that fear of a distant, out of touch elite harming my local schools. And so I think it becomes super unpopular, even though the things that it does in practice tend to be extremely popular.

Hannah McCarthy: Has it pretty much always been this way that the Department of Education is viewed by conservatives as, you know, as Adam put it, a bugbear, a quote unquote distant elite always.

Nick Capodice: And this is where we get to how people viewed it at its creation in 1979. But I can't talk about its creation without mentioning its first incarnation.

Hannah McCarthy: We had a different Department of Education.

Nick Capodice: We did. We had an earlier one right after the Civil War.

Adam Laats: Right after the war, Andrew Johnson started a Department of Education, being encouraged by congressional leaders. And he did. But it was extremely unpopular because the Freedmen's Bureau was actively and energetically educating former enslaved people. The Department of Education, even though it wasn't that wasn't what it was doing, becomes very unpopular.

Hannah McCarthy: So the Freedmen's Bureau was invested in educating formerly enslaved people. But the Department of Education was not.

Nick Capodice: No.

Nick Capodice: It wasn't. Adam said that the creation was sort of an empty gesture to appease northern politicians who asked for it.

Adam Laats: Henry Barnard I was just working in in archival materials. It's pretty sad. He, uh, he was the Connecticut state superintendent. He was a colleague of Horace Mann in Massachusetts. He thought he was gonna ride in, uh, to the federal department and transform the United States education system. What he found, though, was not only did he was he not able to do much, he did some stuff. He collected a lot of statistics, which is great, but when he asked for more than four employees, they took employees away and they cut his salary by 25%. So he just Rodney Dangerfield his way out of that. I mean, he got no respect.

Archive: Well, that's the story of my life. No respect. I don't get no respect at all.

Adam Laats: And they closed the office after, you know, 18 months I think about two years. They just closed it down.

Nick Capodice: So fast forward 111 years, and we get to our modern incarnation of the Department of Education under Jimmy Carter.

Adam Laats: Governor Carter made a deal with the National Education Association. If they swung to him in the election and gave him their support in 1976, he would push hard to elevate education to a cabinet level post. And this was the that kind of politics. Nothing illegal about it. It's just, you know, that's politics. An interest group promises you their support. They deliver. So then Carter was pressed to deliver a Department of Education again. Not that it would have the power to actually do the kinds of things I think street level people think it would, but it's a huge symbolic statement to say education is up there with defense. This is a priority of our federal government, and it wouldn't happen if not for a suicide cult. Bom bom bom.

Hannah McCarthy: Bom. I was waiting for this part.

Nick Capodice: Okay. Jimmy Carter gets elected. He owes the National Education Association for backing him during the election. And he starts to advocate for creating the department.

Hannah McCarthy: But he cannot do it all by himself because it's Congress and not the president who creates departments.

Nick Capodice: Exactly. So the Senate is pretty much for it. The House is a little more against it. Specifically, one man in the House of Representatives who is determined to block any legislation that creates a Department of Education. This is California Democratic Congressman Leo Ryan. Do you know that name?

Hannah McCarthy: I don't think I do.

Adam Laats: He's not as famous now as as he is once you get into the 20th century archives. But in the, in the in the 60s, 70s, he was a very sort of high profile congressperson. He did things like, um, at the time of the La Watts riots, he was a teacher before he went into politics. He went in undercover to teach at a school to see what the deal was.

Nick Capodice: So Congressman Leo Ryan went to Newfoundland to investigate seal killings. He went undercover as an inmate at Folsom Prison to report on conditions there.

Hannah McCarthy: Really?

Nick Capodice: Yeah.

Adam Laats: So he's this, like, TV show, perfect Congress person. Leo. Ryan. And he hates the idea of a department of Education. And he has a committee role that allows him to block it pretty successfully, even though he's a Democrat. He's super opposed to the idea of a federal Department of Education, and he blocks it, and he has the power to block it. But because he's a crusading, high profile congressman, he flies down to Guyana to investigate a murder cult led by the notorious James Jones.

Archive: The charismatic Reverend Jim Jones controlled a cult based in San Francisco to escape scrutiny. He moved the group to a jungle commune in Jonestown, Guyana.

Nick Capodice: So for anyone out there who hasn't heard of Jonestown, it was a settlement in the jungle in Guyana. And it was also the topic of my very first history report in Mr. Zeki's class in eighth grade. Jonestown was a religious commune under the leadership of Reverend Jim Jones, and a lot of people who went to the commune came from San Francisco. So they were technically Congressman Ryan's constituents. And Ryan had heard of some horrible, horrible things going on down there.

Adam Laats: So he as is his want. He smells publicity. He takes a trip. Uh, there's there's journalists, there's hangers on, there's relatives. They go down to Jonestown to investigate. They are ambushed. They are murdered in cold blood at the at the airstrip because of the murder of a US congressman. Jim Jones knows their time is up. He dishes out the Kool-Aid because he's like, well, they're coming for us, but we're going to go out on our own ticket. We're going to we're going to decide how we go out. We're not going out. We're not going to jail. We're not going to fight the US.

Archive: We're out. Good evening. Here's what's happening. We're interrupting our special broadcasting to bring you this special report. A new C news break on the Peoples Temple, mass suicides in Guyana, and the murder of Congressman Leo Ryan. I would mention to you now, tonight's movie will run in its entirety immediately following this special report. I also have to warn you, as we begin this special report, that what you're about to see almost defies description. And some of you may not want to watch it.

Nick Capodice: So the oft used expression is Kool-Aid, but technically it was called Flavor Aid. But that's not really the point. Jim Jones Administered cyanide laced flavor aid to his parishioners, killing about 900 people. Jones himself did not drink the cyanide. He died by a gunshot wound. It's a horrific story. It's a fascinating story. I'm going to put some links for anyone who wants to know more in the show notes.

Adam Laats: But because of that, the opposition to the Department of Ed disappears from the House of Representatives, at least on the Democrats side. The legislation goes through.

Hannah McCarthy: That is. I had no idea that that is how the d e d came about. I mean, that's a really remarkable turn of events, isn't it? So Carter got his new department right. What did he end up doing with it?

Nick Capodice: Well, not a whole heck of a lot. Carter didn't do much because it was created towards the end of his administration. His first secretary was Shirley Hufstedler, and she had just gotten started establishing the department. And then Jimmy Carter lost reelection to Ronald Reagan, who had promised on the campaign trail. Wait for it. That one of the first things he would do would be to eliminate the Department of Education, which we are going to talk about, as well as what the DoD is doing as of this minute, right after a quick break.

Hannah McCarthy: But first, if you want to hear more about things like Nick's eighth grade report on Jonestown, that is the sort of slightly tangential stuff that we put in our newsletter. Extra credit. You can subscribe to it at our website, civics101podcast.org. We're back. We're talking about the Department of Education. And, Nick, we had just gotten to the creation of this department, the second creation, I should say.

Nick Capodice: Right. And this new department didn't really create anything new right off the bat. The same thing happened with the newly created Department of Energy. It just sort of sort of moved existing things from other departments under a new umbrella.

Hannah McCarthy: And you said that Reagan wanted to dismantle it immediately.

Nick Capodice: He sure did. Here again is Adam Latz, professor of education at Binghamton University.

Adam Laats: Reagan comes in swearing to get rid of it. Get rid of education. Get rid of energy.

Archive: We propose to dismantle two cabinet departments Energy and education, by eliminating the Department of Education less than two years after it was created. We can not only reduce the budget, but ensure that local needs and preferences, rather than the wishes of Washington, determine the education of our children.

Adam Laats: But he doesn't. It's kind of obvious in retrospect. He doesn't. Because as soon as, um, Terrell Bell is his first secretary. Terrell Bell takes the job knowing he's supposed to dismantle this department. And so he makes it super popular. Or he makes its work super popular among Reagan conservatives by by assembling a commission to prove that Reagan policies are correct.

Hannah McCarthy: Okay, so once they got a little taste of the power that comes with running a new department, they were not as interested in dismantling it.

Nick Capodice: Exactly. And they get right to work and publish a famous, still cited report called A Nation at Risk.

Adam Laats: And it says what a lot of conservatives at the time really wanted to hear, which is that American education had been hijacked by left wing radicals. The phrase that pays back. Then what really stick was if this system had been imposed by a foreign power, we'd consider it an act of war. You know, there's a rising tide of mediocrity that has taken over our schools. So the Department of Education does that. That's like its first big thing is to say that education in America has been attacked successfully by the left.

Archive: The report states bluntly that the very future of our nation is at risk. Sabotaged by a rising tide of mediocrity in our children's education. The statistics are alarming.

Hannah McCarthy: But if the Department of Education didn't decide what was taught in schools, who took the blame for this so-called rising tide of mediocrity?

Nick Capodice: No surprise the teachers did.

Adam Laats: It was because of of communist leaning teachers unions that the mediocrity had been so triumphant. But it's kind of surprising because we keep hearing, you know, conservatives attacking the Department of Education. And they still and they did at the time. But even as they did it, conservatives always loved what the department did when it was in like their hands. Like anything else, it's a government tool. And when it's been like in the Reagan administration and the first Trump administration that the Department of Education has done things that have been very popular among conservatives.

Hannah McCarthy: Like what? What sorts of things.

Nick Capodice: Well, for example, in Donald Trump's first term, Secretary Betsy DeVos advocated for block grants for all money from the department that went to schools that gave them fewer restrictions on how to spend it. And also, Donald Trump pushed for abolishing preexisting loan forgiveness programs.

Hannah McCarthy: Right. That's the thing where if you work in the public sector for ten years, your loans get forgiven.

Nick Capodice: Right.

Hannah McCarthy: Exactly that. How much money does the Department of Education get every year? What is their budget?

Nick Capodice: Well, of course it changes from year to year. But in 2024, they received $102 billion.

Hannah McCarthy: And how is that money spent?

Adam Laats: Title one is huge. And that's, I think, probably the most obvious, biggest federal impact. But that came before the Department of Education.

Hannah McCarthy: Can you give me a quick explanation of title one?

Nick Capodice: Yeah, sure. This goes back to Lyndon B Johnson. Title one pays federal dollars to schools that have a certain percentage of students who are low income. That money is spent on meals for students. It's spent on classroom materials, teacher salaries, and a whole lot of other stuff.

Hannah McCarthy: By the way this is a fascinating rabbit hole. We have gone down the school lunch path before here on Civics 101. There's a link to those episodes in the show notes if you're interested.

Nick Capodice: I do love those episodes. But anyways, after title one, the largest chunks of the budget are money for special education. That is, money for grants that go to staff and facilities for students with special needs. And finally, as we just mentioned earlier, college funding. You know, this is federal loans, grants and tuition forgiveness programs. But the department doesn't just give dollars to schools. Another role of the Doe is to enforce laws in an education setting.

Adam Laats: Here are some other things that that every school everywhere knows about. And they're not. It's not money, but it's super physical. Every single school doorway has a ramp. So to get into any school, you have to be able to wheel your way in. That's federal. That's Ada. The feds don't provide the money for those ramps. Uh, the money is generally local and state. Uh, but the federal government said you have to do this stuff. And same thing with a lot of, uh, things like special education law. Those are federal things that really changed dramatically. Changed schools.

Nick Capodice: Your school must be Ada compliant. And if it's not, it can be sued.

Adam Laats: And let's not forget the most obvious one from the 20th century. Racial desegregation is a federal thing. States absolutely did not choose to desegregate. The federal government backed up with the 101st Airborne in Arkansas. You know, that's that's that's such raw federal power. It's direct federal soldiers implementing state and local school decisions.

Archive: President Eisenhower sends 500 troops of the 101st Airborne Division of the United States Army to Little Rock by night. They are to keep order and to see that the law of the land is obeyed.

Adam Laats: So if federal influence shows up all over the place, it's just not in the biggest ways that you think. Like, for example, what do you learn in 10th grade about math?

Hannah McCarthy: One thing I am curious about is the relatively recent push toward what is called school choice, where families can get vouchers to help pay for tuition at a private school, a charter school, a parochial school, or the like. Does that money come from the Department of Education?

Nick Capodice: That's a great question. As of right now, it does not. Currently, money for programs like those come from state departments of education, though I have to add, Donald Trump said in October, quote, school choice is one of the most important things we're going to be doing.

Archive: We're fighting for school choice, which really is the civil rights of all time in this country. Frankly, school choice is the civil rights statement of the year, of the decade and probably beyond.

Nick Capodice: School choice programs are in direct opposition to the Department of Education, because the Department of Education supports free public K-12 schools.

Adam Laats: In Kentucky, for example, in Texas. In these red states, you have these voucher programs that are very popular among governors, among policy makers. They're very unpopular among conservative rural populations. So if the Texas story is really fascinating, Texas, very red, very conservative, they try to push with billionaire funding from Pennsylvania. They try to push a new ESA education savings account program vouchers. It gets pushed back on by, you know, Trump supporting Make America Great Again conservatives from rural districts because it would really take money away directly away from the public school districts, and nobody wants that. You know, the number of people who would advocate for, you know, getting worse schools for your children, that's vanishingly small. You know, choice works as a slogan when people can legitimately say, of course I want a better public school for my child. Choice doesn't work in a rural New Hampshire, Kentucky, Colorado Texas area. When choice in practice means money taken away from your public schools.

Archive: School leaders across the state have been speaking up about possible ripple effects for public schools. Investigator Kelly Wiley takes us to Seguin, Texas, where the superintendent fears lawmakers are considering legislation that would deal a financial blow to an already strained system.

Adam Laats: But not just from the academic programs, but from community programs like football. Like if you threaten a town's football program and I'm not I'm not poking fun at all. That's that's a center of their community. It's it's it's it's woven entirely into their public school culture. So no matter your politics, people really don't like the idea of having money taken away from their public school budgets.

Nick Capodice: The last thing I want to add here about school choice programs, which I am promising Hannah to do an episode on this year, is that the Institute on Taxation and Economic Policy recently published a report on school choice credits. And this report revealed that wealthy families are the overwhelming majority of people that use them. This report said, quote, in all three states providing data. Most of the credits are being claimed by families with incomes over $200,000.

Hannah McCarthy: Last thing, and who knows whether or not you know, by the time this episode goes to air, things are going to be different. But as of this recording. Right. So this is January 15th, 2025. The Department of Education exists. So I do think it's worth mentioning that Donald Trump's nominee for the department, Linda McMahon, is a staunch proponent for school choice programs, very much like Trump's former secretary, Betsy DeVos.

Archive: Can you tell us more about McMahon's background in education?

Archive: So she's not well known as, uh, as an education policy person. She's never worked in the field. Um, she did graduate with a teaching certificate. Um, but then she got married young and went into the wrestling promotion business with with her husband, Vince McMahon.

Hannah McCarthy: So is this appointment a prelude to the end of the department? Is the DoD in danger of being eradicated? Well.

Nick Capodice: Adam doesn't think so.

Adam Laats: I will be shocked and amazed if the Department of Education goes away. I should mention I've been shocked and amazed for about eight years now in general. So. But I will be again shocked and amazed if this actually if that if they actually get rid of the Department of Education. But it wouldn't get rid of other things, and it wouldn't get rid of a lot of the things that are already in the Department of Education. It would most likely just move them around and move the get rid of the cabinet secretary. But the programs would just move again, most likely to other departments, because that's what they did to create the department.

Nick Capodice: First off, like you said earlier, Hannah, it is Congress, not the president, that creates departments. And that goes for closing them as well. A president cannot do it by themselves. And secondly, a lot of Republican majority states get an awful lot of title one funding for their schools. So I don't think it's something their constituents necessarily want. And last thing, Hannah, picking someone for a secretary for the intended dismantling of a department. That we've seen this before.

Adam Laats: I think people now in 2024 are sometimes surprised that someone like Linda McMahon might come in and be a secretary of education. Someone like Betsy DeVos could come in and be a secretary of education. But Terrel Bell, in the 70s, he was giving white House support to school boycotters in West Virginia, who had firebombed and dynamite bombed school buildings and the district headquarters after the bombings. Terrel Bell from the white House sent his support, implying the White House's support for this boycott of schools. So, you know, the idea that somehow suddenly school politics have gotten rough. Um, school politics have gotten rough. Uh, but school politics have always been rough, and the federal politics have always been pretty shockingly willing to get in bed with violent, aggressive. Extreme. School activists.

Nick Capodice: Yeah. Yeah, yeah. Oh, I know that chair.

Adam Laats: This one, I think, came from a Milwaukee, uh, supper club. Uh, if you're not a midwesterner, you might not know the supper club scene, but they all have chairs like this. Like.

Nick Capodice: Well, this episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you. Christina Phillips is our senior producer, Marina Henke, our producer. And Rebecca Lavoie, our executive producer. Music in this episode from Epidemic Sound. And also Cass Blue Dot sessions bio unit. And if music be the food of civics.

Nick Capodice: Play on Chris Zabriskie. Give me excess of it.

Nick Capodice: Civics 101 is a production of NPR, New Hampshire Public Radio.

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What are Trump's climate plans?

What has Donald Trump claimed he would do when it comes to environmental policy in the U.S.? What happened during his last administration?  And what are the limits on executive powers when it comes to treaties and global agreements?

Elizabeth Bomberg, Professor of Politics at the University of Edinburgh, tells us what we can expect when it comes to emissions regulations, drilling, climate research, the Paris Agreement, and so much more.  

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Transcript

Hannah McCarthy: [00:00:03] This episode is coming out just a week before former President Donald Trump once again becomes President Trump. Now, Trump laid out plenty of intentions over the course of his campaign. We'll be returning to his day one promises in an upcoming episode. But for today, we're going to take a closer look at an issue that has long been inciting and activating in this country. [00:00:30]

Archival: [00:00:32] I'm a 15 year old climate warrior spokesperson for my generation, and I'm suing the United States government for violating my constitutional right to a healthy atmosphere.

Archival: [00:00:41] Scientists have concluded the growing number of fires is a result of climate change. But some voters still remain skeptical.

Archival: [00:00:49] Our colleague said, why are we having this discussion? There is no climate crisis. It's all a hoax.

Archival: [00:00:55] The scientific consensus is clear climate change is real.

Archival: [00:00:58] I think there are a substantial [00:01:00] number of scientists who have manipulated data. You know.

Archival: [00:01:04] All these politicians were talking about the economy. There is no economy. There is no functioning society on a planet that is in ecological collapse.

Archival: [00:01:12] And so the reality is more people are dying of bad climate change policies than they are of actual climate change.

Archival: [00:01:20] Polls show more than 60% of Americans disapprove of President Trump's handling of climate change.

Hannah McCarthy: [00:01:35] This [00:01:30] is Civics 101 I'm Hannah McCarthy.

Nick Capodice: [00:01:38] I'm Nick Capodice.

Hannah McCarthy: [00:01:39] And I think it's important to note that while I am recording this episode, wildfires, including the most destructive in Los Angeles history, a raging in California. While there is a strong consensus among scientists that climate change increases both the frequency and severity of forest [00:02:00] fires. President elect Trump and other Republicans have already blamed Democratic policies, not climate change, for the devastation. But one way or another, we are definitely talking about the environment here. So looking forward, what has Donald Trump promised to do when it comes to environmental policy in the US? What do we know? What do we not know? We're turning to someone who does know this issue pretty well Elizabeth Bomberg.

Elizabeth Bomberg: [00:02:28] Yeah, I'm Elizabeth [00:02:30] Bomberg, and I'm a professor of environmental politics here in Edinburgh, Scotland, but I'm actually originally from California.

Hannah McCarthy: [00:02:38] All right. So before we take a look to the future, we're going to gaze into the past. We cannot know for certain what president elect Trump will do when he takes the office again. But we do know what he's done in the past.

Nick Capodice: [00:02:52] And real quick, can we just remind everyone what the president is actually allowed to.

Hannah McCarthy: [00:02:57] Do when it comes to climate policy, we [00:03:00] can.

Elizabeth Bomberg: [00:03:00] What presidents generally, including President Trump, can do is. Literally, the day they enter office, they can issue a whole series of executive orders. And those aren't legislation, but they are orders that, say, could eliminate certain. Regulations on environmental protection or climate. Or they could eliminate certain. Sources of funding. [00:03:30]

Nick Capodice: [00:03:30] And executive orders, while swift and decisive, aren't necessarily long lasting.

Hannah McCarthy: [00:03:36] No. For one, they can be overturned by a new president. Trump signed 220 of them in his first term. President Joe Biden rescinded 62 of those in his first 100 days alone. For another, they can be rendered ineffective by Congress if lawmakers so choose by failing to provide funding, for example. They are also frequently challenged in court. One other thing that presidents have the power to do, and [00:04:00] we'll talk about this later, is join or reject global agreements.

Nick Capodice: [00:04:05] And we're talking environmental policy in this episode. So what did that look like under the first Trump administration?

Elizabeth Bomberg: [00:04:11] So I think overall, it would be difficult to characterize his first term as particularly promising for environmental protection or for climate emissions. His first term is, [00:04:30] in my view, having studied this, better characterized as one dominated by a desire to slash funding for scientific expertise and for research, but also to eliminate many of the really significant environmental protections That the federal government had put in place for the last couple [00:05:00] decades. And the third plank of my characterization would be a general hostility towards the idea of climate as a serious threat. He has characterized it in the past and also more recently as a hoax or a scam. So he does not take climate change seriously.

Speaker12: [00:05:27] All of this with the global warming and that [00:05:30] a lot of it's a hoax. It's a hoax. I mean, it's a money making industry, okay? It's a hoax.

Nick Capodice: [00:05:35] And this hoax claim definitely stuck. Hannah.

Hannah McCarthy: [00:05:39] Yeah, very much so. And to be clear, climate change is not a hoax. In his first term, Trump opposed policies that limited carbon, mercury and methane emissions, opposed protections for wildlife and wetlands, and energy efficiency standards. He also shrunk two national monuments, one by 85% [00:06:00] and the other by about half, to open the land up for fossil fuel and gas leases. A big motivator here, as Elizabeth pointed out, is that Trump sees a direct contradiction between environmental protection and economic growth.

Elizabeth Bomberg: [00:06:15] He doesn't see these as mutually compatible, and he favors economic growth. I think that's how I would sum that up. So he thinks that those who are concerned [00:06:30] about climate or want to take really ambitious measures are doing so because they have some other political agenda, or maybe they just don't know the science. Maybe that's what he would say. But if climate change enters his vocabulary, it is inevitably linked to the to the idea of this is a hoax, or this is a scam, or this has been exaggerated, or this is another element [00:07:00] of wokism or something of that sort.

Hannah McCarthy: [00:07:03] So I feel like we do have to mention that Trump has called himself a great environmentalist president.

Archival: [00:07:09] But it's true, number one, since Teddy Roosevelt. Who would have thought Trump is the great environmentalist? Do you hear that? Do you hear that? That's good. And I am, I am I believe strongly in it.

Nick Capodice: [00:07:22] So, Hannah, what exactly is the plan for the future here? Like we know how Trump feels about environmental policies. We know what he's done [00:07:30] in the past. So what does he plan to do with his next term.

Hannah McCarthy: [00:07:35] In terms of Trump's promises or plans to protect or strengthen the environment? Here is what we know.

Elizabeth Bomberg: [00:07:40] What he would focus on is policies, say, around tree planting. He has endorsed and said we need to plant more trees and he wants clean air and water. And he says, you know, the US does have the cleanest water and air of any nation. And while that's not statistically true, it does [00:08:00] show that there might be some areas that he wants to strengthen as far.

Hannah McCarthy: [00:08:04] As his other promises go.

Elizabeth Bomberg: [00:08:05] And so what he had promised quite consistently and probably will deliver on, is that he will do his best to scrap many of these regulations so that industry, and especially above all fossil fuel industries, can get on with their job, as he puts it, because he wants to expand enormously fossil fuel extraction in all kinds of [00:08:30] areas through fracking, which we can talk about later, but also through increased drilling, including on public lands, including in wilderness areas.

Nick Capodice: [00:08:39] So when we hear drill, baby, drill and.

Archival: [00:08:42] We will drill, baby drill.

Nick Capodice: [00:08:47] Is this what we're talking about?

Hannah McCarthy: [00:08:50] Yeah. Oil from federal lands and water accounts for nearly a quarter of US oil production. And we will talk about current American oil production levels in a bit. And [00:09:00] Trump wants to ramp that up and cut regulations on fossil fuel extraction. He also promises to reduce support for low carbon energy sources.

Nick Capodice: [00:09:09] And by that we mean.

Hannah McCarthy: [00:09:11] Think solar, thermal, geothermal and nuclear power, wind power, low carbon biofuels made from algae or plant waste, or zero carbon fuels like ammonia or hydrogen. Electric vehicles, for the record, fall under this category for Trump as well. He has equated new car emission standards [00:09:30] with electric cars themselves, claimed that people could be forced essentially to buy only electric cars. He talks about an electric vehicle mandate that does not exist. Trump also happens to have chosen Tesla CEO Elon Musk, who has made a lot of money from electric vehicles for his new government efficiency department. But so far, Musk is on Trump's side on this.

Archival: [00:09:53] And I will end. The electric vehicle mandate on day one. Thereby [00:10:00] saving the US auto industry from. Complete obliteration, which is happening right now and saving U.S. customers. Thousands and thousands of dollars per car.

Hannah McCarthy: [00:10:16] Trump also vows to revoke the Inflation Reduction Act, which incentivizes the transition to, quote unquote, clean energy and, of course, to withdraw from the Paris Agreement.

Nick Capodice: [00:10:30] All [00:10:30] right. These are the promises. But you know what I always say about promises, Hannah from The Cremation of Sam McGee. A promise made is a debt unpaid. And to that, may I add, may we all be Lannisters.

Hannah McCarthy: [00:10:45] I mean, I'm not entirely sure that's how politicians see it. Nor do I think that we should aspire to be Lannisters. But I do take your point, and I do think a lot of American voters care about promises. So what is the near [00:11:00] future of American climate policy? We'll get to that in the future after this break.

Nick Capodice: [00:11:07] But before that break, a reminder that Hannah and I wrote a book. Holy cats. It's called A User's Guide to Democracy How America Works. We think you're gonna need it. Anyways, you can get it wherever you get your books. We're [00:11:30] back. You're listening to civics 101. We are talking about the future, specifically what we might expect from president elect Donald Trump in terms of environmental policy. And Hannah, before the break, you promised me a little something that is to tell me what's gonna happen.

Hannah McCarthy: [00:11:49] Well, we're not in the business of forecasting here at Civics 101, but we are in the business of speaking with people who know a lot more about what's going on than we do. That's where Elizabeth [00:12:00] Bomberg comes back in. So let's start with a highly likely event.

Elizabeth Bomberg: [00:12:05] A major executive action of Trump's, which is not about domestic policy, but it was to withdraw the US from a really major international climate change agreement called the Paris Agreement.

Nick Capodice: [00:12:22] Okay. We do hear about this one a lot. Uh, two things we got to take care of here. First off, what is [00:12:30] the Paris Agreement?

Elizabeth Bomberg: [00:12:31] The Paris Agreement was signed by nearly 200 countries in 2015, and it's a major United Nations agreement. And this Paris agreement stipulates Relates that all the countries who sign up for it, including the US, pledge to set national targets and put in place kind of domestic measures that will reduce their own climate [00:13:00] emissions. Okay. It's not itself binding. It's not as though a UN officers are going to go in and check. It's voluntary, which is why it was agreed to by 190 something states. And the idea is that let countries themselves figure out what can they do to put forward a pledge that collectively will ensure that countries across the globe are able to [00:13:30] reach a global emission target that keeps the climate warming to under two degrees, or ideally, even 1.5.

Nick Capodice: [00:13:42] All right. And we know that Trump has taken us out of this agreement before.

Hannah McCarthy: [00:13:47] Though Biden did put us right back in when he won the presidency.

Nick Capodice: [00:13:50] And this agreement. It's not binding. There's no giant penalty for not meeting your targets.

Hannah McCarthy: [00:13:56] No, but promise made debt unpaid, right? You say you're [00:14:00] going to do something. So do you do it? Are you showing that you're a climate leader? Are you going to prove your country to be a source of new environmental technology, a good potential partner, a country other countries want to make deals with? It's the social, political and economic pressure that keeps this agreement rolling.

Nick Capodice: [00:14:22] And given that Trump is promising to take us out of this agreement yet again, what does that actually mean?

Elizabeth Bomberg: [00:14:28] It doesn't change [00:14:30] what the US is likely to do domestically. There are disadvantages for the US of pulling out. It means we domestically we lose an incentive Of to further cut our emissions and share our innovations and work harder to achieve a goal that is good for everyone across the globe. Okay, so we don't get to be a part of that. Um, but it also means more strategically if you're not a part of that treaty, [00:15:00] um, you no longer have a seat at that table. So you're not able to shape these global targets. So leaving the Paris Agreement, which almost certainly Trump will do, this will have slightly negative effects, but it won't be devastating.

Hannah McCarthy: [00:15:16] Before we move on, we do need to touch on one maybe related thing here. There's the Paris Agreement and then there's the Unfcc.

Nick Capodice: [00:15:27] I'm listening.

Elizabeth Bomberg: [00:15:30] What [00:15:30] we don't know is whether the Trump administration will go beyond just leaving this agreement. There is some talk and some of his advisers and some of the more conservative think tanks who have shaped his campaigns and continue to shape his policies. What they would like is for the US to withdraw not just from one agreement, but from the entire UN framework that [00:16:00] underpins all climate negotiations. Right. That would be much more serious. So that is called the UNFCCC or the UN Framework Convention for Climate Change.

Nick Capodice: [00:16:14] Hold up. Is the UNFCCC a treaty like a treaty? Treaty?

Hannah McCarthy: [00:16:20] It is indeed.

Nick Capodice: [00:16:21] So can the president actually pull us out of a treaty agreement? Isn't that like an advice and consent of the Senate thing? Operative [00:16:30] word here being consent.

Elizabeth Bomberg: [00:16:33] There's some ambiguity whether the Trump administration can pull the US out of the whole framework convention without the support of the Senate. Because the Senate, your listeners might know, the Senate gets to approve whether the US can join a treaty. What we don't know is whether we need Senate approval, two thirds approval. [00:17:00] So a big approval to pull the US out of the treaty. So this will be really interesting legally, if the Trump administration does try, it wouldn't take place right away, but it's something to watch.

Hannah McCarthy: [00:17:12] All right. Moving on. Let's drill a little deeper here.

[00:17:15] Drill baby drill.

Elizabeth Bomberg: [00:17:21] Drill baby drill. Yes. Yeah. There's a couple disincentives for companies who might want to drill. And one is [00:17:30] gaining access to the land, especially if it's public land, because much of the drilling and extraction is done in public land. And then what kind of controls and permits and permissions. Do you need to put in place before you start drilling? So if those are relaxed, then those fossil fuel firms will have an easier time in drilling in more places, including quite pristine wilderness. So I think we will see more of that.

Nick Capodice: [00:17:59] More of that [00:18:00] though I will say we have had plenty of drilling during Biden's presidency, haven't we?

Elizabeth Bomberg: [00:18:05] Record breaking and ironically, fossil fuel firms, energy firms have some of the highest profits. This is not something that the Biden or the Harris campaign made a big deal of, but it is one of the reasons that those who were environmentally or climate very focused voters, including many young voters, did not enthusiastically support [00:18:30] the Democratic ticket.

Hannah McCarthy: [00:18:35] Elizabeth did add that this is all complicated by permits that were already issued. Disruptions in the fossil fuel supply from Russia. The ongoing war in Ukraine increased global demand. Et cetera. All of which led to an energy crisis. Also opening areas and providing leases for drilling. That's one thing, but the government cannot control the oil market or whether oil companies choose to drill. [00:19:00] Still, drilling was at an all time high under President Biden. Biden did very recently, by the way, issue an offshore drilling ban, which Trump promises to revoke on day one.

Archival: [00:19:12] They took away 625 million acres of offshore drilling. Nobody else does that. And they think they have it. But we'll put it back. I'm going to put it back on day one. I'm going to have it revoked on day one. We'll go immediately if we need to. I don't think we should have to go to the.

[00:19:28] Courts, but if we do have to go to court. [00:19:30]

Nick Capodice: [00:19:33] And I know we have mentioned it, Hannah, but there are a lot of regulations at play here, right? Regulations that Trump wants to dismantle to allow the fossil fuel industry to ramp things up. So who's in charge of that?

Elizabeth Bomberg: [00:19:47] The Department of Energy traditionally has been in charge and responsible for energy extraction. So rules and also incentives for how [00:20:00] the US gets its energy, as well as regulation of how that energy should be extracted and what should happen to the waste from that energy extraction. So here I think we'll see something quite dramatic, especially if Trump's nominee to lead the Department of Energy, that's Chris Wright is his nominee and again, has to be approved. But if he is approved, he is [00:20:30] himself a climate denier. And also he's made his millions through fracking. What he has already vowed as his Trump is to remove significantly the controls that are now put on how fracking is done.

Hannah McCarthy: [00:20:47] Fracking, by the way, also known as hydraulic fracturing. It's a process that cracks open rocks beneath the surface of the Earth to extract trapped natural gas and oil. Fracking [00:21:00] is thought to pose a threat to drinking water, both the supply and the cleanliness. It has been tied to increased earthquakes. The process itself, as well as the use of natural gas and oil, also contributes to air pollution. Okay, so we've talked about regulations before. They come from executive branch agencies. And it is Congress that gives those agencies the authority to issue regulations. And environmental regulations are, of course, not exclusive to fossil fuel extraction. [00:21:30] We're also talking about emissions, pollutants, all sorts of things that poison or diminish the air, water and soil.

Elizabeth Bomberg: [00:21:40] What we will probably see in the first couple of days is, first, a slashing of funding and support and power for particular regulatory agencies. So one target would be the Environmental Protection Agency. So this is the federal agency that [00:22:00] is in charge of protecting human health and the environment more generally. And it is the agency that issues regulations that limit the amount of carbon that can be released into the air, or limits the amount of chemicals that can be sprayed, or limits the kind of pollutants that can be dumped in waterways. So basic, but, you know, crucial environmental protection. The EPA, the Environmental [00:22:30] Protection Agency, relies on regulations that it can then implement. But these many of these regulations can be removed by executive order because they're not congressional legislation. It's an executive regulation.

Hannah McCarthy: [00:22:46] Now, just to be clear, there are processes in place when it comes to how regulation happens or goes away. There's a rulemaking procedure governed by law. But as we learned in the previous Trump administration, [00:23:00] breaking with common practice does not necessarily amount to breaking the law, especially when the courts are on your side on.

Nick Capodice: [00:23:08] That particular subject. I feel like our episode on the Chevron Doctrine might have some useful background. There's a link in the show notes.

Hannah McCarthy: [00:23:15] Yet courts no longer have to defer to executive agency expertise, so they are way more empowered to reject agency regulations. Okay. Moving on. Trump [00:23:30] has promised to either defund or reduce funding for lowering carbon emissions.

Nick Capodice: [00:23:39] This is what we talked about earlier. Wind and solar and stuff like that. Uh, renewable energy.

Hannah McCarthy: [00:23:45] Yeah. And there's a significant hitch when it comes to pulling government support of renewable energy. And that hitch isn't just political, it's also economic.

Elizabeth Bomberg: [00:23:56] On one hand, we have without a doubt, and this is something that [00:24:00] Trump or no one person could stop, is that we have this inexorable trend. We have an unstoppable trend towards renewables globally and also in the US. Renewables are increasing, including and this is what makes it very interesting. The most dramatic increases has been not in the blue states like California and New York. No, it's been in the red states. It's been especially in Texas. So you've [00:24:30] got these states who are benefiting enormously from renewable energy. But then you also have an incoming administration that wants to get rid of renewables, or certainly doesn't endorse renewables as a way towards energy independence.

Nick Capodice: [00:24:48] Okay, so basically, Trump vows to withdraw support for renewable energy, but renewable energy is making money.

Hannah McCarthy: [00:24:58] And one not insignificant [00:25:00] factor is that there are a lot of conspiracy theories out there about what else renewable energy is doing.

Elizabeth Bomberg: [00:25:08] Some very powerful but unfounded claims or conspiracies.

Archival: [00:25:13] They're dangerous. You see what's happening up in the Massachusetts area with the whales, where they had two whales wash ashore, and I think a 17 year period, and now they had 14 this season. The windmills are driving the whales crazy.

Elizabeth Bomberg: [00:25:32] Some [00:25:30] of the key purveyors of those unfounded claims are potential nominees, including Robert Kennedy Jr, who does think that offshore wind is a danger to health. What that means for investment? We still don't know because the government can set incentives and subsidies, but I don't think those statements are enough to stop this really powerful trend. [00:26:00]

Hannah McCarthy: [00:26:04] Elizabeth did say that even if the United States reduces or withdraws support for renewable energy development and production, and by the way, that support often comes in the form of tax subsidies, aka tax breaks for companies that are exploring and manufacturing renewable energy sources. Anyway, even without that government support, Elizabeth doesn't see this upward trend toward renewables going away. It's [00:26:30] a global thing. What she does see potentially happening is renewable startups struggling in the US and America, potentially losing its footing in the renewable energy race.

Elizabeth Bomberg: [00:26:43] If you're someone just starting and you need that government subsidies to help you, the way that those government subsidies helped Elon Musk with his, you know, electric cars or what have you, that won't happen. And it also means and this is harder to measure, but I think we'll have really significant [00:27:00] implications is that if the US government withdraws that support, both rhetorical support but also financial support, that means others will step in. So the main threat to the production of US green energy right now is a competition from China. So if the US steps back, then China production will increase to supply those to others.

Hannah McCarthy: [00:27:27] Basically, Elizabeth says. Watch what happens on that [00:27:30] front. Trump is also, of course, promising tariffs on goods imported from China. Listen to our episode on tariffs to understand exactly what that means. But if the United States isn't buying renewables from China, it might encourage domestic production. Assuming, of course, there are incentives like tax subsidies to get that production off the ground.

Elizabeth Bomberg: [00:27:53] Producers, you know, business people whom Trump does listen to more [00:28:00] than an environmentalist. If they say, look, you know, we need this for jobs and we need this to make us energy independent. Trump is somewhat agnostic. You know, I think he can be open. We know he's a transactional person who just sees a deal and he likes to get that done. So he might listen to that and decide to change his opposition to renewables. That wouldn't surprise me. I could see him coming out. It would be interesting to interesting to watch.

Hannah McCarthy: [00:28:28] Okay. Last big environmental [00:28:30] policy promise Trump made to revoke the Inflation Reduction Act.

Elizabeth Bomberg: [00:28:35] Trump cannot revoke the Inflation Reduction Act. Okay. It's a congressional piece of legislation. That doesn't mean that he can't try. And he has allies in Congress and his party controls both houses. But key here is that he will need to go through Congress. He will need to work with [00:29:00] Congress to revoke all or parts of that act. As we were speaking about before, the Republican states are the most significant beneficiaries of the Inflation Reduction Act. So that act provided oodles of money for investment in green transition and to jumpstart renewable energy production. Did a whole host of host of things. Many Republicans don't want that repealed. [00:29:30]

Nick Capodice: [00:29:30] So that really makes it sound like the Inflation Reduction Act isn't going anywhere.

Elizabeth Bomberg: [00:29:36] Well, there could be regulations that undermine some of the dimensions that are in the Inflation Reduction Act. So that's that's a way of that's a more a sneaky way to undermine some of the goals and aims of the Inflation Reduction Act without revoking the act itself. The Inflation Reduction [00:30:00] Act set aside particular pots of money for particular communities. There was a very strong justice element attached to the Inflation Reduction Act. So these would be particularly deprived communities, generally communities of color who are suffering the most from pollution or the effects of climate change, and there were certain programs that are funded [00:30:30] to help address some of that because they haven't been implemented yet. It could be that the Trump administration, then is able not to get rid of the pot, but stop the implementation of that money being dispersed. For instance.

Hannah McCarthy: [00:30:47] The Biden administration, by the way, is currently trying to get as much of that money dispersed as possible before they're out of the white House. But moving billions of dollars from federal coffers to state and local governments is not an easy [00:31:00] task. There are also tax incentives for individuals and families buying electric vehicles, solar panels, even heat pumps. But these require paperwork and navigating supply chain problems so that one might be a race against the clock.

Nick Capodice: [00:31:16] So, Hannah, I think it's important to point out here that there are promises and there are Possibles and there are probables. Right. But ultimately we [00:31:30] can't know what this new administration will do with and to environmental policy in the United States, especially when so many of these plans involve existing law and procedures.

Hannah McCarthy: [00:31:43] We really can't. We just have to wait and see. So I think for those invested in the fate of climate policy, one way or another, Elizabeth is really just saying, here's what to look for, here's what to watch. Basically, pay attention to X, [00:32:00] Y, and Z because here's what it could mean. But policy and law and legality aside, Elizabeth says that Trump has already accomplished a meaningful and likely lasting change when it comes to American attitudes toward the environment.

Elizabeth Bomberg: [00:32:17] I think this idea of an ideational or the role of narratives kind of shaping the narratives, because those can outlive any particular president [00:32:30] and they're much harder to shift. So I think in Trump's first term, he already sought to change in significant ways the way that Americans think about the environment and the way they think about climate and the way they think about America's leadership role or America's role in the world. And I think in all these areas, we [00:33:00] are still witnessing the impact that he had in his first term. One of the areas is how do Americans view expertise? How much do they trust international and national institutions to identify a problem and then address the problem? And there has been such a significant drop in Americans trust of scientists. America's trust in expertise [00:33:30] more generally, and even Americans trust in the role of federal or state institutions to deliver a common good.

Hannah McCarthy: [00:33:40] And Elizabeth says there is the fact that the incoming administration has a much better handle on how things work than it did the last time around. A much stronger team that knows exactly what it wants and has a pretty good idea of how to get there. Deregulation is a pretty common name of the game here, not just with environmental policies, [00:34:00] but beyond. By the same turn, though, Elizabeth believes that those who are concerned about losing climate and environmental protections have learned a thing or two as well.

Elizabeth Bomberg: [00:34:11] Those who are advocates for environmental action, they've seen this now before. This is not new and shocking. And oh my gosh, where did this come from and how do how do we react and what can we do? They know what the playbook is, how to reach those members of Congress who are benefiting, how to focus on state measures. [00:34:30] They will come even more important than in the past, and states are already building all kinds of alliances. But also, I think that those advocating for change have become slightly more sophisticated or or becoming more in tune with what motivates voters in the public more generally. And it's actually not to be green, and it's not because it's the right thing to do. It's making much more of the [00:35:00] interlocking between environmental and climate action and other things that Americans value. You know, whether that be future generations or whether that be, you know, the beautiful national parks and things around us, or whether if you're a person of faith, what does that bring or whether you care about social equality. So the idea of intersecting. More of linking climate and environment to other positive values. [00:35:30] I myself think that's the best way to communicate. And I think the more that that can get across, the more that whatever you think of a particular candidate, you can say, ah, I think there is a space for us to make sure that we're living in a unpolluted world, that we can habitate and, you know, live with others to prosper.

Hannah McCarthy: [00:35:53] So a savvy administration against a savvy environmentalist movement, one [00:36:00] promising a brighter future via unfettered or at least less fettered industry. And the other via a less polluted planet. We often talk about finding consensus, using that as the foundation for constructive and net positive change in America. Most people might be able to agree that they want to be safe, healthy, fed, clothed and sheltered. That they don't want to fear for their or their children's futures. [00:36:30] That they want their communities to thrive. That they don't want to worry about money. That might be some kind of American consensus, but agreeing on how to get there when the potential paths diverge so drastically in this America, that might be easier said than done. And at least for the next four years, our chief executive has told us what path he plans to take. We'll [00:37:00] just have to see where that leads and what Americans think about it.

Nick Capodice: [00:37:25] This episode is produced by Hannah McCarthy with Marina Henke and Me Nick Capodice. Our senior producers [00:37:30] Christina Phillips and our executive producer is Rebecca LaVoy. Music. In this episode by Diana Particle House, Craig Weaver, Lucas Got Lucky, Mind Me, mindless, Timothy Infinite, Sven Lindvall, and Zorro. You can get everything else Civics 101 has ever made and reach out to us at our website civics101podcast.org. And if you like us, consider leaving us a review. Throw us some stars. You can do that on Spotify, Apple Podcasts, or wherever you get your audio. Civics [00:38:00] 101 is a production of NPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

A midwife's early American story

Ariel Lawhon's novel The Frozen River is set in 1789 and tells the story of a real-life Massachusetts midwife.. Though the novel is fiction, the midwife was real, and the book was based on around thirty years of her personal diaries.

What were rights like for women in the brand-new state of Massachusetts? What about the courts? The practice of medicine?

In this episode, executive producer Rebecca Lavoie talks with Lawhon about The Frozen River, and why more people should know about the women's stories lost to conventional American history.

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Transcript

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy. Today on the show, we're going to be breaking format and bringing you a conversation with author Ariel Lawhon. Recorded live at writers on a New England Stage in Portsmouth, New Hampshire. The reason we're airing this in the Civics 101 feed is because Lauren's novel, The Frozen River, is about a time and a place in our country. We think about a lot around here post-revolutionary America, New England, to be precise. The book is historical fiction, but it's based on a real life midwife named Martha Ballard, who lived an extraordinary life providing care to more than a thousand women during her career. The novel takes place in 1789, in Hallowell, Maine. It's part murder mystery, but also explores timely themes through an historical lens women's rights, health care, the criminal legal system, all things we've touched on in our podcast. If you've read The Frozen River, you'll really enjoy this conversation. If not, we recommend it. But you can listen anyway because it's pretty fascinating and we're putting a link to more about the book in our show notes. So without further ado, here's our executive producer Rebecca LaVoy with author Ariel Lawhon, recorded live for writers on a New England stage.

Rebecca Lavoie: I am so glad that you're all here joining us for this conversation. Thank you for coming out for it. It feels like a really good time to curl up with a good book and talk about it. And thank you so much for joining us. Ariel.

Ariel Lawhon: Thank you so much for having me here. I am delighted this is my first time here. Really? Yes. First time.

Rebecca Lavoie: So The Frozen River. It tells the fictionalized story of a real life person, 18th century midwife Martha Ballard. How did you learn about Martha Ballard?

Ariel Lawhon: So Martha Ballard, if you're not familiar with her, there are three things you need to know. She was a midwife in the 1700s who delivered over a thousand babies in the course of her career, and she never lost a mother in childbirth. The second thing you need to know about her is that she kept a diary for over 30 years, at a time when most women could not read or write. And the third thing that I find fascinating is that she was the great aunt of Clara Barton, founder of the American Red cross, and she was the great great grandmother of Mary Hobart, who was one of the first female physicians in the United States. And I knew none of this until August 8th, 2008. And the.

Rebecca Lavoie: Specific date.

Ariel Lawhon: The specific date. I was pregnant with our fourth child. My husband and I had four kids in five years. I take that back. We did not have them. I had them, and I was pregnant with number four, and I had gone to a routine doctor's visit on August 8th, 2008, and my doctor was late for the appointment. So I'd been stranded in his waiting room and I had two options. I could reschedule and go home, but there were children there and I didn't miss them currently, and my husband had them, so probably nobody was going to die. The other option was I could stick it out and wait for my doctor to show up. And so I chose the latter, and I was in his waiting room for hours the entire afternoon, and I finished the book that I'd brought with me. And then I read all of the magazines in the office, and there was nothing left except for that pile of scary pamphlets they have in the corner that you don't want. To read because you don't want to know how you're going to die.

Ariel Lawhon: As I was flipping through those pamphlets and underneath I found a small devotional called Our Daily Bread, Really common in doctor's offices in Texas at the time. So I flipped open this devotional and to August 8th, 2008, I still have the page, which is why it's memorable. And I proceeded to read the story of a woman named Martha Ballard, who had delivered over a thousand babies in her career and never lost a mother in childbirth. And I remember sitting there thinking, the doctor that I'm waiting on cannot boast a record like that. But Martha Ballard did it in the 1700s without the benefit of cesarean section or modern medicine. And I just remember thinking that would make a great novel. So I ripped the page out and I put it in my purse. It is worth noting here because I got hate mail recently for ripping the page like, oh, come on, it's a disposable. Like, it's three months. You're meant to chuck it in the trash. After the three months, I did not desecrate the leather bound hardcover book.

Rebecca Lavoie: It's like desecrating Us Weekly in a doctor's office, right? It's fine. It'll be fine.

Ariel Lawhon: But I kid you not. Two minutes later, my doctor walked in. And I think about that sometimes. When I'll turn around, I look at my bookshelf and I see the frozen river there. I think if I'd gone home and rescheduled, this book would not exist.

Rebecca Lavoie: Mhm.

Rebecca Lavoie: So I listened to your author's note for the book. In it you describe yourself as a collector of people. Yes. And you also say that this book is different than the other ones you've written, because they could be described as biographical fiction, but this one can't. So can you talk about that?

Ariel Lawhon: I love people, I love collecting their stories. My favorite thing is to stumble across somebody or a moment in time, or a person that I'm vaguely familiar with, but I don't know the specifics. And then to do a deep dive into their world. The difference with this particular book is that, unlike my other four, there was so little research material available. We have Martha Ballard's diary, and we have a biography called a midwife's tale by Laurel Thatcher Ulrich, which go buy it. It's amazing it won a Pulitzer. It is the definitive history of Martha's life. We have those two things. Her diary is this really intimate day to day look at the life of a woman in the 1700s. And then the biography is this 30,000 foot view of the overarching life and times. But I was writing one story set during six months of her life, and there was so little to go on. Unlike many of my other novels, there were no conversations recorded. There were no specifics about her relationships and her friendships. It had to be created out of whole cloth. And so in that sense, this is the most fictional of my stories, even though the vast majority of what happens in the book is real.

Rebecca Lavoie: Can you describe the way that Martha wrote her diaries? Because I think it's fascinating. They're not written like prose style. So you, I think, had to imagine, you know, the details around them, but also rethink the way she could have written them so that we could read them in your book. But how were they actually written?

Ariel Lawhon: We call it a diary. It's really not. It's not even a journal. Are you familiar with a daybook? My grandmother kept a daybook. That's more of what it is. She will give you the date. She will give you the weather. Oftentimes, she'll tell you what she cooked for dinner, whose baby she delivered, who came to visit. It is very truncated, very specific. There is no little to no editorializing in the 900 pages of her diary that we have left. If you were to read her diary, which you probably won't, because I will be honest. It's rough sledding. It's.

Rebecca Lavoie: And it's expensive.

Ariel Lawhon: It's expensive. My copy cost $350. It was a good investment. I think it paid off. Um, so you're not going to read it. But if you did, there is one phrase that you would find repeated thousands of times. She'll give you the date. She'll give you the weather. She made chicken, she delivered a baby. Her friend came to visit. And she will end the diary entry with this one phrase and she will say, I have been at home. And it was sort of this mantra that happened throughout her diary. But for me, I wrote this book during Covid and every day I would go to my desk, I would open the document, I would open my research material, things I needed to do, the notebook of what scenes I was going to write that day, and then I would open her diary and I would read several passages. And she did this, and she did this. I have been at home, so my mantra became me too, Martha. Also, yes, I have been at home for days and days and weeks and months and years. And when I think back to that girl in the doctor's office, pregnant with three other really little kids at home, I think that girl could not have written this book as it exists now. But also, I needed to write this book during that very specific time. It gave me this affinity for Martha Ballard because her entire life, her work and her home life was one piece. There was no separation. She was at home with all of her children, with her husband constantly. And I feel as though I understood her in a way that I would not have been able to understand her had I written it at any other time?

Rebecca Lavoie: So the novel opens with a dead body in an icebound New England river, and Martha is a midwife, but she also becomes a detective. In your book, how did you decide to do that construct, and are you a mystery writer now?

Ariel Lawhon: I've always been a mystery writer. I love a good old fashioned whodunit, I love them. I have not written a whodunit since my very first novel, but I grew up reading Agatha Christie. It's fun for me, and when I was trying to decide what I would write next, it's always the question, what will I write next? I was like, I don't know what the subject matter will be, but I know I want to do a murder mystery. And so I went into it specifically knowing I want to do a murder mystery. And how fun would that be to have a midwife detective? We don't get those very often.

Rebecca Lavoie: But our midwives perfectly suited to be detectives in a way, because as we learn in the book, she's a collector and keeper of secrets. Right?

Ariel Lawhon: So she's in your home. She is delivering your baby. But what we don't realize about midwives is that they were much, much more than the person who delivered your baby. If you got cut or burned, you called the midwife and they would give you stitches and they would come make a tonic. Make a salve. They were your primary care providers. They were your pharmacist. They were your general practitioner in most communities at the time. Because in the 1780s, in the wilds of what was then the District of Maine in the state of Massachusetts, many towns did not have their own physician. So if something goes wrong, you quite literally call for the midwife. But she was also the coroner. Somebody dies, they call her to inspect the body to see if she can try and determine the cause of death for any potential legal proceedings that happen. And so, yes, the book begins with a body. The first line in the book is the body floats downstream, and then it gets locked in the river when it freezes, which, for the record, I am from the southwest and I did not know that could happen.

Rebecca Lavoie: Welcome to New Hampshire.

Rebecca Lavoie: Yes.

Ariel Lawhon: They find the body, extract it from the river. They call Martha Ballard. She inspects the body, comes to a conclusion, and immediately is interrupted by the new town doctor who has a very different idea of what happened. And then we are off to the races.

Rebecca Lavoie: I'd love you to talk a little bit more about that, because the doctor character in your book is new to town. He can't not say that he was trained at Harvard like every other sentence.

Ariel Lawhon: Yeah.

Rebecca Lavoie: But what were doctors doing at this time? Like, how did they differ from what the midwives were providing?

Ariel Lawhon: So it's a really, really interesting point in American history and also medical history. Because we have this newly formed Harvard University, we have some of the first classes to graduate, their first medical students, all men, and they are going out into these communities to to doctor to treat these patients. But it was about that same time that the medical community that was entirely male looked at labor and delivery as a source of lost income. So modern obstetrics really began in a way that doctors were going, oh, that is medical. I should be treating it. I should be delivering these babies. I have studied anatomy in a textbook. I can do this many times. What happened, however, is that they did not bother to learn from the women who had been doing this for decades and decades, and had thousands of years worth of knowledge passed down one to another. So when this doctor shows up in this town, his name is Doctor Benjamin Page. It sets up this conflict between midwifery and obstetrics. But it was a real conflict that happened in Martha Ballard's world, because you have a 24 year old boy showing up with a degree and lots of book knowledge and no experiential knowledge, and he begins to encroach upon Martha's territory with really deadly results. And all of the births and the situations and things that go wrong in the book really happened. And they are recorded in her diary. And it was this really fascinating. Rivalry is the wrong word. It was just this conflict between these two ways of treating women in labor.

Rebecca Lavoie: I'm curious how many people in this book were based on real people, or was it all of them? Most of them. 

Ariel Lawhon: The vast majority. There might be 1 or 2 that are composite Characters. And then there were plenty that I had to strip out. There's a lot of people in this book. It is a very heavy populated village. And so I had to be judicious in who got time on the page and who fit into the specific story that I was trying to tell.

Rebecca Lavoie: One of  the funniest details in your author's note is you talk about how many of the women in the village were named Hannah. So you actually changed the name of some of those women.

Ariel Lawhon: Everyone’s Hannah. Lots of Hannah's, lots of Rebeccas. And then you get lots of really, um, archaic biblical names, like her husband is Ephraim, which took me half the book before I realized how that was pronounced. So it's kind of fun. You get to use some names that you don't typically find in a novel.

Rebecca Lavoie: How is Ephraim her husband represented in her writing? Because in the book, he manifests as this incredibly feminist, incredibly supportive man in 1789 feels very much like the ideal partner today. So how much did you know about him when you were writing about him?

Ariel Lawhon: We know basic facts. We know that they were married for the entirety of their lives. We know that they had nine children, six of whom were living at the time. The story opens. We know that they were business partners. They ran a mill together. They worked together. We know that at the very least, he was supportive of her career. She had a lifelong, thriving medical career as a midwife. It is not a stretch for me to believe that that translated into the rest of their life and their family. Um. Ephraim Ballard, it is important to note the version in this book resembles my own husband greatly. So that is, that's my influence. That's his right. His mother did a good job. Um, he's actually home. I'm here because he is home with our two sick teenage boys making them soup and taking them to the doctor. Good men have existed for all of history, and that is one thing that I think is very easy to forget. My personal pet peeve in fiction is that we so rarely get to see good men, and we so rarely get to see good marriages in particular. And as a novelist, I know why it is easier to write The Bad Marriage, because all of the conflict exists right there. If you write a good marriage, the conflict has to come from elsewhere. But when I sat down to tell this story, knowing that Martha was remarkable, knowing that she must have had support in her home, I wanted to tell the story of a good marriage.

Rebecca Lavoie: Something else that's somewhat rare is a novel where the protagonist is a woman in her mid 50s. What is that? What was that choice? Because you had 27 years of her life to choose from. So why did you make that choice?

Ariel Lawhon: Again, another pet peeve but also bred from life experience. Like I said, the girl in the doctor's office could not have written Martha Ballard, who is 54 years old when the novel opens. I also this is not the first. It's the first novel idea I came up with. It is not the first I've written. It's the fifth. And I kept going back to it and thinking, is it time? Is it time? I'd pull out that piece of paper that I stole.

Ariel Lawhon: And I'd go, ah. Not yet, not yet. And I used to think it's because it's a hard novel to write. It's a hard novel to pull off. I have since realized I just wasn't ready. I needed more life experience under my belt. A major theme in this novel is about having grown children, having kids grow up and leave you. And who are you as a person when the primary work that you have done for decades is now over? And I had finally reached that point in my life, but also not to being young myself. I find that I want to see more mature women on the page.

Hannah McCarthy: We'll be right back with more of writers on a New England stage with Ariel Lawhon after a quick break.

Rebecca Lavoie: Hallowell, Maine is where the book is set, but Hallowell also, to me became a character in the story. You're not from New England. How did you pull that off?

Ariel Lawhon: Tomorrow will be my first time to Maine in my entire life.

Rebecca Lavoie: Amazing. 

Ariel Lawhon: So my original plan was to go to Maine to research the book when I was writing. Because I have 900 children and I had them so close together. Research trips were just impossible for much of my career, but I was like, I can do it. I can get to Maine. I'm going to go research this woman in person. And Covid happened and we were all stuck at home. And listen, had I known Covid was coming, I would not have suggested to my husband that we buy a drum set for our youngest son for Christmas, December 2019. Alas, the book was written to the sound of a thousand drums over my head. But Covid ruined that opportunity completely, and so I was stuck doing this the way that I always have been, which is my research material, my imagination, Google maps, lots of pictures, and then a recreation. That is my version of a place, my version of an event, my version of what could have happened. But all towns are the same. Really. People are the same. That is one thing you learn when you have. My job is that people have been peopling since the dawn of time.

Rebecca Lavoie: You may or may not have intended it, but this novel speaks very much to many elements of where we are today. Except in many ways things seemed not necessarily easier for women, certainly, but simpler. Can you talk about the freedoms, the rights, the sort of things that surprised you? Learning about how women lived in 1789 and early America?

Ariel Lawhon: People always ask me, if you could go back in time, what era would you live in? And I say, none of them. History was awful  for women, really, prior to about 1900, in particular in America in the 1700s, what we know as our legal rights in general, not even just as women were bare bones, the court system barely existed. We were talking about this backstage. We'd had a constitution for two years. The Bill of rights had not been written in the Constitution. We had the first five articles, most of what we know as due process, most of the rights that we take for granted, do not even think about did not exist, particularly for women. And one of the things that I discovered early when writing this book is during Martha's time, women could not testify in court without the presence of their husbands or their fathers, with one exception if you were a midwife, you were granted legal status that would let you come in and testify in court Because one of the laws that had been written early on, I want to say it was in the 1500s, do not quote me. The hard drive has been halfway deleted because I'm working on a new book. But this law was called a law for the punishment of fornication and the maintenance of bastards children. And it was a law on the books in Massachusetts at the time. And it basically said, if a woman had a child outside of wedlock, she'd have to go to the court and either pay a fine, possibly spend a night in jail. The man had no requirements, there was no fee, there was no jail time. There was no nothing. But for a midwife, one of the things that they were required to do if they delivered a child that was born out of wedlock was ask the mother the name of the father. And this is the part that is kind of hilarious to me. The people who wrote the law genuinely believed that women were not capable of lying in childbirth. I'd have lied to you just for talking to me.

Ariel Lawhon: Clearly, they.knew nothing about women and less about childbirth. But Martha was required by law to inquire of the name. Sometimes they told her the name, sometimes they didn't. She would have to go to court and declare. The mother said this or the mother refused. This book takes place 50 years post Puritan era, and we tend to think of the Puritans as really pure. Ha ha. Not so much.

Rebecca Lavoie: Yes, there's so much extramarital, premarital sex in this book. Like, is that is that how it was?

Ariel Lawhon: Fascinating tidbit for you in Martha's time, based on her diary, based on the children that she delivered for in ten first pregnancies were conceived out of wedlock, 1 to 2 in ten were born outside of wedlock. So you had a lot of shotgun weddings and you had a lot of 9 pound premature children. Gosh, biology works man. It has worked from the dawn of time, and I loved that Martha approached this reality with a very, very dispassionate view and absolutely no judgment. And I thought, gosh, we have sanitized so much of human history, and we tend to think if it happened back then, they must have been really proper about it. No. Yeah. Though, as Shakespeare says, the world must be peopled.

Rebecca Lavoie: While you were writing this, though. I mean, the conversation was really shifting in the country about reproductive rights, women's rights. The Dobbs decision came down in June of 2022, for instance. And, you know, women's reproductive rights, how we talk about things like extramarital sex, premarital sex is really shifting during this time. Were you informed by some of that when you were writing this book?

Ariel Lawhon: That is a great question. So two things can be true. I was editing the book about the time of the Dobbs decision, which clearly was front of mind for the entire country. But also one of my jobs when I approach any moment in history, is to try to separate the modern era in which I live, because I learned early on history does not need me to editorialize it. And so to look at this story, I had to really focus every day to sit down and go, okay, Martha Ballard could not imagine the world that we live in. Martha Ballard could not imagine going and voting. She couldn't imagine most of the things that women today enjoy. So if that was her reality, what is she focused on? If she's living at a moment when these things don't exist? What is her focus? How does she view the world? And that is the thing that I worked really hard to build in. And in doing that, it became a story that you could read in the newspaper. Honestly, you could open any newspaper in the country today and read something similar, but because it's set several hundred years in the past. There's this level of separation that allows you to look at it in a way that you cannot. If you're reading a modern story. History changes, but it doesn't.

Rebecca Lavoie: There's a black character in your book, a traveling medical provider that you call doctor. Can you talk about this character and the real person that she was based on?

Ariel Lawhon: Again, you're not going to read Martha's diary. If you did, you would find a very small handful of references to a black female doctor that would occasionally come to Hallowell, Maine. And what's fascinating, other than she uses black female and doctor. She doesn't say nurse, she doesn't say midwife. She uses the phrase physician. Is that when this woman would come to Hallowell, Martha's friends and neighbors skipped over her medical care and went to this other woman. Mm. I do not think. Is it a stretch to say that means that she had superior medical skills to Martha? What is fascinating, however, is that this woman's name is never recorded in Martha's diary. But at the time there were 12 free black families living in Hallowell. Massachusetts was the first state to abolish slavery, and at the time there were 12 families in this town that Martha knew. She worked with. She delivered their babies. She bartered and traded and talked to them. She knew their names and recorded them in her diary, with one exception, this female physician. And it made me think, does she not know it? Or does she purposefully not record it? And so she is one of the characters that I loved most because again, this is the story of our world. Women so often get written out of history. Yeah, but Martha made sure that there was a mention of her.

Hannah McCarthy: Stay tuned for more of this edition of writers on a New England Stage with Ariel Lawhon after the break.

Rebecca Lavoie: You talked about this being a time when the Constitution was two years old, yet there's a legal procedure at the center of your book to in addition to the mystery, we also have this like law and order situation in court. What did you learn about that process when you were researching the going to court? Like the laws that how it worked?

Ariel Lawhon: It was bonkers.

Ariel Lawhon: The whole thing was nuts. I mean, imagine. So there were three levels, right? There's the the petty level. Your neighbor steals your cow, or your neighbor curses on the Sabbath and you want to lodge a complaint. So the lowest level is petty complaints. Somebody didn't pay a bill. Somebody punched you in the nose kind of thing. The next is more serious. It is theft. It is murder, it is rape, it is assault. And then the highest higher level was appeals court. So to say they would handle any issues that couldn't get resolved in the lower courts. And then you had the Supreme Court. And it was really fascinating for me to approach this from a modern mindset where we think of due process, we think of rights, we think there are things that are established and you are innocent until proven guilty, and you're given a lawyer. If you can't afford one and you read your Miranda rights, bupkis. None of it didn't exist. Most of the time, if a woman was assaulted, her daddy, her husband, her brothers were going to take care of it before it could ever get to the courts. And so you've got this kind of freewheeling vengeance aside, that was happening over here. And then you've got a baby country trying to establish the rules by which we live civilly. And those two things are constantly in conflict throughout the story.

