Ask Civics 101: What Are the Differences Among Constructionist, Originalist, and Liberal Supreme Court Justices?

How do Supreme Court Justices decide that something is in line with the Constitution or in violation of it? Supreme Court decisions depend on interpretations of the Constitution and the Justices don’t always agree! A Justice with an originalist stance may interpret the Constitution differently than a liberal Justice.

Amy Steigerwalt, professor of political science at Georgia State University, breaks it down for us.

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Transcript

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

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

Antonin Scalia: [00:00:03] I don't care a fig for the framers. I care for the people that ratified the Constitution. What [00:00:10] was the meaning of the Constitution when the people ratified?

Stephen Breyer: [00:00:14] Look at those words. A state shall not deny any person equal protection of the laws through [00:00:20] the lens of what actually happened.

Hannah McCarthy: [00:00:23] That was the late Justice Antonin Scalia in conversation with Justice Stephen Breyer. And they're tackling [00:00:30] quite tactfully, I might add, a key difference in interpreting the Constitution. So we're going to do the same thing.

[00:00:36] This is Civics 101. I'm Hannah McCarthy.

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

Hannah McCarthy: [00:00:39] And [00:00:40] today we're appealing it all the way up to the Supreme Court to answer a listener who asks, what's the difference between a justice, who is a strict textualist, a strict constructionist, [00:00:50] and the more liberal justices?

Nick Capodice: [00:00:53] Let's define our terms here, because I first need to understand what textualist constructionist actually means.

Hannah McCarthy: [00:01:00] A [00:01:00] constructionist is someone who approaches the words of the Constitution hyper literally, without thinking about the statute itself or how that word is approached in the legal [00:01:10] world.

Amy Steigerwalt: [00:01:10] That one is this idea that you read the words, that's it, you're done. And it sort of creates, in the words of Justice Scalia, [00:01:20] a judicial straitjacket because that's not how the world works.

Hannah McCarthy: [00:01:23] She says, by the way, that most political scientists hate the term constructionist because it doesn't really make sense.

[00:01:29] But [00:01:30] a textualist?

Amy Steigerwalt: [00:01:31] A textualist looks at the words that were used in the context of the statute. An originalist does [00:01:40] the same thing as a textualist, but wants to know what the words meant at the time the statute or constitutional provision was passed.

Nick Capodice: [00:01:49] Ok, [00:01:50] so a textualist is like focus on the words themselves and consider them in the context of the statute. And that's it. And an originalist, I'm glad you brought that term up, because we hear it a lot [00:02:00] when it comes to Supreme Court justices and Originalist says, yes, that and think about what was going on when this text was written.

Hannah McCarthy: [00:02:08] Yeah. And even within originalism, [00:02:10] there are some differences like does originalism mean that you define the terms in the Constitution based on what the framers would have thought and their definition at the time? Or is it based on what [00:02:20] the public would have thought and what they were reading in newspapers at the time?

Nick Capodice: [00:02:23] Alright. Now, if we think of originalist and textualist as more conservative interpretations of the Constitution, what is a liberal [00:02:30] interpretation mean?

Amy Steigerwalt: [00:02:31] A lot of the liberal justices would argue that, yes, it was written back then, but we're now existing in, in many [00:02:40] ways a different time. And so the words in order for it to still be useful, to not be that sort of straitjacket that Justice Scalia had talked about, we need [00:02:50] to recognize how the meaning of the words have changed. And sometimes if we were to, for example, hold to the [00:03:00] intent of those who wrote a provision, it would actually lead us to some weird outcomes.

Hannah McCarthy: [00:03:07] Amy brought up the 1964 Civil Rights [00:03:10] Act, which prohibits discrimination based on race and sex, and that conservative lawmakers included the terms and sex in there because [00:03:20] they thought that that would prevent the law from passing. Their intent was to kill the bill by including the hilarious, ridiculous idea of not discriminating [00:03:30] against, let's say, women. But then the act passed. Now, if you consider the intent of the people who wrote that act, you will also undermine the very [00:03:40] point of the act.

Nick Capodice: [00:03:41] As far as intent goes, I think that's pretty hard to pin down. The framers were arguing about the meaning of the Constitution before it was even ratified. [00:03:50]

Amy Steigerwalt: [00:03:50] So we had the Federalist Papers and the anti Federalists and they went back and forth in the newspapers at the time arguing over no right.

[00:03:59] If you say X, [00:04:00] it means this. And so even at the time, there was a lot of angst.

Hannah McCarthy: [00:04:07] That angst hasn't really gone away.

[00:04:10] It [00:04:10] now just falls into the hands of Supreme Court justices who attempt to make sense of things in the Constitution. That does it for this Civics 101.

[00:04:18] But if you have questions [00:04:20] about our government and politics, you can always click the button at the top of our home page to submit them at Civics 101 podcast dot org.

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Ask Civics 101: How Do Elections Rise to the Supreme Court?

Today we answer this listener question: “It has happened before that in very close elections, the Supreme Court chose the winner. How does that happen?”

Our guest is Dan Cassino, Professor of Government and Politics at Fairleigh Dickinson University. He walks us through two times the Supreme Court or its Justices were directly involved in choosing the winner of a presidential race.

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Transcript

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

Civics 101

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

[00:00:03] By pushing to get it done before midnight, it sounds from what we can make of the decision, Rehnquist and the four others [00:00:10] who joined him awarded the presidency to George Bush. And just one other question that I want to go back to.

Nick Capodice: [00:00:14] This is Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:16] And I'm Hannah McCarthy.

Nick Capodice: [00:00:17] And that audio is from a late night in December in 2000 [00:00:20] when numerous reporters stood in the cold, reading the Supreme Court decision of Bush v. Gore on the courthouse steps, trying their best to analyze it as quickly [00:00:30] as possible.

[00:00:30] Sorry, Peter. We're still trying to work out what the other is... And I don't think anybody should be saying, nobody should be embarrassed about trying to work on a Supreme Court ruling on the fly.

Hannah McCarthy: [00:00:38] Today we are answering [00:00:40] this listener question. "It has happened before that in very close elections, the Supreme Court chose the winner. How does that happen?" How does [00:00:50] it happen?

Nick Capodice: [00:00:50] I'm going to start by saying that it rarely happens. Two times in U.S. history, so far