Rebecca Lavoie: An audience member wants to know, have you ever visited a setting or location from one of your books and been disappointed that it didn't live up to your imagination?

Ariel Lawhon: So I've never really visited a location, but something fun has happened with every single book that I have written. I have been contacted after the publication by somebody that has a relationship with the book. With my first novel. It's called The Wife, the maid and the mistress is about a missing judge. I got an email from a woman and she goes, Mrs. Lawson would love to know where you did the research for your novel, The Showgirl. And your novel was my grandmother. I was like, oh, God, I did that to somebody's grandmother.

Rebecca Lavoie: Oh.

Ariel Lawhon: Um, with my second novel, I got to talk to a little tiny, tiny, tiny old German man whose father had taken him on a tour of the Hindenburg prior to its last flight. And he's like, you got it right. My third novel is set during the Russian Revolution, and it's about Anastasia Romanovna and the woman who is her believed to be her most famous impostor. And I got an email from a woman at the University of Virginia. She did genetic research, and she told me that she'd read the novel, that she loved it. And she's like, I just want you to know, I was the person that did the genetic research to determine whether or not Anastasia Romanov did survive the Russian Revolution. Wow. And she proceeds to tell me how she was walking across the campus that day, being the only person in the world who knew at that moment whether she had or hadn't.

Rebecca Lavoie: Another audience question. Did the Ballards really know Paul Revere?

Ariel Lawhon: That was a little fictional bit. The people asked me about a lot, and it was just fun. It was just fun I had, unrelated to the plotting of this book, stumbled across pictures of Revere Pewter and he signed it all. And then later on, I was researching the book and I realized that part of what she would do is she would mix her ink in small pewter dishes. And I thought, why not?

Rebecca Lavoie: I mean, New England's a small.place, right?

Rebecca Lavoie: We know each other.

Ariel Lawhon: They didn't.

Rebecca Lavoie: One of the things I love about your website, and I've never seen this on an author website before. This specifically is you show the room where you write and you actually give a tour of different elements of the room. What interests you about the spaces in which people write?

Ariel Lawhon: I cannot prove this. I don't even know how you would do a scientific study, but I think where a book is written informs the book itself. For me, that is room in my house that used to be a dining room that my husband closed off and turned into an office, and it's got this old desk. A number of years ago, he bought me this. It's tiny. It's not much bigger than this. It is a teacher's desk that was pulled out of an old one room schoolhouse. And it's got all the stains and chips and nicks, and I love to sit there and think what stories were told at this desk. Who taught here?

Rebecca Lavoie: You've written about all these different eras, World War two. You've written about the Romanovs, Russian Revolution. Is there a time that you are just dying to write about, that you are searching for a story to fit?

Ariel Lawhon: Oh yes and no. So my next one is set during medieval Ireland, which, if you think 1700s Maine is hard to write about. Geez. Also, I didn't think before I decided to write about a pirate. The fact that I get seasick.

Ariel Lawhon: Yeah, that’s turning out to be a bit of a problem. So that is the next book. Actually the one that I'm waiting for, the dream book for me, and I have most of it built in my head, is actually a Western.

Rebecca Lavoie: Of course, there is the Pulitzer Prize winning book about Martha Ballard, but she doesn't appear in women like her. Don't appear in any of our history textbooks when we go to school. You know, it's the Founding Fathers. It's very much for the perspective of the men of the time. How do you think our understanding of American history would shift if the Martha Ballard's of that time were just as present in our textbooks?

Ariel Lawhon: It would be revolutionary, if you think about it. When it comes to big conflicts, history is written by the winners. The losers never get to tell their version. But history is also written by those who were educated, who had the access to books, reading, writing. And throughout so much of history, women were in the sidelines. But I always say, if you want to know what really happened at any moment in history, go talk to the women who lived it. Find their records if you can, because they record totally different things. Men are obsessed with the wars and the bullets and the bombs. Not all of them. That's a gross generalization. But men do this. Women do this, and they focus on the people and the relationships and what they have lost, and the small betrayals and what it cost them at any moment in history. And the fact is, we need both. We need the big and we need the small, and we've lost so much of it. It's why I do what I do. And I could live a hundred years and never write enough books to really scratch the surface of the lives of women that we have forgotten. But I am trying.

Rebecca Lavoie: Ariel Lawhon I will read anything that you write after reading this book. Thank you so much again. Thank you.

Ariel Lawhon: Thank you for being here.

Hannah McCarthy: Writers on a New England Stage was hosted by our executive producer Rebecca Lavoie, who also produced this episode. The featured author was Ariel Lawhon. You can learn more about her book, The Frozen River by clicking the link in our show notes. The Music Hall president and chief executive officer is Tina Sawtelle. The producer for the live show was NPR's Sarah Plourde. Literary producer for the music hall is Brittany Wasson. The production manager is Zhanna Morris. Live sound and recording was engineered by Ian Martin. Lighting and house tech by Drew Fabrizio. Music in this episode by blue Dot sessions, Chris Zabriskie and Epidemic Sound, Civics 101 is hosted by me, Hannah McCarthy and Nick Capodice. Our senior producer is Cristina Phillips. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Secretary of Transportation with Pete Buttigieg

Transportation and infrastructure are massive (literally) undertakings here in the United States. So what does it mean to oversee it all? What is the Secretary of Transportation actually in charge of and what's going on with our roads, bridges, airports, etc.?

We spoke with Secretary of Transportation Pete Buttigieg to find out.

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Transcript

This transcript was computer-generated, and edited by a human. It may contain errors.

Hannah McCarthy: [00:00:00] Nick, have you ever noticed that when we talk about the importance of government, the reason why you should care the way it affects your daily life? We almost always talk about things like intersections and stop signs.

Nick Capodice: [00:00:14] That is kind of true. It's like our own personal civics 101 cliche. And by the way, this is Civics 101. I'm Nick Capodice, I'm Hannah McCarthy.

Hannah McCarthy: [00:00:23] And back to this stop sign thing. I think the reason that we use this as an example for how government affects you is that it is such an everyday thing, right? So quotidian. And at the same time, it can mean the difference between a safe, straightforward, not at all annoying drive or walk or bus ride and a dodgy sloggy extremely annoying drive or walk or bus ride.

Nick Capodice: [00:00:55] Like that specific rage that comes with hitting the same pothole you always hit and screaming to the skies asking why your town hasn't fixed it yet.

Hannah McCarthy: [00:01:04] Infrastructure rage is extraordinary. I, for example, live in the Boston area where the subway system has ruined everyone's commutes and so basically lives for like 20 years. Up until very recently.

Nick Capodice: [00:01:19] I remember once getting lost on some backwoods country road in Vermont and the relief, Hannah, the utter relief of finding myself on a paved, smooth roads after hours of the exact opposite of that.

Hannah McCarthy: [00:01:33] Bridge closures, detours. Train delays. Flight delays, flight delays. Fun fact I partially wrote this episode while experiencing a flight delay, which was funny because the person we're talking about today has actually thought quite a bit about people and planes.

Pete Buttigieg: [00:01:52] Well, I think a lot of airline passengers find themselves in a situation where they feel like they don't have a lot of power. You get stuck in an airport, you can't get somebody on the phone, and the airline says, well, too bad, or we'd love to take care of you, but we don't have another flight for three days or something else happens and you feel powerless.

Hannah McCarthy: [00:02:10] This is the person who is thinking about infrastructure. So ideally you don't have to.

Pete Buttigieg: [00:02:16] Sure, I'm Pete Buttigieg, I'm the US Secretary of Transportation.

Nick Capodice: [00:02:22] Wait, so Pete Buttigieg is allowed to do something about airlines.

Hannah McCarthy: [00:02:26] Among many, many other things. So the Department of Transportation, or DOT, is an executive branch agency. These agencies are there to administer and enforce laws. They also make and enforce rules and regulations. These are not the same things as laws, but you do have to follow them, at least until the next secretary changes them.

Pete Buttigieg: [00:02:51] We're using our rulemaking power. And by the way, we don't just I don't just pull a rule out of the air and say, everybody has to follow this now. We have a whole process where everybody from an airline CEO to an ordinary passenger can submit their comments and weigh in before we finalize any rule.

Pete Buttigieg: [00:03:07] But the kind of rules we're having are ones that say, for example, that if you pay for something, you don't get it, the airline has to give you your money back without you having to ask. Or if you're booking a ticket and there's a bunch of extra fees and charges, they have to show you the fees and charges before you buy. Common sense stuff, I think. But we had to go through a whole process to make that take effect.

Hannah McCarthy: [00:03:28] That process, by the way, is the rule making process and it is involved. That's for another episode on another day. In terms of the enforcement part of being an executive branch agency, the DOT relies in part on people like us to tell them when something is afoot.

Pete Buttigieg: [00:03:46] We set up a website called Flightrights.gov about all of the things that you can expect and require your airline to do for you if they do get you stuck because information is a source of power. We have a complaints portal where you can complain to us if they're not following the rules, and we follow up because that's enforcement power.

Nick Capodice: [00:04:03] All right. So if the airlines aren't behaving the way the DOT told them to behave, they get penalized.

Hannah McCarthy: [00:04:09] They do, for now at least. Again, the interesting thing about these agencies is that they can shift drastically from administration to administration. But here is how Pete Buttigieg thinks about his job.

Pete Buttigieg: [00:04:24] Well, the thing about infrastructure is you tend to notice it least when it's at its best. Like if you got a perfectly smooth road between your home and your work, you're probably not thinking on your on your way like, oh, what a great road. I haven't hit a pothole this whole trip. You don't think about that unless it's just been resurfaced. And then you think about it for like a week and then you get used to it. If, on the other hand, there's a problem, you can't take the bridge that you're usually taking because it's been closed, or there's a limit on how many vehicles can drive on it because it's in poor condition, or you're getting on an airplane and you've got a four hour delay or anything else goes wrong, that's when you notice it.

Nick Capodice: [00:05:06] And that that is where the infrastructure rage comes in.

Pete Buttigieg: [00:05:10] So the paradox of our work is I've got to make sure there's enough attention on our work to maintain the support, to do it, to to have the funding to fix the road or to have the power to require the airlines to take good care of passengers, while recognizing that the better we do our jobs, the less people have to think about it. With one big exception, which is all of the people who work in this sector, there are so many people, from a flight attendant to an electrical worker involved in one of the projects we're funding to, let's say, fix an airport terminal, whose livelihoods depend on this.

Nick Capodice: [00:05:49] Can we take a quick step back here, Hannah, and say what Pete Buttigieg actually does, fix the roads, fix the airports, etc. but what does that actually mean? Like, what does the Secretary of Transportation actually do all day?

Pete Buttigieg: [00:06:08] Okay, well, if it's a Washington day, then I get up, I make my way to the office. We start with the around to check ins with the team, to find out anything that's happened overnight that I need to know about, our plans for the day, any interviews that I'm doing, what we're planning to do in the media, and then we jump into a lot of meetings and conversations. Might be an interview like this one, followed by a meeting with a senator who's interested in a project that they're hoping to get done in their state. Maybe they got a bridge that needs work, and they're hoping to get funding from our department to help get it done. I might address a larger group, vehicle safety advocates, who are concerned with making sure that there are fewer car crashes, or a gathering of consumer groups in the aviation industry who want to get more passenger protections. I might find myself at the White House to be part of the team that I'm part of, in addition to, of course, the work here at the Department of Transportation.

Nick Capodice: [00:07:06] All right. So Pete Buttigieg talks to the press and he talks to politicians, and he talks to advocates, and he talks to the president's people, and he talks to other cabinet members. And look, I know this like, I know the higher up you are, the more your job becomes talking. But it's got to be way more than that.

Pete Buttigieg: [00:07:24] If you've ever seen an ad saying "call before you dig 811", which is about pipeline safety, that's us, because we're responsible for pipeline safety. If you've ever heard of the US Merchant Marine Academy, that's part of our department. We issue the licenses for commercial space launches because that's part of what the FAA that's in charge of aviation and the national airspace does. We're not NASA, but in order to get to space, you have to go through the national airspace, and we're responsible for the national airspace. So it is really an extraordinary scope of different things that we work on. But what they all have in common is they have to do with moving people or goods safely in this country, and they require some level of federal involvement to make sure it goes well.

Nick Capodice: [00:08:11] Would it be fair, Hannah, to say the Department of Transportation is all over the place?

Hannah McCarthy: [00:08:16] Very good. Yes. A little all over the place, but literally, yes. The Department of Transportation includes the federal highway, railroad, transit, aviation and motor carrier safety administrations. We're also talking about the Maritime National Highway Traffic Safety Pipeline and Hazardous Materials Safety Administrations, even the Saint Lawrence Seaway Development Corporation.

Nick Capodice: [00:08:44] I'm sorry, the what?

Hannah McCarthy: [00:08:45] So you know how for a long time, people were looking for the Northwest Passage to get from the Atlantic to the Pacific Ocean.

Nick Capodice: [00:08:51] Oh, I certainly do. Hannah. Stan Rogers even has a whole song about it.

Hannah McCarthy: [00:08:55] Well, this is not that, but people thought it was. It's a series of waterways that the United States and Canada turned into a water highway from the Atlantic up to Montreal, and the Saint Lawrence Seaway Development Corporation helps take care of the US part of it.

Nick Capodice: [00:09:12] And the Secretary of Transportation is in charge of the people taking care of it.

Hannah McCarthy: [00:09:16] Right.

Nick Capodice: [00:09:17] All right. So it really is all about moving people and goods. And given the fact that we have hundreds of millions of people and billions of tons of goods.

Hannah McCarthy: [00:09:27] I mean, it takes the GDP of a mid-sized country.

Nick Capodice: [00:09:30] Yeah, about that. So what is all that money actually doing?

Hannah McCarthy: [00:09:36] Planning, fixing, building, maintaining. Roads, bridges, Seaways, aviation infrastructure, the things that we use to move people and things. A big part of the Secretary of Transportation's job is to get the money to the people doing the transportation projects, of which there are currently a lot, for reasons we will get to shortly.

Pete Buttigieg: [00:10:03] Go to something like Investor.gov and you can see it's called Investor.gov, because investing in America is our our framework for everything we're doing. You can see DOTs all over the map. You'll find a project close to where you live, wherever you live, because we're doing 66,000 of them. So I have I've been to every single state in the US, and I have only seen a tiny fraction on this job of the projects we're doing.

Pete Buttigieg: [00:10:25] Another thing I want people to know is that a lot of the decisions are actually being made closer to where you live. So much of our funding is set up through a process. It's a competition. Different states and cities come in. They say, we got this project, they've got that project, and our team works through them. And then I sign off on the winners who get the limited funding that we have. But actually, most of our funding doesn't work that way.

Pete Buttigieg: [00:10:50] Most of the billions of dollars that come out of this building where I'm sitting go into the hands of a state, and the state in turn, often distributes them to more local units, like what's called a metropolitan planning organization, an MPO.

Nick Capodice: [00:11:04] Hang on. I want to make sure I get this right. So your state or your city can basically make a pitch to the DOT and hope you have the best pitch. And it's Pete Buttigieg who decides what the best pitch is.

Hannah McCarthy: [00:11:18] Yeah, basically there are grants which are competitive, and then there are appropriations, which are based on a formula approved by Congress and distributed to state DOTs, tribal governments, various transit agencies. These entities get to decide, to a degree what to do with that money. And Pete Buttigieg wants you to know that you actually get to weigh in if you want.

Pete Buttigieg: [00:11:42] This is getting pretty wonky, but the reason I want people to know about this is often the meetings of those bodies that decide what to do with this money, like an NPO, are open to the public. So unlike here in Washington, where you only get to speak in a committee meeting in Congress, if you've been invited, a lot of these processes closer to home, you can just show up. And back when I was a mayor, I saw decisions made differently sometimes because young people, high school students, even, not old enough to vote, showed up, stood in line and said their piece. And I hope people remember that because if you know, for example, that on your walk to school or on your drive to soccer practice, there's an intersection that's unsafe, there might be a chance to do something about that by getting that intersection on the radar of people in your state legislature or state Department of Transportation, or just your city council or county who are figuring out what to do with some of these funds, or putting together a process for community input, which we require on many of the projects that we're funding. So find ways to get involved. Even though the dollars are federal, you don't have to come to Washington in order to be involved in how they get used. In fact, the whole point is that everything we fund is a local project somewhere that's designed locally, and then all we do is prepare the funding and make sure that it follows the rules of what to do with federal taxpayer dollars.

Nick Capodice: [00:13:11] All right. I was going to ask about this. You can't just go willy nilly all over the place with your federal money, right? Like the DOT is watching.

Hannah McCarthy: [00:13:19] DOT is watching. We talked about airline consumer regulations earlier, but a lot of these rules and regs are about safety. Is something being planned, built or repaired the right way? Will it be safe for people and the environment in the future?

Nick Capodice: [00:13:35] So while we're on the subject about doing something about transportation.

Hannah McCarthy: [00:13:40] That is, in fact, the singular subject of this episode. Right.

Nick Capodice: [00:13:43] But I would like to, if I may, draw your attention to the elephant on the bridge here.

Hannah McCarthy: [00:13:48] Go for it, Mr. Barnum.

Nick Capodice: [00:13:50] So, Hannah, if there is one word that I have heard more than any other to describe infrastructure in America over the last two decades, it is crumbling.

Hannah McCarthy: [00:13:59] Ah, yes, the crumbling infrastructure. And you know what? We're going to get to that after a quick break. But before that break, a reminder that Nick and I wrote a book. It's called A User's Guide to Democracy How America Works, and it's the book that you can reach for whenever you find yourself wondering, is that legal? Why is that happening? What does that even mean re America? You can get it wherever books are sold.

Hannah McCarthy: [00:14:48] We're back. We're talking about the secretary of transportation with Pete Buttigieg, the current secretary of transportation. But we're also talking about what the Department of Transportation the DOT actually does. And a big part of what the DOT does has to do with how much the DOT has to work with in terms of money and laws. And Nick, before the break, you mentioned this pretty common buzzword that we have heard a lot when it comes to talking about infrastructure in America. That word is crumbling.

Archival Audio: [00:15:24] Our roads and bridges are crumbling, our airports are out of date, and the vast majority of our seaports are in danger of becoming obsolete.

Archival Audio: [00:15:32] The best interstate system in the world, which is now falling apart.

Archival Audio: [00:15:35] It was a stark reminder of this nation's crumbling infrastructure.

Archival Audio: [00:15:40] According to levy expert Jeff Mount, our nationwide system of levees is old, poorly designed and in desperate need of repair.

Archival Audio: [00:15:47] It's safe, Steve, but it's not reliable, and it's getting less reliable. It's old. It's systems are breaking down.

Hannah McCarthy: [00:15:58] So there's this annual infrastructure report by the American Society of Civil Engineers. And the US has not fared well for decades. We're talking a D, maybe a D plus for a grade.

Nick Capodice: [00:16:11] Which is a scary grade for the stuff that moves people and things.

Hannah McCarthy: [00:16:16] It's not great. So since the 1970s and until very recently, infrastructure investment has gone down and down. A lot of the stuff that we use to move people and things is at least 50 years old or much older. It was built in and for a different world. The older it gets, the more expensive it becomes to fix or replace it. And then there's the question of, well, do you fix it or do you replace it? And can you get enough votes to get enough money to do either of those things? Is it politically popular? How do you get people to agree on what to do with the money, even when you have the money? And who is actually in charge when we're talking about thousands of state and local departments and agencies.

Nick Capodice: [00:17:07] So federalism and politics are kind of the answer as to how things got so bad.

Hannah McCarthy: [00:17:14] You know, that's the answer to most questions here on Civics 101. Also, infrastructure is often so big and takes so much time. An infrastructure decision is not the same thing as a tax decision, but its effects tend to last a lot longer.

Pete Buttigieg: [00:17:31] You know, a lot of decisions that are made in here in Washington are kind of year to year decisions. Sometimes a piece of tax policy or some regulation and it happens. And then that's that's the rule for next year. But if we build a bridge, we better put it in the right place and design it in the right way, because 50 years from now, people are still going to be counting on it. And one way this hits close to home is that we're living with decisions that were made 50 years ago or 100 years ago. And some of those decisions were good. Some of them were not. Many of us live in neighborhoods that are cut off or cut in two, because somebody put in a highway right in the middle of it, when it could have been designed in a way that wouldn't impact the neighborhood. And right now, we're deciding what to do about that.

Nick Capodice: [00:18:17] All right. So let's get to the right now part. You said that investment has been declining until very recently.

Pete Buttigieg: [00:18:23] So right now we're in the middle of an infrastructure package. In other words, we're doing a round of repairs and construction. This is bigger than anything we've done since the 1950s, when we set up the highway system in the first place. And it would be easy to think that that was just happening. But actually, for most of our first year in this job, most of 2021, we didn't know if we were going to be able to do that. President Biden said that it was going to be a priority, but we had to negotiate it with Congress, and we were working very hard to get Democratic and Republican votes to make it happen.

Hannah McCarthy: [00:19:00] The Infrastructure Investment and Jobs Act was signed in 2021 and provided over $1 trillion for transportation, infrastructure, environmental mitigation and things like broadband, quote unquote, clean energy and the electric grid.

Nick Capodice: [00:19:16] This is the one that's also called the bipartisan infrastructure law, right? Was it actually bipartisan?

Hannah McCarthy: [00:19:23] It was. But also some of the politicians who voted for it received threats for voting for it, so don't go thinking it was easy. But after years of what we called Infrastructure Week being a big joke not just in Washington but nationwide, this was a significant thing. And transit wise has been funding the very, very big like bridge projects and airport renovations and also the smaller but more immediate like new school busses.

Archival Audio: [00:19:54] The $1.2 trillion bill includes $550 billion in new spending, including $110 billion for roads and bridges, $25 billion for airports, and the largest federal investment in broadband ever, $65 billion.

Archival Audio: [00:20:10] All of this is extremely, extremely important and needed all over the country. The biggest investment and by.

Hannah McCarthy: [00:20:15] The way, our latest grade from that report that I mentioned earlier, we're up to a C minus, which is better than we've done in a while.

Nick Capodice: [00:20:23] Hannah, is this why so many people actually know who the Secretary of Transportation is these days because there's a ton of money to do transportation stuff.

Hannah McCarthy: [00:20:33] I mean, I think that and also a lot of people already knew him.

Pete Buttigieg: [00:20:38] Well, you know, two years before I came, became secretary of transportation, I was a mayor of a mid-sized Indiana city, and nobody outside of that city would have much reason to know who I was. But about one year before I became Secretary of Transportation, I was running for president. And so a lot of people got to know me, and I tried to use that visibility that followed me into this job. When President Biden asked me to to take this role, I tried to use that tool to help get things done, especially when we were negotiating this big infrastructure package. So because people knew who I was, I spent a lot of time arguing on television and calling up senators and members of Congress making the case, and was in rooms negotiating, sometimes with the president, sometimes on my own, uh, working on how to get this done.

Nick Capodice: [00:21:28] You know, this really hammers home the point to me, Hannah, that cabinet members, in essence, have political jobs. I mean, they have very specific responsibilities. Right. And for Pete Buttigieg to keep it really simple, that is moving people and things safely. But but to actually get things done, it helps if you know how to politic.

Hannah McCarthy: [00:21:52] Yeah. You know, how we often ask the question is this thing that we're talking about political on its face, for example, is a bridge political is flying through the sky at 42,000ft, political? Is that stop sign political? I mean, maybe not in isolation, but none of it happens without politics. It's about money and jobs and consumers and citizens and safety and fairness and talking to people. Which is maybe why, when I asked Secretary Pete Buttigieg if he has time for a life in all of this, he did take the chance to remind me why he's actually here to begin with.

Pete Buttigieg: [00:22:39] The pace can be pretty extreme, but, you know, my husband definitely expects me to be available to either take care of the kids while he's running to target or go to target so he doesn't have to. So at least on weekends, we try to have somewhat of a normal life. The days can be packed. I couldn't help but notice today I was glancing at the schedule and I'm not certain where lunch is going to happen. But you know, that's because there's so much good work today.

Hannah McCarthy: [00:23:15] That does it for. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by El Flaco Collective. Commodity. Spring gang drama beats Ryan, James Carr, Casey Wilcox and Beigel. If you have any questions for Civics 101, we want to hear from you. Go to our website civics101podcast.org and submit your questions about America. You are our main source of ideas for these episodes and we of course are here to serve. Civics 101 is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Presidential Funerals: How and Why We Mourn Our Leaders

How do we mourn our presidents and former presidents? Where did all those very public rituals come from? And how much input does a president have in their own post-death ceremonies?

We break down the history and mystery of presidential funerals with Lindsay Chervinsky and Matthew Costello. 

This episode of Civics 101 was produced by senior producer Christina Phillps and mixed by Rebecca Lavoie. It was hosted by Nick Capodice and Hannah McCarthy. Special thanks to Jacqui Fulton. 

To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. 

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TRANSCRIPT

Nick Capodice: You're listening to Civics 101 New Hampshire Public Radio's show about the basics of how our democracy works. And today, in the wake of the death of President Jimmy Carter, we have a special episode about how we mourn our presidents.

Archival: But he often said, when the really tough choices come, it's the country, not me. It's not about Democrats or Republicans. It's for our country that I fought for.

Nick Capodice: Right [00:00:30] now, we are listening to audio from President George H.W. Bush's 2018 memorial service at the Washington National Cathedral. And I want you to listen to how Bush is being described as a human being.

Archival: The George Herbert Walker Bush who survived that fiery fall into the waters of the Pacific three quarters of a century ago, made our lives and the lives of nations freer, Better, [00:01:00] warmer and nobler.

Nick Capodice: Now, as the video of the memorial pans over the audience, you can see Bush's family, including his son, President George W Bush. And you also see former presidents Bill Clinton and Barack Obama and the sitting president at the time, Donald Trump.

Lindsay Chervinsky: And when he died, there was this incredible outpouring of grief, of memorials, of remembrances, people telling stories [00:01:30] about him. And they were quite laudatory.

Nick Capodice: This is Lindsay Chervinsky. She's a presidential historian and coauthor of Mourning the President's Loss and Legacy in American Culture, where she and her coauthor, Matthew Costello, explore how we remember our presidents when they die. And when she was watching the funeral of George H.W. Bush, one thing stuck out to her.

Lindsay Chervinsky: When someone passes away, you know, family or friends, they want to put the best version of that person forward. But what struck [00:02:00] us as interesting was that people who had been sometimes very critical of Bush 41. Here they were talking about how he was kind and he was decent, and his presidency represented a moment of international strength and international stability.

Archival: I believe it will be said that no occupant of the Oval Office was more courageous, more principled, and more honorable than George Herbert Walker Bush.

Lindsay Chervinsky: And that seemed [00:02:30] to say a lot more about the current political moment that we were living in in 2018 than actually necessarily him. But I think it was more a reflection of the American people's desperate desire to have a little bit more civility, a little bit more stability in our political life, a longing for a time when people on both sides of the aisle could speak to one another, even if they disagreed, and a longing for what the presidency could be.

Archival: Good [00:03:00] evening. Former president Harry S Truman died this morning at age 88.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: We are talking about how we as a nation mourn our deceased presidents.

Archival: The Associated Press is reporting at this hour that former President Ronald Reagan has died.

Nick Capodice: We're talking about the funerals themselves, but we are also talking about legacy.

Archival: With the greatest regret. Two priests who were with President Kennedy say he has died of bullet wounds.

Nick Capodice: And [00:03:30] how ceremony, tradition and media coverage around a president's death contribute to that legacy.

Archival: His aims for a better world will be carried on. The president died in harness, still working for the better world he hoped to help shape.

Hannah McCarthy: Nick, I know that we're not in the United Kingdom and we don't have monarchs, but the clearest image I have of a major state funeral is the one for Queen Elizabeth the second in 2022. The [00:04:00] logistics of that funeral, including the fact that the whole operation had its own title. It was called Operation London Bridge. Uh, it was all kind of a spectacle, and it had been planned for years with all sorts of customs that I think we think of as integral to the monarchy. But what about the United States? Do we have specific rules or rituals for mourning presidents?

Matthew Costello: There is really no uniform way to mourn a president.

Nick Capodice: This is [00:04:30] Matthew Costello. He is Lindsay's coauthor and senior historian at the white House Historical Association. And he says that while there isn't a uniform way to mourn the president, it has become a bureaucratic process, one that is folded into the federal government with plans and staff and defined roles. But it wasn't always so official.

Matthew Costello: So obviously, state funerals have evolved and changed over time. And I would say that, you know, the [00:05:00] state funerals, as we know today, are very different. If you go back in the 19th century, you know, presidents and former presidents, most of these things were just paid for and done by the families themselves.

Hannah McCarthy: We should clarify, I think a state funeral means it's run and sanctioned by the government like a state dinner. Yeah.

Nick Capodice: And these days, a state funeral is a three step process that can go anywhere from 7 to 10 days. It includes the marching of the casket [00:05:30] through the Capitol, public viewing of the casket in the Capitol rotunda, and live broadcasts of the funeral.

Hannah McCarthy: The public viewing part of the body. We call this lying in state, right?

Nick Capodice: Right. Yeah, we do state like the federal government. And we know that this went on at least as early as the 17th century in England. But funeral rites of rulers in the early days were probably more about proving that the old monarch was dead and affirming the legitimacy [00:06:00] of the new ruler. I feel like you're.

Hannah McCarthy: Saying it was political.

Nick Capodice: Matter of fact, Hannah and I do think this is something to think about as we talk about presidential funerals in the US, the business of burying a monarch where they were laid to rest, what kinds of ceremonies were performed had a lot to do with the transfer of power and the maintenance of power.

Hannah McCarthy: Okay. I'm listening.

Nick Capodice: Okay. So, for example, in the early days and I'm talking like 14th century, 15th century, the monarchy was [00:06:30] not necessarily hereditary.

Hannah McCarthy: As in the former king's son was not guaranteed the job.

Nick Capodice: Right. So the new guy in power might use the former king as political propaganda, you know. Wasn't he so great? Look, I'm just like him. Or let's say the opposite. The old king was deposed. You know, we're looking at a conqueror. Hypothetically, that conqueror might hide or destroy the body of the old king. Pay no attention to what came before me. [00:07:00] I'm the new hot ticket.

Hannah McCarthy: That is cold.

Nick Capodice: It is all part of the game, Hannah. The game of Thrones.

Hannah McCarthy: There it is. I knew we would get it in there one day.

Tyrion Lannister: Dragons do not do well in captivity.

Missandei: How do you know this?

Tyrion Lannister: That's what I do. I drink and I know things.

Nick Capodice: Also, you know, Christianity is on the rise at this time. Why not start to model kings [00:07:30] mausoleums on saints shrines?

Hannah McCarthy: That is a clever move. Basically saying to everybody. The king is godlier than you plebeian.

Nick Capodice: Exactly. So for a while there, new rulers were actually anointed as the new monarch next to their predecessor's tombs. It was a way of saying essentially Whatever he had, I have it now. Rule is a continuum that passes from one body to [00:08:00] the next. Whoa!

Hannah McCarthy: That is how you make a dynasty.

Nick Capodice: All right. To jump ahead here. The lying in state thing in what we now call the UK, had a lot of growing pains. From selling tickets to commoners to visiting hours so crowded and chaotic that in at least one case, looking at you, Queen Mary the Second, people lost their wigs and possibly depending on whether you trust the scuttlebutt, their [00:08:30] lives.

Hannah McCarthy: I bet they didn't get the royal treatment.

Nick Capodice: So the whole post-death ceremony varied from ruler to ruler as we get into the 1700s, but it tended to be less public, less ostentatious, more solemn, sometimes super exclusive, more about the eternal salvation of the soul than projecting royalty to the people. Worth mentioning here that the royal coffers were not always overflowing. In this [00:09:00] era, and giant ceremonies are expensive. Also worth mentioning from the 18th century on, even though England. Suddenly the United Kingdom is becoming a truly global power. Guess what the royals were dealing with?

Hannah McCarthy: Um. Perfecting that wave.

Nick Capodice: Enlightenment.

Hannah McCarthy: Oh, yeah. Okay, that was my next guess.

Nick Capodice: Science, philosophy, government structure, individuality, a body politic. Parliament is doing its thing [00:09:30] outside of London. Not many people are paying a lot of attention to the person with the crown. Royal pageantry, frankly, is a little much when you're just hoping the monarch doesn't mess with your plans for global domination. Then one of your best crown jewels, America, calls it quits on you and gets really powerful. And then Germany eventually becomes really powerful. And then Queen Victoria is so sad about the death of Prince Albert that she never hangs out anymore. And suddenly Hannah. Suddenly the people need a little [00:10:00] something.

Hannah McCarthy: A little show, something to bring everybody together.

Nick Capodice: Something to bring everybody together. King Edward the Seventh, Victoria's son, went pageantry everywhere and a proper Westminster lying in state for throngs of crowds to attend. So began a new era of public royal death ceremony that was trying very hard to call to mind an old era of public royal death ceremony.

Hannah McCarthy: In other words, [00:10:30] Nick, correct me if I'm wrong here, but it sounds like they are doing the exact same thing that Kings in England had been trying to do like a thousand years ago. Basically, we're telling you that we're popular and important so that you make us popular and important.

Nick Capodice: A penny for the thoughts of the crown. Right, but that feels right.

Hannah McCarthy: Okay. It seems like we do something very similar here, do we not?

Nick Capodice: Well, I don't know, Hannah. It [00:11:00] kind of depends on your point of view. Are our presidents posthumous proceedings part of a power play?

Hannah McCarthy: Say that five times fast.

Nick Capodice: Or are they about honor and national tradition, or are they both? We are going to have to leave that for our listeners to decide. Speaking of Civics 101 is about the United States, so I think we should get back on it.

Hannah McCarthy: Oh, yeah. Onward. Over the pond.

Nick Capodice: Presidential [00:11:30] funerals. At least a week of grand to do.

Hannah McCarthy: Grand to do. Put on by the federal government. That's right. So you mentioned marching the casket to the Capitol. Days of public viewing in the rotunda. Tons of press, I would guess. Also, tons of security, tons of very important invitees. [00:12:00] Even us commoners have to shell out astonishing amounts of money for our own wakes and funerals. Who is paying for the late presidents ceremonies?

Nick Capodice: The government pays for the labor, transportation and security, and the planning of a state funeral typically involves multiple branches of the military, foreign dignitaries, and coordinating with the media. It's almost like a menu of options the president's family can choose. Like that thing. I don't know if you've seen this, Hannah, where [00:12:30] a riderless horse with empty boots facing backwards in the stirrups indicates that, quote, the warrior will never ride again.

Hannah McCarthy: Seriously, is that is that something that we do that's, like, so heavy with import?

Nick Capodice: Yeah. Abraham Lincoln was the first that we know of to have it. And actually, there was a horse named black Jack who carried the boots in Kennedy, Hoover and Johnson's funerals.

Archival: Black Jack had a reputation as a hot horse. He got this [00:13:00] job because he was too wild to ride in the.

Archival: Middle of all this solemnity. There is one full horse having the time of his life.

Nick Capodice: Also, there are special seating arrangements for the services, like.

Hannah McCarthy: In a wedding where the people who know the couple best get the seats closest to them, and everyone pretends not to get their feelings hurt if they're in the nosebleed section. Is that just me who notices that?

Nick Capodice: Actually, Hannah, it's more about avoiding exactly that. You seat foreign [00:13:30] dignitaries in a certain order so that nobody can be accused of having a special seat. Everything. Every last detail is meticulously planned down to where the bugler is supposed to stand to play taps.

Hannah McCarthy: All right. But we did hear that things were not always so complicated. What did presidential funerals look like before?

Lindsay Chervinsky: When George Washington died, he had really specified that he wanted a private family [00:14:00] service. No fanfare, no military participation, no parades, nothing like that. And while his funeral was still relatively modest compared to what we've seen later, it certainly was bigger and had more pomp and circumstance than he intended, including 400 mock funerals across the country where people could attend and pay their respects and mourn. The process, often with an empty casket and an official ceremony in Philadelphia, where Congress [00:14:30] was currently positioned. So they had a funeral for him as well. So that's sort of like the first official one. Several of the presidents after that really did not have any sort of big service, even the ones that died in office.

Hannah McCarthy: That sounds a lot like what you might see these days when a celebrity dies, right? There's a family funeral, but there might be a television special or a public memorial event not necessarily connected to the family, but that is still different from a state funeral that involves [00:15:00] government bureaucracy. So hang on, which president had the first true state funeral?

Nick Capodice: That was President Abraham Lincoln, who was assassinated in 1865. Lincoln was the first president to lie in state. And by the way, this isn't just a tradition for presidents, government officials, members of the military and private citizens have also been honored this way. For example, the Reverend Billy Graham's casket was in the Capitol rotunda for two days when he [00:15:30] died in 2018. But that can only happen if both the House and the Senate approve of it. And the reason that Lincoln was the first president with this kind of official government run funeral had a lot to do with the way he died and what was going on in the US at that time.

Lindsay Chervinsky: He was shot on Good Friday. He died the next day. And then that Sunday was Easter Sunday. So there was a real religious sort of connotation to his death that he had died [00:16:00] for the sins of the nation. It was the first funeral in which the telegraph existed, so people were able to learn of his death almost immediately. And so it really did create a national experience.

Hannah McCarthy: Oh, of course. Before the Telegraph, depending on where you lived, it might take you a while to learn that the president had died. But afterward, the whole nation could ostensibly learn about it right away.

Nick Capodice: Yeah, and that made it more of a collective public mourning. [00:16:30] I think it's also important to remember that the Confederacy had surrendered to the Union just a few days before Lincoln was shot. So the country wasn't just grieving a president. They were grieving the person who ended the Civil War.

Lindsay Chervinsky: He laid in state at both the white House and the Capitol, and then he was put on a train, and he was taken throughout most of the north of the nation on his way back to Illinois, so that people could see him and express their grief and mourn. So [00:17:00] that was the first one where it was a real to do. It was a big thing. The body was moved several places. There were several opportunities for Americans across the country to witness, and it did have a national feeling because of how quickly news could spread at that point. Most presidents immediately after Lincoln did not have that type of funeral. But then I think the the rise of the state funeral as a regular experience [00:17:30] started to occur with Franklin D Roosevelt.

Archival: This nation has suffered this day a staggering loss at this moment at Warm Springs, Georgia. President Franklin D Roosevelt lies with the problems of the nation finally lifted from his shoulders stricken late this afternoon with cerebral hemorrhage. Why?

Hannah McCarthy: Franklin Roosevelt.

Lindsay Chervinsky: Franklin Roosevelt was in office for 12 years. And so for a lot of people, if they were relatively young, he was the only president they remembered. [00:18:00] And he had led the nation through the Great Depression, through the New Deal, and then through World War two. And so the concept that someone else would be president was almost kind of earth shattering in its significance and really quite scary.

Archival: Everywhere men at first say, no. It is not true. I do not believe it. It could not happen now. Not now. That is the thought of men who drive taxicabs and who sit in offices.

Nick Capodice: President Franklin Roosevelt died [00:18:30] in Georgia on April 12th, 1945, and his body traveled by train to Washington, D.C. it took four days, and hundreds of thousands of people showed up on this train's route, so it was like a giant, hundreds of miles long funeral procession. And when the casket finally arrived in D.C., about half a million people lined the streets to watch it march from Union Station to the white House.

Archival: In this hour of national sorrow.

Hannah McCarthy: Yeah, [00:19:00] I've seen footage of this. The crowd is like a wall lining the road. And aside from the music played during the procession, it's really quiet. You know, there are thousands of people and you can hear the hoof beats of the horses.

Archival: All the soldiers and servicemen in the crowd stand firmly at attention.

Archival: And now the caisson will start its solemn.

Lindsay Chervinsky: The mourning was akin to that of Abraham [00:19:30] Lincoln, because it represented this cataclysmic moment in American history. And then Truman, who who followed FDR, he had a relatively modest ceremony. But starting in sort of the 1970s, 1980s and moving forward, state funerals really have become a little bit more of the norm for presidents, even when they don't die in office.

Hannah McCarthy: What about what happens after the funeral? Are there any rules for where a president is laid to [00:20:00] rest, or what kind of gravesite it should be?

Nick Capodice: That decision is up to the family. But over the years, presidents have gotten more deliberate about making their burial sites into sort of a destination of their legacy. I'm talking about building a library or a museum, something like that on the site. Now, FDR started this trend when he decided he wanted to be buried at his Hyde Park estate in New York.

Matthew Costello: And Franklin Roosevelt is the first president to officially [00:20:30] designate a presidential library, with the intention of turning over all of his administration's records to the National Archives. National archives were created in 1934, and the plan, in his mind, had always been at some point to be buried back at his home, Hyde Park, and at some point the presidential library that was built there would house the records and artifacts and also related to his administration. And [00:21:00] and he will be buried in the rose garden adjacent to his presidential library. And what Roosevelt starts is this more recent tradition that we've seen where presidents or former presidents are buried at their presidential libraries.

Nick Capodice: And the federal government was on board with this idea, and they made it official in 1955 with the Presidential Libraries Act. This act created a system that allowed presidents and their estates to construct private libraries that were maintained by the [00:21:30] National Archives. And to be clear, the construction and operation of these libraries is not paid for by the government. A president might set up a nonprofit or something to fund the construction of the library, and once it's built, the library is transferred to the federal government, and the National Archives oversee its care when it comes to those government records. But many libraries also have events or programs that are not paid for by the government.

Hannah McCarthy: I feel like this gets [00:22:00] to the legacy question, and it sounds like in this case, that legacy is in large part the receipts. Right. Here's proof of what this person did.

Nick Capodice: Yeah. And it makes sense, right. Because after a president leaves office, all that work they did when they were president becomes property of the government. It belongs to the public. And the National Archives makes sure it's properly cataloged and preserved. So it becomes kind of a partnership.

Matthew Costello: Nixon [00:22:30] is buried at the presidential library and his family home in Yorba Linda, California. Gerald Ford is in Grand Rapids, close to where he grew up. Ronald Reagan is at the Reagan Presidential Library out in California. So some of these, you can see where it's kind of, well, they just want to be buried on, you know, near family or, uh, you know, close to their where they grew up. I mean, all that makes sense. But I think the, the decision that they make to place their presidential library where they place them also tells us [00:23:00] quite a lot.

Hannah McCarthy: So these libraries are now being constructed while a president is alive, and that president can have a major say in this tomb slash legacy repository.

Nick Capodice: And these libraries aren't just like a storage place for historical documents. Most of them have museums with artifacts and exhibits open to the public. For example, a lot of presidential libraries have a recreation of the Oval Office as it looked when that particular [00:23:30] president was in office.

Lindsay Chervinsky: Often, if they've been alive for a while after their time in office. And increasingly that is the case as presidents live longer lives post-presidency. Then our memories of their time in office start to fade a bit. What we do then think about them is how do they compare to where we are today? How do they compare to what we have seen? Did they contribute to the problems? Did they help the problems? And you know, what does that mean?

Nick Capodice: Some presidents [00:24:00] have also built institutions that allow them to keep doing their work after they leave office. Take Jimmy Carter, for example. He opened the Carter Center. That is a nonpartisan organization for international peace building, and that is next to his presidential library in Atlanta.

Jimmy Carter: I was one of the youngest surviving presidents in this century. I was only 56 years old. I had a lot of plans ahead of me for the second term that I anticipated, and I wanted to [00:24:30] figure out in my own mind, what can I do to utilize this tremendous remaining influence that I that I carry with me.

Lindsay Chervinsky: President Carter is fairly unique in that he has been able to redefine his legacy through his post-presidential work. Most presidents are not able to change what their legacy is for the American people. And that message is kind of stuck. And it makes sense because the presidency is when you have the most power, you have the biggest bully pulpit, [00:25:00] you have access to the maximum number of Americans, and you're never again really going to have that kind of influence. But for Carter, because I think he only served one term and because he was so humble, he lived a life of service. His foundation really contributed to the eradication of two major diseases and helped with international peace agreements. I mean, it's just really extraordinary work. He's been able to shift how [00:25:30] people think about him.

Hannah McCarthy: I'm sure that a lot of us have thought about what our own legacy will be, or you know, what we'll leave behind or how we'll be remembered. But this is just in another stratosphere.

Nick Capodice: You are not wrong there, Hannah. And presidents make plans for their own funerals pretty much as soon as they get elected to office these days. And there is a reason for that.

Archival: And I'll. You'll excuse me if I am out of breath. A bulletin. This is from the United Press from Dallas. President Kennedy and Governor John [00:26:00] Connally have been cut down by assassin's bullets in downtown Dallas. They were riding in an open automobile when the shots were fired at the president. His limp body carried in the arms of his wife. Jacqueline has rushed to Parkland Hospital. And if you'll excuse me, if I give some directions and we talk about.

Nick Capodice: And we'll talk more about that right after a quick break.

Hannah McCarthy: But before that break, you know, while this episode is absolutely chock full of a lot of trivia about funerals and presidents, you have no idea [00:26:30] how much we don't put in, but we have somewhere else to put it. That is our newsletter. It is called Extra Credit. It is so quick and easy to subscribe to it at our website civics101podcast.org. And not to toot my own horn here, but I actually think that our newsletter is simply one of those joys to open up and read. It's a little bit of information every other week, and it gives you an idea of what we spend the rest of our time thinking about that. Again, that website is civics101podcast.org. [00:27:00] We're back. You're listening to Civics 101. This is a special episode that is asking, in the wake of the death of President Jimmy Carter, what follows the death of a president. We've [00:27:30] covered the broad strokes of their literal wakes, their funerals, their final resting places. It seems like a modern president knows more about what their funeral will look like than Huckleberry Finn did. And, Nick, you said that there was a really good reason a president planned their funeral as soon as they get into office.

Nick Capodice: Yes. There is. It is because of the sudden, violent death of one president. Friday, November 22nd, 1963. President John F Kennedy was assassinated while riding [00:28:00] in an open top limousine in Dallas. He was 46 years old and it was his third year in office.

Archival: From Dallas, Texas, the Flash apparently official President Kennedy died at 1 p.m. Central Standard Time, 2:00 Eastern Standard Time, some 38 minutes ago.

Nick Capodice: Now, Kennedy didn't have a funeral plan in place, but two days later, more than Hundred and 50,000 [00:28:30] people had lined up for the public viewing of his casket, which lasted for 18 hours, and in the meantime officials were planning the memorial services for the next day.

Hannah McCarthy: That is a huge undertaking to pull off in such a short period of time.

Nick Capodice: Yeah, but here's the thing. That kind of rushed planning it won't need to happen again. Here is Matthew Costello.

Matthew Costello: All presidents. Now, when they're in office, they will create a state funeral planning document. [00:29:00] Part of the reason they do this is I think it was in part a lesson learned from, you know, the unexpected assassination of John F Kennedy, because this this stuff was really wasn't planned. You know, he was a young president. And, you know, obviously no one expected him to be killed while in office. I think it was a much more concerted effort moving forward to making sure that the president of the United States, whoever it was when they came into office, that their wishes [00:29:30] were known in the event that they died in office.

Hannah McCarthy: You know, with Kennedy's death in particular, his assassination is a huge part of the story we tell about him. You know, his legacy. Like you said, he had only been in office for less than three years. He was really young. And his death was violent and caught on camera.

Nick Capodice: Yeah. Matthew actually compared Kennedy's death to Lincoln's death because they both had something he called the martyr effect.

Matthew Costello: So when we think of a martyr, [00:30:00] we think of somebody who is who was killed, who gave their life in service of others, protecting others. For some presidents, it has made them more memorable. But as we've seen, that this hasn't uniformly applied to everyone. Obviously, with Abraham Lincoln, the country has been at war for four years. The Union Army is closing in, defeating the Confederacy. It appears Facts. The federal government will prevail, and [00:30:30] he's assassinated. Today, we may think of Lincoln as a universally admired and beloved and respected president, but that's how we think about him today, as opposed to how people thought about him in 1865. Now, if you skip ahead, we do have two other presidents who are assassinated James A Garfield and William McKinley. But neither one of them elicits the same kind of response as, say, you know, John F Kennedy in 1963. Kennedy [00:31:00] is a young president. He's assassinated, and he's assassinated very publicly.

Archival: In a warehouse. A sniper with a rifle poised waits. The cheers of the crowd almost muffled the three shots. The assassin's aim is deadly. The area is a swarm with police, rangers and Secret Service men. The murderer slips the net, but a few blocks away, a man is captured after he is reported to have killed a policeman.

Matthew Costello: The Zapruder film, the photographs. I mean, all of this is very, very public and very graphic and [00:31:30] it's very jarring and traumatic for many Americans. So even though Lincoln's time obviously had this larger and really profound historical context involving the Civil War, Kennedy didn't have that as much. But it was something that was it was felt so personally by everyone. And I think part of it was the imagery, the film, the fact that his funeral was held on television. I mean, everybody could watch and experience these things, and everybody [00:32:00] felt like, you know, even people who didn't like John F Kennedy or supported John F Kennedy, it seemed like there was a universal outpouring of grief for Kennedy.

Archival: The sound of the muffled drums sweeps in melancholy waves over the hushed throng, a hush broken only by a stifled sob, a murmured prayer. A whole people is lifted up in common sorrow. And ennobled in their hearts. Down this avenue of sadness they bring President John F Kennedy. Martyred hero. To lie in state under the great dome of the Capitol.

Hannah McCarthy: When [00:32:30] I think about Kennedy's funeral, I cannot help but think about First Lady Jacqueline Kennedy, later Jacqueline Kennedy Onassis. There's that unforgettable image of Jackie in the bloodstained suit standing next to Lyndon B Johnson as he is sworn in as president on Air Force One, and then later on standing next to her small children. You know, as toddler JFK Jr salutes his father's casket.

Nick Capodice: Yeah. And so much of how these things go is influenced by the spouse. [00:33:00] The funeral arrangements, the mourning period. Yeah.

Lindsay Chervinsky: The first ladies are a very interesting part of our history, because that position, of course, is not in the Constitution. So it doesn't have any written responsibilities. It doesn't have a theoretical office. And yet we of course, expect the president to have a spouse. We expect the spouse to play a role with that role is I don't think we've ever fully agreed upon, and I don't think they've ever fully [00:33:30] agreed upon, because each first lady does things a little bit different for Kennedy that that case in particular. He died in such a tragic way, and she was so instrumental to shaping what that that mourning process was going to look like and how involved the family would be.

Nick Capodice: It is remarkable how massive and logistically complicated Kennedy's funeral was considering the circumstances. The First lady had a vision, and she was able to pull it together in a couple [00:34:00] of days.

Lindsay Chervinsky: And Jackie Kennedy was not alone in in the role that she played in crafting those experiences. Most first ladies. Um, I would say on average, first ladies tended to outlive their husbands. And so the families, whether it be the wives or the spouses or the children, they do play a central role in deciding what the funeral is going to look like, who is going to be involved, where it's going to take place, what music is going to be played? Is there going to be a military component? [00:34:30] What is the messaging around the event? These are all things that first ladies and first families usually have. First say.

Matthew Costello: Oh, the former presidents will continue to revisit these planning documents. Um, you know, sometimes things change. Sometimes you decide you want different music, sometimes you decide you want different guests or you want different eulogists. So those are the types of details that can obviously shift and change over time, because we're talking about relationships or friendships or or [00:35:00] even, you know, something like the current climate, you know, something to be thinking about in terms of politics.

Hannah McCarthy: Okay. So former presidents aren't just updating, you know, their wills like some of us might. They also have to update their own funeral plans.

Archival: Ronald Reagan was the oldest former president in American history. He was 93 years old when he died. Today. He has been out of the public eye for most of the past decade, since announcing to the whole world he had Alzheimer's.

Matthew Costello: Yeah, Reagan. His last goodbye [00:35:30] to the American people was publicly announcing that he had been diagnosed with Alzheimer's in 1994. But he lives another ten years. And so this is where, you know, having President Reagan's plan pretty much ironed out. But then entrusting his wife, First Lady Nancy Reagan, and the Reagan family to ensure that President Reagan's wishes were followed and adhered to as agreed upon, or [00:36:00] if they felt that they should change things on his behalf. You know, certainly that's a situation where they could. The Reagans, generally speaking, between the two of them, I mean, they always knew the importance of performance.

Archival: It appears to an observer that after 33 years of marriage, you two are still absolutely nuts about each other. Mrs. Reagan, how do you plead?

Archival: Guilty.

Archival: Guilty.

Archival: Explain it. I mean it. [00:36:30]

Matthew Costello: And I think that was true when they were in the white House. It's true when he was governor of California.

Hannah McCarthy: I know most presidential families have carefully crafted public personas, but I think the Reagan image involved another level of cultivation. I can only imagine that that funeral was extremely detailed.

Nick Capodice: The funeral plan was somewhere between 130 and 300 pages long, and the news coverage was extensive, [00:37:00] with multiple media outlets covering hours of mourning live for almost a week straight.

Matthew Costello: The idea of creating something that was really such a spectacle that, you know, people felt like they were a participant in what was unfolding right before their eyes. I think all of that was true with President Reagan's state funeral.

Archival: It was a poignant moment in a day filled with emotion and somber pageantry, as America came to a virtual standstill to [00:37:30] mark the passing of the 40th president.

Nick Capodice: For example, after the funeral, his remains were brought back to California, where they had another service overlooking the mountains at the Reagan Presidential Library.

Matthew Costello: They're very cognizant of doing it at sunset at the Reagan Library. That really sort of, you know, the sun has set on on Reagan's time here. I mean, it was all very symbolic, I think.

Nick Capodice: In the announcement Reagan wrote in 1994 about his Alzheimer's diagnosis, he [00:38:00] said, quote, I now begin the journey that will lead me into the sunset of my life.

Matthew Costello: I think Reagan's story in particular shows just the influence of family in shaping and planning the funeral itself, but also how we've come to remember the figure in question.

Hannah McCarthy: You know, over time, it sounds like these funerals, they just keep getting bigger, they become more of a spectacle or, you know, a different [00:38:30] kind of spectacle. And maybe that is in part because we have more access to them with the advent of 24 hour news and social media. But we talked about the British traditions around the death of a ruler. And in the case of the UK, it makes a lot of sense to me because all of that pageantry and idolatry for a ruler who, you know, for a long time people thought was ordained by God worthy of worship [00:39:00] or something close to it. It's also a way to reaffirm this connection between the people and the monarchy, and, I guess, provide one last opportunity to bow before the crown. And I know that we have borrowed a lot from British tradition, but, you know, our process. Is that a little odd in a country that's not monarchical, where the leader is not the ruler, but [00:39:30] technically a member of the public, just like the rest of us?

Lindsay Chervinsky: As we think about how we mourn presidents, and especially as state funerals have become the norm and the tradition. It's worth asking whether or not it should be that way. And the reason I say that is because if anyone watched the footage of George H.W. Bush's funeral and then watched the more recent footage of Queen Elizabeth II's funeral, there are a lot of similarities. [00:40:00] And they looked often pretty close. We, you know, we have less crowds, we have less carriages. But nonetheless, there's, you know, there were a lot of things that weren't all that different. And we are not a monarchy, or at least we're not supposed to be. And when the president Dies. They do retain Secret Service protection, and, you know, they can bring in a very hefty speaking fee and often, you know, live in very nice homes. But they are supposed to be just an average citizen. They're supposed to be [00:40:30] just like everyone else. And that's what a republic means. It means that everyone is the same in theory under the law. And so by recording these enormous celebrations, all of the pomp and circumstance and all of the fanfare, is that appropriate for a republic? Is that the way things should be? Or are we sending a message that presidents, even once they leave office, are somehow something else or something different?

Matthew Costello: So [00:41:00] to talk about president's legacy in 1960, you know, it's going to vary probably, you know, by 1980, by 2000, by 2020, you'll see these changes over time a big part of that is shaped by the present moment. You know, whatever experiences that we're going through as a country, as a society, as a culture. And so in a way, even though the presidents are gone, their legacy is [00:41:30] still sort of part of that foil of reshaping and influencing American culture well into the future.

Nick Capodice: If you want more Civics 101, you can find all of our episodes and teaching materials and a whole bunch of other stuff at our website, civics101podcast.org. Music. [00:42:00] In this episode by Epidemic Sound and Chris Zabriskie, Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Holiday Trivia: What's been on the White House Christmas menu?

In our latest edition of Holiday Trivia, a rundown of some of the quirky food, drinks, and celebratory ephemera at the White House during the most wonderful time of the year. 

Have an opinion on the pronunciation of "praline?" Send us an email!

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Transcript

This transcript is AI-generated and may contain errors

Hannah McCarthy: This is Hannah McCarthy. You're listening to Civics 101.

Nick Capodice: This is Nick Capodice.

Rebecca Lavoie: And this is Rebecca Lavoie.

Christina Phillips: And this is Christina Phillips. And folks, it is barely noon and the sun already looks ready to set. There is a run on peppermint extract, probably because so many normal foods now have peppermint in them at the grocery store, and everyone seems to have stopped responding to emails, including us. Which means it's time for our annual holiday themed episode on Civics 101. So this year we are talking about food, specifically holiday food at the white House, because there is an absolute treasure trove of historical documents about how presidents past celebrated the winter holidays. Now, most of our presidents were Christian or followed Christian traditions, so this trivia is a bit Christianity centric. But as usual, the president is only our starting place, so we will be branching off from there. Now I have divided this trivia into four courses. We have drinks, appetizers, the main course and dessert.

Nick Capodice: Yes.

Christina Phillips: And before we begin, I just have one question. A little icebreaker for you. What is your opinion of fruit in chocolate? I'm thinking the chocolate orange. The cordial cherries. Rebecca, I'm getting a thumbs down.

Nick Capodice: I'm a massive fan of the chocolate orange. I think that's one of the greatest creations of humankind.

Hannah McCarthy: The chocolate orange. Especially when you leave it on your parents dashboard. And then it gets all like melty.

Rebecca Lavoie: It's so specific.

Nick Capodice: And don't you have to crack it?

Hannah McCarthy: You smack it. Yeah, well, that's if you don't leave it on your parent's dashboard. So if you before you let it melt, you can you can smash it and it'll break into slices.

Nick Capodice: So good. That was such decadence when I was a child. Like you'd get that once a year.

Christina Phillips: Oh. I'm sorry. The way you looked at me. As though I would know Hannah what you meant. You're like, you know, the way you leave it on the desk.

Hannah McCarthy: I think people universalize childhood experiences that happen more than once to them, they're like, oh, this is what kids do.

Christina Phillips: But I only asked because I hate them, and I think they're disgusting.

Rebecca Lavoie: Same. Every time I bite into like, a Russell Stover. Like one of those, like, waxy, hard things and it's like fruit flavored inside. I just like I can't.

Christina Phillips: It's like a betrayal.

Rebecca Lavoie: It's like, this is not what I consented to. When I bit into chocolate, I wanted chocolate or chocolate adjacent flavors. A chocolate covered cherry I can do only because I know it's coming.

Christina Phillips: Yeah.

Hannah McCarthy: What about, like, chocolate covered pomegranate seeds?

Rebecca Lavoie: Nope.

Nick Capodice: What? No. Where are those?

Rebecca Lavoie: It's basically just a fancy Raisinette.

Hannah McCarthy: That is composed of granite seeds.

Christina Phillips: Speaking of cherry chocolate, actually, that's a great transition to our first course drinks, we're going to talk about the favorite holiday drinks of presidents past. This will be a free for all round, meaning the first person to shout out the answer gets the point. Have any of you ever heard of something called the Cherry Bounce?

Hannah McCarthy: No, no. Is it a beverage?

Christina Phillips: It is a beverage.

Christina Phillips: Beverage. This is a favorite of George and Martha Washington. And we know that because there is a recipe from Martha's surviving papers at Mount Vernon. So here is your question. The Washington's cherry bounce was made of three main ingredients cherries, sugar, and this liquor, which is made by distilling wine.

Rebecca Lavoie: Distilling, distilling wine.

Nick Capodice: Brandy. Yes.

Rebecca Lavoie: Oh nicely done.

Nick Capodice: I like boiling it in Ireland before the snakes left.

Hannah McCarthy: Port is just fortified wine, right? Nicely done. Yeah. Well done.

Nick Capodice: I only know it because of the lion in winter.

Hannah McCarthy: Distilled wine.

Nick Capodice: Yeah.

Rebecca Lavoie: It is. It's liquor made of wine.

Nick Capodice: They used to call it Brandywine.

Christina Phillips: Oh, yeah. Yeah. And actually, whiskey was more popular as a spirit back then. But the Washingtons really loved brandy. And the recipe specifically called for ten quarts of an old French brandy, and then the juice of 20 pounds of ripe morello sour cherries and white sugar to your taste, as well as cinnamon, cloves, nutmeg and ground fermented cherry pits.

Rebecca Lavoie: That sounds great. Wow.

Christina Phillips: Yeah. How many people that's for?

Rebecca Lavoie: One!

Christina Phillips: I'm not sure.

Hannah McCarthy: I do think it's kind of cute that they call it bounce. Bounce feels like a more modern word that you would apply to food. Like to name a beverage. The bounce. What is it, the 60s. You know, like that's. Yeah. 1960s.

Nick Capodice: Everybody doing the cherry bounce.

Christina Phillips: I wish I had looked up the etymology of the word. I didn't look it up. Okay. So here is your next question. Cherry pits, along with the pits and seeds of other common fruits, are known to contain a compound called Amygdalin, which can turn into what? Poisonous substance in the body.

Nick Capodice: Arsenic?

Hannah McCarthy: No.

Hannah McCarthy: Cyanide.

Christina Phillips: Yes.

Rebecca Lavoie: Nice.

Christina Phillips: I was gonna say, Nick. You can guess again if you're.

Nick Capodice: No. I knew the second I said it. It's also like peach pits. When I used to eat them as a kid, I.

Hannah McCarthy: That's what I was thinking, too. The peach pits can be really dangerous because of cyanide.

Christina Phillips: The key here is that a lot of people think that they've been poisoned because they've eaten the stone of many stone fruits. Like if you eat a cherry pit and you crunch on it, it will release amygdalin, which is the compound that when it gets into your body, your body breaks it down and turns it into cyanide. But if you swallow a cherry pit whole, it just goes through.

Rebecca Lavoie: It just goes through you.

Christina Phillips: Yeah. And if you ferment the cherries or you cook them, that removes - that inactivates the amygdalin.

Nick Capodice: No cyanide in that cherry bounce.

Rebecca Lavoie: Amazing.

Christina Phillips: Yeah. Also, this is one of the more common calls that they get at the poison control center is for people who think that they or their children are going to be poisoned by cyanide because they just, like, swallow swallowed the pit of something whole.

Hannah McCarthy: Second only to is a watermelon gonna grow in my belly.

Christina Phillips: Yeah, exactly.

Christina Phillips: Now we are moving on to a cozier but still somewhat risky drink. So here's your next question. Several sources mentioned that this president, former secretary of State, and founding father from Virginia, loved a cocktail known as a yard of flannel.

Rebecca Lavoie: Thomas Jefferson.

Christina Phillips: No.

Nick Capodice: That's what I was gonna say.

Hannah McCarthy: No. Andrew Jackson.

Christina Phillips: Mhm.

Nick Capodice: 11 presidents were secretary of state.

Christina Phillips: Founding father, former secretary of state and from Virginia.

Hannah McCarthy: They were all from Virginia.

Rebecca Lavoie: I know right? Yeah.

Christina Phillips: Madison.

Hannah McCarthy: Ah.

Christina Phillips: Okay, so now I need you to all. I gave you all a piece of paper and a pen for this one. I'm going to give you 10s to write down three ingredients you think might be in a yard of flannel. Don't start yet. You'll get a point for each correct guess, even if multiple people guess the same thing and your timer starts now. Stop. Rebecca, I want to start with you.

Rebecca Lavoie: Mine is so dumb.

Christina Phillips: Give me your ingredients.

Rebecca Lavoie: Whiskey, rum and cider.

Hannah McCarthy: Mhm.

Christina Phillips: All right. You got rum? No, none of the other ones. So rum? Yes. You get a point. All right. Nick.

Nick Capodice: I wrote creme de menthe, creme de cacao, gin and vodka.

Christina Phillips: I'm sorry to say you got zero.

Hannah McCarthy: I wrote whiskey, apples and cloves.

Christina Phillips: Oh, that was so close. But you also got zero. Yeah.

Hannah McCarthy: So in a way, it wasn't close at all.

Christina Phillips: So you had, like, the spices. You were getting there.

Rebecca Lavoie: I just covered my bases with old timey liquors. I was just like, I'm not going to guess any.

Nick Capodice: Rum and shrub.

Christina Phillips: Nick went for four things that never should be combined together.

Nick Capodice: I would have creme de menthe with gin.

Hannah McCarthy: Oh, dude. Creme de mel.

Christina Phillips: All right, so here are the ingredients of a yard of flannel, which is not the same thing as a flannel shirt, which is also another cocktail that's more common nowadays. This is specifically the yard of flannel ale, eggs, sugar, nutmeg, ginger and rum or brandy.

Hannah McCarthy: Ooh.

Christina Phillips: So this is sort of like an old, gross version of an eggnog.

Hannah McCarthy: Honestly, I think without the ale, I would like it. But maybe the ale lends it some effervescence.

Rebecca Lavoie: Maybe the ale makes it so you don't get poisoned.

Hannah McCarthy: Maybe that. Yeah.

Christina Phillips: Speaking of eggs. Cooking eggs to at least 160°F before consuming them destroys this bacteria, which causes an estimated 26,000 hospitalizations and 420 deaths in the US a year.

Rebecca Lavoie: Salmonella?

Christina Phillips: Yes, it is salmonella. Okay, we're gonna give it to Rebecca.

Hannah McCarthy: The thing that I think I have three times a week.

Rebecca Lavoie: This is what happens when you have a paranoid Italian mother. You know, all the poisons, all the ways that your food could kill you. You're gonna get trichinosis.

Christina Phillips: And on that note, we have reached the end of our drinks course. Hopefully still alive.

Hannah McCarthy: It's so good.

Nick Capodice: Okay.

Hannah McCarthy: All right.

Christina Phillips: And the score is Hannah has one, Nick has one, and Rebecca has two.

Rebecca Lavoie: Despite knowing none of the presidents.

Christina Phillips: We are moving on to our second course, which is appetizers. So our next question will be a first to guess style question. I'm going to read facts about this food and the first person who correctly guesses it gets the point. Clue number one the Sherwin-Williams paint company color known as this Food white is described in the following way. Float into any room painted with this creamy white. It's soft green beige undertone makes this hue both stylish and calming.

Hannah McCarthy: Sorbet.

Christina Phillips: No.

Nick Capodice: I have one. Yeah. Potato.

Christina Phillips: No.

Christina Phillips: The largest of this food ever found was described by NPR as the size of a man's shoe. It was found in Denmark.

Rebecca Lavoie: Truffle?

Hannah McCarthy: Nope.

Christina Phillips: It was found in Denmark in 2014. Next clue. It is not recommended that you consume more than a dozen of this food in one day.

Rebecca Lavoie: Oysters?

Christina Phillips: Yes. Yeah.

Hannah McCarthy: Yes. Wait.

Nick Capodice: Who doesn't recommend a dozen oysters in a day?

Christina Phillips: I feel like a lot of, like health websites recommend it, like collect.

Rebecca Lavoie: All the filters. I mean, I can eat 12 dozen of them.

Nick Capodice: I had I had five dozen in one day.

Christina Phillips: One day.

Rebecca Lavoie: Yeah.

Christina Phillips: Well, you and Thomas Jefferson, who was rumored to have eaten more than 50 in 1 night while traveling to Amsterdam.

Rebecca Lavoie: No problem. For me.

Christina Phillips: The other facts I have are that humans are considered to be one of the greatest predators of this food.

Rebecca Lavoie: Which makes sense because we are the only ones who can get to get into it. You ever tried to open an oyster?

Christina Phillips: And even so, it's a relatively common food to be allergic to. I am allergic to oysters, and I also find them disgusting. So I'm like so baffled by this delicacy, which actually is not. It's sort of seen as a delicacy now. It was extremely, extremely common in the 18th and 19th century because they were everywhere, especially on the East coast. Our next questions are going to be about oysters.

Nick Capodice: Hurrah!

Rebecca Lavoie: Yeah!

Christina Phillips: Woo hoo! Who doesn't like oysters here? I knew you wouldn't.

Rebecca Lavoie: Nick, I know what we're doing for our next after-work activity.

Nick Capodice: Yep.

Hannah McCarthy: Gulp. A chewy salt water. Who wouldn't want that sometimes? Sorry. I know the rest of the people on earth love them.

Nick Capodice: No, no, you're in the majority, I think.

Hannah McCarthy: Mm.

Christina Phillips: Rebecca, this question is for you. Hmm. This river on the East Coast, once home to the largest supplier of oysters in the world, shares its name with a fictional university and a long running crime television series. Name the River.

Rebecca Lavoie: Hudson! Where the bad guys go to school.

Christina Phillips: Yes, the Hudson River. Also, the Hudson University of Law and Order and Law and Order SVU. Right.

Rebecca Lavoie: And other television shows. For instance, the governor of Montana in Yellowstone had a degree from Hudson on her wall. Wow. Interesting. It's a whole television trope.

Christina Phillips: Yeah, it's become like an Easter egg in other TV shows.

Nick Capodice: Yeah, I know that Henry Hudson, when he landed in New York, he reached and he lifted an oyster the size of a dinner plate.

Christina Phillips: Wow. Oh my goodness.

Nick Capodice: It's like a thing that happened.

Christina Phillips: Question number eight. This is for Hannah. For the low, low price of $425, you can purchase an oyster shucking knife described as, quote, unapologetically handsome, with a, quote, old world looking blade and bi color, bone and horn handle from this website, created and curated by an A-list actress who named her daughter after a fruit featured in the 1961 Harry and David Fruit of the Month Club.

Hannah McCarthy: That would be Goop.

Christina Phillips: Yes.

Nick Capodice: Yeah. What's the daughter? Fruit.

Hannah McCarthy: Apple.

Nick Capodice: Oh, I didn't know Gwyneth Paltrow.

Hannah McCarthy: Famously, everyone was like, how dare you? And now everyone's like, that's the simplest name we've heard in three decades.

Christina Phillips: It has actual letters of the alphabet in it. So, Nick, this question is for you. This bay, the largest estuary in the contiguous United States, was the location of a series of conflicts between pirates and river workers starting in 1865 and continuing for almost a century, known as the Oyster Wars.

Nick Capodice: Give me a second. Pirates. Did you say pirates and river workers? Yeah, and it's a bay. Yeah. I'm gonna ask one question, cause I'm having a tough time here. Does it have the word bay in it?

Christina Phillips: Yes it does. Do you want.

Hannah McCarthy: Me to give you one more hint?

Nick Capodice: I'm gonna do one. I'm gonna do. I'm gonna throw one out. I'm gonna say Chesapeake Bay. It is the Chesapeake Bay.

Hannah McCarthy: Yeah.

Nick Capodice: Only Bay I know.

Christina Phillips: Yeah. So what's funny about this is that once the New York harbor started to be polluted and the Hudson River was no longer a great place to get oysters, all those people started trickling down to the Chesapeake Bay and Maryland. And then later, Virginia tried to outlaw anyone fishing for oysters or harvesting oysters, whatever it's called, off of Chesapeake Bay. And then it led to a bunch of pirate conflicts that lasted almost a century. So. Wow.

Rebecca Lavoie: Incredible. Yeah.

Nick Capodice: Well, you said oysters are tremendous river cleaners, and they used a ton of oysters to clean the Hudson. Yep. And what happened is the water got so clean that all the worms which had been dead from the pollution, ate all the piers and all the wooden piers just collapsed into the Hudson because the water was clean again.

Hannah McCarthy: Yeah, you always regret cleaning things up. All those sharks. You know, everyone's like, why did we make the water habitable again?

Christina Phillips: We're done with oysters.

Rebecca Lavoie: All right.

Christina Phillips: We're moving on to eggs.

Rebecca Lavoie: Ooh.

Christina Phillips: Because I would be remiss if I didn't talk about the absolutely strange and chaotic activity that is the white House Easter egg roll. Have any of you ever been.

Hannah McCarthy: Not to the white House? Have you? No. Oh, you said it like, don't we?

Christina Phillips: I wish. I can't.

Nick Capodice: Go every year, but I try.

Rebecca Lavoie: Every time I see it on TV. And it's like all these hundreds of kids. And I was like, whose kids are those? And they're just like, going to hang out with the president.

Christina Phillips: I know the answer to that. It's a lottery. You have to apply to a lottery to get in with your kids.

Hannah McCarthy: Well, that's way cooler than just like the child of a diplomat.

Christina Phillips: Yeah, it's a lottery system. So, families, I was reading on Reddit, there's like, all these strategies, and people have applied many, many years to get into this lottery system.

Nick Capodice: You're going to tell us, but is it where you like, you roll an egg or do you just lie on the ground and roll around yourself?

Christina Phillips: So egg roll is literally you have a spoon and you roll an egg across.

Rebecca Lavoie: Like a race.

Christina Phillips: Yeah, it's a race.

Hannah McCarthy: Oh, yes. Actually I've seen I've seen...

Nick Capodice: It's like a boy with a stick, but instead it's.

Hannah McCarthy: Yeah, yeah. An egg. Yeah.

Christina Phillips: Yeah.

Nick Capodice: So stick in the hoop. The little urchin boy running around.

Christina Phillips: I had to like, type into Google. I was like, why do we roll eggs? Does anyone want to take a guess at the Christian centric origin of this tradition?

Nick Capodice: Easter. Easter rebirth?

Christina Phillips: Sort of. Okay.

Nick Capodice: So resurrection, what is the egg.

Hannah McCarthy: But the roll? You're talking about the actual rolling away the stone. Are you serious?

Christina Phillips: Oh my God, I wish I had your camera on your face, because the way you looked at me, like I know what it is.

Rebecca Lavoie: That's wild.

Nick Capodice: Three days.

Christina Phillips: Yeah. So the simplest explanation is that the egg symbolizes the stone rolling away from the entrance to the tomb where Jesus was buried during the resurrection.

Nick Capodice: Little did we know. A little boy with a spoon that got our Lord and Savior out of the cave.

Rebecca Lavoie: That is some serious pagan washing going on with that tradition.

Hannah McCarthy: That's wild. Wow.

Christina Phillips: So I'm going to ask you each a couple of questions about the Easter egg roll. And Nick, this question is for you.

Nick Capodice: All right. Here we.

Christina Phillips: Go. So the white House egg roll involves using a wooden spoon traditionally to push a hard boiled egg across the grass. However, one recent president chose plastic spoons instead. I'm talking like the plastic spoons that you get in a set when you eat at a picnic. Like the small ones. Not like a nice plastic ladle that you'd use on nonstick cookware.

Nick Capodice: Put in your kids lunch?

Christina Phillips: Yes, yes. So was it George W Bush, Barack Obama, Donald Trump or Joe Biden.

Nick Capodice: Plastic spoon.

Christina Phillips: Mhm.

Nick Capodice: I'm gonna say Donald Trump.

Christina Phillips: No, it was George Bush.

Hannah McCarthy: Oh, man. Yeah. I feel like that was the last time you could get away with using plastic in public was George Bush. That's over now. Let's all pretend we never did it.

Christina Phillips: It was George W Bush.

Nick Capodice: Did he just forget the wooden spoon? Oh, geez.

Christina Phillips: Well it happened several years in a row because I went back and I looked at some of the photos from the white House Easter egg rolls and like, at least three of his were like these small spoons, these plastic spoons that kids were trying to roll with. And then the other presidents had, like these nice wooden spoons, you know, some of them were slotted, some of them were just like a regular old, like, long wooden cooking spoon. So, yeah. Plastic spoons. If you went during George W Bush's presidency. Rebecca. Yeah. The next egg related question is for you. Okay. This is multiple choice. Oh, first lady Grace Coolidge brought Rebecca her pet. What, to the annual Easter egg roll in 1927. 27. Was it Rebecca the parrot? Rebecca the pig or Rebecca the raccoon?

Rebecca Lavoie: It was a raccoon,

Christina Phillips: Yes.

Rebecca Lavoie: Yeah I know. Yeah. The Coolidges had a lot of animals. They were super into animals. They had a farm. They made cheese.

Hannah McCarthy: Like a cow. Wouldn't it have been funny if it was a mongoose? Because they eat eggs?

Christina Phillips: Yeah, well, actually, one of Rebecca, the raccoon's favorite foods was an egg. So I'm imagining it was, like, the most exciting time. But the story of how Rebecca became a pet of the Coolidges is that there was for years, this guy known as the Poultry King from Rhode Island, who supplied the turkey at Thanksgiving to the presidents. And then he died. And I think there was sort of a power vacuum of like, who gives the president turkeys? And so other people would send other things to be like, well, maybe now the tuition will be, you know, quail or chicken. And so one year Coolidge received a raccoon and he was like, I don't want to eat this. And then First Lady Grace Coolidge was like, well, now she will be my pet.

Nick Capodice: Oh, wow. That's a nice little tale.

Christina Phillips: Hannah. Yes. This question is for you. Okay. There is something called the American Egg Board. Are you familiar with this?

Hannah McCarthy: I am now.

Christina Phillips: It is a commodity checkoff program, so it's like, sort of like a lobby. But it's promotes one type of product. It's not supposed to be.

Hannah McCarthy: Promoting the Cotton Board or like. Yeah, wear cotton. I always thought that was so interesting.

Christina Phillips: Yeah.

Nick Capodice: The touch, the feel of cotton.

Rebecca Lavoie: It's beef. It's what's for dinner.

Hannah McCarthy: Yeah, well.

Christina Phillips: The American Egg board had the incredible edible egg.

Archive: All you do is heat and eat eggs. Don't run out. The incredible edible egg.

Christina Phillips: And they were also in charge of overseeing the donation of over 30,000 hard boiled, dyed eggs to the white House egg roll every year. So they got into a little bit of controversy when, in the early 20 tens, the American Egg Board launched a secret two year investigative and marketing campaign against a company making a vegan version of what condiment that traditionally contains egg yolk mayonnaise.

Hannah McCarthy: Yes.

Nick Capodice: Wow.

Hannah McCarthy: So we've launched an investigation. How dare they? Yeah, or like, they can't call it mayonnaise. Maybe.

Christina Phillips: Well, yeah. So they they investigated. And then they also sent out a marketing campaigns about how great mayonnaise is with eggs. And they also were like, you can't call it mayo because it's not mayo. And this was a company called Beyond Eggs and it was just mayo. That's the name of the mayonnaise.

Hannah McCarthy: Milk. Big milk is like you can't call, you know any nut milk. Milk. Mhm. You spell it with a Y.

Nick Capodice: Really?

Hannah McCarthy: Really.

Nick Capodice: Oat milk is oat milk.

Hannah McCarthy: THere's a whole thing opposed to any company making nondairy milk being allowed to call it milk with an I.

Christina Phillips: Well, apparently the Department of Agriculture, which is supposed to oversee this board and how they're spending money. They launched an investigation against them, and they found out that there were email exchanges putting hits out on the guy who invented just mayo. Wow. And they were like, oh, no, no, we were just kidding. It was just a joke, a funny joke.

Hannah McCarthy: Wow. Yeah.

Christina Phillips: We have reached the end of the appetizer course, and our scores are as follows. Hannah, you have five. Nick, you have two. Yeah. And Rebecca, you have five. Wow.

Hannah McCarthy: Yikes.

Nick Capodice: Is it going to be possible for me to make up this deficit?

Christina Phillips: Yes, I believe so. But before that, and before we get to our main course, we are going to take a quick break.

Christina Phillips: All right, we're back. This is Civics 101 we are doing holiday meal trivia at the white House and we have reached our third course, which is our main course. So I had this idea to talk about different ridiculous meat courses served during the holidays, and then quickly found that there is nothing like wild and exciting about meat courses during the holidays. It's usually like ham or turkey. So I decided I would go with something else that's a staple of dinner at the white House. And this is the humble potato. So we are going to trace the potato through three presidencies. And I will ask each of you questions individually, starting with you, Rebecca. All right. In a celebration for Saint Patrick's Day, a dinner hosted by this president and his first lady, one of the things on the menu was new potatoes with sour cream and chives. Invited guests included Faye Dunaway, who had recently starred in The Movie Network and would next year go on to star in Mommie Dearest with actress Joan Crawford. Who is that? President?

Rebecca Lavoie: Um. Mommie dearest. I know, I know, it came out like in the 70s. Late 70s, I think. Um, I am going to say Jimmy Carter.

Christina Phillips: It is Jimmy Carter. Yes. Yeah.

Nick Capodice: Well done.

Christina Phillips: And my other clues were this president is the longest lived president in U.S. history, and also the first to be born in a hospital. Huh? Go, you. Jimmy Carter. So this meal was called America's Irish Experience. And it also included creamed oysters and a pastry shell, sliced sirloin of beef and Irish soda bread. My next question. This is for anyone. What are new potatoes?

Hannah McCarthy: I used to know my father would be so ashamed.

Nick Capodice: Oh, did you harvest them earlier? And is that why they're.

Christina Phillips: That's exactly right. They are new potatoes because they have a thinner skin, smaller size, and are moister and have a sweeter flavor. So you got that one, Nick?

Nick Capodice: Nicely done. Well, that was generous of both of you to let me have it.

Hannah McCarthy: You know, you had it.

Christina Phillips: All right, Hannah, next question is for you.

Hannah McCarthy: Okay.

Christina Phillips: Jimmy Carter's home state is Georgia, which is where this fast food restaurant known for, among other things, their waffle fries, was founded.

Hannah McCarthy: Uh, well, I know a place that serves waffle fries. That would be chick fil A.

Christina Phillips: It is chick fil A.

Nick Capodice: Okay. All right.

Christina Phillips: Yes. So chick fil A didn't actually introduce the waffle fries until 1985. Which brings us to Reagan. The next president in our little history of potatoes and three presidencies. Now, on Christmas Day in 1981, Reagan wrote a note in his diary that said the following. Earlier, a letter arrived from Brezhnev. It seems we're intervening in Poland, and he's upset about it. I suggested that in our reply, we remind him that we are only suggesting the Polish people be allowed to have a voice in the kind of government they want. Now, of course, Brezhnev was the leader of the Soviet Union during this time, and the US had released a number of pro-democratic opposition messages in support of the Polish people. Reagan and Brezhnev never met in person, but they exchanged a bunch of letters that are all kind of interesting and funny. Nick, this question is for you.

Nick Capodice: Sure.

Christina Phillips: Reagan, who also made an effort to cultivate relationships with the Polish American community, proclaimed October National Polish American Heritage Month. Another person Reagan exchanged letters with for a number of years was this Polish and Italian American pianist, singer and actor who, at the height of his fame, was said to be the highest paid entertainer in the world.

Nick Capodice: Wow. This is fascinating. Polish singer and pianist.

Rebecca Lavoie: I think you said Polish, Italian.

Christina Phillips: Polish and Italian.

Nick Capodice: Polish and Italian. American. So this person was born in the United States, but he's of Polish and Italian heritage.

Christina Phillips: Mhm.

Christina Phillips: He was played by Matt Damon in a movie on HBO a while ago.

Nick Capodice: Wow. Do you guys know who this is?

Rebecca Lavoie: And I have a I have a feeling I do.

Nick Capodice: Is there one more clue?

Christina Phillips: One more clue?

Hannah McCarthy: I think I know who it is.

Christina Phillips: Uh, I don't know if this helps, but my other clue is that he gave the Reagans a chocolate piano one time.

Nick Capodice: Oh, yeah. Liberace?

Hannah McCarthy: Yes, yes. Nicely done.

Nick Capodice: Good job, you guys, for knowing that before.

Rebecca Lavoie: Nicely done.

Hannah McCarthy: My. Like most of my young life, I thought Liberace was a composer from, like, the 18th century.

Christina Phillips: I wonder if he did that on purpose.

Hannah McCarthy: Well, now I know. Though we.

Nick Capodice: Though he hoved his mother.

Hannah McCarthy: He really did. Yeah.

Christina Phillips: So we're still in the Reagan era. All right. This question is for anyone. Reagan was invited to the American Polish Festival in Doylestown, Pennsylvania, in 1984, and a statue of him and Nancy. Doing what? Stands in Doylestown today.

Rebecca Lavoie: The mashed potato. The dance.

Christina Phillips: No, no. Oh, I wish it was. Wouldn't that have been great?

Hannah McCarthy: Mashing potatoes together?

Christina Phillips: Nope.

Christina Phillips: Eating potatoes.

Hannah McCarthy: Oh, just eating. Eating potatoes.

Nick Capodice: That's it. It's just eating a potato.

Christina Phillips: Eating a potato pancake.

Hannah McCarthy: Okay, so specifically eating a potato pancake.

Christina Phillips: But what's funny is that the sculptor did not want to put the potato pancake in the statue because he thought it would block Raegan's face. So it's just them sitting at a table, and Reagan is holding up his fingers as though he's about to eat a potato pancake. But there's no potato pancake there.

Hannah McCarthy: There's no potato pancake there. It's the absence of the pancake that calls you to put it in there with your mind. Right? The potato pancake.

Nick Capodice: That he did.

Rebecca Lavoie: Theater of the mind.

Nick Capodice: It's the notes they don't sing. Ceci n'est pas une pomme de terre. Pancake.

Christina Phillips: We're moving on to Bush, H.W. Bush, to be specific. This is our third president in this presidential potato history. President George H.W. Bush apparently loved potatoes and couldn't get the quality potatoes he wanted at the white House, to the point where the first lady, Barbara Bush, apparently complained to the governor of Idaho at the time, Cecil Andrus, and he coordinated with the white House chefs to send a bunch of Russet Burbank potatoes for the president to enjoy. Idaho, of course, is the largest producer of potatoes in the United States. For this question, I'm going to go around and ask each of you to name one of the four other states that round out the top five in potato production. Rebecca, you waved your hands, so you first.

Hannah McCarthy: Maine. No. Oh.

Christina Phillips: Nick.

Nick Capodice: California. No. Oh, it's so big.

Hannah McCarthy: Uh. Uh. Ohio.

Christina Phillips: No.

Rebecca Lavoie: New Jersey.

Christina Phillips: Nope.

Nick Capodice: Washington state.

Christina Phillips: Yes.

Hannah McCarthy: Oh, nice. Yeah, I can, like, see it on a bag of potatoes.

Rebecca Lavoie: That's Idaho.

Hannah McCarthy: No no no no no. It's not Idaho. It's not Idaho. Vermont?

Christina Phillips: No. Wisconsin. Colorado and North Dakota. Oh, Vermont was so far off.

Hannah McCarthy: I'm sorry. Rebecca thought it was me, and I was like, maybe it's close to me.

Nick Capodice: Grew five potatoes last year and the Green Mountain State.

Christina Phillips: Okay. And finally, what potato related gaffe did Bush's vice president Dan Quayle make in 1992?

Rebecca Lavoie: Spelled it with a e.

Nick Capodice: Misspelled it.

Christina Phillips: I think it's Rebecca. What?

Rebecca Lavoie: I was specific, I said, spelled it with an e.

Nick Capodice: I said misspelled.

Rebecca Lavoie: Okay.

Nick Capodice: I didn't know the answer. Technically, he added the e.

Rebecca Lavoie: That's right. Yes.

Christina Phillips: So he was at a spelling bee, and he told a student that the student had spelled potato wrong and corrected him by saying it was spelled p o t a t o e.

Hannah McCarthy: Oh, dear.

Nick Capodice: He drew it on a chalkboard. He went up and he said, no, you're missing a letter. And he drew.

Hannah McCarthy: Oh, that's even worse.

Nick Capodice: Oh, that's really bad. Isn't it? Our state vegetable in New Hampshire. I'm potato. The white potato.

Christina Phillips: Our state food is boiled dinner.

Christina Phillips: Yeah.

Rebecca Lavoie: Wow. Don't get me started on that.

Christina Phillips: Hannah, you have six points. Nick, you have six points. Nice. You have caught up, Rebecca. You have seven points.

Rebecca Lavoie: This is unprecedented.

Speaker6: No.

Christina Phillips: Heading into a very close final round, we have reached our fourth and final course, which is dessert. This is my favorite part of the meal. And also my favorite part of every trivia I write for Civics 101. This or that?

Hannah McCarthy: Are we ready? Yeah. Yeah.

Christina Phillips: Nick looks thrilled.

Nick Capodice: I love this and that.

Christina Phillips: This or that.

Hannah McCarthy: Say it.

Nick Capodice: Isn't a thing, is it? I don't even know what it is.

Rebecca Lavoie: This or that. You can get with this, or you can get with that.

Hannah McCarthy: Exactly.

Christina Phillips: Over the years, many first families have had desserts named in their honor. They may be recipes that the first family became known for enjoying. Or maybe they had a recipe for or it reflected the political attitude of the time. So a dessert that evokes a presidency. I have examples of both, but given that it is the holiday season, I would be remiss if I didn't sneak in one of my favorite seasonal joys, which is the absurdity of perfume marketing. And I know that fragrance is a year round business, and it's a very complicated and historically important one, but for some reason, the marketing around perfumes in the holiday season always reminds me of how weird our preferences for what we want to smell like are, and how we try to sell those smells, especially when you can actually sniff it. So I'm going to read you a list of ingredients, you need to decide if the things I list for this or that describe the ingredients of a presidential dessert, or the fragrance notes of a perfume.

Rebecca Lavoie: Okay.

Christina Phillips: And I will go around the room.

Hannah McCarthy: Okay.

Christina Phillips: Hannah, this one is for you. Vanilla. Pineapple. Apricot rice.

Hannah McCarthy: I'm gonna have to go with that as a dessert. Yes. Nice.

Christina Phillips: It is a dessert.

Nick Capodice: Some sort of rice pudding.

Rebecca Lavoie: It's the Condoleezza Rice pudding.

Hannah McCarthy: Ooh.

Christina Phillips: It's actually. The name is a little lamer than that. It's Jefferson's apricots and rice.

Hannah McCarthy: Plus pineapple in parentheses. Pineapple, apricots and rice.

Rebecca Lavoie: You can say a lot about Jefferson, but you can't say that he's good at naming desserts.

Christina Phillips: Actually. So what's funny is it wasn't named by him. It was actually created long after his death. But it was named by a guy who was sort of famous for putting certain foods on the map by naming them after people. So this was created by Chef Charles Ranhofer, who once worked at New York City's famed Delmonico's restaurant, which is like a huge legacy in the United States. It's been around since 1837.

Nick Capodice: First restaurant in New York City.

Christina Phillips: And Ranhofer is credited with putting the dessert baked Alaska on the map. Yep, I've always wondered.

Hannah McCarthy: I thought that was going to be one of the questions.

Christina Phillips: Yeah, well, actually, so I do have a bunch of facts about Baked Alaska if you want them. Yeah. So it was originally called the Alaska. Florida people thought that was because it was like hot and cold. Do you guys know what a baked Alaska is?

Rebecca Lavoie: It's like a basically a fried ice cream situation. Like ice cream inside a thing.

Hannah McCarthy: They light it on fire.

Christina Phillips: Yeah, yeah. So it's ice cream. It's like an ice cream cake. And then it's frozen super solid, and then it's covered in meringue, which is egg whites, and then it's blowtorch to give it.

Hannah McCarthy: A burnt so you don't light it on fire. I mean, you.

Rebecca Lavoie: Cherries Jubilee, Jubilee, Bananas Foster.

Hannah McCarthy: That's what I'm thinking. Yeah, but I want some tableside flames. Yeah. Me too. I never had that in my youth.

Christina Phillips: Tableside. Like mini blowtorch work?

Hannah McCarthy: No.

Nick Capodice: I want something to just light the sky.

Christina Phillips: So the recipe can be traced back to a thing called the Norwegian omelet, which was created at the 1867 Paris World's Fair as a way to show off the discovery of low thermal conductivity of eggs. Part of the key of the baked Alaska is you can heat up the eggs, and they still retain their shape. And the guy who discovered that Benjamin Thompson actually lived in Bavaria, but the chef who created the dessert thought Bavaria was in Norway instead of Germany. So that's why it's called the Norwegian omelet. And by the way, Thompson, who was born in the Massachusetts colony and eventually married a woman whose family owned most of what is now Concord, New Hampshire. He was a loyalist during the Revolutionary War. And so he went to Europe, and he was living and working in Bavaria, where he helped cultivate potato farming there.

Hannah McCarthy: Nice.

Wow. Full circle. Nick.

Christina Phillips: This one is for you. Is it an ingredient to a dessert or a fragrance? Molasses. Ginger. Cinnamon. Sugar. Beef drippings.

Nick Capodice: Mhm. Now, I would eat the heck out of this. And I'm trying to think of who would want beef drippings in a scent besides me.

Hannah McCarthy: I didn't say.

Christina Phillips: It was perfumes. It could be colognes.

Hannah McCarthy: It could be a Cologne.

Nick Capodice: Right. Mhm. Just because the beef drippings and all those delicious things and like a big dessert with some beef in it, I'm just going to say it's a recipe.

Christina Phillips: It is a recipe. Yes.

Nick Capodice: Kevin what is it. I want to eat it.

Christina Phillips: This is Dolley Madison's gingerbread.

Nick Capodice: She would use some beef drippings in a gingerbread.

Christina Phillips: Rebecca. Mm. Cinnamon. Tonka bean. Vanilla praline.

Rebecca Lavoie: Praline.

Christina Phillips: Praline.

Rebecca Lavoie: Praline. Is that how you say it?

Christina Phillips: Yeah, that's how it's said.

Nick Capodice: I wondered how that was going to get.

Hannah McCarthy: I thought it was praline praline. I also said raccoon. Everyone in this room says raccoon.

Rebecca Lavoie: I say raccoon.

Nick Capodice: I believe in New Orleans, they say praline.

Rebecca Lavoie: I think it's like pecan praline. I don't know, but I say praline praline.

Christina Phillips: Huh? Cinnamon.

Rebecca Lavoie: Huh?

Christina Phillips: Tonka bean and vanilla.

Rebecca Lavoie: Well, I'm gonna just throw this out there. A praline is like a made up thing that, like, you make. So I don't think that that's a perfume smell. So I'm going with dessert.

Christina Phillips: It's a perfume. Oh.

Hannah McCarthy: The tonka bean was a dead giveaway. Tonka bean? Tonka is only in perfume. I think.

Christina Phillips: You also. So the praline is like a baked food, so it almost makes more sense that it would be described as a perfume note.

Rebecca Lavoie: I don't I don't agree.

Hannah McCarthy: Yeah. Sort of a caramelly.

Rebecca Lavoie: Textural note for ice cream is what it is.

Christina Phillips: Exactly, exactly. No, I disagree with you.

Nick Capodice: If we do a call out to ask listeners if it's pronounced praline or praline, I'm gonna bet you guys five bucks. Linda. Monk, are you listening? Tell me how we messed up properly, please.

Christina Phillips: So this is a perfume called Angel's Share by Kilian. And here are the scent notes. Opening with cognac oil upon a bed of oak. Absolute, cinnamon essence and Tonka bean. Absolute. The scents long lasting notes of sandalwood, praline and vanilla. Make for a delicious finish, a rare concoction only angels should experience.

Nick Capodice: Okay, well, the Angel's Share is a booze making term. It's for the whiskey that evaporates from the barrel. And then. So the angels drink it.

Christina Phillips: Hannah? Yes. Pistachio. Cardamom. Peanut. Saffron.

Hannah McCarthy: I was with you until you said peanuts. Mm. Peanut?

Christina Phillips: Yeah.

Rebecca Lavoie: Perfume known as Jif.

Hannah McCarthy: Yeah. I'm gonna say that's a food.

Christina Phillips: It's a perfume.

Hannah McCarthy: Oh a perfume.

Nick Capodice: Who wants to smell like a peanut?

Hannah McCarthy: All right.

Christina Phillips: Luscious Perfume by French Avenue opens with a vibrant and captivating fusion of bergamot, pistachio and cardamom. The creamy, subtly sweet aroma of peanut adds an enticing gourmand element. Nick. Mm. Salt. Caramel.

Nick Capodice: All right.

Christina Phillips: Popcorn. Vanilla.

Nick Capodice: This is hard. I am. I just. No one would want to smell like popcorn. I'm gonna say a food because I don't want anyone smelling like popcorn.

Christina Phillips: Okay, so if you had to describe what food this would be. Salt, caramel, popcorn and vanilla.

Nick Capodice: Like a like an old fashioned caramel corn kind of dish. Like you'd get for Christmas.

Rebecca Lavoie: Is it a popcorn ball.

Christina Phillips: Or it's House of Ode's what about pop! Unveils a crunchy salted popcorn that is then enveloped in delicious caramel. This is the magic of an encounter rendered sublime by a woody signature, which bestows an unprecedented persistence upon the fragrance.

Rebecca Lavoie: God darn it!

Hannah McCarthy: An unprecedented persistence.

Rebecca Lavoie: Nevertheless.

Nick Capodice: Yeah. Don't want it there. And it just keeps showing up.

Hannah McCarthy: Wow.

Christina Phillips: All right. Rebecca? Yeah. Pineapple. Pistachio. Marshmallow. Vanilla.

Rebecca Lavoie: I'll tell you what that sounds like. It sounds like ambrosia salad. So I'm going to say it's a dessert.

Christina Phillips: Well.

Hannah McCarthy: Did you make it?

Hannah McCarthy: I haven't had this since my grandmother was with us.

Christina Phillips: With us? I have brought us all ambrosia. Ambrosia salad, aka Watergate salad.

Rebecca Lavoie: I love it. Wait, this.

Hannah McCarthy: Is what the Watergate.

Rebecca Lavoie: Well, Watergate salad is the green version of this.

Christina Phillips: Yes.

Rebecca Lavoie: The Watergate salad has the has the pistachio pudding in it. You are from.

Hannah McCarthy: Normal, so that makes sense.

Rebecca Lavoie: And ambrosia salad does not have the green, but it is one of my favorite holiday foods. People will say it's so gross, but I love it.

Hannah McCarthy: No, I love it too. It's so nostalgic for me. Christina, thank you.

Christina Phillips: So here's the thing. So first, yes, this is ambrosia salad, but it's pistachio pudding. Marshmallows, pineapple. I got the wrong pineapple. It's like shredded pineapple. So okay. It has the texture of hair. So. I'm sorry.

Rebecca Lavoie: It's still real good. All I taste is a very marshmallow forward.

Hannah McCarthy: Yeah. Oh my God. Wow, that. Whoa! Oh, wow.

Christina Phillips: So while you enjoy, do you want to hear the history of the Watergate salad, please?

Hannah McCarthy: Yeah. Okay.

Christina Phillips: It was not prepared at the Watergate Hotel, as some people think. But it can be traced back to a woman named Christine Hatcher in the Hagerstown, Maryland. The Morning Herald in September 1974. It was getting really popular. People were calling it the Watergate salad. And some people theorize that it was a way to keep the memory of Watergate alive, since it was such a popular dessert during that time period. So it was named the Watergate salad as like a hey, don't forget about Watergate. Eat this pistachio.

Nick Capodice: Wow.

Christina Phillips: Marshmallow pudding.

Rebecca Lavoie: Is it a salad or a dessert? That's the question. Some people put mayonnaise on that. Nasty. Why? Because they do. Because people are gross. That's no offense, gross people who hear me say that.

Christina Phillips: I wonder if it would be better with just mayo.

Christina Phillips: All right, so the final score is Hannah, you have seven. Nick you have seven. Rebecca you have eight. Yes.

Hannah McCarthy: Very well done.

Rebecca Lavoie: It's like I'm like a golden retriever, I'm very food motivated.

Hannah McCarthy: What's it like at the top. Rebecca.

Christina Phillips: That brings us to the end of our holiday food at the white House. Trivia. Thank you all for being here.

Rebecca Lavoie: Especially me.

Christina Phillips: And some parting advice. Make sure to ferment your cherry pits. Cook your eggs. Don't eat more than a dozen oysters in one sitting. And of course, don't break into the Democratic National Committee headquarters to plant listening devices unless you want a pudding named after your actions.

Hannah McCarthy: Well done. Christina. That was so fun.

Nick Capodice: The perfume I wear. They don't. They don't say. You can always have maximum confidence in the original odor protection of Speed Stick deodorant.

Christina Phillips: This episode of Civics 101 was produced by me. Christina Phillips, Nick Capodice and Hannah McCarthy are our hosts. Rebecca Lavoie is our executive producer and the one who edited this episode. Music in this episode from Epidemic Sound and Civics 101 is a production of New Hampshire Public Radio, NPR. Richard Nixon ate cottage cheese with ketchup. There we go. That's my tongue twister. Um, okay.

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Made possible in part by the Corporation for Public Broadcasting.

How do tariffs work?

President-elect Donald Trump has said, "the most beautiful word in the dictionary is tariff, and it’s my favorite word." So what are they? Why might the United States raise or lower a tariff on goods from another country? How has America used tariffs throughout our history? And how might Donald Trump's proposed tariffs affect the cost of goods in the US?

Taking us through tariffs is Dr. Shannon O'Neil, senior vice president and director of studies at the Council on Foreign Relations.

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Transcript

Archival: Trump says, quote, on January 20th, as one of my many first executive orders, I will sign all necessary documents to charge Mexico and Canada a 25% tariff on all products.

Archival: When you put a tariff on, it is not that the other country gets taxed per se, it's that the cost gets pushed on to the consumer. Here in the United States. That's how it works, Christine.

Archival: We're seeing the markets already reacting. But talk to us in terms of what goods, what industries, what kind of impact it's going to [00:00:30] have on Americans.

Archival: Just about everything you touch.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today, at the behest of several listeners, including a good many social studies teachers, we are talking about tariffs. And yes, before we begin, tariffs are about money.

Hannah McCarthy: You kind of hate talking about money, don't you, Nick?

Nick Capodice: I do Hannah. I hate it, and every time I admit on this show that economics always make [00:01:00] my eyes glaze over a little bit. I get this well-intentioned email saying, well, Nick, you really should pay attention to finances. And that's absolutely true. And I should have flossed a lot more when I was a kid. That said, I now love learning about tariffs. My eyes have cleared up and I hope by the end of this some of you all are in the same boat.

Hannah McCarthy: All right, let's do it. Start at the top. What are tariffs.

Shannon O'Neil: So tariffs are basically taxes.

Nick Capodice: This is Doctor Shannon O'Neil vice president [00:01:30] at the Council of Foreign Relations and author of The Globalization Myth.

Shannon O'Neil: They're just like the taxes that you pay when you go to the grocery store or when you get your bill at a restaurant, the tax that's put on the bottom, the difference is a tariff is a tax on things that are coming from outside the country. So think of it as a sales tax, but it's for things that are imported into the United States.

Nick Capodice: I want to add here that there are also export tariffs, but those are not what we're generally referring to specifically in this news cycle. Today [00:02:00] we are talking about import tariffs.

Hannah McCarthy: Okay. And when it comes to these import tariffs do you think that you could give me a hypothetical. Like what does it actually look like.

Nick Capodice: Absolutely. Sure.

Shannon O'Neil: So for example there are terrorists that are put on what economists would call finished goods. So that is when a car comes in from Mexico or comes in from Japan, it could have a tariff on it. It could be 2%. It could be 20%.

Hannah McCarthy: Okay. I'm following here. Let's say it's a car that comes to [00:02:30] America from Japan, like a Mazda miata or something.

Nick Capodice: All right, so the Miata, the Mazda miata is created in Japan. It is sold to someone in the US, an importer, for $20,000. So if there is a 20% tariff on cars from Japan, that means instead it costs $24,000. That extra $4,000 goes right to the US government.

Hannah McCarthy: And who pays that money? Who has to actually give that 4000 to the [00:03:00] government as.

Nick Capodice: An excellent question. It's one I wondered as well. The importer. Does the company or person who buys the car from Japan to sell somewhere down the chain? That is, who pays the $4,000? It is collected by a customs official at one of our 300 plus ports. People in other countries do not pay the tariff.

Archival: We're going to have 10 to 20% tariffs on foreign countries that have been ripping us off for years. We're going to charge them [00:03:30] 10 to 20% to come in and take advantage of our country, because that's what they've been doing for nothing.

Nick Capodice: Now, president elect Donald Trump has said on numerous occasions that he will impose tariffs and make other countries pay more. But again, it is the importer, the person in the US, not in the other country, that pays the tariff. And furthermore, tariffs don't just affect someone selling stuff made in other countries. It affects a ton of stuff [00:04:00] made right here in America.

Shannon O'Neil: You also see tariffs on things that go into the making of things here in the United States. So that could be, for instance, in your local bakery, they're making chocolate chip cookies. Well, you know what. We don't grow cocoa beans here in the United States. So those cocoa beans are coming in from another country and you could have a tariff on them. We also don't grow vanilla beans. So if you have vanilla in your cookies or cinnamon in your cinnamon rolls, those two are likely coming from abroad and are going to your local bakery that mixes them [00:04:30] in and makes your favorite treat.

Hannah McCarthy: Do we currently have any tariffs on vanilla beans?

Nick Capodice: Well, Hannah, to know that we're gonna have to check the old handy dandy harmonized tariff schedule. This is the document that lists the tariff rates for every single thing that is imported into the United States. Now, to be clear, the BTS doesn't set those rates. This is just the database to get an idea of how much it will cost to import any given item. This is a thrilling 4000 page document [00:05:00] that anybody can look up, and vanilla sits right there on the page, nestled between ground pimento peppers and cinnamon. So it says there are no current tariffs on vanilla bean or crushed. And determining tariff rates is an art. It's a science. The US Customs and Border Protection website, they give the example of a wool suit. It says that somebody classifying how much it will cost to import needs to know. Quote does it have darts? [00:05:30] Did the wool come from Israel or another country that qualifies for duty free treatment for certain of its products? Where was the suit assembled? Does it have any synthetic fibers in the lining? And seriously, Hannah, anything you can imagine and it's tariffs are in that document. Handmade lace bagpipes primate meat.

Hannah McCarthy: Primate meat?

Nick Capodice: Primate meat! Primate meat has a 6.4% tariff, by the way, half as much as handmade lace. Interestingly

Hannah McCarthy: Tell me that someone [00:06:00] has made a board game about this.

Nick Capodice: How about I tell you that future tariffs might impact board game costs?

Hannah McCarthy: All right, another worry for another day. Uh, Nick, why do we have tariffs in the first place? Why would we have a high tariff on handmade lace and none on vanilla beans?

Shannon O'Neil: So there are various reasons why one would put tariffs in. One is because you want to make those things here in the United States.

Nick Capodice: You know, I picked the handmade lace [00:06:30] thing because I thought it was pretty funny. But it works. As an example, part of the reason we have that tariff is the US wants people to buy handmade lace made here in the good old US of A, and naturally that sentiment extends to things that are a little more important in our everyday life.

Shannon O'Neil: We decide, you know, we want to make semiconductor chips because we want to have that technology here and we want to have a capacity here in case other people stop selling to us. That will [00:07:00] have the chips to have laptops and iPhones and, you know, Department of Defense fighter jets and things like that. That's one reason to have them.

Nick Capodice: And to that point, Congress in 2018 set some pretty high tariffs on things like electric cars, solar cells and semiconductors made in China, specifically.

Hannah McCarthy: Because we are developing the ability to make electric vehicles here in the United States. So putting a high tariff on electric vehicles from a country that makes them for [00:07:30] a much lower cost and sells them at a much lower cost, can support the American electric car industry.

Nick Capodice: Absolutely right. And here's reason number two for tariffs. Tariffs used to be the way that we did things in the United States from the 1800s until the end of World War two. We espoused a protectionist philosophy.

Hannah McCarthy: Protectionist, I'm assuming, because we were still a fairly infant nation. We were trying [00:08:00] to get our feet under us. And when it comes to high tariffs, I'm assuming that supported our industry, right. It stopped us from relying on other countries for goods, which helped us to grow.

Nick Capodice: Exactly.

Shannon O'Neil: So tariffs were one of the things that the US government long ago used to raise money. We were a different economy then. We were a very agricultural based economy. So we sold lots of cotton and other agricultural products to more developed, more sophisticated economies in Europe. At [00:08:30] the time, we imported it from the UK. At the time, Britain, or we imported it from countries across Europe. So we wanted to protect our industries. So we put lots of tariffs on there where it would be 50 or 100% more expensive to import British made cloth in order to create a cloth industry here in the United States. That's one example. We did it too, with basic machinery. You think about all kinds of, you know, wrenches and hammers and things like that, that to they at the time were better at making iron than we were that putting [00:09:00] together, you know, various chemicals and the like. And so we protected those industries to encourage companies or inventors and the like to come here and, and set up those industries here so those industries can prosper. The challenge is if you put lots of tariffs on particular economies, is that then lots of other economies put tariffs on you. And so it's very hard for those goods that you make here, whether it's cloth or it's hammers or things like that back in the day, or [00:09:30] whether it's semiconductor chips today or iPhones or other sophisticated products that the United States is really good at making. It's hard for us to sell to the other people because they put tariffs on our goods and make them much more expensive when we try to sell it to consumers around the world.

Hannah McCarthy: Now, you said we had this protectionist philosophy Until World War two. How did the war change? The way we approached tariffs?

Nick Capodice: Well, after World War Two and continuing on [00:10:00] through the Cold War, there was a very clear us versus them mentality. And economists shifted to a free trade model. Capitalist countries could sell stuff to each other without being hindered by tariffs. America had a pretty well-established industry at this point, so now it was time for everyone to get rich selling stuff to each other.

Hannah McCarthy: And Nick, we're talking about tariffs right now because president elect Donald Trump has said that he [00:10:30] will bring them back in a big way.

Archival: I'm a big believer in tariffs. I think tariffs are the most beautiful word. I think they're beautiful. It's going to make us rich.

Hannah McCarthy: Do people see this as a step toward encouraging American industry the same way we did in the 1800s?

Nick Capodice: I mean, it could be seen that way. But Shannon says that we like the global We? We just don't work that way anymore.

Shannon O'Neil: The problem or the challenge with that is when you try to make it all here at home. You can make those goods more expensive. And what [00:11:00] has happened over these last 30 or 40 years with globalization and supply chains, global supply chains that we talk all about, especially since the pandemic. You know, the benefit of those is that products become much cheaper because an individual factory can make, you know, a particular product, a pair of socks, not just for, you know, people in Iowa, but for the people all over the world. They can potentially make socks for 8 billion people. And so they get to what economists call an economy of scale, [00:11:30] where they're churning out so many socks that each of those socks costs much less individually than if you're just at home darning your own socks in your living room. The benefit for us is you and I go to Walmart or Target or your local store that you like, and we can buy a pair of socks for a couple of dollars. You couldn't do that 40 years ago because of those the difference in the way the economies work. But we also don't make a lot of socks here in the United States anymore. And that is why one might put tariffs on. If you wanted to make socks again in the United States, [00:12:00] you probably would have to put pretty high tariffs on you. And I would start paying $20 maybe for a pair of socks, not $2 for a pair of socks. Um, but they would be made here in the United States.

Nick Capodice: Real quick, there's another reason we sometimes impose tariffs, and that's to discourage the use of something like tobacco or certain kinds of alcohol.

Hannah McCarthy: What do you mean by certain kinds of alcohol?

Nick Capodice: Oh, there's like, oh, there's a whole megillah. I can't get into it [00:12:30] about how the EU put a tariff on American whiskey because of a tariff the US had on airplane manufacturing. Whiskey makers in the US were hit hard because Europeans bought less of it due to the tariff. And then we have that. The Trump administration put a massive tariff on wine from Europe, except for Italy for some reason. And the Biden administration reversed the wine tariff. But it's on the horizon to return in 2025. Okay.

Hannah McCarthy: Hearing that, Nick, it makes me feel like tariffs are more [00:13:00] an element in the global conversation, right? It's about maybe rewarding another nation or sort of slapping the hand of another nation, more so than it is about encouraging industry in your own nation.

Nick Capodice: Wonderfully put.

Hannah McCarthy: So our tariffs that are they just a tool in the diplomatic utility belt.

Nick Capodice: Well, I will get into that utility belt as well as a deep dive on Trump's proposed tariffs. [00:13:30] But first we got to take a quick break.

Hannah McCarthy: But before that break Nick and I wrote a book about all of the many things we have learned about America over the years. I don't think we have tariffs in there, do we?

Nick Capodice: I don't think we did, but we didn't know at the time everything else is in there.

Hannah McCarthy: Though we did put a lot in there. It is called A User's Guide to Democracy How America Works.

Hannah McCarthy: We're back.

Hannah McCarthy: We're talking about [00:14:00] tariffs here on Civics 101. And Nick, you know we're not a couple of seers here.

Speaker10: Soothsayers, augurs cassandras.

Hannah McCarthy: That one is debatable. Anyway, my point is that we cannot predict the future. But I do think we should talk about president elect Donald Trump's proposed tariffs. What are they?

Nick Capodice: So some of Trump's tariff promises have vacillated over the last few months. But here is what he claimed this November. He has proposed a blanket [00:14:30] 25% tariff on all goods coming from Mexico and Canada, and a 60 to 100% increase on tariffs on all goods coming from China. Also a 10 to 20% tariff on everything else from everyone else.

Hannah McCarthy: And is it the president who sets a tariff? Is that an executive power?

Nick Capodice: Well, the Constitution says no. The Constitution grants Congress the power to set tariffs. Article one, section eight. However, in 1934, [00:15:00] Congress signed the Reciprocal Trade Agreement Act, which gave the executive branch the power to set tariffs with congressional approval. And Franklin Delano Roosevelt was the first to do that, and since then there have been about a half a dozen other acts signed into law ceding tariff powers to the president, given certain situations.

Hannah McCarthy: How do economists generally view tariffs? What are their feelings about these proposed sweeping tariff changes that might [00:15:30] happen with the incoming administration?

Nick Capodice: All right. Here again is Doctor Shannon O'Neil, VP at the Council on Foreign Relations.

Shannon O'Neil: So the research shows, and even the tariffs that we've seen over the last eight years has shown that these are costly for us consumers. Um, and there's different kinds of tariffs. The tariffs in the past have often been targeted tariffs, meaning they choose particular products or particular sectors. So it's not saying everything that comes in from China has [00:16:00] a 60% tariff. It's saying, you know, things that come in from China that are in the electronics space. So electronics that come in from China, they're going to have a 20% tariff. Uh, toys that come in from China, they're going to have a 20% tariff, clothing that comes from China, that's going to have a 25% tariff. So it's choosing particular products. And what the research has found over the last eight years, since those tariffs went into place, is that it raised prices in those sectors for US consumers. So [00:16:30] the prices of those goods that have tariffs, they went up.

Hannah McCarthy: Does Shannon have any idea of how much prices might go up with Trump's proposed tariff increases?

Nick Capodice: Well, she didn't give me an exact number, but the Peterson Institute for International Economics released a study in August 2024 that estimated these increases would result in a cost of $2,400 per family per year. And it hits hardest for those with less money. They write that all households, [00:17:00] quote, lose net income from such high tariffs, but the losses are greatest for those at the bottom of the income distribution. The median household would expect to see its after tax income fall by about 4.1%. The top 1% would experience net gains in income because their losses from tariffs are more than offset by Trump's proposed tax cuts, end quote.

Hannah McCarthy: What about the effect tariffs have on who we buy from? I imagine that if there's a super high tariff [00:17:30] on one country, we're going to get stuff from another country.

Nick Capodice: Yeah we will. And Shannon said that this is something that her research has made abundantly clear.

Shannon O'Neil: We put a tariff on clothing coming in from China, we don't bring as many clothes in from China as we did in the past, we bring in clothes from other countries. Now we bring it in from Thailand. We bring it in from Malaysia, we bring it in from Mexico or Central American nations. So you see a shift in trade with those tariffs into the United States. And you also see, in some cases, a rise [00:18:00] in US prices of those goods, because that tariff gets passed along to individual consumers. It costs more on the shelf when you buy it at the store or on Amazon.

Hannah McCarthy: Can we come back to the diplomacy thing? It sounds like tariffs are part of this diplomatic toolkit, so to speak. Does stopping free trade with other countries have an effect on how we interact with them, deal with them in other matters?

Nick Capodice: It absolutely does.

Speaker9: So in the past.

Shannon O'Neil: Often we turn to countries that we like, countries that are our [00:18:30] allies or our partners, and we say, hey, let's do a free trade agreement, let's bring our economies closer to each other, and we'll buy and sell more from each other. And one thing we'll do Diplomatically but also economically is we will reduce tariffs. In fact, we might get rid of all tariffs between our two countries because, you know, we trust each other. We think that you're a strong economy on your side would be good for us because we're allies. We're partners around the world. And we want prosperous allies out there. One, because they could come support us if we get into a fix [00:19:00] and there's a war or there's a conflict, we want them to be able to contribute.

Nick Capodice: Like I say, the Toby Ziegler was completely right when he gave his speech on the West Wing about free trade.

Toby Ziegler: Clothes are cheaper, steel is cheaper, cars are cheaper, phone service is cheaper. You fill me building a rhythm here. That's because I'm a speechwriter. I know how to make a point, Toby. The lowest prices. It raises income. You see what I did with lowers and raises there? Yes. It's called the science of listener attention. We did repetition. We did floating opposites. And now you end with the one that's not like the others. Ready? Free trade stops wars. [00:19:30] And that's it. Free trade stops wars.

Nick Capodice: By the way, if you look up the science of listener attention, you're going to see it was completely fabricated for this episode. But to Toby's point, when you trade with another country, it does grease the wheels for other diplomacy. If you and another country are both prospering from each other, you're probably going to have an easier time negotiating other stuff. But diplomacy is not the only reason we trade. [00:20:00] We trade because we want stuff and we don't have everything.

Shannon O'Neil: We don't make coca. You want chocolate chips right in for for your pancakes, for your cookies, for whatever it is that you like. There's lots of other things that are produced around the world that we want to have as consumers here in the United States. And importantly, we want to be able to sell the things that we make here that support U.S. jobs in countries around the world. And, you know, 95% of the world's population lives outside of the United [00:20:30] States. Wouldn't it be great if they were buying products that were made in the United States? They're much more likely to buy products if there are no tariffs when it goes into that country. So signing a free trade agreement where we say, hey, in the United States, you can bring your your products in with zero. But if we go to your country, you have zero tariffs on your products, then we get to export our products to Mexico or South Korea or Peru or Singapore or other places where we have free trade agreements. We [00:21:00] get to export to those countries without paying any tariffs on our goods. And so their consumers don't have to pay more to buy American products.

Nick Capodice: And Hannah, I don't want to end this episode with you thinking tariffs are capital B bad. Shannon says they have their purpose and they can be justified.

Shannon O'Neil: There are places for tariffs. It's not that they should never be used and there are a couple reasons to use them. One is if other countries are being unfair [00:21:30] in the way they make things and they're favoring their own companies, it's not fair for our companies to try to participate or try to compete against others that have a bigger advantage. So let's say in China you're neo, you're making electric vehicle cars, and the Chinese government promises to buy lots and lots of cars for all of the taxi stands all over Shanghai from a particular company. Well, that company has a leg up because they know they have all these orders. Or let's say the government gives them free electricity or free land. [00:22:00] Well, US companies, GM, Ford, they don't get free electricity and land. So that's not fair in terms of the price of the car. So there's a reason perhaps to put a tariff on.

Nick Capodice: And another reason we might have tariffs is because frankly, it can be a national security issue.

Hannah McCarthy: How is it related to national security?

Nick Capodice: Well, think of war, right? The war machine. 50 years ago, it was tanks and bombs. We used to fight and protect ourselves. And that is a lot of steel. That's a lot of aluminum. We [00:22:30] need to be able to produce our own steel and aluminum, in case we end up in a conflict with our biggest steel and aluminum suppliers. But war is not just tanks and bombs anymore. It's drones, semiconductor chips, satellites. War will be fought in the skies. And I'm not talking about airplanes. And it is so scary to me, Hannah, that I'm going to leave the Tim Curry space joke until the credits.

Hannah McCarthy: All right. So tariffs [00:23:00] have a place. They are a kind of insurance for if and when we enter a conflict. And there are some times they can help level the playing field. If another country is producing goods with what we perceive to be an unfair advantage.

Nick Capodice: Yeah. The problem though, and this isn't just Shannon's belief, by the way. 16 Nobel Prize winning economists signed a letter this June expressing concern about Trump's proposed tariffs. The problem is that they're not [00:23:30] targeted. They're just a percentage on a country, not on a specific item.

Shannon O'Neil: Broad based tariffs. When you put these on broadly, the challenge is it makes U.S. products more expensive. And that has two things it means we're not going to sell to we're not going to sell our products, our goods to other countries because it'll just be too expensive. Other goods made in other places will be cheaper. And so a consumer will buy, you know, a toy or a computer or [00:24:00] a shirt from others because it'll just be cheaper, better made perhaps, or similarly made, but cheaper. So that's one reason. But the other thing is actually in the United States, if you're buying something that's made just in the United States, in this global world, it's going to be more expensive here for the United States as well. So if you're going to buy socks, you could buy socks for $2, or you could buy socks for $20. You might buy fewer pairs of socks if they're going to cost you $20 than if they cost you $2. So [00:24:30] that means for the people who make socks, who make the cotton or the wool that goes into the socks, they're going to sell fewer pairs. That means the store that you go to, you're going to visit fewer times to go and buy the socks. That means the clerks that work there maybe don't need as many clerks. Maybe you don't need as many stores. It means other parts of the economy begin to slow down and you start losing jobs. You start losing consumption. And that is a big driver of US prosperity. So there's a cost, not just in access [00:25:00] to the rest of the world and consumers that are in countries on the other side of the world. There's also a cost to the US economy because Americans stop buying as many things. That means there's fewer jobs to make the things that Americans might buy. And we see our economy slow overall.

Tim Curry as Premier Cherdenko in Red Alert 3: I'm escaping to the one place that hasn't been corrupted by capitalism.....SPACE

Nick Capodice: Well there you go isn't that just a bit of tariffic. this episode was made by me Nick Capodice with you Hannah McCarthy thank you. Christina Phillips is our Senior Producer and Rebecca Lavoie our Executive Producer. Music in this episode from Epidemic Sound, Blue Dot Sessions, ProletR, HoliznaCCO, Bisou, and heaven help us if there's ever a tariff on the beats by Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

What is authoritarianism?

Authoritarianism and autocracies take many forms. So how do you know it when you see it? Our guide to the erosion of choice, rights, truth and power is Anne Applebaum, author of several books including, most recently, Autocracy, Inc..

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Transcript

Archival: [00:00:07] Indisputable is that the government is using military courts to try civilian protesters, that opposition figures are behind bars, that the president says he wants to change the Constitution in order to, quote, restore the peace. How is that not creeping authoritarianism?

Archival: [00:00:22] Chairman Mao may loom large here as a symbol of strength, but he's also a reminder of the chaos that can come when one [00:00:30] leader has far too much of it.

Archival: [00:00:32] The Iranian regime has shut down the internet all across the country as it brutally cracks down on massive protests.

Archival: [00:00:39] Increasingly hardcore autocracy one man rule.

Archival: [00:00:43] Orban successfully transformed Hungary's democracy into an autocracy.

Archival: [00:00:48] The actual framework of governance that Maduro has been able to bend to his will, to be able to stage phony elections like the one that's going to be held this weekend.

Archival: [00:00:56] Unless he's forcibly removed from power. Mr. XI should now [00:01:00] be able to personally choose for how long he will govern.

Archival: [00:01:02] Much of that control now rests in the hands of just one man.

Hannah McCarthy: [00:01:13] Hey, Nick.

Nick Capodice: [00:01:13] Hey there, hannah.

Hannah McCarthy: [00:01:14] This is Civics 101. And this is an episode about something I think a lot of us think we understand terms that we hear a lot, perhaps especially lately. But as with so many things we talk [00:01:30] about on Civics 101, I had to ask myself, do we know what we are talking about? So, per usual, I found someone who for sure knows what she is talking about.

Anne Applebaum: [00:01:44] I'm Anne Applebaum, I'm a staff writer for The Atlantic. I also teach at Johns Hopkins University, and I'm a working historian.

Hannah McCarthy: [00:01:52] I came to Anne with a question. My question was, what is authoritarianism? And right off the bat, [00:02:00] I think I got a better catch all term for the thing we are talking about today.

Anne Applebaum: [00:02:06] So authoritarianism or autocracy is a political system in which one person or one small group of people, or sometimes one political party rule without any checks and balances, without independent courts, without an independent media, without a legitimate opposition. They're able to rule without any anything [00:02:30] hampering them at all. They're not obligated to follow the rule of law, meaning that a legal system in which laws are made by courts and judges separately from whoever is in power. Instead, they operate according to something that we call rule by law. That means the law is whatever the person in charge says it is, so it can change from one day to the next. That's the simplest definition of autocracy.

Nick Capodice: [00:02:55] Autocracy. That word feels both generally [00:03:00] Really nefarious, but also kind of cool and removed, like kind of clinical. It does.

Hannah McCarthy: [00:03:05] And okay, so I think that this will help you. That word comes from both ancient Greek and ancient Latin. It went from meaning, you know, self-power or self-control to being a word used to describe military commanders with a lot of power. And eventually it kind of got smudged into being the word sometimes used to describe the person in charge of everybody [00:03:30] and everything.

Nick Capodice: [00:03:31] All right. Cool. That makes a lot more sense.

Hannah McCarthy: [00:03:33] Moving on. And told me that there are many autocracies on this earth of ours, and they are not identical, but they share three characteristics.

Anne Applebaum: [00:03:45] People don't have guaranteed rights. So you don't have, for example, the right to freedom of speech in any kind. You can be arrested for something that you say, even if it's true or even if it's not important or significant. You [00:04:00] don't have the right to contest power or to affect or change whoever is in power. So you have a single leader or a single political party. They rule and there is no legitimate way to be in opposition to them. There's no way to change your own government. You don't. You can't vote. Or if you can vote, the vote has a significance. Some autocracies do create very elaborate fake essentially systems of voting, kind of pretend voting. But [00:04:30] you don't have any ability to change the regime. You don't have rights in the regime, and you also don't have the ability to, you know, make an argument based in law. You can't say you have taken away my property, and that's illegal according to this particular statute, because the law will change according to what the leadership wants it to be.

Nick Capodice: [00:04:55] So basically you get no say, right? [00:05:00] You have no protections. The rules could change at any minute. One minute you're standing on solid ground and the next thing you know, the floor is lava. Right.

Hannah McCarthy: [00:05:10] But again, these governments vary. So is a dictator, for example, an autocrat? Yes. Is an autocracy a dictatorship? Not necessarily. It's kind of a a square is a rectangle, but a rectangle is not a square situation. [00:05:30]

Anne Applebaum: [00:05:30] There are many different kinds of autocracies. Um, you know, there's Communist China and nationalist Russia and theocratic Iran, and they all have very, very different rules, and some of them have more access to freedom or to other ideas than others. Some are very tightly controlled.

Nick Capodice: [00:05:45] And all of those nations. Hannah, correct me if I'm wrong here. They all kind of work together, right? Like, I know that China and Iran, for example, they support Russia's war on Ukraine.

Hannah McCarthy: [00:05:55] Oh yeah, among many other things, and actually wrote a book about that. It's called [00:06:00] autocracy, Inc. and you should read it. It's not about all of these governments agreeing or thinking the same thing. It's more like this informal way of using your absolute power to keep someone else in absolute power. And then, Nick, there are plenty of governments that have autocracy vibes, so to speak, but aren't, you know, broadly autocratic, at least not yet. They're dabbling pinch of control here, dash of restriction [00:06:30] there. And then there are countries that actually take it even further.

Nick Capodice: [00:06:34] Further than no rights, no say no protections, no consistency.

Anne Applebaum: [00:06:39] There's a further step. We used to speak often about totalitarian systems, and these are systems in which the political leadership really does seek to control everything. So not just politics, but also economics, also social life, also education, culture, everything. And so everybody inside the system is is meant only to read [00:07:00] and listen and think. According to a set of rules, you know, a set of ideas given by the leadership, probably it's fair to say that totalitarianism is hard to achieve. It's hard to really prevent everybody from thinking differently from what the regime says. But the attempt to create it has been real. I mean, there have been there have been a number of very real attempts to create totalitarian systems.

Nick Capodice: [00:07:24] So Anne here is describing utter total control, right. Like [00:07:30] thought police levels of control or something close to that.

Hannah McCarthy: [00:07:34] Yeah. I mean, you know, thought police is kind of impossible. But I think that would be the dream in a system like this. Right. And again, it's not exactly an easy thing to do, but if you give a mouse a cookie, they might just tell you that two plus two equals five.

Nick Capodice: [00:07:46] All right, Hannah, here's what I have to know. How how does a country become something like this? Is it possible, for example, for a democracy to stop [00:08:00] being a democracy or to become an autocracy.

Anne Applebaum: [00:08:04] So I don't know that there's a playbook for creating autocracies. There are some countries where there has never been anything else, so there has never been democracy in China. You can't really speak of there being a playbook to achieve something that is pretty much always been there. There is a path towards authoritarianism that a number of democracies have followed. So democracies do decline. They have been declining since the time of ancient Rome, when the American [00:08:30] founders were writing the Constitution. They had that example in mind.

Hannah McCarthy: [00:08:33] You know, it may come as a surprise, but I actually do think about ancient Rome all the time. What happened there was that a democratic system was dismantled over time by corruption, division and military threats. We can talk about that some other time. It's a long story, but the framers were sure thinking about it when they wrote the Constitution.

Anne Applebaum: [00:08:59] They were thinking about [00:09:00] how to prevent democratic decline, and democratic decline usually involves the rise to power of perhaps an elected, legitimate leader who begins to take apart the institutions I've been talking about. So a leader who seeks to take over state institutions that are meant to belong to everybody and instead make them work for him, either politically or financially, or a leader who seeks to politicize the justice system instead of having justice be something [00:09:30] that is neutral, that is meant to where you know, the courts, you know, the legal system are supposed to abide by the Constitution and by the law. An authoritarian leader will try to change that so that courts are politicized and the courts will respond to whatever, whatever the leader wants. Sometimes the path to authoritarianism also includes attempts to control public conversation or information. So to push hard against independent media to silence critics first, either legally or but maybe [00:10:00] eventually using repression. Not all autocracy involves repression or, you know, jail or violence, but many of them end up doing that because in order to keep control, authoritarian leaders very often wind up relying on violence.

Nick Capodice: [00:10:14] I guess that violence is a pretty direct path to forcing people to give you what you want.

Hannah McCarthy: [00:10:20] Well, if you're trying to undo a system where citizens have power, they might not be super thrilled to just give it to you. So sometimes [00:10:30] it's about taking, and taking is rarely peaceful.

Anne Applebaum: [00:10:35] But in the beginning, the decline of a democracy. And we've seen and this is, by the way, something that can happen either led by movements coming from the left. There's a version of that, for example, that took place in Venezuela over the last couple of decades.

Archival: [00:10:47] In 2013, the then president Hugo Chavez, passed the baton to Maduro after being diagnosed with cancer. His successor promised to continue the socialist revolution, lifting people out of poverty. [00:11:00] But that promise is well and truly broken.

Anne Applebaum: [00:11:03] Or movements coming from the right. And they're the kind of classic modern examples. Probably Hungary, a country whose elected leader slowly took apart the state, removed rights, removed, changed, altered the situation so that rule of law didn't really apply in Hungary.

Archival: [00:11:20] Many Hungarians see their right wing prime minister as this totalitarian. Many people are worried about core democratic values such as free speech or an independent [00:11:30] judiciary. Many members of the EU Parliament say the rule of law in Hungary is being threatened.

Anne Applebaum: [00:11:36] I mean, it can happen pretty fast. Um, Hungary is a very small country, and so it turned out to be very easy for a democratically elected leader who had that idea in his head to capture institutions, to put people in charge of the institutions who would be loyal to him personally and not to the Constitution, for example. He did that fairly quickly over several years. Venezuela. The left wing example is a is [00:12:00] an example of a place where it took longer. There were a series of elections. The Hugo Chavez, who was the original, who led the original assault on the political system, was actually, you know, reelected a couple of times legitimately and really only was later on when he and then his successor, Nicolas Maduro, began to break the law more systematically, that you could really call Venezuela a full autocracy rather than just a messy democracy.

Nick Capodice: [00:12:34] So [00:12:30] there's no one way that this happens. It could be pretty quick under one person, or it can be slower under a series of leaders who have that same goal of breaking the government.

Hannah McCarthy: [00:12:46] Yeah, there are a lot of paths, a lot of tactics that can contribute to the decline of a democracy or some other system of government and the rise of an autocracy. So, Nick, you asked me, is it possible [00:13:00] for a democracy to stop being a democracy? And I told you earlier that it's possible for a country to have autocratic elements without being autocratic. It's also possible to be a democracy while you're losing elements of democracy. So one of the examples that Ann brought up was, you know, when people who follow the law or tell the truth are threatened. I mean.

Anne Applebaum: [00:13:25] This is something that came up after the 2020 election. So Republicans who followed the law [00:13:30] and understood that the election was not stolen, they found that when they spoke the truth, they were assaulted both online and sometimes in real life. And when you have a situation where people are afraid to say true things or afraid to make arguments because they're worried that somebody will murder them in their families, then you already begin to have a situation where people don't feel free. And that began to happen in the United States, very notably after after 2020.

Hannah McCarthy: [00:13:56] And also pointed to the problem of government Becoming [00:14:00] performative. So that's like taking systems that exist to uphold the law and using them basically to put on a show.

Anne Applebaum: [00:14:09] Congressman Jim Jordan ran something called the Weaponization of Government Commission in the last Congress, and took it upon himself to examine the work of people who do research into disinformation, for example, or into patterns of conversation online, and unfairly accused some people who had been researchers who had been academics of being involved in censorship, which they were not involved [00:14:30] in. You know, this then led to a series of court cases. Eventually they made it all the way to the Supreme Court. But the entire time, I mean, both the congressional hearings and the court cases were based on things that hadn't happened. Um, you know, so again, when when lies or untruths become a kind of fundamental basis of political argument and become accepted by, you know, by people within the system, then you're also on a road towards autocracy.

Nick Capodice: [00:15:05] All [00:15:00] right. So I have to ask at this point, are we, Hannah, are we on the road towards autocracy? Is this democracy? American democracy in trouble?

Hannah McCarthy: [00:15:20] Well, we're going to get to that after a quick break.

Nick Capodice: [00:15:23] Oh, come on, for real.

Hannah McCarthy: [00:15:25] But before that break, a quick reminder that Nick and I have a book that covers a whole lot [00:15:30] of the story of this nation. In fact, it is the perfect companion for those moments when you find yourself asking, is this against the law? Is there any precedent for this? Why is this happening? It's called A User's Guide to Democracy, and it is just that. You can get it wherever books are sold.

Nick Capodice: [00:15:59] We are [00:16:00] back. We're talking about autocracy today, what it is, what it looks like and how it happens. And just before the break, Hannah, you decided to make us all wait to hear whether this nation of ours is on an autocratic road.

Hannah McCarthy: [00:16:15] So is it. Well, we can't predict where this is leading, right? We can't predict the future.

Nick Capodice: [00:16:21] You're an artful dodger, McCarthy.

Hannah McCarthy: [00:16:23] But we know what autocracy looks like. Or rather, Anne Applebaum knows. And we [00:16:30] are learning. And Anne says that this democracy, our democracy, has had cracks in the foundation for a while now.

Anne Applebaum: [00:16:38] There have been elements of American democracy that have been broken for a long time, you know, and we all know what they are. The amount of money, including the secret money in politics, the money that people can use to create PACs or to support election campaigns, you know, has led to American elections becoming a kind of circus. I mean, by comparison to elections in other democratic countries, most countries don't spend [00:17:00] millions and millions, you know, hundreds of millions of dollars on their election campaigns. And we do. And I think that's a sign of real decline, the change in the nature of information, the fact that people get information that they receive through algorithms that have been designed to to send people emotive and angry and divisive material. This is how the interweb works more broadly. It's not just about social media. You know, the advertising system rewards people who who have, [00:17:30] you know, angry and divisive conspiracy theories, for example. And by allowing those ideas to dominate the information system and to, you know, and to help divide Americans and to create deep partizanship, those changes have been in the works for a long time, and they precede anything that's happened in the last in the last few years.

Nick Capodice: [00:17:49] Money and information. Isn't that always the way?

Hannah McCarthy: [00:17:53] And not just money. Secret money. Hidden money. And says there are different types of [00:18:00] economies at play here, one that is in the light and another in the shadow.

Anne Applebaum: [00:18:06] We often forget that alongside the normal economy, alongside the economy where you and I pay taxes, and if we have businesses, we are subject to regulation. And if we own a company, our name is on all the documents. There is also another economy where where money is kept offshore, where it flows through shell companies that are held anonymously. Property can be purchased anonymously. And that world, that [00:18:30] kind of offshore world has been hugely beneficial both to the autocratic world and to people inside the democratic world who who want to evade the law or evade taxes or hide, hide their wealth. It's not a subject people know much about, but it's that the growth of it, explosive growth of it, I should say, over the last decade, is another indication that our democracy, not just in the United States, but in Europe as well, is declining because so much money can be taken and hidden secretly and giving people [00:19:00] power and influence secretly that that is impossible to know. I mean, transparency and accountability are marks of democracy, and secrecy is a mark of dictatorship. Okay.

Hannah McCarthy: [00:19:12] Another thing that we need to talk about. Does it matter when our leaders use language that autocrats use?

Anne Applebaum: [00:19:20] I worried a lot during the last election campaign about some of the language that Donald Trump was using, because to me, it was reminiscent of language I had heard in other times [00:19:30] and other places. So when you call your opponents vermin, or you talk about them as enemies of the people,

Archival: [00:19:34] The radical left thugs that live like vermin within the confines of our country, they are truly the enemy of the people they are.

Anne Applebaum: [00:19:42] That's language borrowed from the dictatorships of the past. And you do that if you like Viktor Orban or like Hugo Chavez. If you're somebody who wants to be able to say, I have complete power and authority, my enemies and opponents are vermin. You know, you don't have [00:20:00] to take account of them or they're enemies of the state. They're traitors. That gives you license to begin to take apart the state. Remember that democracy depends on a kind of. You know, it's almost a I mean, it's almost sort of inhuman, a very difficult kind of sense of fair play.

Hannah McCarthy: [00:20:19] And talked about the fact that there are rules, there are systems that we are all supposed to agree on and abide by rules and systems that are designed [00:20:30] to keep this country democratic.

Anne Applebaum: [00:20:33] Once people begin to break that rule or break that bargain, and once the, you know, there's a winner takes all system whereby if you win an election, you get to destroy everything or change everything, then it becomes much, much harder to maintain a democracy. And that language is now part of our system. This idea that one side or the other side is illegitimate and can't be allowed to rule that level of partizanship that we reached in the US is really reminiscent [00:21:00] only of the years leading up to the Civil War in its power and strength, and we've been divided about many things before. Um, is profoundly worrying. I mean, just the language that people use about politics now is very, very different from the language people used a decade ago.

Nick Capodice: [00:21:14] So here's what I need to know. Does Ann think that words matter? I mean, obviously she does. She just said that this language that calls one side illegitimate means a level of division that is profoundly worrying. But [00:21:30] there are those who say who have said that words are just words. Hannah Bach worse than a byte kind of thing.

Anne Applebaum: [00:21:39] What people say and how they say it does have consequences. Words have consequences, and how the language that people use to describe their opponents describe their country. This tells you a lot about them. And so it should be at least at the very least, a kind of warning sign.

Nick Capodice: [00:21:54] Now, we have heard politicians use inflammatory language in this country. I know we're hearing a lot of it right now, [00:22:00] but we have dealt with it before, right?

Anne Applebaum: [00:22:03] The language remains disturbing because if you look at the history of American politics, you know, at least in the 20th and 21st century, you don't hear people talking like that in US politics. I even looked at I went back and read some of the speeches of segregationists from the 1960s, and even they don't talk about their political enemies as vermin. And so I thought that was a I thought that was a real break with tradition. So it's very hard to know how [00:22:30] to talk about someone who's broken with tradition, who's run a campaign that's notably different than anything that's gone in the past, while at the same time, you know, not sounding hysterical or hyperbolic. It's a fine line. And I don't, you know, I'm not sure that I'm not sure that we found it.

Hannah McCarthy: [00:22:48] This hyperbolic thing. I think this is important to think about. How do you talk about hearing words in this country that were used by autocrats in [00:23:00] the past. Ideas and actions in this country that look. Autocratic. If you say, well, that language sounds like language used in countries where. Democracy has eroded, where autocracy rose. And we should worry about that. There are those who. Would say, you need to relax. And Anne says the language you use to talk about this kind of language. That really matters to me.

Anne Applebaum: [00:23:29] I've [00:23:30] actually been very careful about using the word fascist.

Archival: [00:23:32] Donald Trump is lashing out at his former chief of staff for calling him a fascist.

Archival: [00:23:38] We certainly falls into the general definition of fascist for sure.

Anne Applebaum: [00:23:42] I know it was used by General John Kelly, who had worked for Donald Trump. You know, that's his right. Um, partly because it immediately makes people think of Nazi movies. And I don't think that America is going to become a Nazi movie. You know, it's not going to look like that.

Hannah McCarthy: [00:23:59] There's [00:24:00] one last thing I want to get to here. Yes, we are talking about autocracies. We are talking about the kind of words and actions that can guide a democracy into an autocracy. But ultimately, Ann says, the decline of democracy is not just about a politician or an anti-democratic movement.

Anne Applebaum: [00:24:19] Democracies succeed when their citizens are engaged, when people are engaged in politics, when they run for office, when politics [00:24:30] isn't a thing that is done by some kind of separate cast, you know that it's something that belongs to everybody. When people are engaged in political parties, when they join movements, when they express their ideas, when they're part of the system. And one of the things that modern authoritarian propaganda does is it tries to disengage people. One of the effects, for example, I mean this, as you can see in Russia, of a politics where there's a constant stream of lies. You know, when people are lying openly lying about things [00:25:00] that everybody knows is not true. When you see people doing that, that's something that political leaders do because they want to make people exhausted. You know, they're not lying because they think you're going to believe everything that you're lying about. They're lying because they want to make people say, oh, gosh, I have no idea what's true and what's not true. Politics is a dirty business. I better stay home. And so it's very important for ordinary people to not be fazed by that and to seek to remain involved. I mean, really, once democracy loses, it's once people aren't participating, then [00:25:30] it's very easily taken over by cliques or by the very wealthy or by people with ill intent. So staying engaged and being an active citizen is, you know, it's really the responsibility of everybody who lives in a democratic society. As I said again, it's not it's not something that like a special group of elites or fancy people or, you know, do. It's something anyone can do.

Nick Capodice: [00:25:53] I really appreciate that point, Hannah, because we say all the time that staying engaged is the way to keep our democracy [00:26:00] alive. But I'm not always sure that that lands with people. And I'm not even sure it'll land with people now. But here at least we have an historian who knows what it takes for democracy to die, because she's been studying it for a long time. So if you don't take us at our word, maybe you can take Ann at hers.

Hannah McCarthy: [00:26:23] Basically, don't let the people with money and power let you believe that you are not allowed into the club because you don't have money or you don't [00:26:30] have power. Because when we start believing that it's the most straightforward, the best way for us to eventually be banned from the club. And even though autocracies rely on secrecy, lies and hiding things from people, they also have clear tells. So what is an autocracy? It is no one thing, but what does an autocracy do? It keeps the power away from the [00:27:00] people.

Anne Applebaum: [00:27:00] It's important to remember that there are different kinds of authoritarianism. It's not like there's a huge alliance of autocracies and they all think the same thing. Autocracy can take different forms. China is a one party state. It's the Chinese Communist Party is the leadership. And the Chinese Communist Party is a big and complex organization with many different kinds of people in it. By contrast, Russia is really a one man dictatorship. There is no equivalent of the Chinese Communist Party. Iran is run is a theocracy that's run by religious leaders. Venezuela is a kind of [00:27:30] oligarchy run by a group of very wealthy people connected to Nicolas Maduro and his security and army chiefs. The forms of autocracy and the language of autocracy can look different and sound different. But, you know, pay attention to the fundamentals. You know, what kind of rights do people have? How does the legal system work? What kind of information are people allowed to have access to, and what kind of influence to ordinary people have on the way the government works? And that's how you know what level [00:28:00] of autocracy you're talking about.

Hannah McCarthy: [00:28:08] That does it for this episode. It was produced by me, hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Anemoia. AutoHacker, Ambre Jaune, Dylan Sitts, King Sis, Andreas Dahlback, Lennon Hutton and Craig Reever. If you want more Civics 101, we've got [00:28:30] it for you. You can follow us on Bluesky at civics101pod, you can follow us wherever you get your podcasts, and you can go to civics101podcast.org to access everything we have ever made and get in touch with us. Don't forget, if you like us, leave us a review. Nick and I used to be actors, so without feedback, we're kind of at sea. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

What can (and can't) the Secretary of Health and Human Services do?w

Former HHS Secretary Kathleen Sebelius talks about the powers - and limits - of the role in the wake of President-elect Donald Trump's pick of RFK Jr. for the role. This episode was brought to us by the podcast Tradeoffs, hosted by former NHPR health reporter Dan Gorenstein.

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The Supreme Court's Criminal Trial

It happened once and never again.

In 1906, the Supreme Court stayed a man's execution. That same day, his town murdered him. Then SCOTUS held it's first and only criminal trial for those who had allowed it to happen. This is the story of a wrongful conviction that was only the beginning of an injustice and the students who learned that story in June of 2024. It's also the story of what happens when you realize your government is closer than you think.

Learn more about the Supreme Court Historical Society’s Hometown Program.

Learn more about the Chattanooga program here.

Learn more about Ed Johnson.

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Transcript

Hannah McCarthy: Hey, Nick.

Nick Capodice: Hey, Hannah.

Hannah McCarthy: Right off the bat here. I need to let you not You Nick. But the person who is listening to this right now know that I sometimes struggle to find hope. Hope about understanding this nation, participating in this nation, accessing this nation. I'm always looking for it, and I know it's there somewhere, but I don't always see it.

Nick Capodice: Even though that's what we do on a daily basis like try to understand, try to participate, try to access, it.

Hannah McCarthy: Might be because that's what we do on a daily basis, right? Like all day, every day, trying to wrap our hearts and minds around this country. And even when I do grasp it myself. I am always wondering, do other people? Does that mean something to them? Does that help them, strengthen them? Or does America feel out of reach?

Nick Capodice: I am with you there, Hannah. I do understand that because the more I learn about this country and its systems, the more secure I feel, honestly. Or maybe the more I feel I have some say in what goes on here. There's something to that whole knowledge is power thing. And you do wonder, Hannah, do other people feel the same way? Do they care?

Hannah McCarthy: So when something shakes those cobwebs off of my trembling heart and reminds me how many people out there really care and really do try to understand and help others to understand too, because that is one of the points of being alive in the United States. It's it's just really something. Nick. And today I want you to meet some of the people who are clearing off those cobwebs.

Judge Curtis Collier: I'm Curtis Collier. I'm one of the district judges here in the Eastern District of Tennessee.

Alicia Jackson: Well, my name is Alicia Jackson, and I'm a professor at Covenant College, Lookout Mountain, Georgia.

Mychael Fennessey: My name is Michael Fennessey. I'm a junior at the University of Tennessee, Chattanooga. I'm a history major and an Africana studies minor.

Michelle Deardorff: I'm Michel D. Deardorff, the Adolph S Ochs Professor of government at the University of Tennessee at Chattanooga.

Bella Craig: Hi, I'm Bella Craig. I was a student mentor in the Chattanooga Hometown program, and I'm a current student at UTC.

Taylor Nelson: My name is Taylor Nelson. I am a senior political science major with a focus in public law.

Chief Judge Travis McDonough: My name is Travis McDonough, and most people call me judge McDonough, so that'll be fun.

Myles Farr: I am Myles Farr. I am from the city of Chattanooga in Tennessee. I am currently senior in high school.

Mackenzie Gula: My name is Mackenzie Gula. I am a senior at Chattanooga Christian School, 17 years old, and I had the incredible opportunity of participating with Supreme Court in my hometowns this summer.

Nick Capodice: Wow. Okay.

Hannah McCarthy: I know lots of new voices. Don't worry if you didn't catch all that. Everyone is here to tell us the same story in one way or another.

Nick Capodice: Wait to that last person. Mackenzie. Did she say in my hometowns this summer? Like hometowns? Plural?

Hannah McCarthy: Yep. And that is what we are talking about. That and a lot more. This is Civics 101. I'm Hannah McCarthy here with Nick Capodice. And for two weeks in June of 2024, in a program called hometowns, this group learned and taught the story of Ed Johnson. Chattanooga, Tennessee. The federal judiciary and why we need to know what happened here.

Judge Curtis Collier: In the summer, we had a just fantastic program. We brought in 20 kids. We gave kids a chance to see and work on a real interesting case that developed here in the Eastern District of Tennessee.

Hannah McCarthy: This is Judge Curtis Collier.

Judge Curtis Collier: A little bit over a hundred years ago, in that case, wound up in the United States Supreme Court. They were not only present, they were on top of it. In fact, at the end of the day, they would not leave at the end of the two weeks. I think they stayed around for another 30 minutes, an hour or so, talking and sharing their perspective and experience and asking questions.

Hannah McCarthy: So 10th, 11th and 12th graders apply for this program. If they're selected, they learn about a case that made its way from their hometown to the Supreme Court. The program started in 2023, in Saint Louis, Missouri, with Hazelwood v Kuhlmeier.

Nick Capodice: Hazelwood v Kuhlmeier. I know that one. It's student speech in schools. We have a whole episode about that case.

Hannah McCarthy: We do. I knew you would be excited. There are lots more hometowns planned for the future. By the way, this whole thing is created by the Supreme Court Historical Society and will be putting a link to that on our website and in the show notes. But for today, it's Chattanooga and it's us V Shipp.

Nick Capodice: Us V Shippp.

Hannah McCarthy: You've never heard of it.

Nick Capodice: I haven't, I'm sorry.

Hannah McCarthy: You are not alone.

Judge Curtis Collier: This case is is a little out of the ordinary because it had been forgotten here at Chattanooga. People did not talk about it. It was not in anyone's real memory. A few people knew something happened, but the whole story was hard to hard together. I got interested in it almost as a happenstance. I was doing some research on one of the black lawyers who became involved in the case And after research, I discovered he was involved in a Supreme Court decision. And for a black man back then being born, Supreme Court decision was surprising. So I located the Supreme Court decision and his name was mentioned there. And then this case came up. But I never, ever heard of it. Now, a few years after that, a book was written by a newspaper reporter and a local lawyer here, and they told the story in more detail. And since then, we've learned a lot more about the case, and also a lot more about the triggers involved. This case is not really discussed that much in law schools, and law students will say, I should have been taught this.

Bella Craig: Judge Collier knows so much and he's been in Chattanooga so long.

Hannah McCarthy: Bela Craig, a college student and mentor in the hometowns program.

Bella Craig: He is like sort of the unofficial historian of this case.

Bella Craig: And it was so amazing just to get his legal expertise and his, like, historical expertise. It was incredible being able to walk around my hometown and like, view it in this completely different light. I mean, so many areas I visit so frequently. I had heard about the Ed Johnson case before, just because it's so important to Chattanooga, and there was a memorial recently built to honor Ed Johnson at the end of Walnut Street Bridge.

Mackenzie Gula: I did not know about the case, and I had walked on the Walnut Street Walking Bridge many times without understanding the significance of it and what had occurred there.

Hannah McCarthy: Mackenzie Gula, High School senior.

Mackenzie Gula: I think there are a lot of aspects of this case that brought to light to me, a lot of important connections that maybe necessarily aren't applying the case to modern day circumstances, but rather parts that we looked at that hit very deeply. One of those was we would take field trips to certain historic sites that were involved in the case, such as the nematode Taylor, where she got off her bus stop. What was really interesting for me was the street that she got off at her bus at was right across from my school.

Bella Craig: It was like amazing and a little bit Chilling. I mean, the details of the case are very tragic. So, you know, it was it was upsetting in a lot of ways. But of course, like the Supreme Court Historical Society, their staff and also my professors and the local judges, like they were all super accommodating, like about mental health and things like that. There were regular check ins, which is great, especially since this was with high schoolers.

Hannah McCarthy: A reminder again, that we are going to be talking about instances of sexual and racist violence. So for those listeners who wish to opt out, this would be the time.

Mackenzie Gula: And then right down the road from my school is the cemetery that she lived in and where she was raped outside of, and then head further down that street you have where Ed Johnson lived. Everything felt very close, and I hadn't realized that.

Bella Craig: We visited the cemetery that Nevada Taylor's family kept. Um, her father was in charge of tending the cemetery there. I visited that area before, and I visited even that cemetery. I'd passed it before, but we were standing in the middle of the cemetery where Sheriff Shippp is buried, and there are others involved with the case who are also buried there. And also it was the site she was walking home when she was assaulted, when she was raped. And so we were standing so close to the area where that happened. We were standing in the middle of the graveyard and I'm I'm an atheist, but it's like I felt a lot of just sorrow and just knowing what, what took place there. And, um, luckily my professor was there and she checked on me. She was like, are we doing okay? I was like, not currently, but I will be okay. Um, yeah. And just and it wasn't just the assault, it was everything that happened after and everything that led to the lynching of that Johnson. That really hit me.

Mackenzie Gula: One of the places we went and looked at was an African American graveyard from 1906. And stepping out of the bus and looking across the street, it was just a slip of land that was very poorly taken care of, and had we not been told what it was, we wouldn't know what it was. There was a lot of stones, not ornamentally, placed at all plants, overgrown branches on the ground and right along the line of where this graveyard ended, there were brand new built homes that were just very extravagant. And so that was heartbreaking because looking at the cemetery, you have no idea what it is. And the people living in the homes right next to it may not even know what it is themselves. And so that was heartbreaking to look at. It caused me to definitely take a step back. And in Chattanooga, there's a lot of preservation of historical places. There's a lot going on. That's definitely stuff to be grateful for. A lot of Civil War sites or the Ed Johnson Memorial by the bridge, but there's also a lot of history that's going unnoticed and that's fading.

Hannah McCarthy: So this is the case or the case that started the case.

Mackenzie Gula: So the case itself was about Nevada Taylor. She was a young girl who was raped on her way home, and she had blacked out when a man came up behind her and put a belt around her neck. And later on, the doctor came to her home and confirmed she had been raped. And the sheriff got involved. However, she could not see it was dark. It was late at night. She did not know the man who attacked her. And the sheriff kept insisting on her giving a racial profile for the man. And she was like, I don't know. It was late at night. It was dark. Maybe if I had to guess, it was an African American man. And the sheriff took that and ran with it and posted a reward to whoever could identify him. And of course, as soon as you post a reward, someone's going to come in and say something. And Eddie Johnson was unfortunately that name that was brought up. So that kind of sealed his fate right there.

Michelle Deardorff: The young woman is attacked and raped as she's walking home from work and she doesn't know who does it. He's behind her. It's dark.

Hannah McCarthy: Michelle Deardorff, government professor at the University of Tennessee at Chattanooga.

Michelle Deardorff: And there's this sense that they have to find someone who's done it and who did it. And for reasons that aren't entirely clear, they land on Ed Johnson. The story doesn't make sense. It's not clear how he could be the one who did it, because he was observed being at this local bar.

Mackenzie Gula: And then the sheriff definitely worked towards the downfall of Ed Johnson. They needed to.

Michelle Deardorff: Find someone who did this to put the fears to rest. And as it's reconstructed now from the evidence, it becomes pretty clear that they found a witness who was willing to lie. There was no one white who recognized him as being where his alibi says he was. All the people who could say he was there were African American. And so it goes to court. And when it goes to court, they're under pressure to solve this quickly because they don't want mob rule. And the fear is if someone's not convicted by the law quickly, the mob will take over. And they don't want that in this new progressive, healthy, happy town of Chattanooga. And so they're going to push it through and they're going to push a conviction through.

Mackenzie Gula: There were juror members. Their names were posted in the public paper. So obviously that's going to cause them to feel fearful about if what are people going to think if I say he's not guilty? Obviously that puts pressure on the jurors as well as the jurors. There was one who threatened Ed Johnson's life in the middle of a trial, and that juror was not excused. So there's a lot of injustice happening with the trial itself. Ultimately, a Johnson is found guilty. And following that, pardons and styles step in as attorneys to represent Ed Johnson and appeal the case. Eventually, a stay of execution is granted by the Supreme Court, so there's some hope there.

Hannah McCarthy: All right. We're going to step in here for a moment. I am mostly leaving this story up to the people who know it best. But when we began, I told you that this was a story about Ed Johnson and a story about a Supreme Court case called us v Shipp. There is so much going on here, so I do want to check in to make sure that you don't miss it. Ed Johnson, a young black man in his mid-twenties, was wrongfully convicted of the rape of Nevada Taylor in 1906, and he was sentenced to execution.

Michelle Deardorff: Two white attorneys were appointed to represent him, but they were under tremendous pressure not to family pressure, personal pressure, community pressure. They even tried to explain and write an editorial in the paper as to why they do this, because that's what law requires, that they didn't want to take this case, but they were assigned it and they would do their job. Um, but they really don't do their job. And so he goes to court and he's alone. He's the only they shut down the court. So the only people who are there are lawyers, judges, lots and lots of police officers. And at Johnson, decisions made pretty quickly. He's found guilty. Almost immediately.

Hannah McCarthy: His hite court appointed lawyers opted not to appeal his case. So two black lawyers in Chattanooga, Noah Parden and Styles Hutchins, stepped in to petition the federal court system.

Nick Capodice: Petition it how?

Hannah McCarthy: Though they petitioned for a writ of habeas corpus, which literally means that you have the body, but super. Basically, it means asking the court to review the imprisonment or detainment of a person and decide if it's legal. In this case, pardon and Hutchins claimed that Ed Johnson's trial deprived him of his constitutional rights.

Nick Capodice: So these two lawyers said essentially that Ed Johnson was not properly convicted and his imprisonment and I assume his death sentence was wrong.

Hannah McCarthy: But the appeals court said, sorry, federal courts do not intervene in state criminal proceedings.

Nick Capodice: Wait, is that true?

Hannah McCarthy: Oh, we're gonna get there. So this is 1906, Nick. There's still a lot of stuff to happen in the federal judiciary. Also, by the way, these two black lawyers had initially declined to take Ed Johnson's case, and for good reason. They feared for their careers and their lives if they intervened. So stepping in at this stage was a huge risk, and they did it anyway. So a federal district judge says, sorry, we don't do that. But he also says, but hey, why don't you ask the governor to delay the execution so that you can appeal my decision?

Nick Capodice: In the world of law is such an interesting place, Hannah. No, you can't have this. But hey, why don't you ask someone else to think about it?

Hannah McCarthy: So Parden And Hutchins do that. They ask the governor to delay the execution pending appeal. And the governor says, okay, fine, ten days and pardon is like, I can work with that. I'm going to use this delay to talk to the circuit judge for Tennessee. Do you know who that was, Nick?

Nick Capodice: You know, I do not know. Hannah.

Hannah McCarthy: It was Justice John Marshall Harlan of the United States Supreme Court.

Nick Capodice: I do know him. I know Justice Harlan. He's the lone dissenter in Plessy v Ferguson. So if he was on the Supreme Court when this happened, that means that this is from the riding circuit days, right? When justices would travel the country to hold court in different states. Right.

Hannah McCarthy: That's exactly right. So pardon goes to Washington, DC. And with the help of a black Supreme Court lawyer in D.C., he gets a meeting with Justice Harlan. This is at a time when very few black lawyers had ever appeared before the Supreme Court. Harlan tells Parden, okay. The Supreme Court will hear this appeal. I also grant you a stay of execution.

Nick Capodice: Okay so Harlan is basically saying, actually, the federal courts can intervene in a state criminal proceeding.

Hannah McCarthy: Well, this is one of the questions at hand. And remember, the Supreme Court case is about Shipp. Shipp is the sheriff. It is not called Ed Johnson v the State of Tennessee because this is what happened next. The very same day that Harlan issued a stay on Ed Johnson's execution. I'm going to take us back to McKenzie Gula.

Mackenzie Gula: But then right after that, lynch mob broke into the jail, which definitely was set up to very easily occur because the sheriff had let go of all of the other people working in the jail except for a very, very old security guard and left it very open, very accessible for the lynch mob to get in, find a Johnson. They had him on the second floor alone with another woman. So he was very identifiable. And the lynch mob dragged him out of the jail cell all the way to the Walnut Street walking bridge, where he was lynched. And then he fell out of his rope, and they walked up and shot a gun to his head. So that was the case of Ed Johnson.

Hannah McCarthy: Ed Johnson's final words were, God bless you all. I am innocent. It was 94 years before the state of Tennessee affirmed that he was, in fact, innocent.

Chief Judge Travis McDonough: One of my Early memories of being an associate here in town was actually going to the hearing at which Ed Johnson was was pronounced innocent by a former criminal judge.

Hannah McCarthy: Chief District Judge Travis McDonough.

Chief Judge Travis McDonough: And it's such an impactful story and such a, you know, a sad story and a story that says a lot about our history, that, you know, once you learn about it, you tend not to forget about it.

Nick Capodice: So what did happen in the end? How did the Ed Johnson case become the Shipp case?

Hannah McCarthy: Here's Michelle Deardorff.

Michelle Deardorff: They say you cannot execute this man until we're able to take a careful look at this case. And they execute, you know, the mob comes anyways. There's clear evidence that they were aided and abetted by the sheriff and his men. And then the court has to decide, are they going to actually intervene? And so they bring in investigators, they hold the trial and. Yeah.

Hannah McCarthy: And Mackenzie Gula, again.

Mackenzie Gula: The Supreme Court stepped in, did its first ever and only criminal court trial, and eventually sentence Sheriff Shippp to go to jail.

Nick Capodice: Wait. Hold on. Hannah. The Supreme Court actually held a criminal trial. Is that something that they do? I thought this is something that they did not do.

Hannah McCarthy: They did it. Like Mackenzie says, though, first and only time Shippp and others went to prison, though only briefly. But the Supreme Court didn't fully answer the question of federal intervention in state criminal proceedings.

Michelle Deardorff: This case seems to me, with us versus Shippp, this moment where we could actually reconsider our understanding of the 14th amendment and what it had the capacity to do. But yet it doesn't. Us versus Shippp just sits there. Judge Collier makes a fascinating kind of argument of ways in which he sees this case kind of showing up where the courts decide to implement their own decisions. And he thinks particularly around Brown and these kinds of cases. And then that's possible. But when it comes to criminal law, it just sits there.

Judge Curtis Collier: It took a while to do it.

Hannah McCarthy: Judge Curtis Collier.

Judge Curtis Collier: The Supreme Court took this case to look at that issue. And because they had Johnson was murdered on the Supreme Court, did not answer the question. The question came up again about ten years later in a case out of Marietta, Georgia, involving a Jewish man named Leo Frank, and they addressed the issue. Then they fully addressed the issue, but they decided that Frank's facts did not allow them to render a decision. And then about ten years after that, a case arose not far from my hometown and he Lane, Arkansas, where the dress issue and they said, yes, if a state trial that has the form of a fair trial, but in reality it's not a fair trial. Then the federal courts have a role and the United States Constitution comes into play.

Michelle Deardorff: I mean, I teach con law. I'd never really taught this case because it doesn't get referenced much again. So I do now because we're here, it seems students need to understand that because they live here. But for a system based on precedent, this case being so remarkable seems to have very shallow footprint when it comes to precedent.

Chief Judge Travis McDonough: What is important about it is that it was the Supreme Court acknowledging that the federal courts had a role to play after some terrible things had happened in a state criminal prosecution that augured in decades and decades of federal courts reviewing some of the worst injustices that had happened in state courts. That has evolved. And but at the time that it happened, it was a somewhat unique occurrence, and it opened the eyes of federal court practitioners that this was another way to seek justice for those that had perhaps been denied justice in state criminal litigation.

Hannah McCarthy: We're going to take a quick break. And when we're back, I'm getting to the point, which is hope.

Nick Capodice: You know, I was honestly starting to wonder. But before that break, quick reminder that Hannah and I have a book with a breakdown of many landmark Supreme Court cases and a ton of other stuff. It's called A User's Guide to Democracy How America works. It is fun. It's for everyone. It makes a really good gift. In fact, it just keeps on giving. You can find it wherever books are sold. And we got a link to it right down there in the show notes.

Hannah McCarthy: We're back. We're talking about a case, a place, a program, and the people who were changed by it. By the way, just so you know, if you or someone you know might be interested in this program, the Supreme Court Historical Society's hometowns program, which is free. We will have a link to it in our show notes and on our website. Now, I want to jump back in with someone who can give us a fuller picture of Chattanooga at the beginning of the 20th century.

Alicia Jackson: Well my name is Alicia jackson, and I'm a professor at Covenant College, Lookout Mountain, Georgia, and teach and research extensively on African American history and primarily with a strong interest in reconstruction period, late 19th century, and extending into the early 20th century. My role was primarily to give an overview of African American life before the Civil War. Chattanooga's role in it. And then also talk about what happened during the Civil War. After the war, and also give a sort of a broader context about the reconstruction period. And will it help to define for the students what reconstruction is?

Nick Capodice: We have a whole series on reconstruction that would make a good supplement to this episode, by the way.

Hannah McCarthy: I think it would, especially when we think about the false narrative that has been spun about the black community when it comes to the post reconstruction era. How is it that the justice system so utterly failed a young, innocent black man, years and years of purposeful undermining by his white neighbors?

Alicia Jackson: And so that is what you see happen, is that especially if you think about a place like Chattanooga, where you have black political leadership, black economic development, and in many ways challenging that idea about sort of this complicit black individual who's just going to do whatever the white person wants them to do. Sort of just serve the white community. Um, the magical Negro or sort of that, that mammy kind of caricature. Then there are threats. And so I think that is that is so embedded in the culture, especially during the late 1800s, the reconstruction period. And beyond that, I think the atmosphere was ripe to go after someone like Ed Johnson. So it's not only is it the idea about this economic competition, but also don't, you know, black men have this this proclivity. I mean, you see this in the secession proponents they're talking about, you know, the black men are going to start wanting to marry, um, you know, white women and all that. So there is sort of a really beginning of that. But when they see black individuals having political power, economic power, and challenging the system, that's even more why you're going to see, again, I think, this sort of huge backlash.

Bella Craig: Chattanooga has a lot of racially tense history.

Hannah McCarthy: Bella Craig, again a mentor in the hometowns program.

Bella Craig: The north side of Chattanooga used to be a predominantly black area, and now it's completely flipped on its head. I think keeping in mind, like the history of who used to live in these areas, and not that that isn't taking place, there's a lot of preservation, maybe not enough preservation, in my own opinion. So I think telling.

Alicia Jackson: These stories, having a community around saying, you can make it, I'm here for you, you know, sort of having that embracement and that embracing of that. I think in many ways it's such a detriment, particularly to the black community. But I would say to the broader community as well. Um, but I just think these stories have to be told. And that's part of the what's one of my missions in the work I do is to make sure that these are collected and preserved and shared.

Bella Craig: I feel like preservation is something we should focus on a lot more, just not only just the history of black chattanoogans as like a mass, but like there are specific, so many memorable figures in this story who did so much to, like, aid the pursuit of justice, even if it was flawed, not on their end, but on the system's end. I just, I just really think it's important.

Alicia Jackson: I don't want I don't want people to walk away thinking that people just passively and tacitly accepted what happened, or that the black community has ever done that. Um, there are ways that many people maybe not visible to the broader community where people challenged what was going on. And so, as I mentioned at the beginning, whether it be enslaved individuals getting their freedom. Um, running away to Chattanooga, That's what they did, whether it be black individuals creating their own hospitals because they can't be served at the white hospital training nurses, particularly thinking about Emma Wheeler, you know, training nurses to be able to provide care for the black community, or GW Franklin providing services for the dead because white undertakers wouldn't handle black bodies, but in turn investing in their communities and becoming individuals who are trying to, in many in their ways, challenge what's going on. I think that's, I think, an important story to tell. I don't know what happened to Ed Johnson is horrendous, and I think in no way should be lessened. But to understand that people didn't just accept this, they found ways to challenge what was going on.

Bella Craig: I walk across Walnut Street Bridge like every weekend. It's amazing. It's a beautiful place and two people have died there. There were two men lynched there. Um, it wasn't just a Johnson. There was a man before him. And so, in sake of preservation memory in the form of, like, everyday, you know, acknowledgment I think is huge. But memory also in the form of our city is very proactive civically. We have so much involvement in politics, I feel like and maybe that's just my perception, but there's a lot we can do.

Hannah McCarthy: We're going to take a quick break. When we're back. A much needed reminder, at least for me, of why we're here and what we can do.

Hannah McCarthy: Thank you. We're back. And. Well. THis is what I learned reporting about the hometowns program. So I told you at the beginning of this episode that researching for it and interviewing people for it gave me this sense that people really do care whether they're in charge or not. Judges, teachers, students. And they don't just care. They're actively involved in this country and they want that for others. It's something that became clear pretty much in every conversation that I had about the hometowns program. I went into this thinking I would learn about this thing, and I would share it with you. Pretty straightforward. But I came out of it realizing that it doesn't much help a soul to wonder if anybody is there, if anybody cares. Because they are, and they do, and they are trying to get us to listen.

Myles Farr: That even a city that was considered progressive at the time would still allow such atrocities to occur in both, both inside and outside the courtroom. It did, of course, instill a sense of disappointment, but I still believe that that's important, that, um, I and my colleagues learned about all of that so we could hopefully do better in the future.

Hannah McCarthy: Myles Farr, High School senior.

Alicia Jackson: I can't tell you how many students across the racial spectrum who are like, I can't believe I didn't learn this. I can't believe I didn't learn this. Why didn't I learn this? I know a.

Mychael Fennessey: Lot of them were like very surprised by like, you know, what happens in the case.

Hannah McCarthy: Michael Allen Fennessy, a college student at the University of Tennessee at Chattanooga and a mentor in the hometowns program.

Mychael Fennessey: Um, and how what you would think of justice or how our justice system works today was definitely not happening then. So many obvious, like, floors. And so those are things that they couldn't completely wrap their head around because they were like, wait, wait, wait. I've been I've been taught about these values that our country, you know, supports and pushes, but that's not what's happening here. And so I guess it takes a bit to like, understand the complicatedness of it. And like I was saying earlier about how our system just continues to build off of itself. And so it takes really awful cases like these for people to build up and make that change that needs to be changed.

Myles Farr: Well, of course it's easier to look back on things. It always is. It's easier to look back at atrocities without, say, both the raids Feltes across Chattanooga at the actual case of Ed Johnson and the attempted lynchings and such. However, it was also the fact that I believe my colleagues in the program were not the voice of our generation, but were certainly voices of our generation. We in the program both want to make a difference, and some of us even could be making a difference as we speak.

Mychael Fennessey: A lot of people are averse to history. I feel like a lot of times I tell people that I'm a history major. They just talk about how much they hated their history subject or history in school, or they hated their history teacher. Um, which really sucks because I love history, and I really wish other people could see why it's so important. And so with programs like this, you take it outside of that classroom environment that people may not be so prone to like, listen or understand or really get why what they're talking about is so important. Um, and with this, like it was optional and it was a very fun program. It was very engaging. You know, we went and toured the sites that we talked about. Um, and so doing it like this, it makes it feel more real. It makes the history feel more alive. I feel especially like they also were like, engaging with lawyers and judges who could speak on the legal system and why exactly this case should not have happened the way it did. So this way it was. It was a really it was a great way to make it feel real.

Taylor Nelson: And I think it's so important that not everybody knows that, that it wasn't always like this.

Hannah McCarthy: Taylor Nelson, college student mentor in the hometowns program and a legal assistant.

Taylor Nelson: Those rights weren't always there. So the shift in the early 20th century that gave criminal defendants more rights, I didn't even know that they were so little rights for criminal defendants.

Mychael Fennessey: People understand that maybe mistakes were made, or maybe this shouldn't happen again in the future. And so then there's legislation or judicial processes to fix it. And so it's really interesting to think about history like that in terms of like mistakes being fixed.

Myles Farr: I see Chattanooga as both a relatively progressive city, and I believe Chattanooga is doing better, but I it is important to remember, in my opinion, that we were not always like this. We were not always perfect. We still aren't perfect, but it's important to know why we have to do better and why we have to make certain nothing like it ever happens again.

Judge Curtis Collier: Another thing that is important for people to understand is that we don't have robots making up our court system.

Hannah McCarthy: Judge Curtis Collier again.

Judge Curtis Collier: We have human beings. We have men and women who are fallible, and they're prone to make mistakes just like everybody else is prone to make mistakes. The system, though, is designed to second guess them. That's why a court of appeal. That's why we have a Supreme Court. But if you look at the infallibility and perfection of the federal courts, you're looking in the wrong place. Uh, you won't find it there. And sometimes we make mistakes out of, uh, biases, prejudices and animosities. Sometimes we make mistakes for other reasons. And having the ability to go to federal court to have a conviction looked at is very important.

Taylor Nelson: The biggest thing I recommend for people is especially in the judicial system, is go and watch. There's nothing stopping you from going and observing a proceeding. Nobody's going to get mad at you.

Nick Capodice: Can I hop in here with a quick anecdote about this, Hannah?

Hannah McCarthy: Yeah. Go ahead.

Nick Capodice: So this is one of the greatest things that my government teacher taught me in college. One day he said to us, go to the courthouse. Ask for the clerk of courts office. They have a list of cases being heard that day, and you can watch any trial. And I did, I did I watched the trial and I was shocked that I could do it.

Hannah McCarthy: Yeah. I mean, the Sixth Amendment says, quote, in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial and You you right here listening are the public.

Taylor Nelson: You're allowed to be there. And I think that experience for the students kind of opened their eyes. You know, this is what happens from what I'm taught in government class. You know, there's so much more to this. And I think also shedding some light on some of the negative aspects of American government, kind of like, you know, the Ed Johnson case be very, very awful handling of that case by the judiciary, um, at least the local judiciary kind of shed some light on, oh, this is the history that gives us the rights that we have today. And I think, you know, schools can tend to, you know, shy away from those darker histories. But I think they're important because, you know, the age old, if we don't study history, we're doomed to repeat it. And I think that's so true. And I think that the students really did come away with a, oh, this really somber thing happened. But it was so important for our institutions and for our furtherance of rights that we have now.

Judge Curtis Collier: The federal courts belong to We the people. We the people own the courts. We the people, either directly or indirectly control the courts. And because you own the courts, you have an obligation to make sure the courts are operating efficiently, effectively and the way you want them to operate. How do you carry out that responsibility? You carry out that responsibility by being more involved. Reach out to your local federal court. Come and visit the federal court. Talk to the judges and educate your family members, your coworkers, and your friends and associates about what the federal courts do and why they're important in our society.

Taylor Nelson: You know, if you don't protect the civil rights and liberties of people who, you know, may or may not have as much knowledge of them, then who's going to be next?

Myles Farr: Essentially, it is our not only duty, but responsibility and rights to make a better society for both ourselves, our neighbors and our descendants. And to anyone who thinks that we can just put it off or that we can't do anything about it, I say that not only do I think you're wrong, but I also feel sad that you think that.

Taylor Nelson: I understand that this thing is negative, and at the same time understand that I have the ability to change it. I think people who kind of live in cynicism really take away from the civic duty that, you know, all American citizens have. We need to.

Myles Farr: Make sure that the changes we want to happen are not only made nationwide and statewide, but even down to the city, neighborhood and even house. In the end, we just need to make sure that within each generation we improve life for the next generation.

Taylor Nelson: And I think that a lot of people always have this idea that, oh, well, it'll never be me until it's you, until it's your brother, until it's your family member, until it's your friend. And then you know you want to help them so bad, but you just don't know. And I think sometimes it does take that situation for people to kind of be aware of, oh, well, now I don't know what to do to help my friend who's in this legal predicament. Well, now I need to educate myself. And I think maybe kind of bringing this awareness towards the concept of it could be you who's wrongfully convicted, it could be anybody. And I'm not trying to, like, be scary or anything, but I think it is important to understand if you don't know your rights, you can't advocate for yourself. And I think advocating for yourself as a citizen is the most important thing you can do. It's the most active thing you can do for yourself.

Nick Capodice: So, Hannah, when you texted me that you were crying as you were going over the interview transcripts, is this kind of what you meant?

Hannah McCarthy: Full disclosure does not always have to disclose every single detail, Nick. But yeah, this is what I meant. There is so much cynicism, there's so much dread, so much misinformation, so much unknown in this nation, especially I feel lately. But when a group of students and educators and judges say, actually, there is a real and true path to understanding and participating in and preserving this democracy, it was an important reminder to me of the myriad good hands that our nation and our rights rest in. So yeah, I guess I'm holding out hope.

Nick Capodice: I'll join you.

Hannah McCarthy: This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Timothy Infinite, V.V. Campos, Adelyn Paik, Twelwe, Particle House, and Chris Zabriskie. You can learn everything you want to know about the Supreme Court Historical Society's Hometown program by going to their website, SupremeCourtHistory.org, or by clicking the link in our show notes. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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What is the Cabinet? And how can appointments work?

Whenever there's an incoming administration, there's a big to-do about Cabinet nominations. So what does The Cabinet DO? How has it evolved since  Washington's administration? What is the process for appointing someone to the cabinet? And finally, how could a president appoint someone without approval from the Senate?

Taking us through all the cabinetry is Dan Cassino, professor of government and politics at Farleigh Dickinson University. 

CLICK HERE TO BUY TICKETS FOR NHPR'S WINTER RAFFLE AND YOU COULD WIN $15K IN TRAVEL CREDIT TO GO ANYWHERE! (OR 10K IN CASH!)

To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. 

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Transcript

Speaker1: [00:00:01] New Senate Majority Leader John Thune, incoming next year. Today seemed fairly open to Trump's idea of bypassing Senate approval of his cabinet picks by using recess appointments. Is that how this is going to go down?

Speaker2: [00:00:13] Checking your rule book that you won't find anything in there that says a dog can't play.

Nick Capodice: [00:00:18] You're listening to Civics 101. I'm Nick Capodice, I'm.

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

Nick Capodice: [00:00:22] And today we are answering not one, but two listener questions. We've gotten some amazing ones already. If you want to ask one, just give us a holler at Civics 101 at nhpr.org. Okay. For today, first off, we've got Maddie from Nashville, Tennessee.

Speaker5: [00:00:39] Oh, I love Nashville.

Nick Capodice: [00:00:40] Me too. I love the city and the Robert Altman movie.

Speaker6: [00:00:43] Don't take it easy now. This isn't Dallas, it's Nashville.

Nick Capodice: [00:00:47] And here's what Maddie wrote to us. I just recently started listening to and very much enjoying your podcast. Can you explain what the president's cabinet does and why they are important? How much power does the chief of staff actually have? Every political TV show, not the strongest frame of reference, I know, makes it seem like the president is just a puppet for their cabinet and the people behind them.

Hannah McCarthy: [00:01:10] Interesting. Excellent question. Mattie.

Nick Capodice: [00:01:13] Truly. All right.

Hannah McCarthy: [00:01:14] And what is the other listener question?

Nick Capodice: [00:01:15] Yes. It's tied to Maddie's. This one is from Chris McAdams in Atlanta, GA.

Hannah McCarthy: [00:01:20] Another beautiful city.

Nick Capodice: [00:01:22] Absolutely. Chris writes. One thing I keep seeing alluded to is that the president elect can invoke article two, section two of the Constitution to recess Congress and make recess appointments not requiring Senate confirmation. Oh, yeah.

Hannah McCarthy: [00:01:38] Can we get into that? Can that really happen?

Nick Capodice: [00:01:40] We will get into that. Hannah, we're going to answer Maddie first with sort of a broad overview of the cabinet, and then we'll get to Chris's question as there are rumblings of president elect Donald Trump doing just that recess in Congress to ram through politically unpopular cabinet appointments.

Speaker7: [00:01:57] Kennedy has been critical of vaccine safety and called for the removal of fluoride from public water.

Nick Capodice: [00:02:02] I do think the.

Speaker8: [00:02:03] Only way Matt Gaetz will become attorney general is by a recess appointment. I don't think he can get the votes to be confirmed through regular order.

Nick Capodice: [00:02:10] All right, so push aside the garlic powder and get the red pepper flakes, cause today it's all about the cabinet.

Hannah McCarthy: [00:02:18] Okay. The cabinet. These are the heads of various executive departments. Secretary of state of the Treasury, of Defense, etc., of all 15 executive departments.

Nick Capodice: [00:02:31] Right. And this includes the Attorney General, who is the head of the Justice Department. And sometimes other people are in the cabinet too. I'm going to get to that.

Hannah McCarthy: [00:02:38] Is the cabinet in the Constitution.

Dan Cassino: [00:02:40] The cabinet is actually not in the Constitution.

Nick Capodice: [00:02:43] To know him is to love him. Our first face on the Civics 101 Mount Rushmore, Dan Cassino. You want to do the other part?

Hannah McCarthy: [00:02:50] Of course I do. Professor of government and politics at Fairleigh Dickinson University. I never get tired of saying it.

Nick Capodice: [00:02:56] Did you ever notice that his initials are DC? I never. He probably gets that all the time.

Dan Cassino: [00:03:01] The cabinet is implied by the Constitution, but not actually in there. Nowhere in the constitution say cabinet. We actually have no indication that anyone in the US called it a cabinet until late in George Washington's first term. Cabinet actually is a word like privy. It actually just means like a closet, like a small room. And the deal was that the king in the in England would consult with his closest advisors in a small room, hence a cabinet. And so cabinet becomes a term that just means close advisors in the Constitution. There was the idea that the president would have a group of people that he would consult with. All we get in the Constitution about the first cabinet is that the president is can require the heads of agencies to issue him reports.

Hannah McCarthy: [00:03:43] What were those first cabinet level agencies?

Nick Capodice: [00:03:47] Well, we had the Secretary of State who was in charge of overseeing foreign affairs. Secretary of War feels pretty self-explanatory. Yeah. Secretary of the Treasury. Also pretty self-explanatory. And the attorney general? The chief law enforcement officer in the country.

Dan Cassino: [00:04:02] It's not clear what exactly the job is supposed to be, and we're all just making this up as we go along. It's all very vague. Remember, this is article two of the Constitution. So we were trying to knock this out and get it done before Rhode Island showed up and messed everything up. So it's all a little vague.

Nick Capodice: [00:04:15] And like so many things, if we want to understand the cabinet, we got to look at the first people who had the job.

Dan Cassino: [00:04:22] George Washington, though, really does make use of the cabinet in a way that nobody after him really does, which is George Washington says, you know what? I'm not the sharpest tool in the shed. I'm not the smartest guy I know. Right? The smartest guys I know are Thomas Jefferson and Alexander Hamilton.

Hannah McCarthy: [00:04:37] Jefferson being the first secretary of state and Hamilton being the first secretary of the Treasury. Right.

Nick Capodice: [00:04:44] And there were the less remembered Edmund Randolph and Henry Knox serving as our first AG and Secretary of War, Respectively.

Dan Cassino: [00:04:51] So what Washington does, whenever he faces a difficult problem, he actually convenes his cabinet. He brings together Hamilton and Jefferson and, you know, the other people that no one really cares about. And he says, what am I supposed to do about this problem? And he has them argue, and then he often gives them homework where he will say, all right, you guys have both made a good argument. Go home and write me down what you think I should do. And Washington then looks at what they've written and then just does whatever Alexander Hamilton said to do. So the cabinets under Washington winds up being phenomenally important, because this is not only where we get the precedent for how cabinet is going to work, but also this is where the party system in America comes from.

Hannah McCarthy: [00:05:29] Hang on. How does Washington's cabinet create America's party system?

Nick Capodice: [00:05:33] Well, Hamilton and Jefferson famously did not agree a lot of the time. So to convince Washington they would each go out and try to build up public support for their ideas, and they did this by creating Salacious newspapers that talk smack about each other and bolster their own arguments. Dueling newspapers, dueling ideas. And we end up with our first dueling parties, the Hamiltonian Federalists versus the Jeffersonian Democratic-Republicans.

Hannah McCarthy: [00:06:05] Quick question here. Is the vice president in the cabinet.

Nick Capodice: [00:06:09] Ah, well, they are now, but they weren't initially.

Hannah McCarthy: [00:06:12] Why is that?

Dan Cassino: [00:06:13] The excuse for this is that Washington was very concerned with separation of powers, you know, separation between the executive branch and the legislative branch. And because the vice president has his only powers in the Constitution are legislative in nature. He presides over the Senate. Washington said it was inappropriate for the vice president to be involved in executive deliberations, because that would be a violation of separation of powers. Also, we think he just didn't like John Adams very much. And so this is a good excuse to not have John Adams hanging around.

Speaker10: [00:06:39] He's obnoxious and disliked. Did you know that I hadn't heard.

Nick Capodice: [00:06:43] Now, this did change. In the 20th century. Vice presidents began to be included in the cabinet.

Hannah McCarthy: [00:06:48] So Vice President Kamala Harris is in President Joe Biden's cabinet. She is a member of the executive branch, but an officer of the legislative branch. Exactly. Now, Dan said Washington listened to his cabinet, but other presidents did not.

Nick Capodice: [00:07:05] Yeah. Further administrations were far less likely to seek advice from the cabinet.

Hannah McCarthy: [00:07:11] What was the role of the cabinet, if not to tell the president what they thought they should do?

Dan Cassino: [00:07:18] If we're in the 19th in 19th century politics, the cabinet is important because the cabinet actually controls a lot of the opportunities for corruption and graft. You know, 19th century politics is all about getting kickbacks. Post Andrew Jackson, you put all your own people in power, right? So the federal government is just filled up with all of your points. If you're a Democrat, you appoint Democrats. If you're a Republican, you appoint Republicans, if you're a Whig, if you're a Whig, you don't do anything. But that's the whole point of the Whig Party. So both parties are just filling up everything with their own people. And so you have to put someone in charge of that to make sure that you are putting the right people in place. And how do you know the right people, the loyal members of your party, and they're going to kick back some portion of their salary to in order to fund the party and keep the party machine rolling. The cabinet leaders wind up being really important to local politics if we are in the 19th century. The person who's likely to take over as president, the heir apparent for the current president, is not actually the vice president. It's really the secretary of state is the person who's going to take over as the likely next president. So the secretary of state is a really important job.

Hannah McCarthy: [00:08:18] And how many secretaries of state became president.

Nick Capodice: [00:08:21] In the 1800s? An awful lot. Six of them in about 50 years. But that trend ended with James Buchanan in 1850. He was our last one.

Dan Cassino: [00:08:31] So Congress, over the course of the 19th century into the 20th century, establishes more and more executive departments. And this gets constitutionally really iffy because think about why Congress is doing this. So let's take something like, I don't know, the Commerce Department, Commerce Department. Their job is to kind of standardize measurements and standardize and facilitate trade things like. All right, how wide should railroad gauges be so that railroads can go between new Jersey and Delaware? Because Delaware might have a different thing than new Jersey. So we have to standardize all of this, right? This all makes sense. You walk into the hardware store, says, oh, this is an A1 nail versus an A9 nail or A4 paper. Someone has to standardize what the size of nails are and what size of papers. This all is great and important. Except this is something that Congress is supposed to be doing in the Constitution, right? This is regulating interstate trade. That's Congress's job. And what Congress decides with increasing frequency over the course of the 19th and into the 20th century, is we're supposed to do this, but boy, this is beneath our notice. We don't want to bother with this stuff. Also, we don't know what we're doing. We don't know what size should paper be. What should the railroad gauges be? We don't know. So what are we going to do? I've got an idea. Let's hire a bunch of experts and then empower those experts to do whatever they feel like they need to do?

Hannah McCarthy: [00:09:43] Okay, so this ties into what you've talked about with Dan before in that episode that you made on who exactly writes bills. This is the idea that the executive branch is responsible for all of the nuts and bolts, so to speak, of running things. So they tell Congress what bills they should write.

Nick Capodice: [00:10:03] Yeah. Congress is like you experts. You all just take care of it, and we'll just agree with whatever you say and a shift starts to happen. Hannah. The cabinet becomes a body that starts to run things and has less of a role in advising the president.

Dan Cassino: [00:10:18] The role of the cabinet throughout the course of the 20th century changes dramatically. So we at one extreme, we've got George Washington, who is relying heavily on the cabinet. Right. It's almost like a plural executive. Right. He's going through and consulting with the cabinet over almost every major decision he's going through. As the cabinet gets bigger, though, as we start adding more and more departments. Presidents are consulting with it less and less and less because as the government gets more complicated, the role of members of the cabinet, the role of heads of departments changes. Because suddenly your job isn't like Thomas Jefferson to have big ideas about what the government should be doing. Your job is actually running a bureaucracy, right? Department heads are now much more like the Secretary of the Treasury is not just some guy with big ideas about how to develop America. He's running what's essentially a giant corporation. He's the CEO of the Treasury Department. You know, the Secretary of state is in charge of the State Department. These are huge organizations.

Hannah McCarthy: [00:11:15] Pause here for one second. The executive branch, these various secretaries and the agencies under them, they run things, right? Right. But the president is the head of the executive branch. So who is in charge of whom? Is it the secretary of. For example, agriculture. Who has the final say when it comes to farm subsidies or is it the president?

Nick Capodice: [00:11:40] A very good question, Hannah.

Dan Cassino: [00:11:42] So if I, as Congress, have now delegated power to executive to executive department, have I delegated that power to the president? Because that's where all the executive power is. Have I given up my power to the president or to a department? And that gets really tricky. We have inklings of the problems with this going back to the Jackson administration, right. Andrew Jackson, not really one of your founding fathers. He is an outsider. He is blowing everything up when he gets into office. He doesn't really care for the norms and rules that have gone in before him in the presidency. So when he's in office, he has this big fight over the National bank, Biddle's bank war, right? Andrew Jackson does not trust banks Fidelity Fiduciary Bank. He doesn't trust banks. If you ask him, he'll say it's because of the South Sea bubble, something that happened several hundred years beforehand, the.

Hannah McCarthy: [00:12:29] South Sea bubble.

Nick Capodice: [00:12:31] I'm not going to get into it. The South Sea Company was involved in enslaving people and whaling it collapsed. Long story short, Jackson hated the idea of a national bank. He hated it so much, in fact, that he used his veto power to try to get rid of our national bank. But it still stuck around. So to put a stake in its heart, he went to his Secretary of the Treasury and says, take all of the money out of the national bank.

Dan Cassino: [00:12:58] And Secretary Treasury says, no, that would be that would cause a financial crisis. By the way, he was totally right. It caused a giant financial crisis. What does Jackson do? He fires him and says, next guy in line, hey, you go pull the mighty National Bank or not, and eventually get somebody who will in fact pull the money out of the national Bank. This, of course, is going to upset Congress. Like, wait, we delegated this power to the Secretary of the Treasury, not to Andrew Jackson. What the heck, right. Is he allowed to do this or not? And the answer is, well, he did it. So I guess we're playing by Airbud rules here.

Speaker6: [00:13:27] Ain't no rules to the dog. Can't play basketball.

Dan Cassino: [00:13:30] There's nothing that says he can't do it. So he's going to go ahead and make that happen.

Nick Capodice: [00:13:36] And this happens again and again. Andrew Johnson directly opposes reconstruction policy passed by the majority Republican Congress. So Johnson wanted to fire the Secretary of war. But Congress had passed a law saying a president couldn't do that without consent of the Senate.

Dan Cassino: [00:13:54] So what does Johnson do? He fires the secretary of war. Congress decides we're going to impeach this guy. We're going to impeach Johnson because he violated the law.

Nick Capodice: [00:14:01] And to be clear, he was not removed from office by one vote.

Hannah McCarthy: [00:14:07] Before we move on, you said earlier that other people could be in the cabinet in addition to these executive department heads who can be in the cabinet.

Nick Capodice: [00:14:19] So like we mentioned earlier, the veep is now in the cabinet. But in addition to the executive heads, it can change. For example, as a rule, if you're a Democratic president, the head of the EPA is going to be in your cabinet if you're a Republican, they won't. Sometimes the ambassador to the United Nations is in it, sometimes they're not.

Hannah McCarthy: [00:14:39] Now, you know, Nick, that I'm a big fan of Leo McGarry.

Speaker11: [00:14:44] Tired of it. Year after year after year after year, having to choose between the lesser of who cares? Of trying to get myself excited about a candidate who can speak in complete sentences, of setting the bar so low I can hardly look at it. They say a good man can't get elected president. I don't believe that. Do you?

Speaker12: [00:15:05] You think I'm that man? Yes.

Hannah McCarthy: [00:15:09] For anyone out there who has not stayed up late at night sobbing over the better seasons of The West Wing, Leo McGarry is President Bartlet's chief of staff. Nick is the chief of staff in the cabinet.

Nick Capodice: [00:15:21] They have been recently and this started with some regularity under Richard Nixon.

Hannah McCarthy: [00:15:26] What exactly does the Chief of staff do?

Dan Cassino: [00:15:29] The chief of staff's job under most presidents and does vary by presence. Chief of staff's job in general, is to control access to the president, to decide which problems are big and important enough that the president has to pay attention to these things. And in effective presidencies, he is the guy who has to go in and tell everybody, no, you're important, but you don't get to talk to the president. You have to control access to to the president and ineffective presidencies. No one does that. Um, George Stephanopoulos talked about the early years of the Clinton administration, talked about it being like a bunch of eight year olds playing soccer. Right. Like, everyone in theory has a position, but in practice, everyone's just running around chasing the ball. If you remember the year the Clinton administration and I do, because I'm old, you would notice. Yeah. They didn't get a whole heck of a lot done because Bill Clinton was off talking to everybody and having a great time and not actually focusing on the stuff you probably should have been focusing on.

Hannah McCarthy: [00:16:16] Nick, I feel like I have a handle on the cabinet now. I would love to talk about appointing people to the cabinet.

Nick Capodice: [00:16:23] You got it. We will talk about Senate confirmation, and we're going to get to Chris's question about appointing people during a recess. But first we got to take a quick break.

Hannah McCarthy: [00:16:32] And before that break, a reminder, you can drop us a line at Civics 101 at nhpr.org. That is our email address. Ask us your questions and we will do what we can as quickly as we can. And thank you. We're back. You're listening to Civics 101 today. It is all about the cabinet. So, Nick, appointments to the cabinet happen after a president assumes office, even though to varying degrees, especially as we have seen lately, most incoming administrations make a lot of political hay by revealing who they intend to nominate.

Speaker13: [00:17:14] Is what we're seeing. President elect Trump do not just in the health space, but in the legal space and in the national security space, a desire based on the results of the election and Trump's belief that his supporters want him to do this to seriously disrupt the status quo.

Hannah McCarthy: [00:17:29] Does every cabinet member require Senate approval?

Nick Capodice: [00:17:34] They do indeed. And here is the constitutional chunk tied to this. The old two, two, two. Article two, section two, clause two. Quote he and he. Here is the president in the Constitution he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States whose appointments are not herein otherwise provided for.

Hannah McCarthy: [00:18:00] And how many votes in the Senate does a nominee need to be appointed?

Nick Capodice: [00:18:06] It's a simple majority 51 votes. Here is Dan Cassino again with the Senate confirmation process.

Dan Cassino: [00:18:13] So all of these agency heads, of course, are subject first to approval by the Senate and second, to being brought up to the Senate and being forced to ask questions as part of Congress's oversight procedures. And there's been a big fight over the course of the 20th century as to to what extent Congress actually can make them answer questions. So if we go back to the 19th century, that was, of course, Congress can call up anyone they want and ask them whatever questions they want. Part of the oversight. Fine. By the time we get to the 20th century, not so much. Think of Dwight Eisenhower. When Eisenhower was in office. We've got the Red scare. We've got the House un-American Activities Committee. And Dwight Eisenhower is just sick of these guys. Sick of Joe McCarthy. Joe McCarthy is demanding all the security files and everyone in the State Department and Eisenhower just goes, yeah, no.

Speaker10: [00:19:00] But once, once you have this United States covered with a network, a network of professors and teachers who are getting their orders from Moscow.

Hannah McCarthy: [00:19:13] No relation. I feel like I have to say that every time Joe McCarthy comes up.

Nick Capodice: [00:19:17] I am in full support of that. Hannah.

Dan Cassino: [00:19:19] Now, this is actually a huge power grab on the part of the executive to say, yeah, we're going to ignore your oversight power. We're not going to do it. But basically everyone hates Joe McCarthy at this point. So we're like, yeah, all right, that's fine. And not realizing that sets up a precedent where future presidents can go, yeah, I don't want this guy to testify. So he's not going to testify.

Hannah McCarthy: [00:19:35] Wait, so nobody testifies before the Senate anymore? No no.

Nick Capodice: [00:19:39] No no. They do. This is one of those rare times where a branch sets a precedent that gives them a ton of unchecked power. But then they say, no, let's just opt to do things the more traditional way.

Hannah McCarthy: [00:19:52] Why?

Nick Capodice: [00:19:53] Because in the end, everybody has a government to run.

Dan Cassino: [00:19:58] At the end of the day, a president can certainly have a big fight with Congress over who testifies, over how much, over what an agency head does. You can fight Congress over that. But the more you fight Congress over that, the less likely Congress is to give you what you want when you're trying to negotiate with them later. And so Congress, as a result, just presidents. Yeah. Just, you know, play nice because we're going to need these guys to pass a budget next year. And we don't want to burn all of our bridges right now.

Hannah McCarthy: [00:20:22] I appreciate that, but let's say that there is a chief executive who does not care a bit about burning bridges, and they put forward a nominee who will almost certainly fail Senate confirmation. How could such a president hypothetically bypass this whole process?

Speaker14: [00:20:42] You said that recess appointments are on the table. That's a key demand from president elect Donald Trump.

Speaker15: [00:20:46] Will you move forward with that? Well, what we're going to do is make sure that we are processing his nominees in a way that gets them into those positions so they can implement his agenda. Um, how that happens remains to be seen.

Nick Capodice: [00:21:01] So I asked Dan Chris question directly about recess appointments, and here's what he said.

Dan Cassino: [00:21:06] Let's talk a little bit about what questions that one of the listeners had, which is about recess appointments, recess appointments. This is in the Constitution. The idea is that if Congress isn't around because remember early part of the Republic before the 18th and 19th century Congress wasn't around. Most of the time they were back in their home districts. And so in the Constitution says, you know, if there's no if Congress is not around, the president can make a recess appointment. And presidents did this with great regularity up until the 1970s. And why did it end in the 1970s, end of the 1970s? Because of Richard Nixon. Presidents were making recess appointments, and presidents at the same time were also making use of what we call pocket vetoes.

Hannah McCarthy: [00:21:45] I need a quick refresher here on the pocket veto.

Nick Capodice: [00:21:48] Absolutely. So after Congress passes a bill, it goes to the president's desk. After that, the president has ten days to sign it into law or to veto it, to say, no, I don't want this bill or it does get signed into law. Now, a veto can be overridden if two thirds of both houses say, no, no, no, we really want this bill. And this has happened about a hundred times in US history. But a pocket veto is different. It is very sneaky. Bill goes to the president's desk. President doesn't do anything. And before ten days are up, Congress goes out of session. The bill is in effect vetoed. In fact, it is perma vetoed. It can't go back to Congress for a potential override. And this a pocket veto has happened about a thousand times.

Dan Cassino: [00:22:39] So we have these two powers, recess appointments and the pocket veto that come into effect whenever Congress is out of session. So Richard Nixon, in his long term attempts to increase executive power, decide to push the envelope with what counts as Congress being in recess. So, sure, Congress between sessions, whether it's in Congress, adjourns in the middle of December and tell the new Congress comes in in January. All right. That's a big recess. Cool. What if Congress goes away for a long weekend? Is that a recess? And the answer is Richard Nixon says, looks like a recess to me. You guys aren't around. So even if I have a 2 or 3 day recess, I'm going to put in appointments. You know, I'm going to put in these appointments and I'm going to even pocket veto bills because Congress is out of session. Yeah. So Nixon pushes the envelope with this in Congress, jealous of its power, jealous of its authority, pushes back. And Congress has an ingenious plan to make sure the president can't make recess appointments and can't pocket veto bills, which is Congress decides. What if we just never went out of session? How do you do it? Well, every 2 or 3 days when Congress is out of session, you send someone and by someone. For most of the 1970s named Joe Biden.

Speaker10: [00:23:54] The youngest new face in the U.S. Senate next year will be that of Democrat Joseph Biden of Delaware. So young, in fact, that at the time of his election on November 7th, Biden was not yet old enough to serve.

Dan Cassino: [00:24:06] Because he can just hop on the train and go back and go back to the Senate. And he just gavels the Senate in, says, all right, sentence in session. Oh, shoot. No one else is here. Um. All right. Cool, I guess. Sentence out of session. And he does that every couple of days. And now the Senate is never at a session for more than 2 or 3 days at a time. So therefore there can be no recess appointments and there can be no pocket vetoes because the Senate is never gone.

Hannah McCarthy: [00:24:29] Has any president in recent history made recess appointments?

Nick Capodice: [00:24:34] No. Not really. President Obama did make some. But then the Supreme Court contested them because the recess was only a few days. The Supreme Court ruled a recess has to be at least ten days for it to be one where appointments can be made.

Hannah McCarthy: [00:24:49] Back to Chris's question can a president make, like force Congress to recess?

Dan Cassino: [00:24:55] There is a clause in the Constitution that says, if the House and the Senate cannot agree on whether or not to adjourn, then the president can force them to adjourn and can call them back when he wants to. Now, this has literally never happened. No president has ever done this. And we first started hearing inklings. The first time I ever heard about this was actually towards the tail end of the first Trump administration in 2020, when there were conservative legal minds saying that the president should go ahead and do this, should go ahead and adjourn the House and the Senate. And if the president adjourns the House, Senate. Now, they're in recess. And if you adjourn them for ten days now, then recess. So if you give it ten days now, you can make a recess appointment. And that would be considered kosher.

Nick Capodice: [00:25:41] Just a quick note here, Hannah. Recess appointments only last one year.

Hannah McCarthy: [00:25:46] Really? Just a.

Nick Capodice: [00:25:47] Year. Just a year.

Dan Cassino: [00:25:48] These scores would be temporary, right? It goes until the basically a year and change until the end of the next session of Congress. But that could work. There is also some question about the extent to which you could actually do judicial recess appointments. Could you put a judge in office via a recess appointment? And the answer is air bud rules. Ain't no rules to the dog. Can't play Played basketball. There's nothing that says you can't do it. That would be weird to put a judge in office and have them go away after one year. But you could do it in theory. So the way it would work is the House of Representatives was controlled at this point by Republicans and controlled by Republicans would say, we want to recess right now, and they would send a message to the Senate saying, we're going to recess in the Senate would, in theory, go either say, okay, cool, we're in recess, at which point you're in recess. You go away for ten days, the president can make a recess appointment, or they go, no, we don't want a recess in a sense as that. Then you've got a disagreement between the House and the Senate about whether or not to recess. And then we have this never before used clause in the Constitution that kick in. The president could go. Now, you're both in recess, and I'll call you back when I want you, in theory, in ten days.

Hannah McCarthy: [00:26:52] So it could be done. It just has not been done right.

Nick Capodice: [00:26:59] And this brings me to the big point here. Regardless of what you feel politically, it has been made abundantly clear that several of Trump's nominees for his cabinet are unpopular, even within the Republican Party. And it doesn't just damage the potential nominee. If they have a grueling nomination process, it gets in the way of a new president's agenda.

Dan Cassino: [00:27:20] It's generally a bad idea to put up controversial nominations, because then that's all you're going to talk about for the first couple of months of your administration. And this is the time when you need to be passing a bunch of bills. And you can't, because the Senate's all just doing these nominations. It's generally a much better idea if you want to pass bills to get non-controversial people in there. And if you want controversial people, great. Put them in the executive office of the president, put them in the executive agents rather than executive officers, so they don't have to go through the Senate. The other side of this is that if you do decide to do recess appointments, if you do decide to do pocket vetoes, you are poisoning your relationship with Congress, right? Because Congress, if you go to Congress, say, hey, I need you to pass this bill for me. And you say, by the way, if you don't, I'm going to do it myself. Well, then why is Congress going to. Why is a senator going to put himself at risk by doing by doing you a favor if you're just going to do it yourself? Right. The Senate, I think much more in the House, is very jealous of its prerogatives.

Dan Cassino: [00:28:18] And they've historically been very jealous of prerogatives, even when the Senate and the president are of the same party, they don't want to lose power. Right. They are very worried about the power of the minority and the power of the Senate, because everyone in the Senate, almost everyone in the Senate has been in the majority and in the minority. And anyone who's in the minority in the Senate can tell you it is a miserable experience, leavened by the fact that you actually do have some power, you have some influence, you can get some things done, or you can at least stop some things from happening. And so they don't want to give up that power. And so it would be a stretch, I think, for the Senate to conspire with the president to remove power from the Senate. And if you do force things through, you've now poisoned your relationship because you're going to have to go back to these guys later and say, hey, can we pass a budget or something? And if you have upset them, if you have declared that they are not relevant, it's going to be real hard to go back and do that.

Nick Capodice: [00:29:11] Last thing about the cabinet here, Hannah. Do you remember in the recent episode about how votes are counted? We talked about people who don't trust the system, you know, deciding to run for county clerk or something like that.

Hannah McCarthy: [00:29:22] Oh, yeah. Yeah. Of course, people who think that the system is rigged and so they want to peek inside at that fantasy of this, you know, smoke filled room with a bunch of ballots just lying around. And then they get in there and they learn that there is no such room. And, you know, it's extremely bureaucratic and fraud proof in there. And they're like, well, this is more boring than I thought.

Nick Capodice: [00:29:47] Yeah. Dan said a similar thing can happen in the cabinet when, you know, a president appoints someone to head an agency because they're super loyal to the president and will do whatever the president asks, sometimes even try to destroy an agency because the president doesn't like it. But something tends to happen to these cabinet officers.

Dan Cassino: [00:30:07] Cabinet officers. There's a continuing problem. This goes back really to Richard Nixon, right? So Richard Nixon had cabinet departments. He was trying to get rid of that. He did not like. He put loyalists in those cabinet departments that also didn't like those cabinet departments. Right. So you put a guy in charge of the EPA, you know, who used to work for an oil company in the hopes that he will shut everything down. You put someone in charge of the Justice Department that doesn't want to bring lawsuits on behalf of segregation. So you do that. And even Richard Nixon and Ronald Reagan after him, and every president who comes after it winds up facing the same problem, which is when you put people in charge of agencies, they go to work at that agency every day. They they work with the people who are running the agency, the people in that agency, the people working with the EPA believe deeply in the mission of the EPA. The people working with the department believe deeply in the mission of the Justice Department. And you work with those people every day. And after a while, you wind up going, hey, I think these people are doing some good stuff, and this is a problem that every president faces. You put someone in charge of NASA, they wind up thinking NASA is a good thing, and you think you put someone in loyalist who's going to help you shut down NASA, or shut down the EPA, or shut down the part of education, and they wind up being on the side of all the people they're working with. This cabinet is much less about loyalty and much more about being part of this institutional culture. The more you, the longer the time you spend there, the more people tend to agree. Yeah, this is a good idea.

Nick Capodice: [00:31:26] But Hanna, presidents can kill an agency. They can do it. They can just zero out a budget request. They can tell everyone in the agency, you know, pack your bags. Get out of here. A president can just refuse to appoint anyone at all to head an agency. You could.

Dan Cassino: [00:31:43] Do that. Try and not spend the money that Congress has given to you. But again, anytime you do something like that, you're running into Congress. And Congress, especially in a president's second term, is really worried about their own prerogatives, because if I'm a member of Congress, I'm a member of the House of Representatives. Yeah, I'm up for election every two years, but I also have a 95% reelection rate. If I know this joke is over here for four years, I know 90% chance I'm gonna be here six years from now. I'm not going to give up a whole lot to help somebody who's going to be gone in four years. So Congress is jealous of its prerogatives. And, of course, that's the constitutional design. Congress is supposed to be very jealous of its prerogatives. And whatever president does, they're going to have to deal in the end, with Congress and with Congress trying to hold on to its own power.

[00:32:45] But. They. Don't. Yo. Yo. Yo. Yo. Yo. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba. Baba, Baba.

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Trump's "Day One" Promises

President Elect Donald Trump has said he won't be a dictator "except for day one." We take a look at all of the "day one" promises he's made over the course of his campaign and explain how he might get them done. Or not.

For a sense of how many times Donald Trump made these promises, check out the Washington Post's data here.

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Transcript

Hannah McCarthy: [00:00:03] Do you want to support our show and get a chance to win $15,000 in travel credit to go anywhere in the world, or $10,000 in cash? You can buy tickets to enter NPR's holiday raffle. Get one for $50, three for $100, or six for 150 or, you know, get more. The more tickets you buy, the cheaper they get. And all of the money goes to support this podcast [00:00:30] and the work of NPR's newsroom. The deadline is December 7th. You can find a link to get those tickets in our show notes or at civics101podcast.org.

Archival: [00:00:45] You would never abuse power as retribution against anybody except for day one. Except when he's going crazy.

Archival: [00:00:53] Except for day one. Meaning I want to close the border and I want to drill. That's not a -- That's not that's [00:01:00] not retribution. I got I'm going to be I'm going to be you know he keeps we love this guy. He says you're not going to be a dictator are you? I said no, no, no. Other than day one. We're closing the border and we're drilling, drilling, drilling after that. I'm not a dictator after that.

Hannah McCarthy: [00:01:20] I'm Hannah

Nick Capodice: [00:01:21] I'm Nick.

Hannah McCarthy: [00:01:21] And this is Civics 101. President elect Donald Trump has promised to be a dictator for one day. After that, he [00:01:30] says he won't be a dictator anymore. But given the fact that no president elect of the United States has ever vowed to be a dictator, even for one day, I figured that we should make an episode about that. So let's start with what he actually said he would do during his one day dictatorship. I also have to add here, no, you cannot. In the United States, as things stand today, simply be a quote unquote dictator. A dictator has ostensibly absolute authority [00:02:00] over a place and its people. Trump will not have that on day one, because we have a government established by our framers to actively prevent absolute authority for anybody. Dictatorships take time to establish.

Archival: [00:02:16] We're going to close the border. Day one. The border gets closed.

Hannah McCarthy: [00:02:22] Okay. Closing the border. By which Trump means the US border with Mexico. Nick, how does one close a border? [00:02:30]

Nick Capodice: [00:02:30] I know of two historical instances of the southern border being pretty much entirely locked up. They were, however, short lived.

Hannah McCarthy: [00:02:38] All right, let's hear it. Okay.

Nick Capodice: [00:02:40] It happened for one day after the assassination of John F Kennedy. The whole southern border was closed. And then I know that Ronald Reagan closed a bunch of what are called, quote, ports of entry. And that was after a DEA agent was kidnaped in Mexico and that only lasted for a few days.

Hannah McCarthy: [00:02:58] And importantly, Nick, [00:03:00] neither of those closures were challenged in court.

Nick Capodice: [00:03:03] Yeah, they were not. That is true. I also know that during the height of the Covid 19 pandemic, both the Trump and Biden administrations really restricted entry to the US and asylum. It wasn't a closure exactly, but immigration slowed to a trickle. But again, that was during a specific thing, a specific emergency, right?

Hannah McCarthy: [00:03:26] There was an immigrant visa ban at that time, and visa processing [00:03:30] the world over came to a near standstill. And when it comes to the US-Mexico border, officials started, quote unquote, expelling people without giving them the opportunity to apply for asylum and suspended asylum hearings for people who had already applied

Archival: [00:03:47] The pandemic era emergency rule known as title 42. The policy has allowed U.S. immigration authorities to quickly expel immigrants and asylum seekers to stop the spread of Covid 19. The rule has blocked nearly [00:04:00] 2 million people from crossing the border since it was enacted during the Trump administration in March 2020.

Nick Capodice: [00:04:07] But again, Hannah, that is all tied to a public health emergency.

Hannah McCarthy: [00:04:11] It is, however, during his first presidency, Trump issued other immigration related proclamations. Do you remember this?

Nick Capodice: [00:04:19] I do. There was the so-called Muslim ban, which was actually even more broad than immigration, right? It restricted travel to the US for people from various Muslim [00:04:30] majority countries.

Hannah McCarthy: [00:04:31] Yeah. The Supreme Court upheld that in Trump v Hawaii, but Biden removed the ban when he took office. Trump does vow to bring it back, by the way.

Archival: [00:04:41] On day one of the Trump presidency, I'm restoring the travel ban, suspending refugee admissions and keeping terrorists the hell out of our country like I had it before.

Nick Capodice: [00:04:54] And then, lest we forget, there was the zero tolerance family separation policy [00:05:00] and the Remain in Mexico policy, which I think had to do with people not being allowed to come into the US while they waited to hear if they were going to get asylum.

Hannah McCarthy: [00:05:10] That was also undone by Biden. Trump also issued a proclamation saying that anyone who did not enter the United States at a port of entry in other words, anyone, including children who crossed the border illegally, would not be allowed to apply for asylum. Now, a circuit court invalidated this. We have a law that [00:05:30] says that any non-citizen who crosses the US border anywhere is allowed to apply for asylum. We also have a long standing treaty obligation to not raffoul anybody refal anybody.

Nick Capodice: [00:05:43] What is refoulement?

Hannah McCarthy: [00:05:44] It means that we do not force someone to go back to their home if they're going to be persecuted there. All right. Last one I want to mention. Trump also issued a proclamation suspending the crossing of non-citizens who did not have health insurance or the ability to pay medical bills. [00:06:00]

Nick Capodice: [00:06:00] I completely forgot about that one. Wasn't that also stopped by a court?

Hannah McCarthy: [00:06:05] Great question. One court said that this was illegal, and then another court said, you know, no, we're going to uphold it. This is permissible.

Nick Capodice: [00:06:15] Wait. But I know that policy did not stick around.

Hannah McCarthy: [00:06:19] It did not turns out that the second court's opinion was moot. We do not need to get into how that happened. But the point here, Nick, is that there was no definitive answer. One [00:06:30] court said no. Another court said yes.

Nick Capodice: [00:06:33] Meaning, if I may, I think that we are not actually sure what a president can or cannot do when it comes to immigration bans and border closures, unless there's an emergency.

Hannah McCarthy: [00:06:45] Which Trump has declared before.

Archival: [00:06:47] So we're going to be signing today and registering national emergency. And [00:07:00] it's a great thing to do because we have an invasion of drugs, invasion of gangs, invasion of people, and it's unacceptable.

Hannah McCarthy: [00:07:10] The president elect has also vowed to deliver mass deportations of undocumented immigrants on day one and invoke an old law, the Alien Enemies Act, to deport suspected members of drug cartels and gangs without giving them a court hearing. He plans to funnel military spending into border security and hire thousands more border [00:07:30] agents. So how does one close a border? I guess we're going to find out. The once and future administration is famously light on the details here. But we do know how Trump has done versions of this in the past.

Nick Capodice: [00:07:43] And like you said, we are not completely sure how far the executive branch is allowed to go when it comes to the border, I can.

Hannah McCarthy: [00:07:50] Tell you that we do know that the Department of Homeland Security and the executive branch alike have broad authority to close ports and suspend entry to [00:08:00] the United States. How broad they are exactly will probably be tested in 2025. All right, moving on to drilling.

Archival: [00:08:08] Drill, baby drill. We're going to start that day one.

Nick Capodice: [00:08:13] All right I got this one. It's shorthand for expanding oil and gas production in the US.

Hannah McCarthy: [00:08:20] This one is interesting because we already are the number one producer of crude oil in the world and have been for about six years. So the expansion part [00:08:30] remains to be seen. You know what that is going to look like. But Trump has made clear that he believes that wind turbines and electric vehicles stand in the way of the oil and gas future he wants. All right.

Nick Capodice: [00:08:43] And I also know that Trump has promised to, quote, repeal the Green New Deal. But the Green New Deal doesn't actually exist.

Archival: [00:08:53] As of now. It looks like the resolution on the Green New Deal has now officially failed to advance [00:09:00] in the Senate. Back over to you.

Hannah McCarthy: [00:09:01] All right, quick primer on that. What do you mean?

Nick Capodice: [00:09:03] Yeah, absolutely. The Green New Deal is proposed climate change policy that says we are going to phase out fossil fuels. We're going to reduce emissions and get to 100% clean, renewable energy. But given that it hasn't actually been passed, I'm pretty sure when Trump says that, he just means he's going to get rid of other environmental policies.

Archival: [00:09:25] They spent trillions of dollars on things having to do with the [00:09:30] Green New scam. It's a scam.

Hannah McCarthy: [00:09:31] Some Republicans have taken that term. Green New Deal, which, like you said, is the name of climate policy. It was proposed by Liberal Democrats in Congress, and they have applied that term to things like greenhouse gas mitigation and lessening dependency on fossil fuels. These are policies that are found in the current Inflation Reduction Act.

Nick Capodice: [00:09:52] And I know the Environmental Protection Agency, the EPA has new emission standards for vehicles.

Hannah McCarthy: [00:09:57] They do. Trump promises to eliminate [00:10:00] those on day one. He says that this will save American automakers, who currently have to abide by emission standards and incentives to make electric cars. So vehicle emission standards and wind turbine investment, Trump says, are going away on day one and drilling is going to get bigger. So what else does Trump say will happen on day one? I will get to that after a quick break. We're [00:10:30] back. We're talking about the many things that president elect Donald Trump has said that he will do on day one of his presidency, the only day, he says, during which he will be a quote unquote dictator. So what else is going to happen on day one? Trump has said that he is going to fire special Counsel Jack Smith immediately. Now, he didn't say day one per se, but, well, I'll let you listen.

Archival: [00:10:59] We got [00:11:00] immunity at the Supreme Court. It's so easy. I would fire him within two seconds.

Nick Capodice: [00:11:05] Jack Smith being the Justice Department special counsel who brought two federal cases against Trump.

Archival: [00:11:11] Trump has said he would fire special counsel Jack Smith within two seconds, erasing the two federal prosecutions. He's brought one over, subverting the 2020 election, the other for retaining classified documents.

Hannah McCarthy: [00:11:23] Now, we should mention here word is that Smith is already winding down both of those cases, and Trump [00:11:30] would likely not actually have to fire him to make them go away, at least not while he's in the white House.

Archival: [00:11:35] Jack Smith and his colleagues would look to wind these cases down one way or another.

Hannah McCarthy: [00:11:41] Trump has also identified many people who he considers to be his enemies and who he plans to go after, though he's indicated that that project might be bigger than a day one thing.

Archival: [00:11:53] Revenge does take time. I will say that it does. And sometimes revenge can be justified, though I have to be [00:12:00] honest. You know, sometimes it can.

Hannah McCarthy: [00:12:01] All right, moving on. Because day one promises to be busy. While we're on the subject of retribution, Trump has said he will. Quote unquote, free the January 6th rioters who have been arrested and charged, though probably not all of them, he says. A couple of them, quote unquote, probably got out of control.

Archival: [00:12:18] They've got the gallows set up outside the Capitol building. It's time to start using them.

Archival: [00:12:24] Start making a list with all those names down, and we start hunting them down one by one. [00:12:30] Traitors get guilty.

Nick Capodice: [00:12:34] And to be clear, this one's pretty straightforward because the president has broad constitutional pardon powers, though I will say they do only apply to federal cases and specifically do not apply to impeachments. And we still don't have a firm answer on whether Trump can pardon himself. Right? Right.

Hannah McCarthy: [00:12:54] So in case you missed it, Trump was convicted on 34 felony counts in New York state. [00:13:00] Notably, that is a state case, and Trump is expected to appear in court for sentencing on November 26th. His lawyers are obviously filing a petition to delay sentencing, since he is now white House bound, and the judge in that case, Juan Merchan, might throw away Trump's conviction before that. Really? Yeah. Given the Supreme Court immunity ruling, which we have a whole episode about and Trump's presidential victory, Merchan gave himself until November 12th to decide whether or not to [00:13:30] overturn that conviction.

Nick Capodice: [00:13:32] But one way or another, Trump can't pardon himself in a state case.

Hannah McCarthy: [00:13:36] He cannot. And as far as pardoning himself in the federal cases, you know, as we said, those appear to be going away anyway. So he very well might not have anything to pardon himself for. All right. Back to day one. Trump has said that on day one, he will, quote, return to a foreign policy that puts America's [00:14:00] interests first.

Nick Capodice: [00:14:01] All right. Now, what does that mean? Like, do you have any details on that one?

Hannah McCarthy: [00:14:06] Not in terms of what that actually looks like on day one. But we do know that Trump has said that he will end the war between Russia and Ukraine before he even takes office. So that is foreign policy. Trump is also openly critical of NATO, the North Atlantic Treaty Organization, which is an intergovernmental military alliance. Now, last year, Congress passed a law saying that the president [00:14:30] cannot leave NATO without consent from the Senate or a new act of Congress. But that law is a little weak and legal experts are not sure it would even be enforced, and the Senate will have a comfortable Republican majority by the time they have to think about it. All right, moving on. Trump has vowed to find time in that busy day to revoke protections for transgender students.

Nick Capodice: [00:14:54] Yeah, and this is title nine, right?

Hannah McCarthy: [00:14:55] Yes. So the Education amendments of 1972 [00:15:00] have a statute that prohibits discrimination on the basis of sex, and it applies to any education program or activity that receives federal funding. Last spring, the Department of Education, which Trump promises to dismantle, though we'll explain why that's really not a day. One project some other time. Anyway, the department, working under an executive order from Biden, added sexual orientation and gender identity protections to that statute.

Archival: [00:15:29] Crazy. [00:15:30] What? What would you do on day one?

Archival: [00:15:32] Don't forget that was done as an order from the president that came down as an executive order, and we're going to change it on day one. It's going to be changed. We're going to end it.

Nick Capodice: [00:15:42] And as for whether and how Trump can do this, he pretty much just told us, Hannah, he can issue an executive order regarding the Department of Education, just like Biden did. Yep.

Hannah McCarthy: [00:15:53] Trump has also promised to ban trans women from women's sports.

Archival: [00:15:57] Do you go to the sports leagues? Do you go to [00:16:00] the Olympics? You just ban it.

Archival: [00:16:01] The president bans it. You just don't let it happen.

Hannah McCarthy: [00:16:11] Along these same education sphere lines, Trump promises to cut federal funding to schools that teach what he calls critical race theory, which, you know, we've talked about before on the show. But just as a reminder, is a legal framework taught mostly in law schools and very much not taught to grade school students, much in the same way that we do not [00:16:30] teach grade school students taught law.

Nick Capodice: [00:16:32] But what he means, I imagine, is schools that talk about race, which.

Hannah McCarthy: [00:16:37] Given teaching, you know, the history of the United States, it is unclear how or where he will draw that line. He also plans to cut funding on day one to schools that teach, quote, transgender insanity. In other words, schools that foster conversations about gender and sexual orientation.

Archival: [00:16:55] We will get critical race theory and transgender insanity the hell out [00:17:00] of our schools.

Hannah McCarthy: [00:17:01] Trump also plans to. Day one cut federal funds for schools that have vaccine or mask mandate policies. Now, to be clear, Trump cannot unilaterally cut education funds. He would need Congress to help him do that. And finally, in terms of kids and gender, Trump promises to ban gender affirming surgeries for minors on day one.

Archival: [00:17:22] Here's my plan to stop the chemical, physical, and emotional mutilation of our youth. On day one, I [00:17:30] will revoke Joe Biden's cruel policies on so-called gender affirming care. Ridiculous.

Nick Capodice: [00:17:37] And this banning of gender affirming surgeries. Are we again talking about an executive order?

Hannah McCarthy: [00:17:43] Probably, which could do something, have some effect? But again, ultimately something like that requires multi-departmental coordination and probably requires Congress and will almost certainly be challenged in court.

Nick Capodice: [00:17:57] While we're on the subject of executive orders, [00:18:00] I do know that one of the easiest things a president really can do on day one is to revoke the executive orders of other presidents. Right. So the guest we had on our episode about the executive branch, she called it unwinding, unwinding the actions of former presidents.

Hannah McCarthy: [00:18:19] Yes. I am glad you brought this up. While executive orders can be swift and decisive, they are also only as strong as the sitting president wants them to be. Trump has promised to [00:18:30] revoke Biden's orders on diversity, equity and inclusion in the federal workforce. An order on background checks for gun purchasers and an order on safety and security of artificial intelligence.

Nick Capodice: [00:18:42] Oh. All right, Hannah, what else you got?

Hannah McCarthy: [00:18:46] You want more than that?

Nick Capodice: [00:18:48] Yeah. Fair enough. That's a lot for one day.

Hannah McCarthy: [00:18:51] It's a lot for four years. That said, there are other day ones that have come up here and there eliminating certain commercial fishing regulations, [00:19:00] for example. And of course, this does not account for the many, many other promises to keep. Day one is just the beginning. We have got miles to go. And you know what? That is what we are here for. This is Civics 101.

Nick Capodice: [00:19:18] It is. We will be paying attention. We'll be asking questions. We'll be figuring it out. We will be here, civil or not.

Hannah McCarthy: [00:19:33] This [00:19:30] episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca LaVoy is our executive producer. Music. In this episode by Kushi, Toby Tranter, Matt Large, Magic, Jumbo, bonkers, Beat Club, Dugway, Ballpoint and Dharma Beats. We have gotten a lot of emails in the past week, and we are beyond ready to answer your questions about how this country works. [00:20:00] If you have anything you want to ask us, you can do that at our website, civics101podcast.org, or by emailing us at Civics 101 at nhpr.org. And Civics 101 is in fact a production of NPR, New Hampshire Public Radio.

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How do presidential transitions happen?

In 2018, we did an episode on Presidential Transitions. Now that we have had an election, we decided to revisit it. There are nearly 4,000 positions that a president appoints after their inauguration. How do they do it? How long does it take? And why has Donald Trump repeatedly refused to sign the "memoranda of understanding" regarding the transition from the U.S. General Services Administration?

Our guest is Max Stier, President and CEO of the Partnership for Public Service, which runs the Center for Presidential Transition.

Our show started as an explainer of governmental systems in a transition such as the one we're in now. Send us an email at civics101@nhpr.org if you want us to explain any facet of how our democracy works.  

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Transcript

Nick Capodice: Hey, everyone. Nick here. It's like 522 on November 7th. I'm recording this as I'm walking around, I forgot to account for daylight savings time. It's so dark and I'm wearing a black hoodie, so got to be careful. I'm sure a lot of you out there know the story of how Civics 101 started. If [00:00:30] you don't, I'll just tell you real quick. Shortly after Trump was elected as president, the first time, the CPU, which is the rather unfun initialism for the people who make podcasts at NPR, we're like sitting around and talking about something that was happening involving the Secretary of state. And then somebody bravely said, what is the secretary of State do again? And the room, I'll wait for this truck to go by. It's a big truck. [00:01:00] And the room was silent. Somebody was like, do any of you know what the Secretary of State does? And then Logan. Shannon. Logan. Shannon, thank you for my job. A producer at NPR. Logan Shannon wrote down on a post-it note. Schoolhouse Rock for adults. Question mark. Somebody I don't know who has that post-it note in a frame somewhere. But [00:01:30] that's how the show started. It was explaining how systems worked in a nonpartizan way. After the election of somebody for whom frankly, democratic norms, you know, were not the norm.

Nick Capodice: So, you know, let's just understand how things work. Here we are. And when I say, here we are, here we are again. So the election was a couple days ago. Donald Trump won. And so we're [00:02:00] going to ask you again, what do you want to know? What systems do you think need explaining? Now we can't answer what's going to happen. Nobody knows for anything. Anything at all. But we can do is explain systems that have existed for 250 years, or have evolved to what they are over 250 years. And we can do it by interviewing the people who understand those systems best. So [00:02:30] I hope you'll consider sending us an email. Just send it to Civics 101 at nhpr.org and tell us what you want to know about, and we'll get started right away. All right. Here's presidential transitions. And oh, before before we launch into it, Hannah and I recorded this on Election Day. We were in the studios here at Concord. We were all, [00:03:00] you know, civic stop. So we had no idea what was going to pan out that night, even though the interview I did with Max Dyer was last week. Everything he says still holds true. All right. Drop us a line.

Enjoy the episode. Yeah.

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

Hannah McCarthy: I'm Hannah McCarthy, and.

Nick Capodice: Today we are talking about what happens when one president leaves and [00:03:30] another comes in. We're talking presidential transitions. Hannah, real quick, do you want to tell everyone when we're recording this?

Hannah McCarthy: Yep. We are recording this on Election Day on November 5th, 2024. Nick, did you vote because I voted?

Nick Capodice: I did, I voted this morning. It was great.

Hannah McCarthy: All right, so we are at the studio. There are reporters dashing all around the state, and we just talked to Vermont Public Radio about this year's election. So there's a lot going on. [00:04:00]

Nick Capodice: All this to say, we do not know anything about the election results when we're recording these words that you're hearing now. Future US does know. Maybe you do too, but we are in the dark. Hannah, I'm hesitant to play this. Do you remember this?

Virginia Prescott: Both of you guys are theater. You have theater background? Both of you. Right? We do indeed. Are you going to do a little song and dance thing? We're going to.

Nick Capodice: Do a Civics 101 Christmas carol, for.

Virginia Prescott: Sure. Yes.

Hannah McCarthy: Absolutely. Oh. So green. It's not easy being [00:04:30] green. I was this, like, six years ago.

Nick Capodice: It was just about Civics 101 did an episode on presidential transitions in 2018, and it was the episode where the former host of the show, Virginia Prescott, announced she was leaving and that Hannah, you and I would be the new hosts. Do you remember how it felt when we made that episode?

Hannah McCarthy: I remember feeling like I didn't want to disappoint anybody, because Civics 101 already meant a lot to me, and I already really, really believed in it. And I felt [00:05:00] like this huge responsibility had been handed to me and I desperately wanted to get it right.

Nick Capodice: Yeah, I didn't know what the show was going to be. I didn't know what was going to be like with me and with you together. I was nervous, I think I was just staring at my shoes the whole time. I was terrified, but yet here we are.

Hannah McCarthy: Here we are.

Nick Capodice: Well, we've got a presidential transition that is gonna happen. So I reached out to the same guy we spoke to all those years ago. And here he is. [00:05:30]

Max Stier: My name is Max Stier. I'm the president and CEO of the partnership for Public Service. We are a nonpartisan, nonprofit organization dedicated to a better government and a stronger democracy.

Nick Capodice: And Max's organization is the one that runs the center for Presidential Transition.

Hannah McCarthy: So, Nick, we have talked about the peaceful transfer of power before. Actually, a few times on this show, but this is the actual process of one person leaving the office and another [00:06:00] person coming in. Does the president elect have any powers before they're inaugurated? I mean, I'm assuming the sitting president, you know, continues to be the person with the presidential powers. But I guess I've never actually answered this question for myself.

Max Stier: It's a very, very important point. And that is that after the election, we still have one president, and that one president is the incumbent who got elected four years earlier and is president until January [00:06:30] 20th, until Inauguration Day. And they do their job, their job, meaning that they keep us safe, that they are responsible for those 450 plus departments for our national security, for all the issues that have to be addressed. And sometimes there is confusion in people's minds, including allies and enemies abroad, as to who actually is president. But make no mistake, it's one president at a time, and it continues to be the incumbent until [00:07:00] the new person is actually sworn in.

Nick Capodice: So the term for an outgoing president between Election Day and Inauguration Day, that liminal space is a so-called lame duck. That's an expression that was first used in this way in the 1920s. And it is worth adding here that the lame duck administrations used to be a heck of a lot longer. Inauguration day used to be in March. However, the 20th amendment, ratified in 1933, moved it to January. Now, [00:07:30] I want to make something very clear here, though. Even though a president isn't a president until the inauguration, the work for that transition happens much earlier.

Hannah McCarthy: All right. What is the first step? What is the first thing that an incoming president has to do?

Max Stier: Well, the first thing that has to happen when a new president comes to power is they need to be prepared to take over the most complicated, important organization not just in our country, but on the planet and probably in history. And [00:08:00] when I say that, that means the United States government and the United States government is north of $6 trillion, spend 450 plus organizations, 3.5 million people. When you count the uniformed services and civilians, 4000 political appointees, 1400 of which require Senate confirmation. So it is not. You walk in and you just start on day one by coming into the Oval Office and you're good to go. You've had to do a ton [00:08:30] of planning to be able to actually take over our government in a considered and, and a capable way. And this is about our safety as a country. Uh, you know, no small beans.

Hannah McCarthy: What does Max mean when he says that it's about our safety as a country?

Nick Capodice: Well, picture a restaurant, right? You've got chefs, kitchen staff, front of house staff, maybe including a bartender. You've got a menu, [00:09:00] a reservation system. You got all that. If you were in one night to replace every single person who worked in the restaurant, you put a new coat of paint on the walls, you design a new menu, you change out every computer you empty and refill the walk in, put in a new POS system.

Hannah McCarthy: That is the point of sale system, by the way. It is what waitstaff use to send their orders to the kitchen, and learning a new one can be tricky.

Nick Capodice: Thank you Anna. It's a dangerous initialism. There I was always I was so terrible at the POS. I was not a good waiter. [00:09:30] Surprisingly, I was a terrible waiter. Oh, I was.

Hannah McCarthy: A I got to say, I was a tremendous, tremendous server.

Nick Capodice: Why am I not surprised? If you did all that, I do not think that there is a restaurant in the world that would be ready to open in 24 hours. I don't care if you're Carmy Berzatto. You can't do it, cousin.

Speaker5: 45 minutes to open, chefs. Yes, chef.

Nick Capodice: But America is not a restaurant. It cannot [00:10:00] take a few weeks to get the US Armed Forces and the Treasury Department and the rest of the 3.5 million staff of the executive branch used to new management. It has to be working smoothly. The second the oath of office is taken.

Hannah McCarthy: Heard? Yes, chef. Yes, chef.

Speaker5: Say it back, please, chef.

Hannah McCarthy: And there are 4000 political appointees who have to be appointed when the new president takes office.

Nick Capodice: Yes. And 1200 of them have to be confirmed by the Senate. And that number is [00:10:30] high. But it's not how it used to be. So we used to operate under what was called the spoils system, where the president appointed almost every executive employee.

Max Stier: It was, you know, President Jackson that started the spoils system in the 1820s. And it ended in the assassination of President Garfield by a disgruntled job seeker.

My name is Charles Guiteau. My name I'll never deny.

Speaker6: To leave my.

Hannah McCarthy: Oh, I remember this from another episode. [00:11:00] Charles Guiteau shot President Garfield because Guiteau believed he was unfairly snubbed over an appointment as an ambassador. And long story short, this led to the creation of the civil service, where people are appointed not politically but based on their skills and knowledge, ostensibly.

Nick Capodice: Very well done.

Max Stier: And there was a the progressive movement where Americans appreciated that their government needed to be apolitical and professional. But the political [00:11:30] appointments still continued. People have just accepted a, what I would say, an unhealthy level of political appointees for quite some time. They really haven't appreciated why that is a problem. And the counter-argument is that you want a government that is actually responsive to the democratically elected leaders. The reality is you don't need 4000 people to make that occur. And it is counterproductive, both because it's super difficult to get them in place and because they [00:12:00] are not as expert in understanding how to actually run the system.

Hannah McCarthy: How long does it typically take for these 4000 appointments to happen?

Nick Capodice: I am going to get to that right after a quick break.

Hannah McCarthy: But before that break, if you are someone who wants to know the story of the folk song about Charlie Guiteau, that is the sort of thing that we put in our newsletter. Extra credit. It's fun, it's free, it comes out every two weeks and you can sign up at our website, civics101podcast.org. We're [00:12:30] back. We're talking about presidential transitions. And, Nick, you were about to tell me how long it takes for the 4000 political appointees to be appointed.

Nick Capodice: I was, and I got to start by saying it depends on the job, but more importantly, whether that job needs to be confirmed by the Senate. Here again is Max Stier.

Max Stier: If it's one of those positions that require Senate confirmation, the top jobs in government, if you're the cabinet secretary [00:13:00] or the deputy secretary or the agency head, you then have to have the United States Senate agree that you are the right person, and that requires you to be vetted, to go through a security clearance, to have your financial holdings examined by the Office of Government Ethics for you to have a hearing before the Committee of Jurisdiction in the Senate, and then ultimately, for you to have a vote by the entire Senate, which you have to get a majority of the senators to support you. So it can be a very [00:13:30] lengthy process. Unfortunately, it has become an even more onerous process so that the time it takes, on average, to get confirmed in one of these jobs is now over 191 days, 191 days.

Hannah McCarthy: Yeah.

Nick Capodice: And that is a number that has increased over the last few decades. Hannah. It is double the amount of time that it took during the George W Bush administration.

Max Stier: That means that there are some people, like the cabinet secretaries, that often get in very quickly, and [00:14:00] then there are a lot of people for whom it can take more than a year. And again, imagine what that means for the individual where they are in purgatory, wondering what's going to happen. Very difficult for them to even continue their prior job because they can't create any conflicts for themselves. And the institutions that need running are waiting for someone that isn't there, and they have an acting official who is the, you know, proverbial [00:14:30] substitute teacher and a substitute teacher that's around for a very long period of time. So it is a broken system and it is getting more broken.

Hannah McCarthy: Did Max have an example of a political appointment that he feels maybe should not be political.

Nick Capodice: He certainly did.

Max Stier: And this is particularly true for the kinds of organizations that are operational as opposed to policy in emphasis. So an example of this would be the Veterans Health [00:15:00] Administration. It's a hospital system, the largest one in our country and probably in the world. And you need a hospital administrator running it. That should not be a political job because it's a political and Senate confirmed job. There are large gaps in time and between leaders and the leaders that get appointed, who eventually get in place don't last very long so they can't actually get the job done. Well.

Hannah McCarthy: I'm assuming a lot of these people [00:15:30] who are hired after the transition need security clearance, right?

Nick Capodice: Right. Many of them do. And we have a whole episode on the process and the many levels of clearance.

Hannah McCarthy: What about the president themselves? Do they just get access to all of the top secret stuff when they take office?

Nick Capodice: They pretty much do.

Max Stier: So a president is a little special in multiple ways, and that includes with security clearance. And the president has the right to [00:16:00] access to everything. And they also the security clearance process is really defined by executive action rather than legislative action. So the president has full control over that entire architecture of classified information and how and who is ultimately available to. There are lots of rules and regulations that have been created over time that are quite important. There are certainly places that it can be improved, but it is really [00:16:30] important to respect the process itself and the professionals who are responsible for overseeing it. So the transition support that the federal government gives is extremely important. It provides candidates with access to cyber protection, to office space, and ultimately to information about what is happening in the government that that a president elect and his or her team will need to know [00:17:00] in order to be able to be ready on day one, to run those agencies and think about it, the world is complicated. There's a lot going on. You would want to. And if you're flying the airplane, you need to know not only how to fly an airplane, but what the weather is there, where you're going, all sorts of information. And that's effectively what we hope to have with new leaders inside government agencies. So in this cycle, I think one of the big questions that [00:17:30] has been raised that the law does not really account for is the fact that as of now, the Trump transition team has not entered into the agreements with the governmental entities that run transitions that it needs to do in order to have access to the critical information that will allow a potential, you know, future Trump team to be ready to govern on day one.

Hannah McCarthy: I just want to make sure I have this right. The Harris Walz [00:18:00] campaign agreed to work with the center for Presidential Transitions, but the Trump Vance campaign did not. Correct. I don't actually know why. Why is that?

Max Stier: It appears as if some of the reasons include that they do not want to limit the amount of money that they can solicit from individuals for paying for their transition operation, which would be limited to $5,000 if they signed that agreement. And they have to disclose who those donors [00:18:30] are.

Nick Capodice: Secondly, Donald Trump signed an executive order in 2020 that redesignated 20,000 civil servants to quote at will Employees, this meant they could be fired. Now, President Biden reversed that order, but Donald Trump has vowed to reinstitute and expand it to 50,000 if elected.

Speaker7: First, I will immediately reissue my 2020 executive order restoring the president's authority to remove rogue bureaucrats, [00:19:00] and I will wield that power very aggressively.

Max Stier: There are other requirements that appear to be problematic for them, including that they would need to have an ethics plan that would include a description of how the president, him or herself, would avoid conflicts of interest, financial conflicts of interest. But be that as it may, whatever the ultimate reasons, they have not yet entered into those agreements that were the target. [00:19:30] Dates were September 1st and October 1st. So we are well past the dates in which that should have happened. And the closer we get to the post-election period, the the more and more damaging this can become. We are in uncharted territory here and scary uncharted territory. So, uh, it is it is not the way, um, the transition process was designed to run, and it's not the way to maximize the best handoff of power. [00:20:00] If indeed, uh, former President Trump wins again.

Hannah McCarthy: Regardless of the winner of the election happening right this very second. This is something that will continue to be a struggle. Every 4 or 8 years. You have to turn over that restaurant no matter what, and you have got to do it fast. Um, I'm wondering, you know, is there any way to make transitions simpler, easier? Yeah.

Nick Capodice: Max [00:20:30] had some suggestions, and unsurprisingly, it was his view that we are a healthier democracy if we do not use the spoil system.

Max Stier: First and foremost, we should have many, many, many, many, many fewer Senate confirmed positions. 1300 is crazy. We also, frankly, should have many fewer political appointees. If you look at other democracies, they count their political appointees at most in the tens. You know, maybe you get to 100. And [00:21:00] we are unique amongst democracies and certainly are our peers in having 4000 or even, you know, counting in thousands. It is a vestige of the spoils system, and it's not a good one. And it means that we delay getting leaders in place. It also means that we have fewer people who are concerned about the long term health of the institutions that they're responsible for, and [00:21:30] it means that, frankly, we typically have people who are less qualified in these leadership positions than we could have if we actually had more apolitical, professional choices for those folks.

Nick Capodice: That's it for the episode on presidential transitions. It's not it for presidential transitions, though. This episode is made by me Nick Capodice with Hannah McCarthy. Christina Phillips [00:22:00] is Civics 101 senior producer. Rebecca Lavoie is our executive producer. Music. In this episode from Chris Zabriskie, blue Dot Sessions, and Epidemic Sound. Civics 101 is a production of NPR, New Hampshire Public Radio. And again, we're going back to our roots. If you want to know anything, send us an email Civics 101 at nhpr.org. And I hope you're well.

I really do. All right.

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Made possible in part by the Corporation for Public Broadcasting.

What happens to ensure your vote for president is counted?

You voted. So what happens to your ballot next?  This episode covers EVERYTHING that happens to ensure your vote is verified, all the way up to the official counting of electoral votes in Congress. 

Our guests are journalist Jessica Huseman and Notre Dame law professor Derek Muller. 

Here are some resources for following along with the process in your state:

Vote.org helps you navigate to your state’s election laws and website.

Vote.gov is the federal government landing page for election.

The NCSL (National Conference of State Legislatures) breaks down election laws in each state.

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Transcript

Note: this transcript is AI-generated and may contain errors

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

Nick Capodice: I'm Nick Capodice.

Christina Phillips: And I'm Christina Phillips. How are you feeling?

Nick Capodice: Hi. I'm feeling great. How actually. How are you?

Christina Phillips: I am good, I I'm very busy busy, busy busy.

Nick Capodice: Yeah, yeah, a very. Did you ever see Gladiator? Do you ever see Gladiator?

Christina Phillips: Did I ever see Gladiator?

Busy little bee.

Christina Phillips: But we should set the scene. Hannah. When is it? Where are we? What is happening?

Hannah McCarthy: Certainly. We are recording this ahead of the 2024 election, but this episode comes out on that fateful first Tuesday in November. Which means that you, listener, are quite possibly listening to this on your way to vote. Or maybe you have voted already. If so, we salute you. Very well done. Maybe you're watching the returns come in. Or you know, maybe you already know who has been declared the president elect of the United States. But even though you are in the future and know stuff that we do not, I bet we got some lessons up our sleeves, right, Christina?

Christina Phillips: We sure do, Hannah. Because this year more than ever, everything that happens after you cast your ballot is getting a lot of attention already. From the local certification to electors to the role of the vice president and Congress. So today, we're going to walk through everything that happens between Election Day and January 6th, which is when there is the official counting of the Electoral College votes in Congress. Great. I want to be transparent here. I went into this episode with some fear and uncertainty myself around the election, in part because I think I didn't really think about all these steps in the process. After I voted, I would, you know, watch the results come in and then kind of assume, okay, well, I knew that we would have the electors cast their ballots. I knew there would be the counting, but I didn't really think about everything in detail. And then, of course, the last couple of years, this has been all people have been talking about as far as elections. And after talking to the people, we're going to hear from today, the experts that I talked to. I ended up feeling a lot better about this process, in part because I understand it more. I feel like I tend to feel better when I actually know what's happening. You and me both. Yeah. So I'm hoping that over the next couple of months, you'll. You'll see a day on the calendar and think, oh, yeah, that's the day that this is supposed to happen. And if you want, you can check in and, you know, turn on the news or look it up and even call your secretary of state's office and be like, hey, that thing is happening today, right? I don't know if they'll answer, but we can all follow that together.

Nick Capodice: Great.

Christina Phillips: Are we ready?

Hannah McCarthy: Yes.

Nick Capodice: Absolutely. Ready.

Christina Phillips: Here we go. I want to start at the end of Election day, when polls start to close.

Hannah McCarthy: And if you're in line, they will not close or they should not close so long as you are in line. Even if the polls close at 5 p.m., they should still let you vote. I just want to remind everyone of that.

Christina Phillips: See, this is why I'm so glad you're here. Because you both are full of all these facts about these things. So yes, you may be in line. Maybe you've already voted, you're finishing up your workday. You're maybe cooking dinner. For me, I'm opening my probably second family size box of Cheez-Its and refreshing Twitter and looking at the AP results and maybe going out in the field with a reporter to help cover the election. Do you either of you have a ritual or a practice when you're watching election night results roll in?

Hannah McCarthy: Well, every now and then it's either my birthday or the day after my birthday or the day before. I was born on on election Tuesday in 1990. Uh, so it kind of it varies for me.

Christina Phillips: Nick, what about you?

Nick Capodice: Ever since the Bush v gore madness that happened. I don't go to sleep until I'm forced to by the sun coming up. Like I stay up, I stay up and I just watch and I watch and I watch and I hit F5 all night. So that's my tradition, is that I don't stop until I get as much information as possible.

Christina Phillips: And so how does it feel? I think 2020, when it took a I think it was like a week before there was an official declaration. These are the results. I feel like I remember it being like a Saturday or a Sunday. How how do you feel when you are just watching and watching and watching and you're not seeing any sort of final results come in?

Nick Capodice: It's painful and it didn't used to be that way. So, you know, I was a kid, I'd go to bed and I'd wake up and it would say, you know, so-and-so is president without with almost without exception. And it wasn't until Bush v Gore that that changed.

Hannah McCarthy: I can remember waking up or being woken up by my mother the day after the bush-gore election, and she was all excited. She was like, and the president is we don't know. And I was like, what? And she's like, this has never happened before.

Nick Capodice: My favorite thing about the 2000 election is that was the creation of red and blue, representing the two parties. Before that, no one had ever, you know, always equated Democrat with blue and Republican with red. That was just staring at that map for weeks. It's the only it's the reason we came up with red state, blue state, all that stuff.

Christina Phillips: I didn't realize that. I'm really glad that we're talking about the the idea that it used to be that you would know the results, you know, by the time you woke up. I will say 2000 is not the first time. We didn't know for a long time. Ooh, there is a pretty famous time, which is in 1876, which led to the creation of the Electoral Count Act, which we're going to talk about later. But I think it is pretty clear going forward that it's likely we will not know results from several states the night of the election, or even the next morning because of the environment that we are living in right now and because of how close we know the race is already, we may not know for several days, maybe longer, how some states, especially those swing states, especially the very close swing states, what the results are, and that is completely normal. And we'll talk about what's happening during those days when you're sitting there and you're like, why don't we know? Why don't we know? How come some states called within two hours?

Hannah McCarthy: I appreciate this because I think a lot of people, often encouraged by politicians, feel like something nefarious is going on. Right. And it's it's not, it's not it's not some sort of, like, secret, evil doer, behind the scenes kind of thing. It's just like bureaucratic, bureaucratic, bureaucratic, red tape kind of stuff.

Christina Phillips: Yeah. And if in those extremely, extremely, extremely rare circumstances that somebody is deliberately trying to delay the results of an election, they're not certifying, there are mechanisms to make that happen.

Hannah McCarthy: As I like to say, it's always less exciting than you think it is. Everything having to do with government is way less exciting. Mhm.

Christina Phillips: So I do want to break this down. There are five steps we're going to talk about. Canvassing is the first step.

Hannah McCarthy: Mhm.

Christina Phillips: The local certification. The state certification. The meeting of electors and the Electoral College vote count in Congress. Do you know what the canvass is. The post-election canvass.

Nick Capodice: Are these like exit polls or. This is like how we find out after people have voted? Like, how did we do? Or like, who did you vote for? And we sort of take all that data and amass a projection from that. Is that canvassing?

Christina Phillips: No. Oh, dear. No. So.

Hannah McCarthy: Well because canvassing is a term that is is used to describe the job of like going door to door and encouraging someone to vote for somebody or asking them who they're going to vote for. So that's. Go on. Please.

Christina Phillips: Yeah. So the post-election canvass is something that is different, but it's specifically about checking the work of the election process itself. And so I actually want to bring in someone else here, somebody that you both know. Well, because we love having her on Civics 101. And this is Jessica Huseman. Hi. Yeah. And so Jessica has been reporting on local elections for years. She's currently the editorial director of Vote Beat, which is a nonprofit newsroom covering voting rights, election administration and redistricting.

Jessica Huseman: The canvass is usually done by this Board of elections, right, whatever that means in the state in which you live. And so sometimes that is a group of people who are all like appointed to those boards. Sometimes it is like a mix of the chair of the Republican Party and the chair of the Democratic Party, and a couple of other people that are like sort of set into county code. But those people are responsible for the canvas. And what that means is they basically like, take all of the results from all of the precincts, make sure that those results are correct.

Nick Capodice: Well, Christina, earlier you said that this is about all the layers and all the steps. This is the first spot where I can see a potential nefarious thing happening. Someone who is a bad actor, who's in charge of this to, you know, to say that things went really badly. There was there was some sneaky stuff going on. Uh, isn't this a place where somebody can sort of trip up the rest of the process?

Christina Phillips: Theoretically, yes. But I think it's important to remember that the canvassing process is written down in law and if not in state law than in local election rules. So these people and they are all supposed to sort of check each other and work together. And there are a list of things that you do. And so actually, Jessica describes in a little bit more detail what the canvass looks like, what sort of things they need to do as part of the canvas. And before I get to that, I actually I think now is the time to introduce a caveat for most of this episode, which is that it depends on your state. There may be different words for the same processes in your state, but most states are doing this in a very similar fashion, so just keep that in mind. Caveat as always, it depends on your local election laws. But this canvass process is happening across states, across the country.

Jessica Huseman: There's the tabulation of the results, which in different states happens in different ways. Some places tabulate all the results at a central tabulation facility. And so poll workers bring the ballots to some place and they scan them all and count them all there. There is also reconciliation of those results. Right. They go back and they're checking a certain number of them, usually like a randomly selected group of ballots, to make sure that they were all counted appropriately.

Hannah McCarthy: They take a random selection to ensure that it was counted properly.

Christina Phillips: Yeah. So they're running the votes through these voting machines or whatever you've got in your state, and then they may just do a test where they're like, okay, so let's pull some of these ballots and let's run them through the voting machine again. We're actually looking them at them in front of us, and then we are running them through the machine to make sure that those match. So there's actually depending on your state and depending on what kind of counting mechanisms you're using, you're actually testing those mechanisms.

Jessica Huseman: The process from like start to finish at the county level is incredibly transparent. And so if you want to watch every step of it, you totally can. So the first thing that's going to happen, um, is the logic and accuracy testing of machines like that sounds so nerdy, but really it's just like, let's set up all these machines and make sure that they're counting ballots as intended. That process is open to the public. Like you can go and watch them do that and a lot of counties, because this process has been like because all of this has become so controversial, live stream this stuff. So even if you can't make it down to your county office to watch them like beep boop, all of the machines, you can watch them do it online. You can also watch them tally the ballots. You can watch them count the ballots. You can get readout at the at the end of the day of like how many ballots are counted and how many ballots are still left. And a lot of counties again, are like proactively putting this information online and.

Christina Phillips: The canvass also, another thing that happens is that it will verify provisional ballots. Do you want to define what a provisional ballot is?

Hannah McCarthy: A provisional ballot is the ballot that you can request if, for example, your voter registration is challenged or someone says, you know, oh, you don't have the proper ID, you're not going to be permitted to vote. You can still say, I request a provisional ballot, as is required by law. And this is a ballot that is basically it's like counted after the fact. Basically, they they verify your ability to vote after you've already left the polling place and the ballots are being counted, and a provisional ballot can be thrown out if someone determines actually, no, you were not permitted to vote. It's not guaranteed to be counted. But people will basically verify like, okay, yes, this person was a registered voter or was not.

Nick Capodice: I would like to say that I wish I had known this one time when I was living in New York, I showed up to vote and I was told I was removed from the voter rolls. And this happened to a lot of people where I lived in Brooklyn, and they were shocked, and I didn't know that I could do that. So I just didn't vote in that election. And it breaks my heart.

Jessica Huseman: Everybody is able to cast a provisional ballot in the United States. It's federal law. So if you get to the polls and your name is not on the register, but you know that you registered to vote, They can give you a provisional ballot and you can vote that provisional ballot. And then after Election Day, the county has to reconcile those provisional ballots. And so they will make sure that you are registered and you were in the right place. And if you were, then your ballot counts.

Christina Phillips: So that's part of the canvassing process. And then there is one other thing that I wanted to talk about. That's part of the canvassing process that's super important. And that is curing ballots. Do you know what that means?

Hannah McCarthy: Curing.

Christina Phillips: Yeah. So this is really important for mail-in ballots, absentee ballots. This is the process of if a ballot for some reason cannot be verified because there's a missing signature or a signature doesn't match. They'll go back and they will try to verify that ballot.

Jessica Huseman: You know, there's there's lots of ballots that, for whatever reason, usually mailed ballots that like we need to verify additionally. And so we have to call you and say, like, is this your ballot? And probably the answer is yes. I've heard lots of reasons why people's signatures are different, right? Like, I got older, I changed my signature, didn't think about it. Right. Or I signed it on one of those weird electronic pen things that the DMV and that signature was crap. And this is my actual signature. Or, you know, I was voting and I signed it on the dashboard of my car while I drove. And so my signature was bad, but it's mine, right? So there's this process that by phone or by sometimes by like ballot tracking app, which lots of states have now they can flag the voter and be like, your ballot is being rejected because of a signature mismatch, or you needed to put your last four digits of your driver's license or Social Security number on this ballot and you didn't, or whatever, right? Like, there are lots of reasons why a ballot might not be counted. And so there is a cure process that allows the county to reach out to these folks and, and make sure that like that problem can get resolved.

Christina Phillips: And so if you cast a mail in ballot or an absentee ballot and you're like me, you're like a millennial who does not answer their phone for an unknown caller. This is the time those next couple of days after the election, answer your phone. Open your mail. Somebody may be sending you a letter saying, hey, your ballot didn't count. We really want to count it. So that is all part of this canvassing process. Again, why it may take longer for the results to come in. All of these things slow the process down, but they don't necessarily mean that there's anything wrong with these ballots.

Jessica Huseman: And so not until that entire process is done are the results final, because you can't just count thousands of ballots instantaneously, right? If you could, lots of people would be disenfranchized like if if all of the results of those scanned ballots were just the results on election night. Lots and lots of people would be disenfranchized for like tiny little things. And even people who vote in person run up against this, right? So if somebody has voted on paper in person and they erased something and wrote it again such that it's not that clear what their intent was, those ballots during this canvassing process are pushed to a bipartisan group that has to determine what the voter intent was, redo their ballot on a separate ballot that can be counted and then cast it. And so if we had results on election night, everybody who left their signature off a mailed ballot, everybody who's like, erased something or like put an X in the bubble instead of filling in the bubble fully. All of these people's votes just wouldn't count. Um, and and that's really unfortunate. And and I think that people should really think about that when they insist that election night results need to be official.

Christina Phillips: I want to talk now about the role of the courts. You often see lawsuits. You see courts making decisions during this canvassing process. Do either of, you know, sort of what the role of the courts are, how a court might step in during the election or the tabulating of the election?

Hannah McCarthy: I'm fairly sure a court can basically grant a recount, and I'm fairly sure a court can say, enough. We're done. We're not doing this anymore, which is what happened in Bush v Gore. The Supreme Court was like, no, we're done no more.

Nick Capodice: I know that there are requisites to start a recount and there's nobody's choice for that. Like if a vote is within a certain margin, they a recount is triggered. It's not somebody making that choice. It's just automatically happens when it's really close. I believe, if I'm not mistaken, there are a ton of lawsuits. Like, I think every state is involved, at least in some lawsuit or other, about this election. The courts are there to make sure that, you know, if people have complaints, they are going to address their complaints, they're going to say what arguments are valid, which ones are not. They're there to sort of help the whole thing keep moving. Is that right?

Jessica Huseman: You know, the courts can intervene and there are ways that they intervene really productively every year. So for example, like let's say that you are going to vote and your precinct has a water main break. And so voting is delayed by three hours at the start of the day. A judge can rule that that polling location has to stay open for an additional three hours to make up for that lost time, and that happens every year for some reason, right? Like a poll worker that like the only poll worker for that precinct got in a car accident on the way there and like, you know, they were late or the machines weren't working or they forgot the plugs to plug the machines in. And so voting is slightly delayed. And that's going to happen somewhere in the country almost certainly. And so the courts can choose to keep those polling locations open. Or for example, now that we have these majorly hurricane affected areas and across the state of Florida and in western North Carolina, there are lawsuits that may, you know, decide to shift what is allowed and what is not allowed in terms of where polling can be held, because the polling location that this county has used for years and years and years washed away, or the road to get to it isn't there anymore, you know? Um, so the courts have a real role to play in terms of ensuring voter access.

Hannah McCarthy: So just real quick, because I might do early voting, which I actually have never done before. Where will my ballot sit with an early ballot? Does it go to the same place that like mail in ballots go?

Christina Phillips: So it depends on your state? Yeah. Uh, that is actually a really good question that has to do with something that's called chain of custody. And this is here's who has control of X equipment X ballots where they're stored, how they're stored, how they're transported. This is all built into the law. So if you were to cast an early ballot in New Hampshire, there is a rule for where that ballot must be stored. Who is allowed to access it if they can start counting it right away, or when they can start processing that ballot.

Hannah McCarthy: Wait a minute. They could count it prior to Election day.

Christina Phillips: I think that depends on your state. Some states they can start processing early ballots ahead of Election Day. Same with mail in ballots. It really depends on your state. If you are casting an early ballot or a mail in ballot, it arrives beforehand. There is a chain of custody that must be followed.

Jessica Huseman: There are chain of custody procedures for voting equipment, for ballots, for e-poll, books, for all sorts of things. And the way that they must be secured and kept are generally, if not by law, written into the county code. There are best practices for this that most counties at this point are following. It's become much more common, especially since 2016 and 2020 when these like when voting machines really got called into question, and the security of those voting machines was really called into question. And so you'll find that counties are taking this a lot more seriously than they used to. And it's not that they didn't take it seriously before they did, but because there's so much public scrutiny of it, they have felt the need to sort of really define what they mean when they say chain of custody, so that when somebody comes to them and they say, hey, I think that members of the public could just stick a USB stick in one of the voting machines and take over the whole day. They can say, no, they can't. And here's how we know this, because this is how we secure the voting machines. This is who has access to them, and this is when they have access to them. And these are the security procedures to ensure that those steps are being followed.

Christina Phillips: I do have an example of a time that that didn't work out where somebody violated that chain of custody deliberately. Oftentimes it might happen by accident. So are you familiar with Tina Peters? She was a former clerk in Mesa County, Colorado. She was accused of knowingly tampering with her county's voting machines in search of election fraud. Uh, basically, during the annual upgrade of the voting machine system, she created security credentials for someone who wasn't allowed to access them. Then she turned off the cameras that were supposed to be monitoring the voting machines and the upgrade, and that person was able to take sensitive information. So she was charged with crimes. So she's now going to prison for it.

Jessica Huseman: That was something that she took upon herself to do, because she was sort of in this camp. She was getting a lot of money from Mike Lindell, the MyPillow man, to, like, fly around the country and talk about how screwed up our elections are. And so she just kind of went for it. And she was like, yeah, I'll give you all the proof that you need that our elections are flawed. She obviously didn't find it, but that led the state of Colorado to decertify all of the equipment in Mesa County, and they had to get new equipment and and so like ultimately no votes were affected and the security of the elections weren't affected, but taxpayers spent thousands of dollars sort of making up for this failure to abide by chain of custody procedures. So when chain of custody is followed, it's great, right. Like but when election officials and this is the extreme minority right. Choose not to follow chain of custody procedures, things can really go awry. And states can take really punitive actions to like invalidate machines or to force counties to do recounts because they've messed up their security here or there.

Christina Phillips: So those are sort of routine court interventions. And then there's the other kind of lawsuits, which I think we think about in terms of 2020. Those are the political lawsuits, which, if you remember, Trump and his political allies filed 62 lawsuits after the election in a number of different states contesting the results and in many cases alleging election fraud on a scale that has really never been seen before in history. And almost every one of those cases was dismissed because it lacked evidence. And that moved really quickly. So that happened in the first couple of weeks after the election. So there is a time crunch because we do need to get to January 6th. So those lawsuits are filed their process as quickly as possible.

Jessica Huseman: And I think that we should expect more lawsuits this year, because both the Republican and the Democratic parties have dedicated a much higher percentage of their overall money to Litigation. So they are ready for this, right? They are ready to sue. And again, I think that a lot of these lawsuits are likely to be dismissed very quickly, but they're still going to be filed. And so the courts are still going to have to wade through all of this before we really have confidence that the election is over and done and dusted.

Christina Phillips: So now we've reached the next step. The canvasing is complete. The canvasing board hands over the results of that canvass.

Jessica Huseman: And then they turn those results over to be certified, typically by a totally separate board. And so the reason that that is sort of the case is like this is our mark of approval, that not only do the elections people think this is correct, but like in Texas, for example, the county commissioners court, which is like the city council at the county level, also thinks that it's correct.

Hannah McCarthy: So what happens if the local election officials, local election board does not certify?

Christina Phillips: Yeah. So I want to bring in someone else here. This is Derek Muller. He's a law professor at the University of Notre Dame Law School, where he teaches election law, federal courts and civil procedure. And I asked Derek that question. I said, what happens if local election officials refuse to certify an election? Because we've been hearing news about local election officials who were deniers of the results in 2020. They're now going to be part of the certification process, which states must do by December 11th. And we'll talk about that date in a minute. And so here's what he said.

Derek Muller: So when we have these deadlines, it's worth noting that these deadlines are kind of the last deadlines for each jurisdiction. So if you have three weeks, a lot of times you might certify within 2 or 2 and a half weeks. And if you fail to do so or indicate that you're going to fail to do so, you actually have a little time to resolve things. But even missing that first deadline, you know, usually there's some ample time built in as a buffer for later stages in the process to allow quick resolution. And again, courts have stepped in within 24 hours to be able to order certification. So that is usually not a lengthy process, because usually the answer is it's pretty obvious you're supposed to certify the results. You have all the ballot tabulation sheets. Let's get this moving. So in a state like Michigan, you know, if a county fails to certify, it goes to the state to certify, you know, if there's a tie or there's an inability to resolve it in other places. We saw this recently in New Mexico when the county refused to certify. The secretary of state sued the county officials in the New Mexico Supreme Court and said, I am requesting an order to have them certify and within 24 hours an order was issued. So there are alternative mechanisms, sometimes appealing to somebody else. But sometimes going to a court is the maybe more common avenue, and the judiciary can step in and order certification.

Hannah McCarthy: I think we should talk about why an election official might refuse to certify. So, like in New Mexico, the claim was that Dominion voting machines are faulty. So I will not certify these votes because I do not trust these votes.

Nick Capodice: And that was an inaccurate claim, correct?

Hannah McCarthy: Yeah, that was inaccurate.

Christina Phillips: So if the machines are not working, you still have the ballots. And if you're following chain of custody, they have not been tampered with. There are alternative ways for you to count those ballots and then certify them. So the point is that there are mechanisms built in that you never are supposed to be able to just say, all these votes don't count, at least on a scale that would change the results of the election. There shouldn't be that many ballots where there's a problem. And so whether you certify or not is not really supposed to be at question here. And every state will have mechanisms to make sure that that certification does happen, even if it requires going back and taking some of these other steps to count the ballots to check the ballots.

Jessica Huseman: A lot of these people who think that the 2020 election was stolen will get elected to county clerk or something. Again, this is like a really small number of people who have done this, but then they get in office and they learn about all of this stuff that they have to do and all of the requirements that they have to fulfill. And they're like, oh, it's actually fine, right? And they realize that they have a job that they must do under law, or they're going to be held accountable for it. And there are steps in the law that they must follow. Like this is not the Wild West. You know what I mean? Like, there are there are specific rules that dictate how each step of this process is done. And so if a person goes rogue and decides not to follow those steps, you can file a lawsuit against them. And I think that states are ready to do this. I think that's like a really important thing for your listeners to know, is that for every person that doesn't want to certify the election, there is like a lawyer sitting in the Secretary of state's office that has pre-written a lawsuit against that county and will file it as soon as they hear a problem, because the state, like delaying certification, really messes up the state's process, which is why, you see, in 2020, when we first started seeing counties try this stuff, they Universally failed to do it right.

Jessica Huseman: They, you know, Nye County, Nevada. Cochise County, Arizona. A couple of, like, tiny little counties in Texas all attempted to not certify the election. Then they were sued and realized they could go to jail. And they were like, just kidding. It's certified now. Right. And that was it. And that was it was in an environment in which we didn't necessarily expect those things to happen. Like we very much do now. Like the Secretary of state's are ready. Every Secretary of state's office that I have spoken with is, like, prepared for this. They have pre-written lawsuits. They have found plaintiffs in every county that will put their name on these lawsuits. And so it's not going there's. There's not going to be a lot of uncertainty for very long. They have come up with a game plan for those scenarios.

Hannah McCarthy: I really appreciate this idea that like people who feel that the system is not secure, who then like get elected to office specifically to like, you know, protect it. And then they're like, oh, like, I thought it was messed up and it's not. I just think that's like really interesting. It just like, goes to show that so often it's just a lack of understanding that results in crying wolf, basically.

Nick Capodice: My favorite part of it is that it's bureaucracy, red tape and boredom that stops people from understanding. They're like, why don't I know what happens behind that closed door? Well, because you would be bored to tears if you knew all the steps. And then they find out like, this is so boring. Why did I do this?

Hannah McCarthy: Yeah. I don't want this job.

Nick Capodice: I gotta tell, I gotta tell my family. I've been wrong all these years.

Hannah McCarthy: President is hard.

Christina Phillips: Yeah, and if you are like me, somebody who loves reading the minutia of rules and laws and everything. Most states have some sort of transparent documentation of what's supposed to happen. Like if you contacted somebody who worked at your polling location, were like, can you explain to me how you're counting the ballots? They could probably, you know, maybe don't do this on Election day because they're probably busy, but like, they could bring out their their binder. That's like, okay, so then we do this, then we do this. And this is what happens if this happens. They have all that written down and they probably would love to talk about it with you.

Hannah McCarthy: Or volunteer at your polling place. Become a part of the process.

Christina Phillips: I do want to hit on one other thing here. When we're talking about bad faith actors, people who may mistrust the process or attempt to undermine the process, maybe mistrust the process to the point where they attempt to undermine it. There are actual real stakes here. So I think it's sometimes easy to forget, like if somebody is going to question the certification and accuse someone of voter fraud or say they don't think these votes can be counted because of voter fraud, and there aren't actually real, measurable instances of that, and they still refuse to certify things happen to them. Like there, there's accountability there. So I asked Derek, I'm like, what is the accountability to make sure that these people are doing their jobs? And here's what he said.

Derek Muller: Yeah. So depending on the state again in some states you can lose your job. You know, you can be ejected from office for malfeasance for failure to perform your responsibilities. You could face criminal penalties for failing again to to perform the acts that are required of you by law as an election official, the court can hold you in contempt. So again, there could be fines or they could incarcerate you until you comply. So there are these penalties that induce election officials to behave. But then, you know, if you have a really recalcitrant official who refuses to do so, courts have mechanisms to order someone else to perform the act as if you were the one who performed the act. So the point is, there's not just a secret way of escaping it by saying, I'm not going to do it. The court can say, if you're not going to do it, I have the power to order someone else to do it as if it were you. And this is this is the kind of remedy that might be if you were supposed to hand over somebody a title or deed to property and you refuse to sign the deed, well, you can't just secretly hold the property. The court can order somebody else to do it on your behalf. It would be the same thing as if you were refusing to certify election results. We can find someone else to do it.

Christina Phillips: So now we're moving on to the next step, which is state certification.

Nick Capodice: This is step three. Yes okay. Great state certification.

Christina Phillips: State certification I mentioned before, there's this deadline of December 11th, 2024 that states have to certify this is actually from the federal law, the Electoral Count Act. Now, the Electoral Count Reform Act that determines that states have to certify six days before the meeting of electors in that state, which this year is December 17th. And what that means is that they receive all the official results from local election boards that have approved them and certified them. And according to federal law, every state has to appoint a chief election official. In most states, this is the Secretary of State. You might also hear the chief election officer, the executive director, the administrator of elections. In most states, this person is elected. In some states, they're chosen by the legislature or they're appointed by the governor or something like that. And I think one thing that's super duper important here is that this state certification is supposed to be what Derek calls a ministerial process.

Derek Muller: So that's a word we use in the law to suggest that there's not discretion. That is, you are pretty much taking those certified results from the municipalities, the counties, whatever subdivision you have, and you are adding them up and making sure that on the face of the returns that they look complete, there's not a zero in some precinct for the total of the results, or you've got 27 counties that you have all 27 sets of results. So you were engaged in that sort of functional analysis just to make sure we've got everything set. All the i's are dotted and t's are crossed. We add up the results and we certify the outcome. So it's a formal process just to make sure we've closed the loop of taking all those things across the state and have one final resolution.

Nick Capodice: I love this because we live in a representational democracy, right? We pick our representatives, and because we trust their judgment, we think they're going to do X, Y, z, or they're going to make decisions. They're going to make the hard calls. I like that within the system, there are also jobs where there is no decision, right. You don't get to make a choice here. You are just you're a cop. You're like a cog who looks at a number and agrees with that number. This is not a time for somebody to have feelings and emotions and thoughts and want to do something.

Hannah McCarthy: Yeah, I like the phrase passionless. It's not at your discretion. Like you have no discretion.

Christina Phillips: Yeah, that's really your role at that point. And we will talk more about this discretionary thing when we get to the vice president and Congress. So that's a little bit of a preview there. So we are coming up to the electors. Okay.

Nick Capodice: So all right I know this part. Yeah.

Christina Phillips: We're going to talk about that after a quick break.

Nick Capodice: But before that break, if you like minutia and are interested in the films of Fatty Arbuckle, if you like any of that stuff, you should read our newsletter. It's called Extra Credit. It comes out every two weeks. It's fun and it's free. And you can get it on our website, civics101podcast.org.

Hannah McCarthy: We're back. You're listening to Civics 101 from New Hampshire Public Radio, and we are talking about what happens after Election Day in a presidential election. And before our break, we talked about canvasing, certifying the local results and the role of the courts. And, Cristina Phillips, you were about to walk us through the next step, which I am told is electors.

Christina Phillips: Yes. Nick, would you please do me the honor and explain who electors are and what they do?

Nick Capodice: Oh of course, absolutely. But before I do, what's the law about when the electors convene?

Christina Phillips: It is the first Tuesday after the second Wednesday in December. December 17th, 2024 this year.

Nick Capodice: What's funny about all the dates? Like, do you know the reason we do the first Tuesday in November for like, why is it a Tuesday? Why is it not a Monday?

Hannah McCarthy: I always assumed it was because of my birthday.

Nick Capodice: It's all because of. It's like the same reason that kids have school off in the summertime. It's about weather. So the reason it can't be on a Monday is because the day before Sunday, people might be going to church, right? So they won't have time between Sunday and Monday to walk from their farmhouse to the town where the election is happening. Like you want it to have a day grace period so people could travel to their polling place. Right? And then this time period between the actual day that we vote and then the electors vote, that's also dependent on whether everybody has to travel. All the electors have to travel to the state capital to vote. What was your question?

Christina Phillips: So tell me who these electors are. Okay.

Nick Capodice: So electors and we call it a slate of electors. Right now, every presidential candidate in every state has a slate of electors, which are sort of so-called loyal people to that candidate who are pledging that when they go to vote in December, they will pick the candidate who won that state. Right. So, you know, I live in New Hampshire. If hypothetically, if Kamala Harris wins New Hampshire, the number of electoral votes your state has is the total number of people your state sends to Congress. So every state gets two for its senators. You add the number of members of Congress to that. So New Hampshire has two members of Congress and two senators, four electoral votes total. There are four people who are going to meet at the state House who have been picked by the DNC, you know, or the New Hampshire Democratic Party to cast their four ballots for Kamala Harris. And we should.

Hannah McCarthy: Also clarify that, like right now, there are electors both for Harris and for Trump in every state. Yes, but it's only the electors for the candidate who won in that state who get to go and say, I am voting.

Nick Capodice: Except for a couple of states which do it differently, which is Maine and End. Nebraska. Dc's a little funny. Dc just has three electoral votes.

Christina Phillips: So the state, once they've got their verified results, they prepare what's called a certificate of ascertainment, which is essentially a piece of paper that says, here are the list of electors who will be representing the state, will be casting ballots on behalf of the state, representing the will of the people, which is the popular vote. And so that certificate of ascertainment, one copy is sent to the National Archives to be kept as a record, and then six of them are brought to the meeting of electors, where those electors will meet on December 17th. And you can watch this in many states, you know, stream it online and see these electors cast their ballots. And so all of that will get bundled together with one of those certificates of ascertainment. And then they get sent six different places. Now. Do you know where those places are?

Nick Capodice: No. And I even I even used all that audio of all those meetings from my episode on the Electoral College so long ago.

Christina Phillips: Yeah. So basically, this is just a way to make sure that there's six official versions of the correct certified, stamped, secure electoral votes. So there's no chance that we don't have them in Congress. On the day of the official counting of the votes on January 6th. So one will go directly to the president of the Senate, two, go to the state's chief election officer, and then one will go to the judge of the district where the electors had their meeting. So essentially, we're making sure that you're a court system in your state, has a copy to go to the national archivist. And then there is a process where, let's say one does not arrive in Congress. The president of the Senate is like, I don't have anything from New Hampshire.

Hannah McCarthy: Lost in the mail.

Christina Phillips: Yeah. The national archivist will then have a process of approaching in an order like first I'm going to go here and I'm going to get it from these people, and then I'm going to go here. And I don't actually have that off the top of my head, but they have a process to make sure, no matter what one of those copies that's been certified reaches Congress. Now, really quickly, I just want to go through what happened with the fake electors, the fake elector scheme of 2020. So in several states, and this was slightly different depending on the state, some of those Republican nominated electors for the Republican Party in states where the Democratic electors were officially certified to cast their votes and prepared their official ballots, because Biden won those states and he was given those electoral votes. Some of these Republican electors also prepared their own version of their ballots, and these were in some cases set aside. And it was said in case the courts overturn the results in this state, we want to have these ready. And then in some cases, they were instructed sometimes by Trump's legal team to give those to Vice President Mike pence so that he could choose during the official count. No, I'm actually taking these votes. Okay.

Hannah McCarthy: I feel like we should probably just mention faithless electors. I was just going.

Nick Capodice: To say that too.

Christina Phillips: Okay.

Hannah McCarthy: So a faithless elector is somebody who, regardless of the state's vote, like, let's say the that the state voted for a certain person. So, for example, like a state goes for Trump and the Republican Party electors then show up. A faithless elector is someone who will say like, no, it's Harris or some other Republican candidate or something like that.

Nick Capodice: Almost every election there's like 1 or 2 faithless electors. Faithless electors have never changed the outcome of a presidential race. Many states have laws on the books which say you are not allowed to vote for somebody other than the person who won your state. Right. And that's interesting because the Electoral College was created to have faithless electors. Electors were supposed to vote their conscience and vote their mind. They weren't supposed to just vote for whoever won in the state. And I think it even went to the Supreme Court. And the Supreme Court ruled that states are allowed to pass laws banning faithless electors.

Christina Phillips: We mentioned it before, but this is all laid out in a federal law, this this process of the electors of sending the certification, the certificate of ascertainment, all of these documents showing up in Congress, it's laid out in a federal law that was known as the Electoral Count Act of 1877, which was actually amended in 2022. But the act was created as a result of a contested presidential election in 1876. Do either of you know what happened then?

Nick Capodice: I sure do, Hannah. I think you know about this, too. No. You want me to talk about it? Yeah. Yeah. The 1876 election is As perhaps one of the most contentious elections in US history. It's deserving of many episodes of Civics 101. I'm not going to go all the way into it, but basically Rutherford B Hayes versus Samuel Tilden, 1876. This is the election that Hayes won and got him the nickname Rutherfraud. Rutherfraud be Hayes. But basically, wasn't it? Congress had to agree who to give the election to. And this was the this was the dark bargain that ended reconstruction. This was this was bad, right? Isn't that what happened in 1876?

Hannah McCarthy: Well, if you've participated in the three episodes on reconstruction, I did, and it didn't end reconstruction, but troops were removed from enforcing certain things. But this provision of Congress choosing the president that's in the Constitution, like Congress, is like they pick from the top three candidates and they're like, it's yours. Now, if there isn't a clear winner.

Christina Phillips: And in that case, there wasn't a clear winner because several states could not agree on who would get the electoral votes. And there were accusations and actually proven election fraud. Election tampering, like over 100 black Republicans were killed in South Carolina. And so it was super contested. And they basically were looking at several states where they couldn't all agree on what the electoral votes like, where they should go. Right. And so they put it to a commission. They were like, okay, we know that as Congress, we can choose, but we don't really know how to do that. So they put it to a 15 person commission. That commission ultimately rewarded all these contested votes to Hayes, and then Congress had to vote to approve that or not. And basically, Hayes went to Congress was like, hey, I will sort of end reconstruction if you give me that support. And they were like, okay. But everyone pretty much agreed that, like, this is not how it should go, especially because the participation in that election was extremely high. It was over 80%. Wow. So all these voters voted, and ultimately it ended up being decided in Congress through negotiation, essentially.

Derek Muller: So the Electoral Count Act was enacted in 1887 and designed to resolve some of the problems from that crisis. Election of 1876 make it a little tougher for Congress to throw out votes, streamline the process for counting votes, give some deference to states, and so on. It has largely worked, but there's no question it's come under strain.

Christina Phillips: So here is how it's supposed to work once these votes get to Congress. The vice president, in a joint session of Congress, counts the electoral votes for each state, and members of Congress are allowed to object to the state results, but only for two reasons.

Derek Muller: So there are two specific objections that members of Congress can make. The first is that the votes were not regularly given, and that's a phrase that there's something the electors did wrong. The electors when they voted on December 17th, they didn't vote by ballot or they voted on the wrong day like December 18th or they were bribed. So there's a way of this is a phrase that, again, harkens back to the 19th century, but is designed to deal with the behavior of the electors themselves. And again, that's pretty late in the process. It's not a place for courts to really get involved, to place for Congress. The other is that the votes were not lawfully certified. And that's a phrase that means, you know, it doesn't come with a certificate of election from the governor or secretary of state with a security feature attached to that certificate. If you don't have anything, Congress shouldn't count it. But again, Congress is also supposed to deem as conclusive the certificate that comes from a state signed by the executive, ratified by a court. So there's very narrow grounds to object that the result was not lawfully certified, because we have all these additional processes to certify the results. And the objection is regularly given, deals with a very narrow universe of unusual exceptions that we haven't seen, you know, in some time in the United States, not since 1872, really, with objecting to the behavior of the electors themselves. So there's two grounds for objection. It's not to say members of Congress might not try to abuse those objections.

Christina Phillips: Furthermore, the vice president is essentially there in this ministerial role. They're supposed to keep order and make sure the count is completed. Now, this was all pretty routine until 2021. And do you remember some ways that then-President Trump tried to inject his own interpretation of this process?

Hannah McCarthy: I believe the assertion was that pence could simply give Donald Trump the presidency again. Correct. Yeah.

Christina Phillips: Trump was asserting that pence could choose where electoral votes went if they were in question, and then also that members of Congress could object. It was sort of a loose interpretation of the two reasons that Congress may object to the certification of the vote.

Nick Capodice: Yeah, but neither of those happened. So how did they how did they justify objecting to these votes?

Christina Phillips: Actually, I asked Derek. I was like, can you walk me through what objections look like in Congress in 2021? And he lays out what happened in the case of Arizona.

Derek Muller: Several members of the Senate and a number of members of the House filed a written objection, saying that the votes were not regularly given out of the state of Arizona. Now, again, that was the wrong objection. Regularly given deals with the behavior of electors. In reality, what they want to challenge in Arizona was they felt like there was potential risks of noncitizens who had voted. They felt like there were problems with the voting machines tabulating the ballots. In Maricopa County, there were problems with the printers and the administration of the ballots. It's kind of a kitchen sink of complaints about the administration of the election in Arizona. So Vice President Mike pence receives that objection, again signed by then one member of the House and one member of the Senate. Although there were many others that objected, that meant that the chambers had to separate, and so they separated to debate. They were each supposed to debate for two hours, and that debate was interrupted because there was a riot at the Capitol, right. That that stopped the proceedings for several hours. But then they they gathered back together, finished the two hours of debate. They voted on the objections. Each House rejected the objection. So you would need a majority of both houses to sustain you. They had they didn't even have one to vote to sustain the objection. So then they gathered back together into the chamber. Uh, Vice President Pence recognized that the objection had failed. Um, and then they went on to continue counting going on down through the States.

Hannah McCarthy: But I think, once again, this is an example of, you know, people can say that things can go a certain way, but at the end of the day, there are regulations, there are procedures. There are like, you can't just force it, right? You can try, but then the boring stuff gets in the way.

Nick Capodice: What's interesting to me about this one is the kitchen sink notion, right? Everything was wrong with it. And well, what specifically? Oh, I don't know, everything. It's like when somebody throws their hands up and says everybody's corrupt, nothing matters. But then they're like, okay, tell me specifically what is corrupt? Well, this thing and this is a great example of somebody just being very patient. I was like, give me specific examples of show me what is wrong and what what happened unfairly. And the person is unable to provide a single piece of evidence.

Christina Phillips: And then also the threshold is pretty high. The majority of people need to agree with them, which when you think about Congress now, it's pretty Partizan.

Nick Capodice: Arizona is very early alphabetically. So you know, we got a lot more states to get through. I think it's telling. This happened kind of at the beginning of the day, sort of get ready. Did it happen again or was it just that one time?

Christina Phillips: It was also Pennsylvania. Okay.

Nick Capodice: Pennsylvania. In the middle of the alphabet. Same thing at that time. Same thing happened.

Christina Phillips: Yeah, yeah. Similar thing. There was a challenge and that challenge was discussed and it was not found to have merit. So that was in 2021. This is before the reform to the Electoral Count Act in.

Derek Muller: 2022, when Congress enacted the Electoral Count Reform Act. It was designed to strengthen kind of all of those existing procedures. So it said states, you really need to resolve your disputes by December 11th this year, and you really shouldn't be dragging litigation past that deadline. And we want to have firm results by that date. And we as Congress are going to give deference to judicial orders that happen by that date. So those are not things that we didn't have a firm deadline and we didn't have that that guarantee of congressional deference to judicial results. You know, in the old act.

Christina Phillips: There's this line that he says about that Congress will give deference to the courts. If the courts have already agreed that these certified results are in fact certified. Congress, then, is supposed to defer to those decisions. It's not supposed to say, well, actually, no, no, we have a question about this. We want to bring that challenge again, because it's already been litigated.

Derek Muller: When it comes to Congress. It was quite clear, I think, that the vice president had no role to throw out votes or to make decisions. But, you know, out of an abundance of caution, the Electoral Count Reform Act adds some express language, saying the vice president's role is ministerial and non-discretionary in nature. You are just to preside over the hearing, to to hear the objections, to keep time, to move things along. You don't have any substantive role. And when it comes to Congress, it used to be that if one member of the House objected, one member of the Senate objected, you could separate for two hours of debate. And this happened in 2005, when Democrats objected to Ohio. This happened in 2021, when Republicans objected to Arizona and Pennsylvania. And a lot of other times people have tried to object. And now this says it now requires 20% of each chamber to object, not just one member of each. So it's going to clamp down on Congress's ability to sow doubt and sow confusion into those results.

Hannah McCarthy: Oh, wow. That's a huge difference. I just think it's very funny because it's like it's not that part, but the vice president part because it's like just to clarify, per usual, the vice president doesn't do anything like it is the most notoriously do nothing. Your job is to wait just in case, you know.

Nick Capodice: Like you break ties in the Senate.

Hannah McCarthy: Yeah, but it's just kind of funny to me.

Nick Capodice: I do like when people campaign on, like, I've done the most broken ties in the Senate. It's like, oh, good job, you know? Yeah, but who was it who said the vice presidency isn't worth a bucket of warm spit?

Hannah McCarthy: The quotes over the course of American history of vice presidents being like, this job is nothing. I don't want this like there are so many hilarious quotes from historical figures.

Nick Capodice: What I find kind of heartening is if this was 2022, this was signed. This is a Congress that is quite notorious for not passing a lot of legislation. So I think it's interesting and maybe a bit heartening that this, again, ministerial nonpartizan sort of effort to just do things by the books was agreed upon by even a quite contentious Congress and then signed into law by the president. I just think that's interesting. Mhm. I have a question. One of the presidential candidates for the upcoming election is also the vice president later.

Hannah McCarthy: Yeah.

Christina Phillips: Nick, you're spoiling the rest of my...

Nick Capodice: I'll pretend I didn't ask it.

Christina Phillips: I was just over here scrolling. I'm like, let me get to that part that I wanted to get to. So yes, that is a very good point. And you're asking about what happens if the vice president is supposed to.

Nick Capodice: Has this ever happened before? Yeah.

Hannah McCarthy: I can't operate on this.

Nick Capodice: She gonna open it up and be like, well.

Hannah McCarthy: Wait, what's the joke? I can't operate on this patient. He's my son. He's my son.

Nick Capodice: How is that possible? Yes, yes. It was a lady doctor.

Christina Phillips: So I do want to make sure that for anyone listening to this, I'm like, what are they talking about? This is the idea that the vice president, the sitting vice president, might be overseeing the certification in which they lose or they or they win.

Nick Capodice: It's also kind of funny.

Christina Phillips: This has happened seven times before.

Nick Capodice: Seven times? Yes. So he didn't gore do it in Bush v Gore? Yes.

Christina Phillips: So so was...

Nick Capodice: He like Florida? Well.

Christina Phillips: So Vice President Kamala Harris will be, you know, doing this ceremonial overseeing of this count in Congress. And that will happen whether she wins or not. So, as Derek said, her role is ceremonial. She's not supposed to be objecting to any state results herself or ruling on any objections. And to quote the 2022 law the vice president has, quote, no power to solely determine, accept, reject or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors. So, Nick, you asked if this has happened before where a vice presidential candidate maybe just having to hand off the election in which they lose. This has happened three times, including two Richard Nixon and to al Gore. The second one was, as we know, super controversial, right?

Nick Capodice: The election was controversial.

Christina Phillips: The election was controversial.

Nick Capodice: But I feel like the I feel like the electors part wasn't. I feel like I remember al Gore. People were like, is he going to do something? Yeah. And he didn't. He followed the rules.

Christina Phillips: No. So in both of those cases, and in 2020, when Vice President Mike pence was under pressure from his president and there was an insurrection, an attempted insurrection, the process got interrupted, the democratic process that is built into our law was upheld. That's what we should expect from Vice President Harris. That's what we should expect from Congress. This is.

Hannah McCarthy: Because that's the law

Christina Phillips: Yeah, this is the law. And also this is what they've run to protect and to uphold. This is their job, right? So that's what we should be expecting to happen this time.

Hannah McCarthy: I think as is I've been told so many times, like if you don't trust the process, volunteer. If you don't trust the process, call up your election official. Like the process is boring and like there are many, many fail safe fail safes.

Nick Capodice: Fail safes. That's really interesting. Fail safes.

Hannah McCarthy: Fail safes?

Nick Capodice: Yeah, I think it's fail safes. Oh, it's fails safe. Oh, it's like inspectors general. I'm kidding. No it's not. I was like, it's definitely not. I got your joke. You did? It's William Safire orders two Whoppers Junior.

Hannah McCarthy: Um, and it's also just so interesting that Congress passes this law that's like just to clarify and just and that it was passed at all. I feel like is a little bit of proof positive of like, let's all just agree here that like there is an established process, like it's it's not sexy at all, which should give all of us some peace of mind I think.

Christina Phillips: Yeah. And I think to that point, one thing that was made so clear to me in the process of pulling all this together is that if you've thought about it, someone else has definitely thought about it and probably put it in to the rules or the laws. So the idea that there could be people who vote in multiple locations, that let's say, somebody who is dead is able to cast a ballot for whatever reason. People have thought about that, and they've come up with ways to check. That is why there's such minuscule rates of actual deliberate voter fraud, minuscule minuscule rates of votes not being counted because of an error or an issue, because somebody has thought about the worst case scenario in all of these many, many different ways that things could go wrong and they've come up with a plan. Another thing that was really interesting to me about this is that it all kind of comes down to like following a book, like following a rule book. And when you have to sort of follow a rule book, it removes a lot of the opportunity to mess with things. Something isn't just going to fall through the cracks, like it's not just going to be forgotten. And if somebody deliberately tries to manipulate, you're going to find out about it. It just doesn't happen. I mean.

Hannah McCarthy: It makes me think about so I don't slack off at this job because I love it. But I've had jobs in the past that I hate where I can't slack off because it would be too apparent that I wasn't working right, because it was just like filling in a spreadsheet all day. And it was so just like purely procedural and administrative that I couldn't not do the job. And that's what makes this makes me think of like it would just be too glaringly obvious that someone is not doing the job.

Nick Capodice: I love what you said, that it's like if you've thought about it, you better believe there's a lot of people who have already thought about it, too. You're not going to come up with something new about like, some little loophole.

Christina Phillips: Yeah, if somebody thought of it and they've probably had a late night meeting where they they woke up at 2 a.m. and were like, what about this? And then they called their poor friend who also works in the office, and he's like, we have to figure out a problem, solve this thing.

Nick Capodice: Or they took care of that over in Maricopa. Yeah, we already had. We already thought of that. Steve's on it. He's down there taking care of it.

Christina Phillips: I'll share his Google doc with you.

Nick Capodice: Later. Yeah, yeah, He showed us the deck last week. We're gonna look at that. All right.

Hannah McCarthy: This was fun. This was.

Nick Capodice: So fun.

Christina Phillips: Good. I'm glad.

Nick Capodice: I hope it's not hard to edit.

Speaker6: It's gonna be great. We have so much time.

Nick Capodice: Stop it. And the saving is tricky in the multi-track.

Hannah McCarthy: Oh my God. Yeah! Hit!

Nick Capodice: Stop, stop.

Hannah McCarthy: This episode of Civics 101 was produced by Christina Phillips and edited by Rebecca Lavoie. Civics 101 is hosted by me, Hannah McCarthy and Nick Capodice. Music in this episode is by Epidemic Sound, blue Dot sessions, and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

US vs: Healthcare

The United States spends more than any other country on healthcare. And, unfortunately, that's just about the only place we come in first.

Today we learn about the creation and maintenance of our unique public/private system with Sue Tolleson-Rinehart, Professor Emeritus at UNC, and Amélie Quesnel-Vallée, Canada Research Chair in Policies and Health Inequalities at McGill University. They break down how our system measures up to other wealthy nations; in cost to its citizens, efficacy, taxation, reproductive rights, and so much more.

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Transcript

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And you know what that music means, don't you Hannah??

Hannah McCarthy: I can take a guess.

Nick Capodice: Why, sure you can.

Hannah McCarthy: You can. Well, I'm pretty sure this is Guile's theme from Street Fighter two. Which would mean this is another round of us verses where we see how the red, white and blue measures up against the rest of the world.

Nick Capodice: You're absolutely correct. And today we will see how Guile and Balrog [00:00:30] fare against Cammy, Abigail, Ed, and so many more. We're doing US versus healthcare.

Hannah McCarthy: All right, so how did we measure up?

Sue Tolleson-Rinehart: Oh, well, I'm sorry to say that if you looked at the 13 wealthiest nations in the world, most of which are the US, Canada, Europe, and then Japan and Australia and New Zealand, we always rank last [00:01:00] both in health status and in quality.

Amélie Quesnel-Vallée: I'm sorry to say, but there is actually this organization, the Commonwealth Fund, that does an annual report measuring the performance of health systems. Several health systems. And the title for 2024 was a portrait of the failing U.S. health system.

Sue Tolleson-Rinehart: Alas, despite our wealth and our power and our American creativity and ingenuity, somehow we [00:01:30] wind up having overall the poorest quality of care and the poorest individual health status, where we're sicker than our peers in the wealthier nations, and we achieve that last status at a higher price. I'm Sue Tollefson Reinhardt. I am professor emerita of pediatrics in the University of North Carolina School of Medicine.

Amélie Quesnel-Vallée: Hi, my name is Amélie Quesnel-Vallée and [00:02:00] I am chair and professor in the Department of Equity, Ethics and Policy at McGill University.

Nick Capodice: So before we get into why we fare so poorly versus other countries, Professor Quesnel-Vallée will cover that later. I have to mention something that filled me with abject joy. So when we reached out to Doctor Tollis and Reinhart for this episode, she had an automatic reply for her email that said she had finally retired after 41 years of teaching.

Hannah McCarthy: 41 years. Wow.

Nick Capodice: And the automatic reply ended with [00:02:30] a trivia question.

Hannah McCarthy: Really? What was the question?

Nick Capodice: Do you know the difference between a Japanese and a Western chisel?

Hannah McCarthy: I have no idea. What's the difference.

Sue Tolleson-Rinehart: A western chisel is forged from a single piece of steel, and a Japanese chisel is laminated.

Hannah McCarthy: Fascinating.

Nick Capodice: Also, Hannah in a western chisel. The blade and the tang are one piece of steel, not two.

Hannah McCarthy: Is the tang the full width of the blade, or are we just going to let that one lie?

Orlando Bloom: The blade is folded steel. The tang [00:03:00] is nearly the full width of the blade.

Hannah McCarthy: Getting back on track, Nick Sue said that our health care system ranks pretty low as compares to other nations, but it costs a lot. Can we go over how much a lot is?

Nick Capodice: Trillions of dollars. And this is one place we definitely come in first. The US spends more than any other country on health care.

Hannah McCarthy: Why is it so much here?

Amélie Quesnel-Vallée: The US does not have a universal [00:03:30] health care system. It has several systems. And the more we know that, the more systems you have. And so here I'm referring to different insurers. I think the last time I looked, the US had something like 1500 insurers. And within that, however many plans that are being negotiated between the insurer and the care providers, um, HMOs and various organizations that are providing care. So that level [00:04:00] of complexity of the system means that there are a lot of resources that are being spent dedicated to managing that.

Nick Capodice: This is part of the reason why, if you look at a very common everyday hospitalization, like, say, delivering a baby, it's about $14,000 in the United States versus about 3000 in Canada. And we're not yet talking about who pays that money. That is just what it costs. And a lot of that cost comes from the myriad [00:04:30] American systems and people who work within it.

Amélie Quesnel-Vallée: You have thousands of health plans, each with their own cost sharing requirements and coverage limitations. So not only, you know, people must navigate that, but physicians and other healthcare professionals must navigate that in order to figure out how to get reimbursed and how much to get reimbursed. You know, physicians won't be doing that on their their own time. They subcontract to another organization. And when [00:05:00] you have something like that, where there's a whole like industry, that's that's actually sprung up to help physicians. Bill, then you have to start thinking, okay, this is getting really complex when it can actually be. It has to be a budget line, you know, for physicians.

Hannah McCarthy: Can we talk about how we got here, how our health care system turned into this, a system that ranks so poorly and is also the most expensive?

Nick Capodice: Well, Sue took me all [00:05:30] the way back. Back to when health care wasn't really a thing before.

Sue Tolleson-Rinehart: 80 years ago or so, health care couldn't do very much, so I wouldn't demand health care as a right. When health care wasn't very meaningful. Health care was pretty self-limiting. There was a very narrow window of things that a physician could do for you, and then either you would get better or you wouldn't, and that would be about that.

Nick Capodice: However, [00:06:00] there was a big shift around World War One with some new surgical techniques like lung surgery, the first ever hip replacement, and with the invention of a drug I'm going to come back to later in the episode insulin, people started to think, wow, healthcare is something, and it's something that I should be entitled to.

Sue Tolleson-Rinehart: And then World War two. And World War two, we made astonishing improvements [00:06:30] in what health care could accomplish, both in terms of the development of penicillin and then other antibiotics to control infectious disease. And unfortunately, war produces great leaps forward in medical technology. It's really it's really sad. But in terms of surgery, emergency care, long term wound management, breakthroughs and treatments of [00:07:00] infectious disease, world War two did some really dramatic things after World War Two. The allies, who had fought so hard to win the war, tried to come back to normal life and started saying to themselves, you know, I fought for a better life. And it seems to me that that better life also means having access to these new developments in health care. All right.

Hannah McCarthy: So the war is over. Soldiers are coming home, having received top of the line care [00:07:30] while they were serving. And they're asking for that same level of care for both themselves and their families.

Nick Capodice: Yeah, and we're not just talking American soldiers. This was happening to everybody who was involved in the war.

Sue Tolleson-Rinehart: So now this is where the United States and many of the European nations split Most of the European nations right after World War two opted for organized national health care systems. We did not because [00:08:00] we thought we were one of the two world superpowers, and the other one was the Soviet Union. And we were afraid of socialism and communism. And so we opted for our own unique American solution, which was to create a hybrid public private system.

Hannah McCarthy: Public private system. I understand that private means private insurance, like what we have, but [00:08:30] what is the public piece of the equation?

Nick Capodice: So this was decades before Medicaid and Medicare. And don't worry, I'm going to explain those soon. So initially the public part was care for veterans, for orphans and for widows. And it was also giving tax incentives to employers to have them offer private health insurance to employees. But again, these were very early days. Health care was so small at this point.

Sue Tolleson-Rinehart: So what I always liked to tell my medical students, [00:09:00] I would say, imagine a kayak. How hard is it to turn the kayak? Not hard. One shift of the paddle and the kayak turns. That was the state of health care in the Western world at the end of World War II. It was a kayak. So I can create a national health care system because it's small, it's going to be easy to manipulate, easy to change. The difficulty is today we're talking [00:09:30] about a right to health care and whether people should have access to health care. And the health care system is no longer a kayak. It's an aircraft carrier. How easy is it to turn an aircraft carrier? It's not easy. One of my former physician students, who was in the Navy, told me that it takes a mile of open water to turn an aircraft carrier.

Hannah McCarthy: Basically, [00:10:00] we picked a system and now we're stuck with it.

Nick Capodice: Yeah. And once we picked that system, the procedures we started to require under that system grew. They grew at an exponential rate. Chemotherapy. Kidney transplants. Radiation. Things that most people can't remotely afford but need to survive are on that carrier.

Sue Tolleson-Rinehart: Because now what we have is some more than $3 trillion system that is still a [00:10:30] public private hybrid. But it's it's enormous. Some parts of it are purely for profit. Other parts are not for profit. It's hideously complicated.

Hannah McCarthy: How much is paid for by the government versus private insurance companies.

Nick Capodice: It's about a 50/50 split, and this is in large part due to Medicaid and Medicare, which were created in 1965, in the Lyndon Johnson administration.

Archival: The new bill expands the 30 year old Social Security program [00:11:00] to provide hospital care, nursing home care, home nursing service, and outpatient treatment for those over 65.

Hannah McCarthy: All right, Medicare and Medicaid. We got to go over the difference between the two.

Nick Capodice: Absolutely.

Sue Tolleson-Rinehart: Medicare provides care for people who are 65 and over, and that's a truly national program. States have some opportunity to try to tweak or make innovations working with the federal government, but it's essentially a fully federalized [00:11:30] program. It's not a national health system would look like in the United States, except that it's mostly for people who are 65 and older. Medicaid, on the other hand, is a national State partnership, the states pay 30 to 50% of the cost of the Medicaid program, and the Medicaid program is devoted to people who are low income, with a particular emphasis on [00:12:00] pregnant and lactating mothers and children.

Nick Capodice: And there's a whole nest of complexities to both Medicaid and Medicare that I will not get into at all, because it would be just too much. But real quick, there are four subsets to Medicare parts A, B, C, and D. People are eligible for different coverage, and the premiums for those can come out of your Social Security check. And eligibility for Medicaid is dependent on your income and marital status. And it's a different amount with [00:12:30] different coverage in every state.

Hannah McCarthy: There's a lot of layers there, Nick.

Nick Capodice: Yeah, a whole lot.

Hannah McCarthy: But I do feel like I have a pretty decent grasp on the US part of the episode, the US part. Let's get into the verses. What is health care like in the rest of the world?

Nick Capodice: All right, I'm gonna explain that with the tried and true medical hypothetical, you break your leg, what happens? But first we got to take a quick break. But before that break, Hannah and I crammed all the stuff we've learned over [00:13:00] the last six years or so, making the show into a book. It is a great resource. Around election time or any time for that matter. It's called A User's Guide to Democracy How America works. It's fun. It's loaded with cartoons from the wonderful New Yorker cartoonist Tom Toro. Check it out. We got a link right there in the show notes.

Hannah McCarthy: We're back. We're talking about health care in the United States compared to health care in the rest of the world. And Nick, you were [00:13:30] going to talk about broken legs.

Nick Capodice: I was it is a classic hypothetical. So let's start with here in the US, I break my leg, I go to the emergency room. What happens again here is Sue Tolleson Rinehart.

Sue Tolleson-Rinehart: That's a wonderful question. First of all, a federal law known as Emtala would require that the emergency room treat the person, but it does not require that the emergency room treats the person for free. [00:14:00] So what then happens is I go to the emergency room to have my broken leg treated, and then I start. If I'm uninsured, I start receiving bills. The difficulty is if you don't have health insurance, you might be on the hook for some tremendously high payments. Actually, if you have insurance, you might be on the hook for some pretty high payments when you have to meet your coinsurance and deductibles.

Hannah McCarthy: So if I don't have insurance and I'm not [00:14:30] on Medicaid or Medicare, what is my bill going to look like?

Nick Capodice: Well, for a broken leg, you're looking at around $2,500 for the treatment at the hospital up to another grand for the x ray, some other cost for a cast or for crutches, but that is for a simple fracture. If it's a more complicated break and it requires surgery, that's going to be anywhere from another 17,000 to $35,000.

Hannah McCarthy: So in other words, if you don't have insurance, if you're not on Medicaid [00:15:00] or Medicare, illness or injury can be unbelievably expensive, devastatingly expensive.

Nick Capodice: And Sue added another layer, which is what would happen if you were not a citizen of the United States. Now, the first scenario is, you know, you're visiting. You're a tourist. Most insurance plans in other countries offer a medical travel insurance, specifically if you're going to visit the US, because if you don't have that, you're on the hook to pay all medical expenses, [00:15:30] whatever the hospital charges. All right, second scenario, you live here. You're not a citizen. You're undocumented. You go to a hospital to have a baby. Say, what's that bill going to look like?

Sue Tolleson-Rinehart: So undocumented immigrants are in, um, they're in a perilous position. Um, and they're probably going to have to pay out of pocket for any kind of care they can get unless they can enter, say, a federally qualified [00:16:00] health clinic, a so-called fqhc, the federally qualified health clinics. Don't ask what your immigration status is. They just take you and deliver care. Now they have a sliding scale of payment, so if you can't afford to pay something, you probably will pay something. And if you can't, you don't. Then Amtala will allow you to deliver the baby in the emergency room and be covered. That doesn't mean you're not going to get a bill. However, [00:16:30] if if I were an undocumented immigrant and I were pregnant and somebody could tell me. There's a federally qualified health center right over here. Go get yourself enrolled. I might have a shot at prenatal care and labor and delivery in that clinic.

Nick Capodice: So to go back to the broken leg scenario. In contrast, Professor Carnevale lives in Quebec. So I [00:17:00] asked her the same question. I break my leg in Quebec, I go to an ER. What does it cost? Um.

Amélie Quesnel-Vallée: Um. Zero. You walk into an emergency room in a province where you are insured. You have your insurance card. I'm looking. I have mine here. Um, you go ahead and you just show this little thing, and here you go. You are, um. You're provided care.

Nick Capodice: And [00:17:30] this isn't an insurance card like you or I have. Hannah. This is her Quebec insurance card.

Amélie Quesnel-Vallée: So whenever we talk about the Canadian health system, it's an averaging or a generalization statement, because really we are a federation a little bit like the US and indeed the the delivery of care of health care in the financing of health care is, is primarily managed by the the provinces and the territories. Each province and territory roughly establishes [00:18:00] its own health care organization, and they all have in common. They offer universal free at the point of care access to physicians and and hospital services.

Hannah McCarthy: How much does it cost to enroll in province or territory insurance?

Amélie Quesnel-Vallée: The cost? I'm sorry. That's you. You pay your taxes. Um. Even then, like, even if you did like, it's not tied to my taxes. The cost is becoming a [00:18:30] permanent resident or becoming or being a citizen.

Hannah McCarthy: All right. Nationalized health care. I know that when debates about this come up in the United States, the concern is often higher taxes. So, Nick, do Canadians pay more in taxes?

Nick Capodice: Well, it absolutely depends on which province or territory you're in. If you're in Canada and if we're comparing it to the US, it depends on what state or municipality you live in. But I do have a specific example here. And quick [00:19:00] number alert. So many numbers are going to come your way. I got to find some fun number music here. Let's fire.

Speaker7: This up.

Nick Capodice: All right. Hannah, you're a single person who makes $60,000 a year. If you live in British Columbia, you will pay about $9,000 in federal taxes and about $3,500 in provincial taxes to your province. Now, by contrast, if you're just across the border, say, living in Montana, you will pay $5,200 [00:19:30] in US federal taxes and 2100 in US state tax. But don't forget you're also going to pay Social Security and Medicare in America and the Canadian pension plan in British Columbia. Grand total. All in all, in British Columbia, you're going to take home $46,858. And in Montana, you're going to take home $48,056. That's a difference of about $1,200 a year. But I'm not done. I'm not done. [00:20:00] Don't forget, coming out of that Montana paycheck is whatever you pay to your employer to get health care coverage, sometimes hundreds of dollars a month, and you're still paying your medical bills throughout the year, so that 1200 bucks is pretty likely to get eaten up by our medical system.

Hannah McCarthy: All right, got it. Understood. Now, before we move on from the numbers, I do have one more money question. How much are doctors paid in Canada? What do they make there [00:20:30] compared to here? All right, hold.

Nick Capodice: On a second. I'm just going to start this back up. All right. Massive caveat. There is an enormous variety of salaries for doctors, depending on the kind of practice they run, whether they're in a hospital, what they do. There is such a disparity. That said, the average salary of a general practice doctor in the US is around 181,000 USD a year. Canadian general practice was 187 CAD. [00:21:00] Quick currency exchange makes that about $135,000 American, which means Canadian doctors earn on average about 25% less. But do not forget those Canadian doctors do not have to pay health insurance premiums for their or their families health care. Whoa. Okay. Can I put the kibosh on the old money? Money? Music, Hannah? You can. Did you ever see Busby Berkeley's Gold Diggers of 1933, [00:21:30] where Ginger Rogers sings we're in the Money and Pig Latin.

Hannah McCarthy: Sure didn't.!

Hannah McCarthy: All right, so that's the Canada lens. Our brothers to the north. Any other countries that we should highlight when it comes to comparing their care to our care?

Nick Capodice: Absolutely. Amelia referred to [00:22:00] a list from something called the Commonwealth Fund. That is an organization that does an annual report on health care internationally. They pick ten countries to contrast.

Hannah McCarthy: Is this the one that you mentioned earlier where the US was way down there?

Nick Capodice: Yeah, 10th out of ten.

Amélie Quesnel-Vallée: Well, maybe, um, you know, the high performers that the Commonwealth Fund has given a shout out to are the UK, Australia and the Netherlands. What's been pointed out about the Netherlands is they actually [00:22:30] have a high system performance relative to their spending. And this is also true of Australia and of the UK. So I think here we're not just looking at how they're doing, but also how much it's costing. And this is something that's hurting the US. You know, it's a very, very expensive system. So on any measure of cost efficiency it's going to look worse.

Nick Capodice: And Amelia mentioned one extra prize for our friends across the pond in the UK.

Amélie Quesnel-Vallée: Even though they've had challenges, they have [00:23:00] managed, you know, since 1948, the National Health Service has provided free public health care, including hospitals, physicians and even mental health care. So I think that one is something that's a shout out to the UK. Many, many high income countries, actually all countries. I think lots of people are struggling with accessing healthcare and mental health care, and what they've done is that they have set up an institute that's called the National Institute for Clinical Excellence, and they evaluate ruthlessly [00:23:30] their cost efficiency. And what they did with regards to mental healthcare is they went in and they looked at what worked, and they honed in on cognitive behavioral therapy. And they said, that works. That works. It's relatively cheaper than prescription drugs. It also provides more long term benefits and is more sustainable. And so they went all in on CBT on cognitive behavioral therapy. And they said we're going to make it available.

Nick Capodice: So [00:24:00] there's one other area of contrast I had to bring up. And that is reproductive rights. As of this moment in the US, October 2024, a person's right to obtain an abortion is dependent upon the state in which they live. So I asked Amelie, in those lists of other wealthy nations with their various health care systems, are there any that treat abortion access in a similar way? No.

Amélie Quesnel-Vallée: The other ten countries [00:24:30] I've named, you know, the Netherlands, the UK and Australia, Germany, Sweden, New Zealand, France, Canada and the US. To my knowledge, there are no countries in that group that would ban abortion access to abortion. It's a nonstarter issue in the sense that it's an acquired right and it's not up for discussion. So the I can speak about Canada perhaps more. There was actually a poll released in [00:25:00] recent months, um, about, you know, the same kind of thing, political discussions and, and what would what would constitute a so-called third rail issue. So third rail issue. What what would be a third rail issue, something that would be a nonstarter if a campaign were run on this topic. And, um, among the topics that were proposed was Reproductive rights, and specifically in our case, we are very blunt about [00:25:30] it. Access to abortion. Um, and that actually was, uh, in the poll very clearly stated as a don't go there.

Hannah McCarthy: So, Nick, you pretty much started this episode out by telling us how poorly the United States fares compared to other countries when it comes to access to health care and the cost of our health care system. And, you know, Sue said, it's an aircraft carrier that's hard to turn right. But [00:26:00] we have had changes. We've had massive changes every now and then over the years. I mean, Medicaid and Medicare were established in the 1960s. The Affordable Care Act was passed in 2010, which changed the face of healthcare for a lot of Americans.

Nick Capodice: Yeah, it did some real quick notes on that. The Affordable Care Act let young people stay on their parents insurance until they were 26. It forbade insurance companies from denying coverage to somebody because of preexisting conditions. [00:26:30] It expanded Medicaid access in many states. And finally, it lets people buy their own health insurance through a public marketplace.

Hannah McCarthy: So if we do want to turn the carrier, even shift it one side or the other, how is that sort of thing done?

Nick Capodice: Interestingly, Sue told me a story about something that happened very recently that demonstrated how these changes can happen, and it was the change [00:27:00] in the price of insulin.

Archival: Relief is coming to millions who rely on the life saving drug insulin. Drug maker Eli Lilly is cutting the price of insulin by 70%, capping patient costs for its insulin products at $35 a month.

Sue Tolleson-Rinehart: Insulin is 100 years old. Insulin is not a new drug. Nobody who's selling insulin now had to pay any of the upfront development costs [00:27:30] of insulin. So when particular drug companies were purchasing the right to sell insulin and charging, oh, $400 a month, $800 a month, they were just simply profiting. They were it was just all, all profit. Right? So the way President Biden was able to lower the cost of insulin to $35 was to get Congress to agree to allow Medicare [00:28:00] to negotiate the price. Medicare is hugely powerful in terms of the amount of insulin it finances. Right. And so if Medicare says we're going to pay this much and no more, then a company who's selling insulin, who had been making, oh, 3 or 4000% profit on it is not. Back to making only 350% profit on it. [00:28:30] Right. Because insulin costs them about a dollar.

Hannah McCarthy: But how did they do it? How did they get that through Congress?

Nick Capodice: Yeah, it seemed tough. It seemed nigh impossible because back in 2003, when Congress was trying to pass a Medicare modernization Act, the only way they could get that through was to include a stipulation that prevented Medicare from negotiating prices, ever.

Sue Tolleson-Rinehart: That situation arose because for profit pharmaceutical companies [00:29:00] said, if you allow Medicare to negotiate prices, we're going to put our entire lobbying apparatus into stopping the bill. So Congress said, okay, okay. But in the Inflation Reduction Act, we clawed back the ability of Medicare to begin negotiating drug prices, and they started with ten. And that list will continue to grow each year. So insulin [00:29:30] was an obvious target because it's an old, old, old drug. It's not a drug that required $1 billion of new research and development. It's and it's also a drug that people really need. And then what happens in our public private hybrid system is that if Medicare negotiates a $35 price, what is Blue Cross Blue Shield or Humana or Aetna going [00:30:00] to say, are they going to say, oh, well, fine, we'll go on paying $800. No, they're going to say now you have to give me them the Medicare negotiated price too.

Nick Capodice: And needless to say, when this happened, drug companies filed a lot of lawsuits challenging it, claiming it was unconstitutional. They lost those challenges. But I have to add that last month, September 2024, the fifth US Circuit Court of Appeals in New Orleans revived one of those challenges. [00:30:30] And that brings me to my last point. So Sue talked about health and health care for over 40 years. And if you look at her UNC syllabus for introduction to the US health system, you're going to read this quote. The course takes a strong perspective that the health system is shaped by and dependent on the political system, end quote. And I wanted to know what she meant by that.

Sue Tolleson-Rinehart: What my students always heard was, um, [00:31:00] the only thing that matters is the economics of health care. So I wanted to get them to think of something different. I wanted them to say we're the largest economy on the planet. We could simply afford to do anything we wanted to do. The choices we make are political choices about how we're going to spend that money. So I don't mean to say that it's all Partizan politics or it's all. But what I do mean to say is that politics [00:31:30] is the authoritative allocation of values. If we decide that one of those values is that health care is a right, then the choices we make about how to deliver that right are essentially political choices.

Hannah McCarthy: You know, this is an interesting way to put it, Nick, essentially, that our health care system is the way that it is because politicians made the choice to ensure that it would be the way that it is.

Nick Capodice: Yeah. [00:32:00] And if you are someone who believes that health care is a right, then you have a right to hold the people who made those choices accountable.

Nick Capodice: Well, that is us versus healthcare. And before I say a bunch of names, if you want to know how the US measures up against the rest of the world in one topic or another, let [00:32:30] us know. Drop us a line. It's Civics 101 at nhpr.org. We will check it out for you. This episode is made by me Nick Capodice Nick Capodice. This episode was made by me Nick Capodice with you, Hannah McCarthy. Thank you. And with help from our producer, Marina Henke. Our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode from Epidemic Sound, Jesse Gallagher, HoliznaCCO, Blue Dot sessions, Azura and 50 cc's of Chris Zabriskie stat! [00:33:00] Civics 101 is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Why does corruption matter?

Corruption in politics is a trope that's been around ever since we had politics. And it can feel inevitable. Regardless of anticorruption legislation and executive orders, it seems like it will never go away.

David Sirota, editor in chief of The Lever and host of the podcast Master Plan, argues the opposite.  

Today on Civics 101 we learn about what corruption is, how it influences (or doesn't influence) policy, and what needs to be done to eradicate it from our political system.

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Transcript

Hannah McCarthy: Hi, I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice

Hannah McCarthy: And today we are just going to jump straight in because we have a lot to get to. So this is our guest.

David Sirota: I'm David Sirota. I'm the editor in chief and founder of The Lever, an investigative news site. I am also the host and creator of Master Plan, and I was a writer who helped co-create the movie Don't Look Up. And I was the speechwriter for Bernie Sanders [00:00:30] in his 2020 presidential campaign.

Hannah McCarthy: All right, plenty of bona fides there. But the main reason I spoke to David for this podcast is his new podcast, Master Plan.

David Sirota: Well, the podcast starts out with a story about the first time I discovered how systemic corruption was. I mean, I think we all know that corruption. We know what it looks like. We know it's real. We know it's pervasive.

Hannah McCarthy: Today, Nick, We are [00:01:00] talking corruption now. David says we know what it looks like. So before we go any further, do you know what it looks like? Nick, what is corruption?

Nick Capodice: Oh, uh, what is corruption like in terms of what it looks like? I don't think it's like obscenity. Justice Potter Stewart in the 60s saying he couldn't define obscenity, but he knows [00:01:30] it when he sees it. But corruption. Corruption has to have a definition.

Hannah McCarthy: Well, it's a word used by humans, so it does have a definition. But this is not an essay for government class. So I am leaving the Oxford English Dictionary out of it.

Nick Capodice: All right. But what about corruption as a legal term?

Hannah McCarthy: Sure, Corruption is a legal term. It can apply to bribery, extortion, fraud, even nepotism. But, Nick, I don't think that's going to help us much today. What [00:02:00] a lot of what we might call corrupt is perfectly legal.

Nick Capodice: Yep, but corruption is bad. Like it is bad, isn't it?

Hannah McCarthy: Well, you and I are definitely not going to solve the conundrum of ethics versus law. So instead, let's try it this way. Can you think of a situation where you're corrupt or that's corruption would be a compliment?

Nick Capodice: Oh, absolutely.

Hannah McCarthy: Really?

Nick Capodice: Yeah. Like [00:02:30] in a den of super villains in a movie. You know, it's a little played for laughs, but it also serves as a useful social commentary, like, oh, darling, that's so corrupt, so deliciously corrupt.

Hannah McCarthy: Okay, so corruption is giving villain.

Nick Capodice: Yeah, it's not giving hero. Hannah.

Hannah McCarthy: I think I know why.

Nick Capodice: All right.

Hannah McCarthy: I think that we can pretty reasonably say that corruption involves abusing trust for some kind of gain, be that gain financial, influential, social, structural, [00:03:00] you name it. And when corruption occurs, it damages that trust. And for the purposes of this episode, we are talking about political corruption.

Nick Capodice: All right. In that case, it's not just trust that's at stake. It's also stuff like health and safety and the economy and civil rights. And you know, I could go on, but I'm going to stop there for now.

Hannah McCarthy: You are describing things that lawmakers and leaders are supposed to help out with. Like when people run for office, they [00:03:30] always say, you know, I'm going to make us healthier or safer or wealthier or more free. Yeah. So we vote for the people we believe we trust will do what they promise.

Nick Capodice: So basically, democracy is just one big trust fall exercise.

Hannah McCarthy: We put our arms out, we fall back. And if the people we voted for don't catch us because they're too busy taking care of themselves. We probably won't trust them anymore. So let's get back to David. [00:04:00] And the first time he felt like the system let him fall.

David Sirota: When I got out of college in the late 1990s, I was filled like lots of young people typically are. After college, I was filled with really idealistic dreams about how Washington works. I mean, I wasn't completely naive, but I had dreams about how things worked, how public pressure can force Congress and the government to do things [00:04:30] that the public wants.

Nick Capodice: All right. Public pressure. Does it work? I've looked into this. I know you've looked into this, and I think the answer is it can work. It doesn't always. The way that pressure is applied really makes a difference. But it can be really tricky to know what worked and why.

Hannah McCarthy: So David tells a story about public pressure succeeding.

David Sirota: It all honed in on this trip that we took a set of trips, actually, that Bernie [00:05:00] Sanders was running from Vermont to Canada to help seniors buy lower priced prescription drugs.

Archival: Congressman Sanders wants U.S. pharmacists and wholesalers to be able to buy drugs in Canada and other countries. It's an idea he hopes will bring relief to Vermonters paying about 80% more than our neighbors to the North Pole.

Archival: You ladies want to get on.

David Sirota: Okay. And we ran this campaign to both help seniors in Vermont access lower priced prescription drugs in Canada, [00:05:30] but also to help raise the public's understanding of the issue of price inequity and how medicines developed at government expense. Us government expense are being sold all over the world at lower prices, and they are being sold at much higher prices in the United States and causing lots of financial problems for people.

Archival: Ruth Mary Jeffreys calculates he sends $1,000 more a year for her breast cancer medication in the US than in Canada. [00:06:00] It's sort of like a gift to the drug company.

Hannah McCarthy: Prescription drugs can be incredibly expensive in the United States. They can be a lot cheaper elsewhere. So Senator Bernie Sanders took elderly and breast cancer patients over the border to get them affordable drugs in Canada. And of course, it wasn't just about getting those individuals cheaper medicine. It was about making a very public scene.

David Sirota: And so we did these bus trips, and they really did raise public awareness [00:06:30] of how unfair and rigged this part of the healthcare economy has become. And the public pressure ultimately ended up shaming Congress into passing legislation to allow American wholesalers and pharmacists to import medicines from other countries at the lower world market prices, which under the existing law before that they were not allowed to do.

Nick Capodice: Wow. So [00:07:00] public pressure worked.

David Sirota: It got a lot of both Democratic and Republican support. It was a bipartisan initiative. It passed, and it felt to me, to the young me that the system had worked. And it sort of it proved my dreams that I had watched on West Wing. The public gets angry. The Congress has to react, something good comes of it, and a bill passes, and that helps people.

Nick Capodice: Uh oh. Hannah.

Hannah McCarthy: Why uh oh Nick.

Nick Capodice: Well, [00:07:30] West Wing dreams are just that. Hannah. They are dreams. You know what might be a safer kind of dream? VEEP dreams. Because VEEP dreams are way more likely to come true.

VEEP: What else do we need to talk about?

VEEP: Federal lands.

VEEP: They need to be protected.

VEEP: We need more drilling.

VEEP: For drilling purposes.

David Sirota: What happened was after the bill was signed into law, after it passed and was enacted [00:08:00] and was on the books very quietly, the Clinton administration ended up essentially killing the importation program, using its executive authority to do that after the bill had been passed, essentially killing all the work that we had done. And that happened as the pharmaceutical industry was dumping millions and millions of dollars into American politics, to both parties, to candidates of both parties. And so, essentially, this victory [00:08:30] to help seniors afford and access lower priced prescription drugs, that victory was essentially killed by, in my view, a corrupt system corruption that the pharmaceutical industry has disproportionate financial and political power and use that disproportionate financial and political power to keep the American market closed and to keep everyone in this country paying far higher prices for medicine than other [00:09:00] people in other countries.

Hannah McCarthy: Now, are you going to hear a bunch of lawmakers say, yes, the pharmaceutical industry has disproportionate power and influence on Congress, and they use it to get what they want. And what they want is money. And I let them influence me. And then I write laws that help them. Probably not. Is it happening anyway? That is David's take.

Nick Capodice: But how did this happen? It wasn't a bill signed into law. I don't understand how it goes from being [00:09:30] a law to being null and void.

Hannah McCarthy: Here's the landscape as this bill was getting closer to becoming law. The drug industry funneled millions of dollars into an ad campaign to stop that from happening. There, telling the American public that this will be bad for senior citizens. And they're also lobbying Congress per usual, saying that this will hurt the drug industry. And then, of course, at this point, legislators have told their constituents that they have this great way to get them [00:10:00] cheaper drugs. Political pressure was building and the bill was revised.

David Sirota: What ended up happening was the pharmaceutical industry got its key allies in Congress to insert a very small provision into the legislation, a couple of lines as the bill was passing, which said that when this bill passes and is signed into law, the executive branch has to certify that the program is [00:10:30] safe and certify that the program will work. So it gave the white House one last way to kill the program before it came into effect.

Nick Capodice: I think I understand. Congress gets the bill to the president's desk and the president even signs it. They did what they said they were going to do. But the new law has a loophole, and the executive branch uses it. They use that loophole. Yeah.

Hannah McCarthy: The Secretary [00:11:00] of Health and Human Services said that they couldn't certify this program was safe and would work. The new law dies.

David Sirota: And actually, one Republican governor who supported the measure, the Republican governor, then of Minnesota, Tim Pawlenty, said, if the drugs from Canada are so unsafe, show me the dead Canadians. Where are all these dead Canadians who are dying by, you know, ingesting counterfeit drugs? It was a lot of nonsense. But the point is, is that at the heart of it was [00:11:30] corruption. And I think that the part of the problem with corruption is not only does the public not get good policy, but the public becomes more cynical. It's a it's a shredding of the social contract. Right. Because the average voter who paid attention to this said, hey, you told me you were going to lower the price of medicine. And I saw it all over TV and your press release and you celebrating the passage of this bill. And now the price of medicine isn't any lower. Not nothing actually happened. [00:12:00] It sort of reinforces that politics is all spectacle and show, but where the real power is wielded, corruption makes sure that power is wielded not for the everyday person, but for the people with the most amount of money.

Nick Capodice: So David said the pharmaceutical industry was dumping money into politics, parties and candidates. How does that get them what they want though? I actually mean this question, Hannah. I think it's really easy just to say money influences politics. But [00:12:30] my question is, how.

Hannah McCarthy: Is it really easy to say.

Nick Capodice: That money influences politics? Yes. Yes, I, I think so.

Hannah McCarthy: Not for social scientists. Let's say there's a bill that will help out big industry. Does a lawmaker vote for that bill because they got donations from big industry? Or did they get donations from big industry because they were likely to vote on it already?

Nick Capodice: You know, I really would love [00:13:00] to just go one day in American politics without a chicken or egg scenario.

Hannah McCarthy: And even if we could find the answer to that question, there are so many ways for a corporation, an entity, a person to donate, and so many ways to conceal that you have donated so many ways that linking donations to votes is nigh impossible.

Nick Capodice: Not every day you get to use the word nigh eh McCarthy.

Hannah McCarthy: One study showed that lawmakers are more likely to give [00:13:30] a meeting to a donor than a mere constituent, but that doesn't mean that we can say for sure why they are doing that.

Nick Capodice: It seems so obvious.

Hannah McCarthy: It seems, but seems is not science. Another study found that when a top donor dies, a candidate starts winning by fewer points. They start focusing on fewer issues. Even their ideology shifts. They become a little [00:14:00] more middle ground than they were before. Political action committees that support this candidate start making fewer ads.

Nick Capodice: So it seems like that top donor was beefing up campaigns, which helped secure more votes. And it seems like that candidate was probably supporting that donor's interests, because suddenly they're changing their agenda when that candidate dies.

Hannah McCarthy: Yeah. So does money get you influence? Does money affect [00:14:30] legislation? The data suggests it. And you know, David, an investigative journalist, does too.

David Sirota: When there was at least a pretense that corruption is bad, that corruption is not something we should embrace, is not something that should be part of the system in the way it works. So obviously, there was a deterrent to the most flagrant forms of corruption, public shaming, prosecution and [00:15:00] the like. I think the danger is now the corruption is so out in the open and flagrant that there is no deterrent at all.

Hannah McCarthy: Here's my deal, Nick. I cannot I must not, will not believe that we the people are useless against the forces of money and influence and profit forces that may well be banding together in corrupt efforts to undermine our [00:15:30] livelihoods. And I will not let you stew in that notion Either.

David Sirota: It's not a force of nature. It's not, you know, inevitable the way things are now, the policies that enrich the rich and hurt everyone else, that the system that creates that was created by a series of very deliberate, very well thought out, very well planned decisions by human beings, specific people with a specific agenda, that this [00:16:00] is not the way it has to be.

Nick Capodice: It's not a force of nature.

Hannah McCarthy: As in this is not simply the way it is, you know. Oh, well, what can you do? This is something human beings did, and this is something human beings can undo. And David told me that historically, when money seems to get a little too powerful in the world of law, someone does try to fix it.

David Sirota: There tends to be these cycles [00:16:30] of lots and lots and lots of corruption and then reform that addresses some of it and brings the system back into balance. And then there's new corruption, new ways of of corruption. And then the pendulum swings back.

Nick Capodice: Wait, give me an example of this pendulum swing. What does that look like?

David Sirota: People who are listening to this can probably remember, for instance, John McCain. We have an episode in the later part of the series about John McCain's 2000 [00:17:00] presidential campaign and how he ran that campaign against the corruption in Washington.

Speaker8: We are going to take the government out of the hands of the big money and the special interests, and we're going to give it back to the people of this country who deserve it. They've been having a great time and it's been a lot.

David Sirota: He didn't win the campaign in 2000, but that campaign ended up creating the momentum to pass the McCain-Feingold [00:17:30] campaign finance law.

Nick Capodice: What did that do?

Hannah McCarthy: Mccain-feingold, aka the Bipartisan Campaign Reform Act, stopped political parties from raising or spending unlimited funds. It also stopped corporations from funding certain campaign ads. Uh, yeah.

Nick Capodice: Come on. You know what I'm going to say here, Hannah?

David Sirota: Of course, that campaign finance law was then attacked by the Supreme Court. But the point is, is that that raised the public's awareness [00:18:00] of how big a problem this is.

Hannah McCarthy: In 2006, in Federal Election Commission v Wisconsin Right to Life Incorporated, the Supreme Court found that actually, certain campaign ads are exempt from this law. And then, of course, in 2010, we had Citizens United v Federal Election Commission, which people say led to super PACs, which can accept unlimited contributions and make campaign ads. We do have an episode on that. So if you want to know more about it, I [00:18:30] suggest you give it a listen. But I want to stick to David's point, which is the fact that high profile politicians said, hey, there's a ton of money pouring into politics here, and we're not regulating it, and we're letting corporations throw their weight around with candidates, and that could lead to corruption. And so they made that behavior illegal.

David Sirota: I think that the system doesn't have to be inherently nearly as corrupt as it is. [00:19:00] There's always going to be corruption at the margins, but it won't be cleaned up. It won't be a better system if we simply accept that this is no longer corruption. This is just the way things work. I don't accept that the kind of corruption we've just been discussing is the way everything has to work. There are ways to reduce corruption in a real way, but that requires a real campaign and a real focus.

Nick Capodice: All right, so we're back to this. Corruption is not a force of nature [00:19:30] idea. But Hannah. I do have to say, lately especially, it feels like a fact of life, that money has a massive influence on lawmakers and probably on laws and policy. If that is corruption and there really is a swinging pendulum here, does David see reform on the horizon?

David Sirota: What I fear is, is that there's no more of a cycle anymore, that the master plan and the master planners, who have essentially worked over decades to [00:20:00] legalize this form of corruption, both in the legislative sphere and in court rulings, deregulating the campaign finance and ethics rules system, that that they have permanently ended the cycle of pushing back. As we enter, as we are in amid an incredibly obviously corrupt era.

Nick Capodice: Well, that's a sunny outlook, isn't it?

Hannah McCarthy: I'll help us find the light, Nick. But, uh, first I got to share the story of how it got so dark in here. That's [00:20:30] after the break.

Nick Capodice: But before that break, listeners, you should know that there is a lot on the cutting room floor of every episode we make, and Hannah and I take all those clippings from the cutting room floor, sweep them up, and we put them into our biweekly newsletter. Extra credit. You can check it out. It's fun, it's free, and it's all on our website, civics101podcast.org.

Nick Capodice: We're [00:21:00] back. We are talking corruption today. And before the break, Hannah, you promised us a scary story.

Hannah McCarthy: I did. Here's David Sirota again.

David Sirota: So in 1971. Richard Nixon had just installed the now famous recording devices in the white House.

Archival: We are going to use any means to get it done. I want it done. [00:21:30]

David Sirota: 1971 was this moment in history in which the reformers, Ralph Nader types, were winning tons of legislative victories. It was a time of really incredible progress in America. I mean, the country had declared war on poverty. The Voting Rights Act had passed, the Civil Rights Act had passed the Medicare, had passed Medicaid. Richard Nixon signed the legislation creating the EPA and the like. I mean, this was an incredible moment. [00:22:00] And Nixon had just installed his recording device in the white House. And one of the problems that had not been solved, one of the last big problems that had not really been addressed was this thrum of corruption underneath the political system.

David Sirota: And Nixon ended up recording this exchange that he had with his Treasury secretary, [00:22:30] in which his Treasury secretary said to Nixon, and they were they were strategizing together that they could shake down. That was the that was the term used. They could shake down the dairy producers. And we're talking about the big giant dairy companies. They could shake down the dairy companies for more campaign cash to Nixon's reelection campaign, in exchange for Nixon issuing a policy that would [00:23:00] create a price support floor for the price of milk, to keep the price of milk at or above a certain minimum amount.

Nick Capodice: Hang on. Shake down the dairy industry.

Hannah McCarthy: Yes, Milk shake down milk shake. We are not the first to notice the pun potential there.

Nick Capodice: Milk them for all they're worth. But how is this a shakedown. Exactly. You know, you help me get reelected, I'll help your industry out. That's quid pro quo. As old as time in [00:23:30] American politics, isn't it?

Hannah McCarthy: Well, Nixon may not have invented campaign corruption, but he sure did define it in a new way.

David Sirota: It was very, very clear. They're going to give us money. We're going to do this policy. And what ended up happening was that this kind of came out. It leaked out at the time, not necessarily the tapes. The tapes did not leak out until Watergate a few years later. But the fact that so much money flooded into Nixon's campaign from [00:24:00] the dairy producers. And then Nixon essentially reversed a decision from his agriculture department to then do these price supports, which enriched the dairy processors, the dairy companies. It became this example of the kind of corruption that had become systemic in Washington and helped prompt To Congress to pass the Federal Election Campaign Act. It's still on the books. It was a landmark moment.

Hannah McCarthy: Basically, [00:24:30] even before Watergate went down, Congress was taking note of how campaign contributions could directly influence regulation. It was, like David said, very clear that Nixon had received a ton of money from the dairy industry and then turned around and helped the dairy industry. So the 1971 Federal Election Campaign Act regulated money in federal elections, contribution limits spending disclosures [00:25:00] prohibiting candidates from offering rewards in exchange for donations.

David Sirota: I think what it exemplified was this cycle that we've been talking about where bad stuff happens. Congress feels forced to react, and Congress did react. Now, Nixon almost immediately after signing the Federal Election Campaign Act. Signing it, I don't know. He didn't exactly love that he was signing it. He didn't do a big signing statement, but he felt sort of publicly pressured, publicly forced to sign it. [00:25:30] Nixon and his cronies decided to try to immediately circumvent it. And what's fascinating is, is that we uncovered a lot of previously never reported on documents in which they outlined their strategy of how to effectively undermine that anti-corruption law. Immediately upon its passage, I should mention, when the bill was moving through Congress after this dairy corruption scandal, Nixon was publicly saying he supports campaign finance [00:26:00] reform. He supports anti-corruption legislation. Meanwhile, we uncovered memos inside the white House in which they were plotting a strategy of getting corporate donors to threaten members of Congress with financial punishment if they ended up voting for that anti-corruption law.

Nick Capodice: Wow. That is. Well, I guess that is Richard Nixon.

David Sirota: So I realized that people listening to this will say, well, it's not a surprise that Richard Nixon, [00:26:30] of all people, was corrupt. And I think that's right. It's not a surprise, but I think we have to understand that the Watergate scandal and the Nixon administration, it really wasn't just a scandal about the break in and a desire to win an election. It was really the first and biggest campaign finance and corruption scandal of the modern era.

Hannah McCarthy: And Nick, why is it important that Congress is monitoring this stuff [00:27:00] that they're playing watchdog in their own world, because the public is often busy thinking about other things. For example, who's thinking about the dairy industry in 1971?

David Sirota: Is Nixon going to end the Vietnam War. The public may be keyed into. Is Nixon going to sign the bill creating the Environmental Protection Agency? The public may not be as keyed into Agriculture Department policy on dairy prices and dairy price [00:27:30] supports. So the smaller, more granular, more detailed, more esoteric the issue becomes. In some ways, the more likely a politician is to think, well, that's the kind of issue that I can go do the bidding of big money, because the public's never going to notice. The average voter is never going to know what I did. The average voter is never going to know that I slipped this or that line into a bill. I mean.

Nick Capodice: Members of Congress barely have the time or [00:28:00] opportunity to read every detail of a bill. So why would the public.

Hannah McCarthy: Exactly. And then there's the fact that you can always sneak language into a bill that gets you or someone else what you or they want. We hear about things like poison pills, language in a bill that basically kills it from the inside out, and riders language attached to a bill that might have nothing to do with the bill. There are plenty of quiet routes to a legislative goal, routes [00:28:30] that voters might never notice or know about.

David Sirota: The more in the details you get, the easier it is for corruption to flourish. And what happened soon after that dairy scandal? Watergate happened. And what came out of Watergate was an effort to tighten and strengthen those campaign finance rules and those anti-corruption rules.

Hannah McCarthy: We talked about the 1971 Federal Election Campaign Act [00:29:00] after the Watergate scandal. Congress amended that act to limit contributions from individuals, parties and political action committees. That 1974 amendment also established the Federal Election Commission. But politicians were immediately opposed to these reforms.

David Sirota: And what ended up happening was that even in the shadow of that scandal that everyone paid attention to, everyone knew about, the president resigned on the bills [00:29:30] to strengthen the anti-corruption and campaign finance laws. After Watergate, the famous bills to crack down. Even those bills had provisions slipped into them to help create ways, new ways for corporations and interests, with lots of money to continue and actually expand their power to influence members of Congress.

Hannah McCarthy: Then, in 1976, [00:30:00] a Supreme Court case, Buckley v Vallejo, struck down some of the campaign Act's spending limits throughout the 80s and 90s spending limit bills were repeatedly killed and blocked in Congress. There were even proposed constitutional amendments to reform campaign finance. That, of course, went nowhere. Or we would know about it. Remember that McCain-Feingold act in 2002? I do. Senators John McCain and Russell Feingold [00:30:30] started proposing versions of that in 1997, so it wasn't exactly an easy sell. And as we learned earlier, the Supreme Court pulled out a lot of its teeth. Not long after its passage. David's podcast, masterplan tracks how all of this happens, the decades of work that went into preserving this thing we call corruption.

David Sirota: I think this is why what we track in our series is so important. Some might say, well, okay, there was a secret [00:31:00] plan to legalize corruption. The question then is why would anyone want to legalize corruption? And the answer is if you're a powerful industry or a billionaire, you probably know that you can't preserve and pass new policies that continue to enrich you in a one person, one vote. Functioning democracy. Corruption is the way you can use your money to wield the disproportionate [00:31:30] power you need to wield to get the government to produce policies that the public won't like. So at its core, what we're talking about here is deregulating the campaign finance system. Making bribery effectively legal is a way to short circuit or as, as we say, corrupt the way democracy is supposed to work so that it is not working for the people who elected [00:32:00] their government.

Hannah McCarthy: I want to add that there are many, many lobbying groups claiming to be working for public interests and the preservation of democracy. And if you have an issue that you're passionate about, I warmly recommend that you look into groups that promise to represent that issue and also do your research to find out if they're really representing you. But either way, if money is allowed to speak [00:32:30] louder than or even against the voter, David sees this as a systematic problem.

David Sirota: When we say legalizing corruption, I want to be clear about what I mean. What I mean is the changing of laws via Congress and legislation and via the court system, the changing of laws to allow money to dictate political outcomes and public policy outcomes. [00:33:00] That that I think people are so used to that. And look, money is always going to have some disproportionate power, but it certainly doesn't have to have the amount of disproportionate power it has now the determinative power.

Nick Capodice: Okay, this is potentially concerning for listeners, but I also find it very helpful because we started this whole thing off by trying to understand what corruption is. But maybe it's more important to understand what corruption does. What corruption [00:33:30] does is create a barrier between the voter and the elected official. It is a wall that stops the democratic process.

Hannah McCarthy: And to that point, Nick, David didn't pull any punches when he talked about what he thinks this means for America.

David Sirota: In a system where corruption is this pervasive, where money is so determinative of political outcomes and government policy. We are moving towards a place where democracy is like a game we play every couple [00:34:00] of years, almost meaningless sporting event to to allow us to feel the sensation of democratic control. But in reality, the people who are in control are the people who have the most money.

Nick Capodice: Knife to the heart hannah

Hannah McCarthy: Nick. This is Civics 101. Do you remember how I started this episode? I said I would not let you stew in the notion that we, the people, are powerless against this force. Because. What [00:34:30] is this? Not a force of.

Nick Capodice: Nature.

Hannah McCarthy: Right? It is a force of humans. Fallible, distractible swayable humans. You can make Congress do things. Here's an option, for example, that maybe some people will not love.

David Sirota: Public financing of elections would go a long way to fixing a lot of this. It wouldn't completely fix it, but it would go a long way to doing that public financing.

Nick Capodice: Wait, is this like that thing on my tax form where I can [00:35:00] volunteer to give money to the presidential election campaign fund.

Hannah McCarthy: This is that thing kind of which, by the way, Nick, I really wish someone had explained to me when I first started doing my taxes because for the longest time I was like, why is the IRS getting into politics? And also why are they asking me to give more money on top of what I am already paying in taxes? Well, it isn't, and they aren't.

Nick Capodice: All right, so what is it then?

Hannah McCarthy: The Presidential [00:35:30] Election campaign fund was established by Congress in 1966. The thinking was, if candidates can access public funding, they won't be dependent on or beholden to the giant coffers of industry.

Nick Capodice: Wait, so public funding of elections. The thing David was just talking about, we already have that.

Hannah McCarthy: Well, for a long time, basically since this fund was established, taxpayers have opted into it less and less. Even though, to be [00:36:00] clear, opting into it doesn't mean paying more money. It's actually pretty much the only way. Americans can directly choose where their tax dollars go. And it's not just taxpayers who are ignoring it. Candidates are too. If you choose to use the fund, you also agree to a spending limit. You can spend 50 grand of your own money plus the election fund grant. And that is it. The grant for the 2024 general election is $123.5 [00:36:30] million.

Nick Capodice: So when you think about the fact that the Biden campaign spent over $1 billion in 2020, if that is ostensibly what it takes to win an election, why would you use the public fund?

Hannah McCarthy: John McCain, surprise, surprise, was the last nominee to use it. That was in 2008, but you can use it for your primary campaign this year. Jill Stein and Mike pence chose to use some of it. For a while now, people have been trying to figure out what to do with this pot of [00:37:00] money. In 2014, Congress started giving some of it to the National Institutes for health for Pediatric Research instead.

Nick Capodice: Okay. Interesting, because I don't think that box on my taxes has said presidential election campaign fund, pediatric research. I'm not opposed to supporting health research for kids, by the way. It's just not what the box says.

Hannah McCarthy: Yeah, you know what else that box doesn't say? Slash election security grants, slash Secret Service operations.

Nick Capodice: Wow. No, the box definitely [00:37:30] does not say that.

Hannah McCarthy: In an August 2024 appropriations bill, Congress took $55 million out of the public presidential election campaign fund for state election security grants and $320 million out of that fund for the Secret Service.

Nick Capodice: So the money that people think is going to the public funding for presidential campaigns has actually gone off to election security and the Secret Service.

Hannah McCarthy: And as of right now, [00:38:00] the most recent report from the FEC. The presidential election campaign fund is down to just over 17 million.

Nick Capodice: Okay. So the one source of federal public funding for campaigns probably couldn't be used even if someone wanted to.

Hannah McCarthy: Not to great effect anyway. Basically, candidates would have to wait until that fund builds back up to eventually get the money they need. But Nick, like I said, [00:38:30] people have been arguing for some kind of change to this fund for a while now. Some kind of reform, some shift that makes public funding viable for candidates. And in David's opinion, public money for candidates is preferable to private money for candidates.

David Sirota: I know the argument against that. Oh, you know, like we're just going to use government money to subsidize politicians. Well, you know what? You get what you pay for, right? I mean, [00:39:00] we're getting the best government money can buy right now. Private money can buy, which isn't so good for the for the public. So the public, I think, in my view, should be willing to pony up a little bit of money to get a better government, which means creating a system by which, if you want to run for office, you don't have to go begging billionaires and corporations for money, where if you get lots of little donations, there's a public pot of money that boosts those donations, gives you more resources [00:39:30] to just run a campaign, regardless of, by the way, whether you're a Republican, Democrat, whatever ideology, that's the kind of thing we can do. We know how to do it. It's been done in certain places.

Nick Capodice: It's been done.

Hannah McCarthy: I mean, New York City matches campaign donations at a really high rate, for example, which some listeners might have heard about recently in the wake of Mayor Eric Adams indictment, it appears that Adams abused the city's public funds program.

Nick Capodice: So to be clear, it's not like these programs will mean corruption goes away. [00:40:00]

Hannah McCarthy: No, but it does make corruption a real and prosecutable thing. Okay. One other thought from David when it comes to money and politics.

David Sirota: I think you could pass. Congress could be shamed into passing the Disclose Act, which is a bill that came after Citizens United, which would essentially force dark money, which dominates our elections now. Dark money being anonymous spending that could force that out into the open so we at least know who's spending [00:40:30] money in elections.

Speaker9: What we can still do, and what we should do is require these anonymous groups to disclose who is funding their ads. That's exactly what the Disclose Act does.

David Sirota: If you ask yourself, why do the spenders of dark money want to stay anonymous? It's because they don't want to become the issue in the elections. They don't want to. They don't want you to know that the advertisement on your television is coming from them because they know you probably won't like them, and your interests are not aligned with theirs. [00:41:00]

Hannah McCarthy: So the question to David's mind becomes this if what we have been talking about sounds like corruption, if it sounds like something that erodes trust in our lawmakers and our system, if it sounds like it creates a barrier between we the people and our needs being represented by our lawmakers. If Americans think money influences [00:41:30] law and policy, regardless of what the people actually need, what do we do about that?

David Sirota: I think at its core, the first thing we have to do is say, okay, wait a minute. This is a problem. I think there have been examples in the recent past in which we are moving towards normalizing this corruption in a way that does not give me hope. That's the warning.

Hannah McCarthy: Nick. We started this episode hearing an anecdote from David's [00:42:00] West Wing dream years, a Bernie Sanders anecdote, and we're going to end it on another one.

David Sirota: There was a moment on the Bernie Sanders campaign that was heartbreaking for me.

Hannah McCarthy: By campaign David Means Sanders 2020 presidential campaign.

David Sirota: It was January, so it was right before Iowa. One of his surrogates, a supporter of his named Zephyr Teachout, who's a law professor who's been talking about corruption forever. She published an op ed [00:42:30] in which she said Joe Biden over his career has a corruption problem. And she pointed out that Joe Biden had taken lots of money from the credit card industry and had passed a bankruptcy bill that was that helped the credit card industry. And she went through sort of a whole litany of things that Joe Biden had done for corporate interests that gave him lots of money. All stuff that's verifiable, not conspiracy theory, just right out in the open. And she said he has a corruption [00:43:00] problem. And this behavior of pay to play of where a politician with power gets money and then does the bidding of an industry that this is a systemic problem. And she published that op ed and there was a firestorm of controversy around it.

Nick Capodice: A firestorm, because people were like, oh, wow, Biden is part of the corruption problem.

Hannah McCarthy: More like a firestorm, because people were like, hey, keep that to yourself.

David Sirota: How dare she do this? And is this Bernie Sanders campaign going [00:43:30] negative? Et cetera, et cetera. And under that pressure, Bernie Sanders came out and didn't say, hey, this was a good point. I do think there's a systemic corruption problem in Washington. Bernie Sanders came out and felt compelled to apologize, to apologize to Joe Biden.

Archival: But it is absolutely not my view that Joe is is corrupt in any way, and I'm sorry that that Op-Ed appeared to be so.

Nick Capodice: Hannah Bernie Sanders talks about money in politics a [00:44:00] lot. Like a lot, a lot. It's it's kind of his whole thing. Right? Namely, saying that he is opposed to how it influences the government and how he wants to ban avenues to corruption. But we should also say Sanders has definitely taken money from corporate lobbyists in his career. But if one of the most outspoken opponents of quote unquote dark money apologizes when someone calls it out, what does that mean?

Hannah McCarthy: Well, [00:44:30] that's David's point.

David Sirota: If even Bernie Sanders is in a political system that tries to to shame people for even calling out corruption, if even Bernie Sanders feels so pressured that he has to succumb to that Bernie Sanders, who's spoken out about this, it tells you how much the system doesn't even want the problem to be acknowledged. And to me, we can get those better policies we just talked about. Those can be done [00:45:00] if we say we are not going to apologize when somebody calls out corruption, we are not going to accept that the corruption that we see all around us is just normal and acceptable and okay and good. No, we are not going to do that. That's why the last time there was a real effort, a successful effort to put anti-corruption legislation on the books, it came as a result of John McCain running an entire presidential campaign saying, I am [00:45:30] going to talk about the systemic corruption that is destroying our country, and I'm going to talk about it whether people like it or not. And that was the only way that anti-corruption policy, a better policy, was put on the books. And that's the only way it's going to happen in the future.

Nick Capodice: One last question for you, Hanna. What can people actually take away from this episode to hear that the only way things are going to change is if someone really powerful [00:46:00] uses their platform to force that change. What role do we play in that? David has painted a picture of a pretty entrenched system that seems like it sustains itself, and it's hard to see where the change can come in.

David Sirota: I think people have gotten so used to this. We're really at the precipice of not really understanding what corruption is, what's the difference between corruption and just business as usual. And I think what I hope the series does is [00:46:30] give people a sense that, wait a minute, it didn't have to be this way. My hope is that people walk away from this series and say, wow, you know, I see that like, there was this whole plan to make money. The only thing that matters in American politics. And I also see that it didn't have to be this way. And if it doesn't have to be this way, if those decisions were made in the past to create what we are living in now, other decisions can be made now to make sure it no longer is this way.

Nick Capodice: So public [00:47:00] pressure.

Hannah McCarthy: I'm not going to assume that people listening to this episode are opposed to the apparent force of tons of money in politics. If you like the system as it is, you're in luck. It is not easy to change. But if you don't like it, keep saying you don't like it. Say it to your representatives. Say it with your vote. Say it to your local and state governments. Say it over and over again. If you don't like what you [00:47:30] see, give it a name and say that name repeatedly. This episode was produced by me hannah McCarthy with Nick Capodice Christina Phillips is our senior producer. Rebecca LaVoie is our executive producer. Music [00:48:00] in this episode by Katherine Lee Bates, Ryan James Carr, Matt Large, El Flaco Collective, Waykapper Brendon Moeller, Ikhana, John Runefelt, spring gang, Lennon Hutton, Baegel and Mike Franklyn. If you like what we do here, please follow or subscribe wherever you get your podcasts. It's free and you'll make sure to never miss an episode. While you're at it, consider leaving us a review. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How can the president stop a strike?

Whenever there's a big strike in the news, someone inevitably invokes the phrase "Taft-Hartely Act" when talking about whether or not the president should intervene. But what is Taft-Hartley? How did it come about? And what can it actually do?

Nick chats with Erik Loomis, a professor at the University of Rhode Island and expert on all things labor-related. 

Listen to the podcast:

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Transcript

Nick Capodice: Hello, everyone. You're listening to Civics 101. I'm Nick Capodice. Hannah is out this week, so today is a rare solo performance. Now, today is one of those episodes that's tied to something that happened last week. And it got pretty big, and there was a threat that things could have gotten a lot bigger.

Archive: We're out here picketing for better wages and automation protection, and we're willing to stay out here as long as it takes to get what we want.

Archive: I'll shut them down throughout the world to prove that we can beat them.

Nick Capodice: And big strikes like these, they usually get resolved one way or another, and then people forget about it until the next time it comes up. But as far as I can tell, it's probably going to keep coming up. So this is a good thing to have in your civic's pocket. Today we are talking about the Taft-Hartley act. So on October 4th, 2024, there was a continued massive strike of the International Longshoremen's Association. This is a union with about 50,000 members. These are the people who load and unload container ships, which is a crucial part of how we get all our stuff, almost all our stuff. 90% of the world's goods are transported by sea. So if the goods don't get off the container ship, they don't get to our stores. They don't get delivered onto our stoop. The union had two big demands, a wage increase and a commitment that the shipping companies wouldn't automate many of their jobs. These were the two big sticking points. And on the night of Thursday, October 4th, before things got too bonkers, the union and the companies that represent the shipping lines came to an agreement and the strike has paused. Things are being negotiated and work can commence whenever there's a big strike like this and neither side seems willing to budge. There is inevitably a headline asking, Will president So-and-so invoke the Taft-Hartley act?

Archive: And there is the Taft-Hartley bill that says, if you're an essential worker to the to the commerce of the country, you you have to be on the job. And I think my own opinion. I'd like to see what Mike.

Nick Capodice: So today we're going to explain what it is, what it does, where it came from, and what steps happen whenever it is invoked, which is not too often. I spoke with Eric Loomis. He's the professor of history at the University of Rhode Island and author of A History of America in Ten Strikes. So, without further ado, let's push this thing off the dock. So before we get into the Taft-Hartley act, for anyone out there who might not be familiar, what happens when workers go on a strike?

Erik Loomis: Well, most of the time when a worker, when workers go on strike, they picket. They vote on it. First of all, they their union attempts to negotiate a contract with their employer. For whatever reason, they don't come to an agreement, whether that is because the employer doesn't want to agree or sometimes they actually do agree. But then the the workers themselves reject the deal. So you do see that. And when that happens, the workers leave the facility and they withhold their labor. Right. Which is at least, you know, by some measure, the strongest power that workers have, right? Their their collective ability to choose not to work based on the conditions of which they're making that choice. And then usually what happens is there is a period of time in which they are picketing, you know, handing out information to people passing by, engaging in a PR campaign, Usually behind the scenes, there are continued attempts to work out a deal because in the end, usually workers do want a paycheck because they're not getting paid during this. Um, and then eventually, as a general rule, they come to some kind of agreement. Then the workers vote on that, whether to end the strike or not. And then if they choose to, they go back to work.

Nick Capodice: So when this strike was going on, President Biden refused to invoke the Taft-Hartley act. And the strike was resolved without it. But for anyone out there, the next time this happens, what is Taft-Hartley?

Erik Loomis: Okay, so the Taft-Hartley act was passed in 1947, and it is an extremely anti-union bill. In the 1930s, workers went on strike by the millions around the country. They created the modern labor movement, basically the giant unions of that period the United Auto Workers, the United Steelworkers, you know, those kind of big industrial unions. And they have enormous successes. The administration of Franklin Delano Roosevelt passes the National Labor Relations Act and the Fair Labor Standards Act. Both laws transform and really revolutionize work in America, effectively creating the kind of dignified work that that exists. And workers themselves had pushed for those kinds of laws. They had engaged in massive strikes throughout the Great Depression, and then they're continuing to do so after this. Right. And so in the late 1930s and the early 1940s, there were many large strikes in America in World War two. The labor movement and the government and employers all came to an agreement to handle labor disputes in a different way. And one of the things that unions agreed to was to not strike. And so you don't really have, as a general rule, large strikes during World War two because everyone's trying to beat the Nazis. Right. But then at the end of the war, you have this enormous strike wave that begins. And most of these strikes were not for radical purposes. They were basically because workers wanted to get paid, right. They had not really received like major wage increases in a very, very long time because you had the Great Depression, then you have the war.

Erik Loomis: And so over 4 million workers go on strike in late 1945 and in 1946. And what this does is empowers the business community, who's already just furious that unions exist and they don't want unions at all to basically create the harshest anti-union bill they can get passed through Congress in order to stop most of the things that the union movement used in the 30s and early 40s to become successful in this country. So it forces union leaders to sign anti-communist pledges that they are not members of the Communist Party, which was an issue back then. It ends what are called secondary strikes. And so like if, let's say in my university, we have professors, we have a union, and let's say the groundskeepers go on strike. A secondary strike would be the professor saying, in solidarity with the groundskeepers, we're not going to strike. Right. They make that illegal. They allow states to create so-called right to work laws to incentivize workers to not join unions. And there's a bunch of other stuff, too. But for our purposes, the biggest thing they do is they create for specifically large strikes, a path of federal intervention so that if the president decides and the words and the law is if a strike quotes imperils public health and safety, then the president can intervene and force the workers back on the job for a limited period of time while the administration tries to work out a deal.

Nick Capodice: So this was a massive blow to the unions when this passed, right?

Erik Loomis: Absolutely huge. Huge blow. You know, a lot of the ways in which organized labor had succeeded in the 30s were through things like secondary strikes, were through things like, you know, winning the so-called closed shop so that everybody in a workplace, if the workers voted to have a union, everybody would have to be a union member, right? Um, by engaging in, you know, radical actions. Yes. And even the communist stuff, I mean, a lot of them, whatever you want to think in 2024 about communism, you know, a lot of those leaders, a lot of those union leaders, and especially the most successful ones, and a lot of those organizers, they were so good at organizing workers, in part because they were committed to the cause of communism. And so it really it really does is it takes away takes out of the labor movement, many of the most successful organizing unions, and really kind of undermines the spirit of organizing. And they loathe this federal intervention, because if if you don't have the right to strike, if you don't have the right to withhold your labor, then what rights do you actually have? So, you know, the labor movement referred to it as the Taft-Hartley slave labor bill. That was the term they tried to use in order to do it, because they were like, well, we have to work if you were the government or making us work. Are we free people?

Nick Capodice: Wow. Real quick, could you just define what a closed shop is?

Erik Loomis: Yeah. So a closed shop is that, you know, if, if and they don't of course they don't exist in the United States, but that if let's say, you know, we have a union in a workplace, right? At 80% of the people vote yes on the union, the other 20% still have to be union members. Okay, right. That's been somewhat worked around by creating what are called fair share dues, in which you don't have to be a union member, but because see, what what the law does as well is, is it says, okay, if we have a union and you don't want to be a member, well, fine. You don't have to be. But the union still has to represent you, right? The union still negotiates your wages. The union still is supposed to, you know, negotiate fair conditions for you. And if you are a nonunion member, but you get in trouble on the job, even though you are not paying into the union or you're not a member. Then they still have to represent you in, say, a grievance hearing so that you can keep your job. So it basically creates free riders or a more accurate term as leeches on the union states then can also pass a Right to Work act, which means that in many states have done this, which means that workers don't even have to pay those fair share fees so they can literally be free riders. And this is continuing to move forward. So with the Supreme Court case of the Janus case of a few years ago, which really was an attack on public sector unions, Justice Alito specifically notes, one of the appeals of this is to ensure that public sector workers, government workers throughout the country. So even in a pro-worker state like Rhode Island that has very strong labor law, that if my fellow faculty members choose not to be a member of this union. They don't have to pay anything. They still get all the benefits and they pay nothing.

Nick Capodice: We're going to get back to Taft-Hartley. And a few more details on last week's longshoremen strike. But first, we got to take a quick break. And if you want to check out our archive of hundreds of episodes on hundreds of topics, you can do that at our website, civics101podcast.org. Thanks.

Nick Capodice: What is the exact word wording in the act about what kind of a worker can have this federal intervention?

Erik Loomis: It's vague, yeah. So the official language is that if a strike imperils national health and safety, who determines that? Right. That's that's up to the president. So there's not a standard here. It's not a size of a strike or there's no legal standard here. It's intentionally vague. Basically, a president can invoke it whenever they want to.

Nick Capodice: And it has to be invoked by the president. The president must be the one to make this happen.

Erik Loomis: Yeah. That's right. Yeah.

Nick Capodice: Has it happened before?

Erik Loomis: Absolutely. Yeah. It's happened 37 times.

Nick Capodice: 37!

Erik Loomis: 37. But but not but most of those were in the late 40s and 50s. So it doesn't happen very often anymore. You know, the last time it was invoked in any major way. And I think last time it was invoked at all was in 2002, in a really fascinating case, because George W Bush invokes it against the employers, which is a weird sort of thing because because Bush is very pro employer. But what was that? It was also a longshoreman strike. Really? It was on the West Coast. But what had happened is that the employers engaged in what's called a lockout. And a lockout is basically an employer strike, right? A lockout is the employer saying we are shutting the doors to you until you accept our offer on this contract? And so in this case, so this goes on for several days before Bush gets involved. It's, you know, something I think about 11 days. It had gone on. What ends up happening is that the rest of the business community is basically saying to Bush, you need to intervene here. This is the the ridiculousness of these shipping companies and the people who work on the port companies is causing us and causing our national economy a serious, serious hit. And so you need to invoke Taft-Hartley to force the employers to negotiate fairly. Because because we're getting, you know, we're taking the hit for their aggressive behavior. And Bush agrees. And Bush actually does this. So it's a really weird moment. But that's the I think that's the last time it's been invoked, period.

Archive: I have determined that the current situation imperils our national health and safety. I have appointed a board of inquiry to investigate the issues at stake. Today, the board submitted an official report stating each party's position. I'm now directing Attorney General Ashcroft to seek an injunction under the Taft-Hartley act, ending the lockout and requiring work at the ports to resume at a normal pace.

Nick Capodice: Just to get back to the name when you know, it's called Taft-Hartley. I imagined it had something to do with William Howard Taft, but his administration was so much before that. Can you tell me anything about who Taft and Hartley were?

Erik Loomis: Sure. So Robert Taft is the son of William Howard Taft, and he is a powerful senator from Ohio who is also an extreme right winger, which is somewhat ironic because William Howard Taft, although certainly a Pro-corporate Republican, was really no extremist. But Robert was a real right winger, somebody who was, although I don't think they were really personal friends, was kind of, you know, on the same boat as somebody like Joseph McCarthy, really freaking out about communism, really wanting to bust the labor movement. And so Taft, who has massive presidential ambitions, right. The Republican Party is kind of split between more moderate types and people who want to repeal the New Deal and return us to the 1920s. Right. And so there's this kind of like Republican civil war going on. And Robert Taft is very much on the right wing of that. And so he takes the lead to attack these unions as part, partially because he truly believes it, but partially as a somewhat cynical strategy to raise his power within the Republican Party and hopefully get the presidential nomination in 1948, which doesn't happen. It should be said Fred Hartley is a congressman from new Jersey, and basically he's just a business hack. I mean, he's he introduces the the bill on the House side. There's not that much to know about him. Like a lot of members of Congress, he isn't really that exciting. But he was a very, very pro-corporate congressman. And but and I think that the the important thing is that not only does this bill pass, it passes over a presidential veto.

Archive: Oh, the Congress handed me the Taft Labor Act after two vetoes. They passed it over my veto. It was harsh, punishing law and was an attempt to take all the rights away from labor that they'd been enjoying. They brought it on themselves, though, by going to excess when they had all these rights, and it was a trouble for the whole country as far as that's concerned. The country was of the opinion that labor had gone too far and were against them. And that's the reason that Congress could pass the Taft-Hartley act over my veto.

Erik Loomis: Right. President Truman, who was not that strong on unions and in fact invoked Taft-Hartley in the aftermath ten times himself thought that this law was too extreme. So he would assign a more moderate legislation to, you know, cut out some of the the things that unions were doing that maybe he was uncomfortable with. But this was such an extreme piece of legislation. He vetoes it. But and this, I think, is really critical for understanding the labor movement in this country, even at the very height of union power, when unions have, you know, at almost the most members they'll ever have, it's a little later that they peak in the 50s. With this, a pretty aggressive leadership and a lot of strikes. This bill in the Senate, they override Truman's veto by 6825 measure so that even at the height of worker power in this country, the vast majority of senators in this country had no particular respect for the union movement, and, moreover, did not actually fear that the labor movement could do anything about it. And in fact, the labor movement goes big time after Robert Taft in his next reelection. I think that's in 1950. And Taft wins in a landslide. So it's another big defeat for the labor movement.

Nick Capodice: Can you just tell me a little bit about the heads of labor unions when it comes to campaigning for a president? That's always fascinated me. Like every election, it's sort of like, how will the union go or who will the union endorse? Has that always been like a connection when it comes to an election?

Erik Loomis: Not always. I mean, the American Federation of Labor is founded in 1886 as a federation of unions. That it's not. So I think it's important for people to remember that the AFL-CIO, which today is the federation that runs the labor movement, it is not a union. It is a federation of unions who choose to be part of this broader organization. You kind of think of it as like a, um, kind of an analogy would be like an employer interest group, like the it's like the Chamber of Commerce or something. Sure. So, you know, it's not the AFL-CIO is not a union itself. It's a it's constituent organization. And for a very, very long time, um, the head of the AFL, a guy named Samuel Gompers, tried to be very nonpartisan. He didn't believe in electoral politics. And a lot of the constituent unions were either pretty nonpartisan or, well, or even voted for Republicans. That begins to change in the 1930s. So part of the reason, when the union movement splits in the mid 30s and a more radical and more organizing oriented federation begins, this is the CIO, the Congress of Industrial Organizations, headed by a guy named John L Lewis, who was the head of the mine workers. Now, Lewis himself is a lifetime Republican and ends up hating FDR for other reasons. But during World War Two, the union movement, at least the CIO, um, realizes that its path to success is working closely with the Democratic Party.

Erik Loomis: And so one of its key figures, a guy named Sidney Hillman, who came out of the textile workers and was a Jewish immigrant from, you know, what is today Russia or Eastern Europe, anyway, he becomes like the CIO liaison or representative within the federal government in war planning. And as part of this, you know, what happens during World War two is that the government again basically says, okay, so in return for you, union is not striking. What we're going to do is basically force any company who's getting union contracts to accept the union and not fight it, which actually unionizes a lot of places that had been very harshly anti-union, such as Ford is a great example of this. Right? Because they're not going to get defense contracts, which is the entire economy without those unions. And so this basically gives the union movement, the CIO, at least, the ability to grow rapidly. And they sign up hundreds of thousands of people and then millions of people. And it kind of connects the union movement to the Democratic Party. So that really is where you really begin to see the assumption that unions are going to sort of vote for Democrats. And as the postwar politics develop, whereas the Democratic Party is kind of split between being pro or anti union, because remember, the Democratic Party is still also the party of the white South.

Erik Loomis: And those white Southerners at that time were also quite anti-union. For the most part. The Republican Party is almost universally anti-union. So unions continue to really tie themselves, you know, increasingly closely to Democrats and to a certain extent that continues today, although obviously, you know, in some of the news about unions not endorsing Harris and and moving to sort of a noncommittal stance and basically opening the door for their members to vote for Trump, you know, that maybe has has slipped. One of the things that Taft-Hartley also does is try has wording in there about limiting union contributions to political campaigns and things like that. So it had been a concern going back all the way to that time. But, you know, one of the things that unions did for a long, long time is that they were the one voice in American life that gave working class people a story, an information campaign. Right. That was different than the kind of right wing media that a lot of them are consuming. Donald Trump's secretary of labor was Eugene Scalia, the son of Antonin Scalia, who was extremely anti-union, whereas the Biden administration has gone out of its way to promote unions in a way that we haven't really seen since FDR. So that's a long answer to a complicated story.

Nick Capodice: I think my last question is, as somebody who studies labor, as somebody who teaches labor, you were following along this strike, I imagine, like, what did you notice? Was there anything that, you know, that stuck out to you as something that was like a little different about this strike or sort of more newsworthy about this strike?

Erik Loomis: Well, I mean, I think a few things. I mean, one is that, you know, what is the issue of automation, which is a huge thing about American work generally. I mean, you know, a lot of the stories about these longshoremen was, you know, oh, they get paid so much money and they want even more money. Well, that's true, but it's also very dangerous work. But a big piece of this story is actually about automation. Longshoremen unions and employers have had a kind of a dance for about a half a century now over automation. Right. There's far fewer workers working on these ships than there used to be. And so they kind of come to temporary agreements and things like this and negotiate around it. One of the things that drove this strike was that the workers had discovered that the port of Mobile in Alabama had engaged in unagreed upon new forms of automation that could potentially cost workers, even even more jobs. And so there's a lot of anger around the automation issue. And I think a lot of us are concerned about what is the future of labor in this country if so many jobs can be automated. So I think that's one thing. I think another thing was some reporting on it, I thought was rather poor, including from our largest news organizations, some of the New York Times reporters today and Maggie Haberman among them. Um, she said, oh, you know, this is the most important issue for both presidential candidates to address right now.

Erik Loomis: And it's not actually in truth, because, you know, there's all this talk about inflation, but the companies, American corporations had expected this for some time. We would not actually see any results on the shelves or on the prices for probably at least six weeks after the election. Right. But because of the ways in which a lot of our reporters try to sort of gin up stories without necessarily understanding them, they're making it a bigger deal than it is. And the reality is, is that very few strikes go on for six weeks in this country, right? If a strike has gone on for six weeks, something has really failed. And it's usually very, very bad for the workers, right? Most strikes are short and they should be short. So I was not surprised that the companies came back with a better wage offer. And the Uh, longshoremen said, okay, you know, we're going to suspend the strike for now. We reserve the right to continue it later, but we're going to sit down and talk now. This is how these things go. It would help if, you know, are the times and the post and some of these other big media organizations would report on this with some nuance. But I honestly, they don't know very much about it. And so they end up moving to these talking points. So to me, that was as you could tell, I was a little annoyed.

Nick Capodice: Well, one thing that's interesting to me is that before the pandemic, I wasn't familiar with the notion of a supply chain. I wasn't familiar with, like any of that stuff. And these are folks who were working during the entire pandemic to get stuff off the boats, to get stuff moving around. Like, to me, it seems sensible to reinvestigate how much they were paid and whether or not automation was going to change how they did things in their industry.

Erik Loomis: Oh, absolutely. I mean, these were the ultimate of essential workers. And we focus on, you know, hospital workers and things like this, and for good reason, of course. But these are the workers you don't see. Right? These are the workers who actually get stuff to the shelves. Right. Write them. The truckers, the train workers, these transportation workers that you don't really see are the entire reason that you had toilet paper to hoard to begin with. Without them, you don't have anything. And it's also dangerous labor. I mean, just think back a few months ago to that ship in Baltimore that went out of control and and hit the, you know, destroyed that bridge and killed these these bridge workers, right.

Archive: A major incident in the U.S. state of Maryland where a cargo ship collided with the Francis Scott Key Bridge in Baltimore on Tuesday, causing its collapse. A search and rescue efforts are underway, with six members of a road construction crew still unaccounted for. You know.

Erik Loomis: That is a a ship loaded by these longshoremen. And of course, they didn't have anything to do with the wreck. But this is the kind of dangerous, gigantic workplace with these gargantuan containers that they're dealing with on a daily basis. They deal with so much cargo that it might sound like, you know, their wages are really high, but it's contributing effectively nothing to the price on the shelves because there's so much cargo on these ships that the small number of workers making a lot of money. All that's doing is undermining the profit of these shipping companies by a tiny, tiny bit. And these shipping companies are pulling in billions of dollars. And so if we're thinking about supply chains, we have to think about the workers through the supply chain. And honestly, that includes workers we never think about, which are like the people making your clothes in Bangladesh, right. Who actually are being treated horribly and are engaging, you know, or being forced to engage in what is sometimes something pretty close to slave labor and things like this. So it would be useful for us as consumers to think about the stuff that we get from the point of production to the point of consumption and these, these longshore workers. What they have is an enormous amount of leverage, because if these small number of workers say, we're going to step away, then you're not getting any of your stuff. And so they deserve to get paid a lot of money.

Nick Capodice: Thank you so much, Eric.

Erik Loomis: You bet.

Nick Capodice: Well, that is the Taft-Hartley act. This episode was made by me Nick Capodice with our executive producer, Rebecca Lavoie. Hannah McCarthy is my co-host, and Cristina Phillips is our senior producer. Music. In this episode by Epidemic Sound and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. All right.

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Civics 101 Live: How YOU can help preserve our democracy (really)

Hannah McCarthy, Nick Capodice, and Christina Phillips. Photo by Allegra Boverman for NHPR.

Why don't people "civically engage?" Because they're too busy! Politicians are busy! Or maybe...they don't care?

In this special episode of Civics 101 recorded in front of a live audience, we hear from experts who break down what it means to participate in our democracy, how to break down barriers to participation, and how to be who you already are and make a VERY big difference. 

This episode was recorded at NHPR's Civics 101 Summit at Southern New Hampshire University. Learn more about that event right here. 

Listen to the podcast:

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Watch the show as it happened:

Video courtesy NH PBS

Transcript

Rebecca Lavoie: This episode of Civics 101 was recorded in front of a live audience. For more information on the event, check out our show notes.

Nick Capodice: And we are going to begin. And to begin, I have to invite onto the stage the person without whom Civics 101 would not exist. Hannah McCarthy came to New Hampshire Public Radio after a career as a reporter for New York magazine. Oh, there she is. You came out before the introduction was done. Hannah worked at death, Sex and Money at WNYC. We have co-hosted the show since 2018. She is the best colleague I've had in my entire life. Everything I can do, she can do better. Backwards and heels. Which to my chagrin, Ginger Rogers never actually said no. Yeah. So, ladies and gentlemen, it's true. I didn't know it either until I started writing this thing. Hannah McCarthy, the creator of today's episode. And should we get going?

Hannah McCarthy: I think so, but there's someone else we need out here.

Nick Capodice: There certainly is. The most, you know, the most important part for today? Our senior producer, Christina Phillips. Ladies and gentlemen. Oh, yes. Yes yes yes, yes.

Hannah McCarthy: Shall we begin? You good? Christina. Yeah. Hello, everyone. I am Hannah McCarthy. As Nick mentioned.

Nick Capodice: I'm Nick Capodice. And before we go a step further, I want everyone to know that what you're going to see and hear today is not a pre-produced display of incredibly realistic holograms. We are, in fact, flesh and blood corpos standing on the stage. And what is going to happen is happening the moment it happens and not a moment before.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this is Civics 101. You are listening to it. And for the first time ever seeing it. Thank you for being here, I welcome you. You know, Nick, they say that you should do this thing when you're, like, conceiving of a podcast. You're supposed to sort of envision the person that you're making the podcast for. So, like, what do they look like? Yeah. You know, what do they eat for dinner? What do they do for fun? What kind of music do they listen to? What kind of clothes do they wear? Can you picture someone?

Nick Capodice: Yeah, yeah, I always do. When I write episodes I like, the person I'm picturing is usually wearing, like, a floral print shirt with, like, a gray cardigan and a headband. And maybe her parents were deeply involved in politics, and she's fond of listening to show tunes. That's my, like, fantasy audience member yeah, when I'm talking.

Hannah McCarthy: To someone, I feel like I can see them right now. Yeah, like I can see it, you know? I can. I can really see.

Nick Capodice: The imagination is a powerful thing.

Hannah McCarthy: Yeah. So this is actually relevant to today's show because this episode is all about you, the listener, the audience member. It's about you as you are right now, a human being in today's America, a person who has the capacity for something that could very well alter the course of history, both yours and your community.

Nick Capodice: Hey, have you heard of the phrase overpromise and under-deliver?

Hannah McCarthy: Um, no, I never have. I'm a millennial, and I studied theater in southern Vermont, so I was really taught to dream.

Nick Capodice: Yeah I was not taught to dream. Yeah. All right, so what are we doing here today, though? Like, what are you getting at?

Hannah McCarthy: What I'm getting at is civics.

Nick Capodice: All right.

Hannah McCarthy: Shocker I know. I like to keep people on their toes.

Nick Capodice: I'm going to hear you out. But this is interesting because this is something we never actually do on the show. We have never defined civics. It's the name of our show. But, like, what does it mean?

Raj Vinnakota: Civics, at its core, is about educating people so that we can learn how to govern ourselves.

Hannah McCarthy: That was Raj Vinnakota. He's the president of the Woodrow Wilson National Fellowship Foundation. Also, importantly, Raj spends his days looking at how civic education works in America, and it's his job to figure out how to make it better.

Raj Vinnakota: This is about making sure that we, as a citizenry, can engage in the most important act in our society self-government. Some people call it democracy, other people call it a republic. Other people call it a constitutional democracy at its core. It's about doing the work of deciding, of coming to consensus and engaging in our communities for the benefit of all.

Nick Capodice: Raj said self-government? Yeah. Do we? Self-governance. We know we are governed by the government. That is not self-governance.

Hannah McCarthy: Is it, Nick? That is a really good question.

Nick Capodice: Well, you wrote it, Hannah.

Hannah McCarthy: I did. Um, so 11 score. And 17 years ago, a bunch of guys got together and wrote the union's second constitution.

Nick Capodice: What do you mean by the second constitution?

Hannah McCarthy: The first one did not work out very well. The Articles of Confederation. Have we all heard of that? The Articles of Confederation. Nick, why didn't the articles work out?

Nick Capodice: I actually knew this one. Lots of reasons. Many of you know them here in the room. Anybody in the great state of New Hampshire may be interested in this one. Number one, the Articles of Confederation made taxes voluntary, and.

Hannah McCarthy: Naturally, everyone volunteered to pay their taxes.

Nick Capodice: Hilarious. They didn't at all. So without taxes, the federal government couldn't fund itself or pay back the enormous debt to the European countries who helped us out during the Revolutionary War. Also, there was no uniform currency under the Articles of Confederation, so the federal government had its own money and the states had their own money. So trade was really hard. Can you just picture that?

Hannah McCarthy: Yeah.

Nick Capodice: Oh, I've seen the notes. They're beautiful. Oh, yeah. Like Rhode Island's can't go back to that. Go back to that.

Hannah McCarthy: Um, and, you know, it wasn't just really hard within this country, right? It was really hard trading with other countries when we have all of these forms of currency, which makes it hard to establish yourself as a country on planet Earth.

Nick Capodice: Yeah. And states, individual states had their own individual foreign policy. What a mess. If you think the Constitution is hard to amend right now, and it's very hard and very hard to do, try amending it with the articles rules. It needed unanimous state consent to amend the articles. And when it came to laws like if you had a federal law, nine out of 13 states had to agree to it for it to be a law to be passed. Good luck with that.

Hannah McCarthy: So basically what we're describing is an original form of government with a super weak central Government that left most of the power up to the states. Why did we do that?

Nick Capodice: Why did we have a super weak central government? We had been burned pretty badly before. Yeah.

Hannah McCarthy: Go on.

Nick Capodice: If you all remember where we came from, we were 13 British colonies and we were fed up. So we fought a war. And that war was so we didn't have to have a king. And we're going to make sure that it never happens again.

Hannah McCarthy: You know what that sounds like, Nick? What's it sound.

Nick Capodice: Like? Mccarthy.

Hannah McCarthy: It sounds like we wanted to govern ourselves.

Nick Capodice: All right. Okay. Self-governance. All right. Okay, I'll give you that one. Except we found out when you leave everything pretty much up to the states, they just act like their own little countries. And that kind of diminishes the whole idea of the union, the united part of the United States of America.

Hannah McCarthy: Still, the framers then staged a coup when they realized their mistake. They rewrote the Constitution kind of in secret self-governance, though that was still paramount representation. They debated that for a long, long, long, long time. The big thing about our government would still be the will of the people. So yes, the federal government would be more powerful under this new constitution, but states would still get to pick who got that power and it would not be a king.

Nick Capodice: So that's what you mean when you're talking about self-government under the current constitution?

Hannah McCarthy: That is what I mean. And the absolutely crucial piece of that puzzle, of course, is all of you. You are tasked with deciding that is Raj, the man who we heard from earlier. That is Raj's point. So what is civics? Civics is in part, understanding what it means to live in a precious and quite precarious state of self-governance. How do you do that? Raj breaks it down into three steps.

Raj Vinnakota: Okay, so what does that require us to do or said differently? What is an effective citizen? Well, back in 2019, I helped to lead a project that actually focused on this issue, and we came to a consensus definition of what it means to be an effective and engaged citizen. And there are three categories to this. The first is that effective citizens are civically well-informed. What does that mean? It means that you understand how your government functions, the historical underpinnings for why we got to where we are. You get your information from multiple and diverse sources, and you have the skills to be able to discern, differentiate among fact, opinion, misinformation and disinformation.

Nick Capodice: That is no short order. We have talked about this on our show. A lot of times it's difficult to combat mis and disinformation. It takes a lot of work. So what are the other two categories?

Raj Vinnakota: The second category is that you are productively engaged for the common good. The obvious part of this category is, of course, you vote. In addition to that, however, you also engage in your community. You volunteer, you mentor, you run for office, and then finally, you have the skills to be able to engage in thoughtful civil discourse, even with people with whom you don't agree.

Hannah McCarthy: So what Raj means is you show up.

Nick Capodice: Yeah, but I do want to come back to the civil discourse thing. Oh. We're gonna. Okay. Because what does that even mean? Right? That is one of the most commonly used phrases, and it's grown more and more every year that I live in this world. It's used more and more. What is civil discourse? But I have to start with saying this. These things that Raj is mentioning, they are not easy.

Hannah McCarthy: It's interesting that you say that because I feel like I remember someone saying that, you know, we Americans, we don't do things because they're easy.

JFK Archive: But because they are hard.

Nick Capodice: Well, that was the moon, Hannah.

Hannah McCarthy: And other things.

JFK Archive: And do the other things.

Nick Capodice: Fair enough.

Hannah McCarthy: You know what, Nick? Though? You are right. Former President John F Kennedy was mostly talking about the moon, and so civic engagement should be a breeze in comparison to the moon. Okay, so there's one last step, right? Raj has a third step.

Raj Vinnakota: The third and final category is that you're committed to democracy in America. And this commitment is based upon notions of trust. You trust your government. You trust your institutions. You trust your neighbor. Even if he or she did not necessarily vote the same way that you did. And then you have a commitment and a hope about the direction of the country. So as you can see, this is a much broader definition of what an effective citizen is. It's not simply about understanding the Constitution. It's not simply about voting. But it's much more than that. It is literally working and governing ourselves and having the knowledge, skills and capacity to do so.

Nick Capodice: Do you want to get back to what he said about trust? And I'm serious here. Anybody in this room who has been neglected by another person or another institution knows how difficult that trust is.

Hannah McCarthy: Yeah. So I actually I agree with that. I think the trust element is a little bit closer to the moon in terms of how achievable, but we have flags that say that we can get there. American flags on the moon I'm talking about American flags on the moon. It's like a metaphor. Oh, yeah, I got you. Okay, so that's what civics is. Civics is about you. All of you accepting and fulfilling the quite weighty responsibility that we specifically fought for. We are in charge of ourselves. We're in charge of educating ourselves, knowing where we are, what happened here, who is in charge of us and why, and what they're able to do. Voting, community service, running for office, behaving and conversing in a civil way, which I really want to talk about.

Nick Capodice: So like like 30s, I just need you to stop for one bit.

Hannah McCarthy: We're in the middle of a show. So this is part of it.

Nick Capodice: You know, go with it. This was this was written down weeks in advance. This is the point of the show when I go from being sort of the lovable, uninformed prompter to being the foil, the.

Hannah McCarthy: Role you were born to play. Yeah.

Nick Capodice: So here's where I'm going with this, because I already said civics is hard. But we didn't talk about why civics is hard. Why do people fail to volunteer for community service? Why do people fail and they do so frequently to behave in a civil way? I know there's a lot of reasons, but I'm going to hazard the big one. The biggest of all is they don't have time for that.

Hannah McCarthy: That's fair. But we're journalists, right? Like we can't make assumptions. So we should ask people. Actually, we did ask people. Christina. Hello.

Christina Phillips: Hi.

Hannah McCarthy: Okay. So, Christina, before the show, we asked the audience to fill out a little survey. Thank you all for doing so. And my understanding is that you have the answers to that survey.

Christina Phillips: Yes. I am holding these answers from our audience in our hands. All right. Do you want to hear the question that we had? Yes. Audience. Yes, please. So what do you think makes civic participation a challenge for you or people you know, if you happen to be one of those people that's so civically engaged that you don't even have any challenges.

Christina Phillips: All right.

Nick Capodice: So what did people say in this one?

Christina Phillips: All right, so we've got shyness, um, too much judgment around one's opinions from others, fear of being judged. People are so overextended and stressed with their everyday lives that sometimes they either forget or are unable to fully participate in civic life. I hear that apathy and a lack of awareness of how our systems work. And then we've got time, or lack thereof, time. Commitment. Time and time.

Hannah McCarthy: Yeah, that's. That's fair enough. Thank you. Christina. Okay. So audience we see you. We get it. And we are not the only ones who see you and get it.

Nick Capodice: Time is precious.

Mustafa Santiago: And I get it.

Hannah McCarthy: This is Mustafa Santiago. Ali Mustafa is someone who has devoted his entire life to civil service, both in the government and out.

Mustafa Santiago: I've been working on social justice issues since I was 16. I was lucky I came out of a family, you know, that was very focused on civil rights and workers rights.

Nick Capodice: Mustafa, you interviewed him. You talked. He worked at the EPA, right?

Hannah McCarthy: Yeah. The EPA, the Environmental Protection Agency.

Nick Capodice: So we do this thing sometimes with initialisms and acronyms. We're not sure if the audience knows what we're talking about. So we try to make it feel natural. So if I say like AARP, you know, the American Association of Retired People, like we do that all the time. It felt natural, right?

Hannah McCarthy: So Mustafa was at the EPA for 24 years before he left.

Mustafa Santiago: I worry about it every day, and I have to take some responsibility for myself. I resigned. I was the highest ranking federal official who resigned when President Trump came in. I knew I had a responsibility based upon the oath that I took. And when I raised my right hand to do everything I could for my country, and I did not feel that I would be able to do that.

Nick Capodice: And just a reminder for anyone who may have forgotten. While running for office in 2016, former President Donald Trump promised to mostly dismantle the EPA to help the federal budget.

Hannah McCarthy: He did, and I shared this information about Mustafa to make something very clear. This is an individual who is deeply, deeply devoted to serving his country enough to pivot if he is concerned that he will not be able to. And we cannot all be like Mustafa.

Mustafa Santiago: And I understand. Trust me. You know, folks trying to put food on the table, trying to keep the lights on. Save a couple of dollars. You know, that's priority.

Hannah McCarthy: It's just like my friend Ollie has said to me, um, no, Hannah, I did not read that Supreme Court opinion that you sent me. I have a job.

Nick Capodice: That's a really decent one. Always, always got the decent points. You and I and Mustafa, we have the time to really care about this because it is our job. But other people can't devote their whole lives to it.

Hannah McCarthy: I'm going to argue that they can.

Hannah McCarthy: Really.

Nick Capodice: Gantlet thrown.

Hannah McCarthy: In a way. Okay, so let's take voting.

Nick Capodice: Take my voting, please.

Hannah McCarthy: That's not all the jokes should make it in. I think maybe.

Hannah McCarthy: We can edit that one out in post. We acknowledge that.

Nick Capodice: My Henny Youngman references should just get.

Mustafa Santiago: Them right out. Well, for me the act of voting is incredibly important, but not enough. You need to be an educated voter.

Nick Capodice: All right. Can we quickly talk about why we're supposed to be educated voters? Because honestly, people say that all the time, but I'd like you to break it down.

Hannah McCarthy: So think about what happens when someone is elected. Think about what they get when we put them in office.

Mustafa Santiago: You know, these folks actually have a huge amount of power over our lives, right? They have power that impacts both economics and housing and transportation and the environment and climate and so on and so on and so on. So we've got to carve out a little bit of time and read and then be able to make the best decisions possible.

Nick Capodice: Can I ask the audience a quick question?

Christina Phillips: Yeah.

Nick Capodice: All right. Show of hands. Honestly here. Have any of you in this room ever been in the voting booth on Election Day with your phone, googling a candidate because you didn't do the research first? Oh. Thank heavens. Yeah. Wait, you.

Hannah McCarthy: Well.

Christina Phillips: I just want to say, as the voice of the audience, a lot of people raise their hands for what it's worth for everyone at home. Yeah.

Hannah McCarthy: You know, we're all humans. Human. Let me say this, Nick. Okay. I am not just trying to convince you that we should be as engaged as we should be. I am not just trying to convince all of you. I am also trying to convince me. Okay, so here's how I think about it. And here's how I think you should think about it. Nick, what do you do before you make a big purchase? Like you're going to buy a car,right?

Nick Capodice: I see where you're going. I do research beforehand.

Hannah McCarthy: Like you probably do a lot of research. You probably do it before you show up at the car dealership.

Nick Capodice: Full disclosure I have never been to a car dealership in my entire life. I learned to drive when I was 39. I don't think I'll ever own a new car, but that's just me. But if I did, if I were the kind of responsible human who could buy a new car, I would, you know, do my research before I went to the dealership.

Hannah McCarthy: Why is that?

Nick Capodice: Because a car is a major investment. I'm going to use it most days of my life. I'm going to drive my kids around in it. I'm going to have it for years, I hope. I want to make sure that it won't break down and cost a boatload of money.

Hannah McCarthy: Okay, so you do your research to try to make sure that you're investing wisely. You want a car that is safe, reliable, trustworthy. A car that will do what you need it to do, or at least what its ads promise to do. A car with a good track record. A car that won't become a burden on your nation or your wallet.

Christina Phillips: You know.

Hannah McCarthy: Yeah, yeah. And you have a lot of options. You have a lot of choices. At least you hope that you make the right choice. So you do your research, and if you're really smart about it, you also ask around.

Mustafa Santiago: You know, there are a lot of people who are asking for our vote. So we need to be at the opportunities where they are to ask them the questions about where do you stand on this and what is your track record look like on these types of things, and then make the best decision for you and your family. But let's not just give anyone our vote without doing our own due diligence, because there are huge ramifications.

Hannah McCarthy: I think, especially in New Hampshire, people understand that. People understand talking to people, getting to know people before they cast their vote. There are huge ramifications in choosing something that will affect your daily life, the well-being of your family, your ability to smoothly move through things without constant nasty surprises. And I'm not talking about cars anymore, Nick.

Nick Capodice: I think that's been abundantly clear for several minutes.

Hannah McCarthy: The point that I'm trying to make is that most of us, honestly, we do research constantly, not just about cars. We research the food that we're going to buy and eat. We research, you know, our own health. Hello, WebMD. We research education and housing and employment, all of which could at some point be supported or undermined by the people for whom we vote. So people can tell me that they don't have time to get to know their candidates. But that's not what they're really saying.

Nick Capodice: What are they really saying?

Hannah McCarthy: What they are really saying is they don't care.

Nick Capodice: No. You're telling me that everyone in this room who raised their hand, including us, these good people don't care.

Hannah McCarthy: I don't think that this live audience of a Civics 101 show is representative of the American populace.

Nick Capodice: But that's fair. And that's probably true. But I think a lot of people, and I dare say most people do care a lot about who is in charge, who is making decisions and what those decisions are.

Hannah McCarthy: I totally agree with you.

Nick Capodice: You do? I thought that was going to be a much tougher argument.

Hannah McCarthy: Okay. So I do think people care about who's in charge, but it's not the same thing as caring about your car or your job. I mean, when there are so many decisions that we make that really do matter. We can feel the positive or negative impact of those decisions that we make. Think about like how your choice in the voting booth stacks up against that. Why would we put the same care into that? Why? You know when your choice is one of millions, when the system is often actively set up to dilute some choosers and overpower other choosers, when that choice that we make disappears into this opaque and mysterious world of secret meetings and billion-dollar deals and uniform haircuts, why would you care?

Nick Capodice: You have basically just convinced me, Hannah, that being an educated voter does not matter at all.

Hannah McCarthy: I am going somewhere with this and I'm going to try to get there after a quick break.

Nick Capodice: We're back. We are on a little journey of Hannah's making today. She is trying to take us to a new plane of civic life in America. And Hannah, before the break, you basically were like, why would anyone feel like they matter in American democracy? And honestly, that made me very sad.

Hannah McCarthy: I'm going to bring you down even lower before I lift you back up.

Kim Whele: I think that we're on life support as a democracy. This is.

Hannah McCarthy: Kim Whele. She is a constitutional law professor and author of several books, including What You Need to Know About Voting and Why. And Nick, This Is Why You Should Care.

Kim Whele: Constitution is just a piece of paper with job descriptions. If it's not enforced, the piece of paper doesn't mean anything.

Hannah McCarthy: And what is the way? Sometimes the only way that most of us here in this room can help to enforce the Constitution of the United States.

Kim Whele: The only thing left is the ballot box and that's it. So that's part of why, I mean, it's an imperfect system, but it's all we have.

Nick Capodice: Yeah, but, Hannah, that imperfect system is, I think, to your point, that is the reason why so many people become disengaged.

JFK Archive: But why, some say the moon.

Nick Capodice: Some politicians might as well be on the moon.

Kim Whele: We all have job descriptions when we have a job. And if you show up late eight days in a row, you might get fired. Even if you do great work when you show up, or if you start taking money out of the cash register. And why are you fired? Because the company wants to stay in business and they can't. If no one's manning the desk or if money's going out of the car, the government is the same way.

Hannah McCarthy: I know that it might not feel like it, and I understand why, but we everyone in this room, we are the employers. Okay. And if you, the boss, want this system to exist, you want operations to continue, but you feel like the employees are kind of tanking it and you're just going to, like, lie back and wait for the operation to fail. You need to remember who is in charge.

Kim Whele: Around 50% of eligible voters vote. You imagine if that were 60% or 70% or 80%. I mean, everyone has said if we grab one person, get them voting, politicians are going to have a harder time ignoring individual Americans in favor of dark money and corporate money and politics. So it's going to make your vote matter more if there's a tsunami of civic participation.

Nick Capodice: Is that statistic true - like only 50% of Americans vote?

Hannah McCarthy: I mean, it varies in 2020. Two thirds of eligible voters showed up, but that was huge. That was the highest rate since 1900.

Nick Capodice: So for over a century, only about half of us showed up.

Hannah McCarthy: I mean, usually somewhere between half and like 60%. The 1940s has had a decent-ish turnout. Low 60% range. All right.

Nick Capodice: So World War two. Beginning of the Cold War.

Hannah McCarthy: Yep. And then the 1960s was also about the same as the 1940s because it's.

Nick Capodice: The 1960s, you know, the civil rights era.

Hannah McCarthy: And then it was super high. Between 1840 and 1900, like over 80% a lot of the time.

Hannah McCarthy: Yeah.

Nick Capodice: Antebellum, Civil War, 14th amendment, the Gilded Age. These are major moments in history. These are major inflection points. Are we in one of those right now, do you think?

Hannah McCarthy: Um, I don't know. I'll let the people decide. But yeah, Nick, people show up when they're concerned and they convince their friends to show up. People who are concerned about the same things as you. And it does make a difference if enough people who care show up because they prove that they're caring actually matters. And Nick, we do not yet know what people are going to call this era of American history. But we do know that when it really matters, people show up. And when they do, they prove that we still have a system where we matter.

Kim Whele: It's not every country where even in a democracy that seems like a democracy, where you really do have a government that is accountable to the people, that is not all in bed with, you know, power brokers and money gangsters. I mean, that is it's a real privilege. I mean, you could be maybe you're a religious person that you believe in a higher power. I feel like I'm blessed, and it's a gift to have been born and have my children born in this country. And it's honoring that gift. It's honoring that privilege that not everyone on the planet has to make sure that we have those freedoms. You have to participate in your democracy, even if you're not going to see the impact tomorrow collectively over many, many races and many, many millions of people. It's the only way. There's no alternative.

Nick Capodice: So getting back to the whole caring thing, Hannah, as in, like, why would I care about the system if the system doesn't care about me? The answer is basically, you have to make the system care about you by showing that you care by, like, bending it towards your justice and.

Hannah McCarthy: No buts about it. That's hard.

Christina Phillips: That takes.

Cheryl Cook-Kallio: Effort. Democracy is not a spectator sport. It takes constant vigilance. And that's hard for people. And so often what I say to people is you can't do everything, but you could do something.

Nick Capodice: I know that voice. I know she's been on several episodes of Civics 101 over the years.

Hannah McCarthy: True friend of the pod. This is Cheryl Cook-Kallio, an all star of civic participation in America.

Cheryl Cook-Kallio: I taught for 40 years in a community in which I grew up. I have held elected office. I was a city council member and was termed out after eight years. And I currently sit on the Alameda County Board of Ed. As the president, I have been politically active since I was 17 years old.

Nick Capodice: I'm a huge fan of hers, but I do not think we can all be Cheryls.

Hannah McCarthy: No, I don't think so.

Hannah McCarthy: But how do we show up for ourselves in civic life? Right? If you're feeling down and out, what do you do? You have to locate your community and work with them to get what you want and what you need. Here's the trick, though, Nick. How do you find your community? I hazard that it's all about how you speak to other people.

Cheryl Cook-Kallio: I think civil discourse for me, and the way I explain it to my students, is that you can have your opinion based on fact and based on evidence. You just can't make up your opinion. So you can argue. For example, one side or another of a Supreme Court case, as long as you can point to evidence and say it's there, but an argument to create a situation where your argument is, well, that's just the way I feel. And that's my opinion, it's not civil discourse.

Nick Capodice: So for Cheryl, civil discourse is about facts.

Hannah McCarthy: Isn't that interesting?

Nick Capodice: Yeah.

Hannah McCarthy: And facts. Facts can be a whole lot more complicated and way less exciting than feelings. But that is the point.

Cheryl Cook-Kallio: There's nuances involved, and it's the same thing on a city council. It's the same thing on a school board is that if you patiently listen to everyone, chances are you're going to find a commonality. And once you find that commonality, you can figure out how to move toward that consensus.

Nick Capodice: So she said, consensus. Where did we where have I heard that word before today?

Raj Vinnakota: At it's core, it's about doing the work of deciding, of coming to consensus and engaging in our communities. For the best of all.

Nick Capodice: It's the funniest thing. I could swear. Like I could hear Raj like ghostly speaking to me.

Hannah McCarthy: It was like clear as a bell.

Hannah McCarthy: I could hear it too, he said.

Nick Capodice: That is like consensus is a big part of what civics is you know.

Hannah McCarthy: Mhm. Let's see if people actually think that's possible. Christina. Yes.

Christina Phillips: Hello. Voice of the audience here. So we asked our audience think of someone in your life that you disagree with politically. Is there a political issue, local or national that you think you could agree on and what is it?

Nick Capodice: I am very excited to hear this because I actually think it's possible.

Christina Phillips: Yeah. Okay. So here we go. Yes. Inflation, imperialism, the working class being abandoned. Money and politics. Term limits for Congress. We have an episode on that.

Nick Capodice: Never gonna happen, is it?

Christina Phillips: No. I mean, I think you should listen. I think you should listen. All right. Um, character and dignity matters. We agree. All of us should leave a positive legacy to be remembered. Make the world a better place than how we found it. Love that. Um. And helping others with disabilities. These are some things that people have decided they could find consensus, even with someone that they really don't agree with.

Nick Capodice: That's like a good lead up and like that's a helpful. Like, that's a helpful thing that so many people thought that consensus could be found. But what do you do once you actually establish consensus? What's the next step? Okay.

Hannah McCarthy: So this next step, this is dependent on real civil discourse like facts, actual facts, respect, patience a capacity and ability to compromise. So keep that in mind. If you find yourself rolling your eyes at the following scenario.

Cheryl Cook-Kallio: When you sit down at dinner with your parents at night, they want you to be safe. They want you to get a good education. They want you to have choices whether you go to college or trade school or community college. They want you to have choices. If they were honest, they would tell you they want you to have many grandchildren and a little closer. And they're no different than my family and what I want for my children.

Hannah McCarthy: So you find the consensus everyone cares about their family. There are certain commonalities. Once you find the consensus, you have to think about the divide.

Cheryl Cook-Kallio: You are dependent on coal manufacturing. Your parents, probably their livelihood, is somewhat either directly or indirectly tied to coal production. In our community, we're trying to stop trains from going through Alameda County that are carrying coal because the environmental impact, we could not be more opposite on those two issues.

Hannah McCarthy: Okay, so coal that's a big one is a big divide. So there's the divide right. Take the divide. Take the consensus and put them together.

Cheryl Cook-Kallio: And if we could tap into that and figure out how to make sure that people can work jobs that will take care of their families. That's the issue when you're trying to shut down coal is what are you going to substitute that job with so that the people that have those jobs can actually still maintain a working class, you know, middle class environment, right?

Nick Capodice: I think I get Cheryl's point. The question is, what are you really fighting for when an issue matters to you? And sometimes, like maybe even a lot of the time, the answer is safety and security for me and my family and my friends, my community. So if you want to shut down coal to protect the environment. But what about, you know, the people who live there, you need to protect the people who will lose their jobs. Easier said than done.

Hannah McCarthy: And in fact, and I know usually not done at all. It's just not done. But we make a choice, and someone else has to deal with the fallout of that choice. But I do think maybe that's the point of consensus. It is not about getting something done, because we can get things done depending on whether or not Congress votes. But it's about getting something done correctly, about getting something done right without hurting the thing that you agree on with other people. You might vote for someone who says they'll fix a problem, but you got to follow up on that. Like you have to stay on them.

Cheryl Cook-Kallio: It's not just about doing it when you vote. It's all about showing up, and it's all about showing up throughout the duration between elections. To say to somebody who's running for office, I'm important.

Nick Capodice: So Cheryl's saying, like, you gotta hound em, you gotta hound your official.

Hannah McCarthy: They do work for you. Remember that little boss thing I was talking about? So Cheryl tells this story. She's at her state house with a bunch of teachers. These are government teachers visiting their legislators.

Cheryl Cook-Kallio: We ended up seeing 8 or 9 legislators that day, which, having been in a in a coalition among city council members. And I'll tell you, to get to that many legislators in a day is huge to get them to see you. So we're sitting at lunch and I turned around and I said, how many of you have ever contacted an elected official?

Nick Capodice: Oh, wait. Quick show of hands here. How many of you here have contacted an official? Woo! Give yourselves a round of applause.

Christina Phillips: For the audience at home. That's way more people than I would have ever.

Hannah McCarthy: I think that's the majority.

Nick Capodice: I think there was about 94% of people. But to be fair, we do have the third largest legislative body in the world.

Hannah McCarthy: Yes.

Christina Phillips: And I think our in-person audience is probably civically engaged, fully engaged. But I'm impressed.

Nick Capodice: So hats off to all of you. Because, you know, for me, cold calling isn't really my favorite thing to do to just call up. I once called the white House line and I was on hold for like an hour, and I was like, what am I even going to say? What if he picks up?

Hannah McCarthy: I'm hi, what? Do you like anyone?

Hannah McCarthy: So, okay, this is really interesting because so many of you raised your hands. When our guest, Cheryl asked her group this question here was the answer that she got.

Cheryl Cook-Kallio: The only two people in that group that raised their hand was a former student of mine that became a teacher and my colleague, she and I co-coached a competition civics team. That's it. And I looked at them and I said, why not? And one said, well, they're busy. I said, what do you think they're busy doing? They're supposed to be busy serving you. Their job is to listen to what you have to say. So whether you do this by sending an email or calling an office or seeing them in a town hall meeting, their job is to listen to you. And somebody said, well, you know, it's easy for you. You've been an elected official. And I sat there for a second. I mean, stunned, pretty stunned. These were mid-level government teachers. These were people that had been teaching for 15, 20 years. And I said, I looked at them. I said, how do you think I got to be an elected official?

Nick Capodice: Wait. So Cheryl said she became a government employee by talking to the government.

Hannah McCarthy: And she picked up the phone, made a call to tell her lawmaker what she wanted. And then Cheryl realized that she could make way more of a difference on the inside.

Cheryl Cook-Kallio: So it was because I picked up that phone first that I ended up in the situation I'm in now. It's not the other way around. And they were pretty stunned. So one of the teachers when I'm talking about this with this group of teachers, they said, well, I don't want to bother them.

Hannah McCarthy: So Cheryl says, do you think that a lobbyist ever thinks that to themselves?

Cheryl Cook-Kallio: A lobbyist wants them to vote for prescription drugs or not vote for prescription drug prices? Do you think they ever worried about whether they were spending too much time in that Congress member's office? Never, never is the answer to that.

Nick Capodice: That is a really good point, but I am feeling a little like chicken or egg in all this.

Hannah McCarthy: Yeah. Yeah.

Nick Capodice: So do lawmakers cater to special interest groups because they're more important than us? Or do special interest groups make themselves more important than us? Because they're the ones who actually show up at their house and we don't.

Hannah McCarthy: Well, we can't really know the answer to that question unless we put in as many hours as lobbyists do.

Nick Capodice: We're going to take a quick break. Hannah, you've been making something very interesting, maybe even compelling. You've been making some tremendous points.

Hannah McCarthy: Thank you.

Nick Capodice: You're welcome. But for the sake of argument, and you always tell me the devil doesn't need an advocate. But for the sake of argument, let's say you and all these wonderful civic people that we have heard from have not been convinced at all.

Hannah McCarthy: That would hurt, actually.

Nick Capodice: But like I need there's like a Supreme Court decision like, I need something to hang my hat on, right? I need something to hold on to in the cold, icy waters. Right.

Hannah McCarthy: All right. All right.

Hannah McCarthy: You want something to hold on to?

Nick Capodice: I want something to hold on to.

Hannah McCarthy: Maybe I can give these people just a little bit more to hold on to, because that is fair. Okay. That's fair. Like everything I've been saying. Sort of blue sky stars in the eyes. I understand that because.

Mustafa Santiago: Now let's be honest. Inside the federal government, it is a bureaucracy, right?

Hannah McCarthy: Mustafa Santiago Ali again. So I concede the government, elected officials, the law. It can all feel really out of reach. So for something to hold on to, how about somewhere to start?

Mustafa Santiago: Can you make change? Oh, most definitely.

Hannah McCarthy: Civics does not start in marble halls. The power and the capacity of the people to and for self-governance starts with the people. Community starts with the people. Consensus starts with the people. Coalitions start with the people. You want to be empowered in this democracy based, constitutionally federated republic. It's a mouthful. It takes a lot of work. Okay. But I do want to leave you, the people with something to hold on to. And you know what? More work is the last thing we need.

Nick Capodice: Yeah. So is this the part where Jim comes out with the t shirt cannon with, like, the.

Hannah McCarthy: No. This is the point where I say if you want to be an effective citizen, if that matters to you, if you want to see your needs and your values reflected in your world, just do your thing.

Nick Capodice: Do your thing.

Mustafa Santiago: I always just ask the question, what's your blessing? What's your gift? And then just take that and just be authentic with what you're doing.

Nick Capodice: Your blessing. Is that like your talent? Yeah.

Hannah McCarthy: Exactly. Like a talent. Okay. For example. Right. Mustafa told me this story. Someone who really likes writing and really likes drawing and feels like they're pretty good at it, and they also really care about the environment and educating people about the environment.

Mustafa Santiago: The other day I met this guy who was like 77. He was like, yo, check out this graphic novel that I did. And I was just like, this is so great because some folks won't listen. People are not going to read a scientific report, probably, but they'll check this out and then that can inspire folks.

Nick Capodice: But that one actually really speaks to me.

Hannah McCarthy: Finally.

Nick Capodice: Because I have read books, I have listened to music, I've seen theater, I've seen pieces of art that help me understand the world or care about the world, or care about problems in the world.

Hannah McCarthy: Yeah, like you can make something that brings people in that helps them understand something. Or you can take your skill, the thing that makes you unique and special. And you can actually, Christina, can we do question number three?

Christina Phillips: I'm way ahead of you. Okay. So question number three. And this is something by the way I think about all the time just randomly and just in my bed thinking about it, you find yourself on a deserted island with a bunch of people. You know, you have to build a life from scratch. What's your role?

Nick Capodice: That's why you asked this question.

Hannah McCarthy: Yeah, yeah.

Christina Phillips: All right. So I'm going to give you a couple of roles that people have identified okay. Food gathering and prep the cook.

Hannah McCarthy: Okay. So as we're getting into this, what I'm trying to share with you is there are ways in. Right? There are ways toward civic engagement. So a cook, you can start a community garden that truly brings people together. And it also offers a food source for your community, for people in need. You can volunteer at your local soup kitchen, take your skills and bring it to people. One that I'm particularly interested in. School lunches are not always the most delicious thing in the world. Find out what your local public school is feeding your kids. Go to school board meetings and say, hey, I care about nutrition. I care about what we're eating in schools. And here's what I suggest we do. Things happen in schools when people show up to school board meetings. Trust me.

Christina Phillips: All right. You want another one? Yeah. All right. I'll be an engineer, making sure we have clean water and a hygienic society.

Nick Capodice: That's fantastic. I actually care about this one. I have a dear friend who works for an organization called Engineers Without Borders. It's been around since 2000. It's like Doctors Without Borders, but it's engineers. It's people who build infrastructure in communities that need it. And it doesn't have to be in another country. It can be here, it can be in New Hampshire. It can be wherever you live. Creating infrastructure is crucial in some places. Really need it.

Christina Phillips: All right. We got another one, which is a nurse.

Nick Capodice: Okay, I have this one. I'll take this one. So I'm working on an episode right now called us versus healthcare. It's how America measures up against the rest of the world when it comes to how we provide health care for people. And I don't want to. I'm giving away this episode. But in a ranking of the top ten developed nations in the world. You know, America came in 10th place out of ten when it comes to the cost of health care and the quality we get and how long we live. Anyways, she was telling me the guest I was interviewing was telling me that if somebody is living in a state or is living in the United States and they're not documented and they break their leg, or they cut off a finger and they go to the hospital, they must be treated because of emtala, which I'm sure some of you are familiar with the law that says an emergency room has to treat you if you're hurt. Doesn't matter if you have money or not. However, that person will get a bill. Okay? Unbeknownst to me, there are massive organizations called Fqhcs Federally Qualified Health Centers that provides medical care on a sliding scale. And it does not matter who you are or how much money you have. This guest said to me, tell people you know to volunteer at work for and let other people know about these federally qualified health centers because it will change the rest of your life if you go to one versus an emergency room and.

Hannah McCarthy: Other people's lives.

Nick Capodice: And other people's lives. Absolutely.

Christina Phillips: And I'll say it also for those of you who, like me, are not a nurse but have experience with emergency medical services, first aid, first responders, consider, you know, a search and rescue, consider storm effort, storm recovery. Where do they need people to help people find a place to stay? Or, you know, to check in on people who might not have air conditioning or heat, those kinds of things. So those are a little bit more low lift. But I have another one which is bringing a group together to gather resources. Now, that sounds like a fundraiser to me.

Hannah McCarthy: Yeah, yeah, we know all about that at public radio.

Christina Phillips: And also, I mean, like, it doesn't have to be fundraiser, but, you know, you could be somebody who in your local community, there's so much federal funds and state funds that can get distributed to local communities. And they need people who apply for that. Like, you don't get it unless you apply for it. If you're somebody who's really good at getting a group together to gather resources, you might be really good at helping to get the information to write a grant. You might be good at organizing people to go after money that your community might need. So consider that. And then we've got another one. I would be a deputy or second in command, a leader, but also a supporting role.

Nick Capodice: Like a Will Riker.

Hannah McCarthy: That's delightful. Yeah, yeah.

Christina Phillips: I mean, I had to thought about this one, which is, um, poll workers, maybe not this election, but next election. There are people who have been working the polls for years, and there are people who have so much experience. They always need people who they can give that experience to.

Nick Capodice: Is there anybody in here who has worked in the polls?

Hannah McCarthy: Oh, yeah.

Christina Phillips: How many of you would like a deputy or a second in command? You can train up to take over for you? A little bit of help.

Hannah McCarthy: That would be nice.

Christina Phillips: Yeah, yeah. So those are just a couple of ideas for the deserted island. Yeah.

Mustafa Santiago: There's all these different types of things that you can do or I've, you know, been so blessed to work with so many younger people who have now created their own organizations and are just adding their own flavor to it. And I'm just like, yes, you know, I'm standing on the sidelines Cheering. I'm like, give us more, give us more, give us more. So the sky is the limit. So whether you want to work for business and industry, which there are some really great ones that are out there if you want to work in the nonprofit world, you know, I've been blessed. I've created my own business, I've led nonprofit agencies, I work for the Hip Hop Caucus. So I had a chance to work with all these amazing artists and entertainers. It's up to you. And there are so many folks who are now saying, you know what, I'm not going to wait for change to happen. I'm going to be a part of change, and I'm going to help to move that moral arc that Doctor King once talked about toward justice.

Hannah McCarthy: So many of us live two lives. We have a job, we go to work, we do things for a set amount of hours. We get paid, and then when we're done, we go home to be by ourselves or with our families, our partners, our friends. Civics is this third thing. Um, it actually comes from the Latin civis, which has several translations. But my favorite is person in the town. It is where we get the word city, where we get the word citizen. Person in the town. So civics is not just the first Tuesday in November. It is not every two years when you step into a voting booth or, you know, for years. For many Americans, you are always, always a person in the town. And civics is at its heart simply reminding yourself of that.

Hannah McCarthy: I thank you so much everyone. That was our show.

Nick Capodice: Thank you everybody.

Hannah McCarthy: Thank you. Uh, this this episode of Civics 101 was recorded live at Southern New Hampshire University. Thank you. Southern New Hampshire University.

Hannah McCarthy: It was made by me. Hannah McCarthy. By You Nick Capodice by you, Christina Phillips by our executive producer, Rebecca Lavoie, who could not be with us today by all of you. Our audience without whom we could not make this happen. Music. In this episode by Epidemic Sound and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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What is "Originalism?"

What does it mean if a SCOTUS justice is a self-proclaimed "originalist?" When was the word first used in that context? And what are we missing about the framers when we look only upon the recent interpretation of their words in the court?

Today our guide is Mackenzie Joy Brennan;  lawyer, media commentator, and author of the upcoming book The Original ‘Original Intent,’ Recovering the Lost Constitution of the Founders.

Click here for more of Mackenzie's research on originalism, including Terry Brennan's essay in the Harvard Journal of Law and Public Policy.

Click here for our episode on the Second Amendment.

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Transcript

Nick Capodice: Hannah you know that poem, that Robert Frost poem. Two roads diverged in a yellow wood. What is it called? The road not taken.

Hannah McCarthy: It sure is, Nick.

Nick Capodice: What's that poem about?

Hannah McCarthy: You want me to tell our audience what I firmly believe that poem is about? I believe that poem is about the importance of self-mythology.

Nick Capodice: Hannah I love Robert Frost. And I love that poem, even though it's read at too many commencement speeches. But I don't think [00:00:30] that's what that poem is about at all. If only. If only we could summon the ghost of Robert Frost to come here and say; actually, the poem was about this. Actually, the poem was about my pet.

Robert Frost: Two roads diverged in a yellow wood. And sorry, I could not travel both and be one traveler long...

Hannah McCarthy: But aside from the fact that I'm now expecting a lot of people to write emails telling me I'm wrong and I am not wrong, I'm not wrong about this. Uh, What? [00:01:00] Why are we talking about this?

Nick Capodice: Well, we're talking about it because outside of hearing it from the horse's mouth, from the summoned spirit of Robert Frost, outside of the writings of Robert Frost saying why he wrote what he wrote, we have no true way of knowing what somebody meant when they wrote something.

Archival: You say to America. It ain't in the Constitution. Don't come to me to ask me to decide these things. It's not the responsibility. And the founders never intended it. Whether [00:01:30] they knew anything about abortion or any other issue like gay marriage at the time or not. Exactly.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: Today we are talking about the judicial philosophy of originalism, specifically in the Supreme Court, what it means, where it came from, and how it has been used in many recent court decisions.

Hannah McCarthy: Okay. All right. Whew. This is a higher stakes version of the what? What did Robert Frost really mean? [00:02:00] It's a way higher stakes. Um, so the way we got to start, Nick, is defining originalism. What is it?

Mackenzie Joy Brennan: It is professed, loudly professed express reliance on the founders society beliefs.

Nick Capodice: This is Mackenzie Joy Brennan.

Mackenzie Joy Brennan: Hi, I'm Mackenzie Joy Brennan. I am a lawyer who is licensed to practice in New York and Arizona. And right now I'm working on a book on the Constitution called The Original Original Intent Uncovering the Lost Constitution of the founders, [00:02:30] which was started by my late dad.

Hannah McCarthy: Her dad?

Nick Capodice: Her dad, Terry Brennan. In 1992, he wrote a fascinating article in the Harvard Journal of Law and Public Policy about originalism.

Hannah McCarthy: Oh, you know, I just think that that is a pretty special thing that Mackenzie is carrying on the work of her dad. I think that's very cool. So quick question about the word. Is originalism the same thing As to other concepts in terms of constitutional [00:03:00] interpretation, constructionism and textualism.

Nick Capodice: Yeah. Not exactly. There is some overlap. We're not going to get into those two too deeply today. But to your point, originalism was not always called originalism.

Mackenzie Joy Brennan: Originalism has not been used even since the 90s. It originally was original intent, original meaning, or original understanding, depending on the credulity of the listener. So it's like originalism does not [00:03:30] exist outside its adaptation by recent conservatives.

Hannah McCarthy: So if a Supreme Court justice identifies as an originalist, that justice's claim is that they are not looking to themselves or society or even necessarily precedent to make their decisions. They are looking at what the framers slash founders thought when they wrote the Constitution.

Nick Capodice: Exactly.

Mackenzie Joy Brennan: And obviously there you get into some [00:04:00] problems with which founders are we looking at? Because most of the record that we have is record of debate. And honestly, that's great. If we were to actually rely on it, there'd be plenty to work with. Um, except for the fact that, again, they did not tell us to do that. They they wrote things down and signed the document for a reason. And so to look for extrinsic evidence is, is a little out of pocket to begin with. The beliefs that originalists tend to espouse [00:04:30] and use originalism to support actually have very little proof in the historical record from then or since. And conveniently, they tend to find things that there are the exact analog to pretty socially regressive policy, um, empowering the court.

Hannah McCarthy: I do understand what Mackenzie means when she says that our record of the framers is a record of debate. The Federalist Papers, the Anti-Federalist papers, Madison's Notes from the Constitutional Convention. [00:05:00] These all involve people arguing about the meaning of documents.

Nick Capodice: Yeah, and this can lead people to say, instead of trying to get into all those people's heads, let's just look at the words. And that is textualism rely only on what the words say.

Mackenzie Joy Brennan: But the problem there is that it is ambiguous oftentimes for a reason, because it was meant to grow with the country itself. Um, and they even talk about, you know, lamentably, we don't know all [00:05:30] the natural rights that will be discovered in future generations. And the ones we have discovered, it's been a laborious and sometimes pendulous process. So there has to be something outside the textual, and that's where you get into what canons do we use for that? And do we rely heavily and without instruction from the founders on 1700 society? And do we rely then on what they expressly said or what? Society [00:06:00] was doing, neither of which they instructed any future societies to? Do, by the way. The whole idea of looking to their society came about with Robert Bork in the 1980s.

Hannah McCarthy: Robert Bork.

Nick Capodice: Robert Bork.

Nick Capodice: Truly a fun name to say. Robert Bork.

Hannah McCarthy: It is fun to say. Bork Bork Bork. Funnily though, like pork is not fun, but Bork is.

Nick Capodice: The B is a comedy syllable Bs and Ks. Yep.

Hannah McCarthy: Fascinating. And Mackenzie said the 80s. Like the 1980s, [00:06:30] not the 1880s. Breakfast club. Take on me. Teen Wolf. 80s. Yeah.

Nick Capodice: I mean, technically, Robert Bork's first proposal on the theory was in the 70s, but it started to enter the national lexicon in the Alf era.

Archival: (Alf)

Mackenzie Joy Brennan: So, Robert Bork, um, he really has been lost to, I think, this generation, which is [00:07:00] good and bad. But he marked he was the first one to use the the concept of original intent. And that was in the 1980s that judicial interpretive theory came about. So when you think of like the whole idea of the semantics of original intent, it really invokes that, like, this has been around forever and it's sacred and this is always what's been done. And I think that's almost intentional. So Robert Bork introduced this idea to support very regressive policies. [00:07:30] He did not like single mothers. He didn't like working mothers. Um, he thought they were rotting society. So he was a real treat. And his first prominence on the national scale was during the Nixon administration Saturday Night Massacre.

Archival: The country tonight is in the midst of what may be the most serious constitutional crisis in its history. The president has fired the special Watergate prosecutor, Archibald Cox.

Hannah McCarthy: Okay, [00:08:00] so we have to explain the Saturday Night Massacre. Nick.

Nick Capodice: Yep. So Richard Nixon was being investigated for his involvement in the Watergate break in. And on October 20th, 1973, Richard Nixon called the head of the Department of Justice, Attorney General Elliot Richardson, and asked him to fire the special investigator in his case, Archibald Cox. Richardson said, absolutely not. He refused the president's orders and he resigned. So then Richard Nixon went to the deputy [00:08:30] attorney general. William Ruckelshaus asked him to do the same thing, and then Ruckelshaus resigned. So finally we get down to the third pick, the solicitor General Robert Bork.

Hannah McCarthy: I think I know the answer to what Robert Bork said.

Nick Capodice: Yeah Bork said, you got it, Richard. And he fired Archibald Cox.

Archival: A grave and profound crisis in which the president has set himself against his own attorney general and the Department of Justice. Nothing like this has ever happened before. [00:09:00]

Mackenzie Joy Brennan: Obviously did not save Nixon in the long run from the investigation, but so he obviously was a pretty political character, and he was very open about his political beliefs after that, about disliking single mothers, um, not supporting the Civil Rights Act of 1964 and not supporting the Supreme Court cases that enshrined the right to birth control access. Reagan nominated him to the Supreme Court in 1987, and he actually lost in [00:09:30] the Senate, which is surprising for a political nominee.

Hannah McCarthy: I have heard of Supreme Court nominees being withdrawn like Harriet Miers in 2005.

Archival: Well, I'm I must say that. I'm disappointed that Harriet Miers found it necessary to withdraw her nomination. But this process, the nomination process has gotten, in my view, unnecessarily surly, contentious and downright nasty.

Hannah McCarthy: Or a nomination being unsuccessful due to political hardball like in the Merrick Garland [00:10:00] nomination in 2016.

Archival: One of my proudest moments is when I looked at Barack Obama in the eye and I said, Mr. President, you will not fill this Supreme Court vacancy.

Hannah McCarthy: But I cannot remember a time a Supreme Court nominee was flat out rejected.

Nick Capodice: Yeah, because this is the most recent one. It hasn't happened since then. And Bork's Supreme Court nomination hearing was watched all over the country. Senator Ted Kennedy gave impassioned speeches.

Archival: Robert Bork's America is a land in which women would be forced [00:10:30] into back alley abortions.

Nick Capodice: Then Senator Joe Biden gave speeches.

Archival: Where I come from they call that making things up out of whole cloth. It's bizarre. It's ridiculous. Look at the record.

Nick Capodice: An advocacy group made an anti Bork commercial with Gregory Peck.

Hannah McCarthy: What?

Nick Capodice: Yeah.

Archival: Robert Bork wants to be a Supreme Court justice, but the record shows that he has a strange idea of what justice is. He defended poll taxes and literacy tests

Nick Capodice: All those efforts [00:11:00] were not in vain. The Senate ultimately rejected Bork's nomination.

Mackenzie Joy Brennan: I think it really marked this new era of politicization. In addition to introducing originalism, people got very, very upset about it. On the right side of the aisle, they turned his name into a verb. They said that like martyrdom was being borked. And if you're borked, you're somebody who's been denied the opportunity that you deserved. When in reality, you know, Senate approvals [00:11:30] are job interviews. So he basically just lost a job. He wasn't entitled to it. But that was really a turning point. And I think that's when originalism got its formal recognition on the Supreme Court, because conservative appointees after him picked up that torch and brought it to the highest court in the land.

Antonin Scalia: If you you give to those many provisions of the Constitution that that are necessarily broad, such as due process of law, cruel and unusual punishments, equal [00:12:00] protection of the laws if you give them an evolving meaning so that they have whatever meaning the current society thinks they ought to have, they are no longer they are no limitation on the current society at all.

Mackenzie Joy Brennan: Scalia picked up that torch and the Bork grudge, and he was the first one to bring it to the Supreme Court, because obviously Bork didn't make it onto the court. Scalia, um, lived and died by [00:12:30] the originalist theory, really enjoyed it, brought it to a lot of different social issues, and thus introduced some pretty radical new precedent under the banner of originalism. And on the current court, you have Alito and Thomas, who are part of that originalist cohort in the the court when Scalia came. And I think Gorsuch also calls himself an originalist. A lot of the conservatives on the bench right now call themselves originalists. But the first one to bring [00:13:00] it to the Supreme Court was Scalia.

Hannah McCarthy: All right. So this is how originalism came about. Now, can we have some examples? Are there any particular rulings that demonstrate the idea of originalism?

Nick Capodice: Yeah, Mackenzie has a few. And we're going to get to it right after the break.

Hannah McCarthy: But before that break, if you like our show, consider leaving us a review. You can do it on most platforms where you listen, and it really helps listeners know who we are and what we do.

Hannah McCarthy: We're [00:13:30] back. We're talking about the judicial theory of originalism, using the assumed intent of the people who wrote our Constitution to interpret it. And, Nick, you said that you have some examples of originalism in action.

Nick Capodice: I sure do, Hannah. And to be clear, our guest, Mackenzie Joy Brennan, is, as was her father, very critical of the modern interpretation of originalism. [00:14:00] She is not, though, and we're going to get to this in a bit. She is not against the idea of considering what the framers intended. They made our system of government. So her examples are when justices very selectively pick what original intent to use.

Mackenzie Joy Brennan: D.c. versus Heller was the first case where the Supreme Court recognized and they have the power to interpret the Constitution. So they read in Heller into the Second Amendment an individual right [00:14:30] to bear arms.

Nick Capodice: Now, I know you know Heller. Hannah, we've got a link to our Second Amendment episode in the show notes down there for anybody who wants to know more. But do you know Heller, the man?

Hannah McCarthy: Honestly, I don't know too much. He was a police officer, right?

Mackenzie Joy Brennan: He was he described, almost a romantic attraction to his gun and that he had to visit it across state lines. He talked about he had to keep it at at somebody's house in Virginia, and he would go from D.C. to visit it. Um, and [00:15:00] that this was because obviously to to get cert, you have to show an injury. And so this was the nature of his injury is that he had to basically have somebody else with separate custody of his precious gun.

Hannah McCarthy: Wow.

Nick Capodice: Yeah.

Nick Capodice: So the ten second summary of this case, D.C. v Heller, 2008, is that the Supreme Court had to decide if a law in D.C. that restricted handguns was a violation of the Second Amendment. Frankly, whether or not [00:15:30] the Second Amendment was about gun ownership.

Mackenzie Joy Brennan: It's a weirdly constructed amendment. It's unclear what the subject of the sentence is, and for generations, nobody read it to mean that it gives every single citizen outside of a well-regulated militia to own firearms. Full stop. But in Heller basing it on on zero precedent. And so Scalia both says this [00:16:00] is the originalist view. This is what society recognizes. And he also says, well, the dissent criticizes me for not citing enough evidence. But nobody's talked about this before. So obviously there's no evidence. So the only evidence that he's able to conjure up and he says that this, you know, invokes originalist theory is a quote from the Pennsylvania state convention, because when the framing was going on, they had these state conventions for everybody to brainstorm what they would bring to the original constitutional [00:16:30] convention. So in the state convention, the minority dissent in Pennsylvania mentioned something that referred to an individual right to bear arms.

Antonin Scalia: We make no attempt to provide and no excuse for not providing extensive historical justification for those regulations of the right that we describe as permissible.

Mackenzie Joy Brennan: You know, if we're going to go full original intent and what their society looked like, we're talking about muskets that took like two minutes to reload one [00:17:00] round. So it's a little bit of a stretch if you ask me, and a lot of constitutional scholars to read that as you can have a handgun under your bed just because you want one. And so that certainly is not the well-regulated militia bearing arms in the form of muskets that was contemplated. But there is one quote from one state's minority dissent that suggested that an individual right existed. And we're going to apply that to modern firearms.

Nick Capodice: And [00:17:30] there's a second, far more recent example Mackenzie gave me of an originalist choosing what original ideas to use to justify their decision. And it is the decision that came out this year in Trump v US the presidential immunity case.

Mackenzie Joy Brennan: I think that if people know one thing about the circumstances under which our Constitution was drafted, our country was formed. It was the idea that we did not want a monarch that was pretty much [00:18:00] value. One. So to have a majority conservative, originalist, professed originalist court say that presidential immunity is incredibly broad, sweeping to the point that a president could really murder an opponent. And if they're able to argue that it's well enough related to official duties, they can get away with it. That's a monarch.

Sonya Sotomayor: If the president decides that his rival is [00:18:30] a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts that for which he can get immunity.

Archival: It would depend on the hypothetical, but we can see that could well be an official. It could.

Mackenzie Joy Brennan: And why they call themselves originalists, because I think the clout that it implies, um, it implies that essentially you're the conduit. It's like when people say they're the conduit to a higher power. They're like, [00:19:00] trust us, we know. But it doesn't mean that they're always doing that. It's just kind of the cloak that they wear.

Nick Capodice: And to stay in that line. In 1985, Justice William Brennan excoriated this new philosophy in a speech he gave at Georgetown. He said originalism was, quote, arrogance cloaked as humility.

Hannah McCarthy: Earlier, Nick, you said that McKenzie joins Justice Brennan in criticizing the current banner of originalism, [00:19:30] but she also thinks that it's not a bad thing to consider the intent of the framers when we make decisions about what the Constitution means.

Nick Capodice: Yeah. Mckenzie said that there is a misconception that the framers were all socially conservative, that if they had wanted people to have the right or the freedom to do X, y, z, they would have put it in the Constitution. But that is not the case.

Mackenzie Joy Brennan: If you are a history nerd like me, you remember all the Federalist [00:20:00] Anti-Federalist debates that happened during the founding, and that was essentially one group of people that for the purposes of of this argument, they were concerned that once you start writing down rights and something isn't on that list, future generations. I mean, it's very prescient because future generations will look at that list and say, well, the right to travel isn't on there, so they must not have meant to protect it because they took all this time and trouble, and they wrote down what [00:20:30] our rights are and what they wanted to protect. This isn't on there. It means it's not protected. And then there is the other group of people that, you know, thought that we should list as many things as possible because they were afraid that the government without textual defense would infringe upon those things.

Hannah McCarthy: And I do know, because I've read the language of the speech that James Madison gave. Right. So this is this is knowing words that came out of an individual's mouth that when [00:21:00] the Bill of rights was being debated and proposed, one of the concerns he found most reasonable was that people might be worried that anything not written into the Bill of rights would fall to the responsibility of the government, and if it's at the whims of the government, it's not enshrined, right. It's not something that's that's actually protected forever. The same way that the Bill of rights, you know, ostensibly protects something, quote unquote, forever.

Nick Capodice: Yeah. And to try to get them all in there, his first draft of the Bill of rights had over 200 [00:21:30] amendments. But to solve this problem and to appease people on either side of the debate, he created the Ninth Amendment.

Speaker3: So the Ninth amendment reads the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. So basically saying, if we missed anything, that doesn't mean that it's not protected. And that kind of pairs nicely with this concept of natural rights, which was recognized by all of these enlightenment philosopher type founders [00:22:00] who wrote the Constitution. Almost every I mean, if not everybody that we would recognize as being founders has mentioned them either in the debates or in their own writing. So there's like documented references. And if you're unfamiliar with the term natural rights, it's pretty coextensive with things like inalienable rights. Um, in modern terms, civil rights, human rights, the way that they put it, because they are enlightenment philosophers is the government didn't grant these rights, so they can't take them away. [00:22:30] So it almost doesn't have to be mentioned that they're protected because government doesn't give you the right to breathe or sleep or have privacy in your own home or travel. So why would we write down that it's protected if government doesn't even bestow those things to begin with?

Nick Capodice: And while natural rights aren't necessarily in the Constitution, they sure are in the Declaration of Independence.

Hannah McCarthy: We're talking about life, liberty, the pursuit [00:23:00] of happiness, not property.

Nick Capodice: And a bunch of other rights. In other documents written by these same men who wrote the Constitution.

Mackenzie Joy Brennan: If you want to look at some of the evidence from back then, they have things like the right to privacy, protections of brute creatures, protections of the mentally incompetent. I'm not paraphrasing, so please excuse the regressive language, but the right to conscientious objection, right to resist, um, freedom of information and inquiry, [00:23:30] prohibition of monopolies. All these things were written in terms of of conceptualizing natural rights, but they weren't enumerated because there are things that come from for them, a higher power. And please take all of this with a grain of salt that they were certainly not unimpeachable in terms of their morals. Um, there's a great Thomas Jefferson quote, which is always super funny, because Thomas Jefferson himself was very morally questionable. Sunlight is the best disinfectant [00:24:00] sort of idea. We should always talk about that. He's certainly far from a perfect person, but he has a great quote from the founding era that something like forcing a society to live under the laws of its predecessors is like forcing a man in his adulthood to wear a coat that fit him in his youth. And I think that speaks to the whole idea of originalism being unintended, and also to what the Constitution was supposed to do.

Hannah McCarthy: What does Mackenzie mean when she says [00:24:30] it's not what the Constitution was supposed to do?

Nick Capodice: Her argument, as best as I understand it, is that the Constitution was forged in debate and the Ninth Amendment, the myriad writings of the framers, the amendment process itself, including article five's never yet used method of having conventions in three fourths of the states to amend its words. These are all evidence that the people who wrote it knew things would change, [00:25:00] that they weren't predicting whether a police officer unlocking a cell phone would be a constitutional violation of privacy, and that originalists may be doing a disservice to the sometimes quite socially progressive beliefs of the framers.

Mackenzie Joy Brennan: And I think it's also brought a lot of criticism for the Constitution itself, because folks on the progressive side, if they don't know this history, are like, who the heck are these guys in the founding who own slaves, who didn't respect their wives, [00:25:30] who were all straight, white, property owning men, and they're not really seeing the nuance and the progressive options in the actual founding in our our government structure, because it's been co-opted by the originalist banner. Does that make sense?

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Made possible in part by the Corporation for Public Broadcasting.

What Does the President DO?

Today we discuss what a president is, what a president does, and what a president "should be."  To quote Professor Amar, it can be hard to find someone to fill those shoes because they were designed for Washington's feet.

Our guests are Akhil Amar, Sterling Professor of Law and Political Science at Yale University, and Andy Lipka, president of EverScholar.

Akhil and Andy co-host Amarica's Constitution, a podcast that explores the constitutional issues of our day. It is a perfect companion show to Civics 101, and one we endorse wholeheartedly. 

Here is where you can listen to our episode on the Executive Branch, here is a link to our episode on the Presidential Veto, and here is where you can learn about the President and the Price of Gas.

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Transcript

What does the President DO?

Archival: The new president's duties outlined by the Founding fathers had to be translated into everyday detail. Could Washington make the Constitution work? History waited on this one man. Franklin Delano Roosevelt and Harry S Truman. Eisenhower. John Fitzgerald. Kennedy. Lyndon. Baines Johnson, Richard. Nixon, Gerald. Ford, Jimmy. Carter, Ronald. Reagan, George. Herbert Walker. Bush, William. Jefferson. Clinton, George. Walker.Bush, Barack. Hussein. Obama, Donald John. Trump, Joseph. Robinette Biden, Jr. Do solemnly [00:00:30] swear.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are going to actually answer a question we've come at from different angles over the years, but never truly head on. What does the president of the United States do?

Hannah McCarthy: It's funny. I mean, we kind of have danced around it, haven't we?

Nick Capodice: We have. A veritable jitterbug.

Hannah McCarthy: And I know we're gonna put links in the show notes for anyone who wants a primer [00:01:00] on things like the executive branch or presidential vetoes, or the president and the price of gas. And so I'm excited to talk about what the president does, but honestly, I'm a little trepidatious.

Nick Capodice: Why are you trepidatious? I mean, I'm trepidatious. Why are you trepidatious?

Hannah McCarthy: I mean, every president so far has done so much, so many different things. The job has evolved, hasn't it, over the last 250 years?

Nick Capodice: Yeah, it certainly [00:01:30] has. I'm trepid about wading into the waters of this president was good. This president was bad. Sort of a waffling around grand comparison. I don't want to do that. But to your point, Hannah, I hope we can get as close as possible to a 250 year constant. Just a simple answer to that question. What do they do? And to answer it, I spoke to someone who knows the Constitution very well, and I got to share his sound check.

Akhil Amar: Anna leaf subsides [00:02:00] to leaf So Eden sank to grief. And dawn goes down to day. Nothing gold can stay

Hannah McCarthy: Is that Robert Frost?

Nick Capodice: It is. I mean, I wasn't interviewing Robert Frost. I was talking about Robert Frost with Akhil Amar.

Akhil Amar: Hi, I'm Akhil Amar. I teach constitutional law at Yale.

Nick Capodice: Akhil Reed Amar is one of the most cited constitutional scholars in the United States. He frequently testifies before Congress. The Supreme Court has cited him in over 50 cases, and [00:02:30] he is the author of the words that made us America's constitutional conversation. There's a lot more accolades, but I've got just one more hand. I think you're gonna like it.

Hannah McCarthy: Alright. Lay it on me.

Nick Capodice: He was an informal consultant to the writers of the West Wing..

Archival: Promise that I ask everyone who works here to make. Never doubt that a small group of thoughtful and committed citizens can change the world.

Hannah McCarthy: All right, that's delightful.

Nick Capodice: Now, Akhil happens to co-host his own podcast, Amarica's Constitution. [00:03:00] And he hosts it with this gentleman.

Andy Lipka: Hi, I'm Andy Lipka. I am the co-host of America's Constitution, and I'm also the president of a nonprofit organization called EverScholar.

Nick Capodice: In their show, which I wholeheartedly recommend to all our listeners. Andy asks Akhil, his long time friend, questions about the Constitution.

Andy Lipka: I'm trying to help us move back about 60 years or so, in terms [00:03:30] of the way we think about the citizen's role in the presidential election.

Nick Capodice: So to start, I asked Akhil what the Constitution says presidents do, and here's what he said.

Akhil Amar: It's a great question, because the Constitution itself actually specifies all the things that Congress is supposed to do. In article one, and it actually specifies the things that courts are supposed to do in article three. And article two [00:04:00] does not contain an exhaustive list.

Hannah McCarthy: We've talked about this before. Article one is huge compared to the other articles.

Nick Capodice: It is massive. And by contrast article two which lays out the executive branch, is sparse. Article two begins, quote, the executive power of the United States is vested in a president, end quote. And it does indeed list some powers and responsibilities of the job, but not [00:04:30] all of them. And when it comes to presidents, they do a lot.

Akhil Amar: Presidents. Oh my gosh, they do so many things. They're so different, one from the other. Each requires a different kind of competence, and almost no one is good at all of them. You're the lawmaker in chief because of the veto power.

Archival: You will force me to take this pen, veto the legislation, and will come right back here and start all over again.

Akhil Amar: You are the head in a [00:05:00] sense, of the criminal justice system. Because the pardon power. So you're the prosecutor and partner in chief

Archival: A Full, free and absolute pardon unto Richard Nixon for all offenses against the United States.

Akhil Amar: You oversee the armed forces because you're the commander in chief of the Army and Navy.

Speaker9: On my orders.The United States Military has begun strikes.

Akhil Amar: You also oversee the National Intelligence Service. You're you're in effect, the spymaster in chief. [00:05:30] It doesn't say so explicitly, but a whole bunch of foreign affairs fall to you. It says explicitly, it being the Constitution that you receive. Ambassadors. Okay, you might think that's just a formal thing, but in order to receive an ambassador, you need to know which countries we recognize and which ones we don't. Oh, so that's a recognition power. Are we going to recognize Taiwan or the People's Republic of China or both. You have to be the [00:06:00] manager in chief because there are all sorts of federal properties, and you're in charge of supervising that. You're the appointer in chief. You pick cabinet officers and you're the Firer in chief. They serve at the pleasure of the president.

Archival: President Trump has fired another member of his cabinet. Va Secretary David Shulkin is now out.

Akhil Amar: We have a functional two party system in America, very strong two party system. And you're going to be the head of one of those two parties. So now you [00:06:30] have to unify us all as president. You're the unifier in chief, but you're also the head of a party. Wow. Those are two different things to be both Margaret Thatcher and Queen Elizabeth. And I haven't even begun to itemize all the other things. Probably most of all, you are in power in office 24 seven 365. You're the only Branch. One person nationally selected 24 [00:07:00] seven 365. And stuff happens in the world.

Nick Capodice: Did you get all that?

Hannah McCarthy: Yeah, I was actually, um, writing them down as he was saying them. Lawmaker and chief prosecutor in chief. Pardoner in chief. Commander in chief. Spymaster in chief. Appointer in chief. Firer in chief. Recognizer in chief. Unifier in chief and head of your party. And finally, you are on the job. 24 seven 365.

Nick Capodice: Tremendous. [00:07:30] And there is one more thing. And it is crucial

Akhil Amar: To keep the ship of state afloat. To make sure that you're not the last president, that there's going to be an election and an election after that. Oh, and you're going to have to make sure when that election takes place, even if you lose, you peacefully transfer power to the next fellow.

Archival: Now, it is no secret that the president elect and I have some pretty significant differences. But remember, eight years ago, President [00:08:00] Bush and I had some pretty significant differences.

Andy Lipka: So, Akhil, you know, one of the things that you and I do together is, you know, you lay out the the academic facts and the, you know, sort of the received knowledge of the Constitution and that sort of thing. And then I asked the questions that occur. So as I was listening to you, I'm thinking, well, it sounds like from what you're saying, the Constitution goes out of its way to enumerate the powers of Congress. Like you said, it doesn't do so with the with [00:08:30] the president. So does that mean that the president basically has what's left or, you know, if not, how do we determine, you know, because that would sound like a boundless allocation of of power.

Akhil Amar: Many scholars, justices sometimes define executive power as proper governmental power. That's neither legislative nor judicial. So they kind of define it as a residual category, a catchall. It has to [00:09:00] be proper. So president can't typically do things that aren't even given to anyone in the federal government that are reserved for the states.

Hannah McCarthy: So the states restrict the powers of the president, and they're also checked by the other branches.

Nick Capodice: And the Bill of rights checks the president, too. So the First Amendment says that Congress shall make no law abridging freedom of speech, but the president shouldn't abridge it either. Neither should the courts.

Akhil Amar: Beyond that, we have 200 [00:09:30] years of tradition enumerating or not enumerating, but giving us a sense of what presidents have done and not done. The most dramatic illustration of that is the two term presidency. You look at the original Constitution. Presidents are infinitely reelected, but Washington chooses to step down after two terms because he's virtuous, because he doesn't. He's not power hungry. That's followed by Thomas Jefferson, who [00:10:00] chooses to step down after two terms, and then after Jefferson, Madison and Monroe and Jackson. And now we have a bit of a tradition going, or more than a bit of a tradition. And when it's broken by Franklin Roosevelt, maybe for you know, reasons, because we're on the edge of a there is a world war going on and we're on the edge of it. The Constitution is eventually amended to codify the Washington precedent, so to speak, the two [00:10:30] term precedent. You have a sense of actually who the good presidents are, and it is an argument for someone to say, I'm doing just what Washington did.

Hannah McCarthy: Okay. I thought it was going to come back to Washington because it often does. So how much should we look to the first person who held the job as a guide? You know a person with some admirable qualities, some deeply undesirable qualities. In fact, one glaringly undesirable [00:11:00] quality in that he was an enslaver. How does George Washington inform what we should be looking for when we step into the voting booth every four years?

Nick Capodice: Well, according to Akhil, Washington defines the presidency. A great, great deal, warts and all. And we're going to get to that and our best understanding of the framers' intent in creating the job of the president right after this break. But real quick, before that break, if you want to understand [00:11:30] the workings of every branch, every executive department, each chamber of Congress, and a bunch of landmark Supreme Court rulings, Hannah and I put them all into a book. It's called A User's Guide to Democracy How America Works. It is loaded with information as well as cartoons drawn by The New Yorker cartoonist Tom Toro. Just get it wherever you get your books and leave it on the table.

Hannah McCarthy: We're back. And today on Civics 101, we are discussing the big one, the role [00:12:00] of the president of the United States of America. And Nick, we were about to cross the Delaware and talk about George Washington and what we know about the framers intent in creating the role of the presidency.

Nick Capodice: Absolutely. And here again, is Professor Akhil Amar.

Akhil Amar: Here is what we do know. They kept article two very short, in part because they couldn't specify all the things that a president was going to do. We know that they designed it for [00:12:30] George Washington. He was the unanimously selected presiding officer at Philadelphia. In effect, the Constitution was drafted by him, and for him, people voted for it, knowing that if Virginia ratified, he'd be the first president. And he was, and he was unanimously selected. Every single elector voted for him the first time around and it was unanimously reelected. Every single elector voted for him the second time around. [00:13:00] So we know that the that article two and indeed the Constitution were designed for George Washington.

Hannah McCarthy: So if article two lays out the job, albeit briefly, we can think of this as the framers writing the job description after they'd picked the candidate.

Nick Capodice: Precisely.

Akhil Amar: So one thing now that we know is let's look to Washington's example in some ways, because the framers would have wanted us to look to Washington's example. [00:13:30] They designed the document for him. And then we have to ask what was special about Washington. And I could tell you some things. We also know from the text of the Constitution that the very first thing a president is supposed to do is to swear a very personal oath of office to, quote, preserve, protect and defend the Constitution of United States. That's the first job description.

Hannah McCarthy: You talked about this in your oath episode.

Nick Capodice: I did. And since nobody has really suffered any legal consequences [00:14:00] for violating their oath, I kind of looked at the oath as not that important. And maybe that was a mistake because I had not thought about it this way. There is not a lot in article two, but they made a big deal about the oath. They put it in word for word.

Akhil Amar: I do solemnly swear that I will faithfully execute the office of president, the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States. But it's a very personal oath. I me, mine, I to the best of [00:14:30] my ability. We go from we the people do to I, Donald J. Trump, Joe Biden, Kamala Harris, whatever do solemnly swear I do. And so we know it's a very personal office. It's a constitutional office. We know it was designed by and for George Washington. And that gives us a little bit of a sense of who we're supposed to look to. First and foremost, and trying to think about what a president should do and shouldn't do. If you're a Christian, [00:15:00] you ask yourself, what would Jesus do? If you're a constitutionalist, it's perfectly sensible to say, what did Washington do?

Hannah McCarthy: So what did Washington do?

Nick Capodice: Andy Lipka, co-host of America's Constitution, asked the same question.

Andy Lipka: So, Akhil, you know, you're about to tell us, I think, some of Washington's extraordinary qualities that caused the founders to, first of all, believe that he was the right choice to have this universal agreement, that he was [00:15:30] the right choice to be the first president to design the presidency for him. If Washington indeed is extraordinary and you design the office for an extraordinary individual, is there a problem? If you get an individual, that's not extraordinary. In other words, someone may may not have the great qualities of Washington. And indeed, if every if it was so easy to find someone that had those qualities, they wouldn't need to design it for him. So. So is this a problem? [00:16:00] Is it a flaw? And if it is a flaw, you know, how have we dealt with it over the years? And how might we, you know, have to face it in the future? If someone has a flaw that previous presidents didn't have in the past.

Akhil Amar: So there are two parts of that question. One, Why Washington? And then, you know, how do we think about finding another Washington? And if we can't, is that a real problem? So why Washington? One because America at the time was [00:16:30] militarily vulnerable, and you need someone who can defend the national security. And Washington can. He actually was the leading general in a long war which won American independence against the most powerful military the world had ever seen. You need someone strong who can defend There because otherwise there is no constitution. There is no America. But two you need someone strong who also is not power hungry, who [00:17:00] is willing to walk away from power, who has the virtue to walk away. And Washington has already shown that before the Philadelphia Convention, he had all power. He had the only effective army on the continent. And he walked away. He he resigned. So people thought we can trust him. Third and related, he is a unifier in chief, and that is part of the job of the president [00:17:30] to be not just commander in chief, but unifier in chief. He spends time in all parts of the country. He's the only real figure who spent a lot of time in all parts of the country. And it's a big country, and they have different points of view. This is a world before the emergence of political parties. But he's respected by everyone, by even by people who vote against the Constitution. And now you ask me. Well, Akhil, that sounds like a pretty extraordinary guy. There are not that many Washington's in any generation, [00:18:00] you know, much less in every generation. Is that a problem for our Constitution? If we can't find someone who can fill these shoes? Because the shoes were designed for Washington's feet, and it is a problem, it is the Achilles heel of our Constitution. And our Constitution could ultimately fail if we pick someone who doesn't have Washington's virtue in certain regards, especially this willingness to walk away from power. [00:18:30]

Hannah McCarthy: Nick, have you ever seen the statue of George Washington that's at the National Museum of American History?

Nick Capodice: I don't think I have. What's it like?

Hannah McCarthy: It's striking, to say the least. Washington is shirtless in a toga and sandals, sitting on a throne. One hand holds a sword and the other points heavenward. He's extremely [00:19:00] muscular and bringing this up because I feel like we might be echoing the sentiment of the guy who carved that statue. Washington looks like a Greek god, and he wasn't Nick. I mean, he lost battles. He lashed and on occasion hanged deserters. And he enslaved over a hundred people. 300. If you include those kept in bondage by his wife, Martha. And you should. How do we use a man who engaged in that [00:19:30] practice as a model for the leader of the free world?

Nick Capodice: Yeah, it's a difficult contradiction, and it's one that I put to Akhil. How do we adulate someone who committed an unforgivable crime?

Akhil Amar: I admire Washington, especially because the very last thing he ever did was free, all, provide for the freeing of all the slaves that he owned in his own right. I would I would have loved it if he had been able to say this [00:20:00] earlier while in the presidency. But the very last thing he did was to free his slaves. I tell that story in my book, The Words That Made Us. It's actually the last chapter. It's called chapter called 'Adieu.' It's how they all leave the, shuffle off this mortal coil. I say they the great founders. They're six of them by acclamation. The first four presidents Washington, Adams, Jefferson, Madison, Hamilton and Franklin. In that last chapter, I tell how each of them dies. And I think Washington dies very [00:20:30] well because he frees his slaves and Jefferson doesn't. So in my book, Jefferson is is not at the same level, and Madison doesn't free his slaves, so shame on them. They follow Washington's example in that they step down after two terms. Good for them, but they don't, in their personal lives, follow his example by freeing their own slaves. Shame on them. Washington doesn't solve all the problems [00:21:00] of his era. No human being does. But I think, especially at the end, that's a very, very important aspect of Washington's legacy. I'll say it one other way. Washington is not only our first president, he is our first ex president, and he set some important precedents as ex president. He doesn't try to muck things up for the people as ex president who have the crushing responsibilities. He doesn't do that. He's well behaved [00:21:30] as ex president. And the best thing he does as ex president is free the slaves. But let's take Jimmy Carter and Jimmy Carter. Probably history won't reckon as one of our greatest presidents. And here's why he doesn't get reelected. But I think history will consider him a very good ex-president. He's done many admirable things as ex-president. Not for profit organizations. Habitat for humanity. Other things. He. He hasn't actually riled people up and roiled the waters [00:22:00] as ex-president. That's part of Washington's example too.

Nick Capodice: Hannah do you remember when we did our first series ever on the midterm elections?

Hannah McCarthy: I do.

Nick Capodice: So for everyone out there, the last episode of that series was on voting, and we had to have a team meeting to discuss whether or not we could say to our audience, go vote.

Hannah McCarthy: Yeah, we had to figure out if telling people that they should vote could be construed as a political call to action [00:22:30] or a partisan statement of some kind, and we decided that, yes, it was absolutely okay to tell people they should vote.

Nick Capodice: Yeah, and we did. And we stand by that. Now, Americans, unlike in other democracies do not have mandatory voting. It's not required. But Akhil says civic participation in any form is a necessity if we want to keep this country going.

Akhil Amar: Republics in the past [00:23:00] have fallen, ours could fall, and I don't want to fail on my watch. Civics and citizenship and cities, they're all actually connected in Latin. And it's the obligation. Not just the right, but the duty, the responsibility of citizens to keep the Republic alive. And how do we do that? I think most of all, by taking very seriously not just our voting in general, but especially for the presidency above everything [00:23:30] else, because the presidency is the Achilles heel, the the vulnerable point in the system. When you're thinking about the voting for president, it's not about necessarily who's going to be better for your taxes. I don't like paying, you know, high taxes any more than the next person or who's going to bring lower prices or promises that I like on on this agenda item or that one lower grocery prices. Um, uh, it's ultimately about [00:24:00] who's going to serve the Republic best of all going forward, who's going to, most important of all, make sure that this isn't the last presidential election.

Andy Lipka: And, Akhil, I think that, you know, we talk about originalism, but the Constitution originally was meant to be discussed and understood. Probably a lot of people in this audience have read the Constitution because it's short. But what they may not have read is a short letter from George Washington that accompanied the Constitution, [00:24:30] where he is endorsing it and telling people, you know, this is, you know, I support it, you should ratify it. And this this letter, which was published right alongside the Constitution, virtually everywhere that the Constitution was published was considered to be one of the main reasons that the Constitution in fact was ratified, but you may not have read it. You should read it. It's a paragraph, you know, but you should read it.

Hannah McCarthy: Have you read it?

Nick Capodice: I had not until I [00:25:00] spoke to Akhil and Andy. But I have now. Have you read it?

Hannah McCarthy: I have, I like that it's a sort of. "All right States. You're not going to like every little part of this. But we gave it a lot of thought. And we think that if you read it, you'll see why we did what we did here." Did any part of it stand out to you?

Nick Capodice: Yeah, the whole thing did, honestly. And that is exactly what it sounds like, Hannah. And I'm not going to read all of it here. I'm just going to share my favorite paragraph. "In all our deliberations on this subject. We kept steadily [00:25:30] in our view, which appears to us the greatest interest of every true American, the consolidation of our union in which is involved our prosperity, felicity, safety, perhaps our national existence."

Hannah McCarthy: I'm George Washington, and I approve this messag

Nick Capodice: That's what the president does and what the framers thought about it, this episode was made by me Nick Capodice with you Hannah McCarthy. If you want to listen to more Akhil and Andy, check out their podcast Amarica's Constitution, we have a link in the shownotes. Our staff includes Senior Producer Christina Phillips and Executive Producer Rebecca Lavoie. Music in this episode from Epidemic Sound, as well as Florian Decros, HoliznaCCO, Jahzzar, Eric Ryan Kilkenny, KieLoKaz, Blue Dot Sessions, Yung Kartz, and the civics 101 composer in chief, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.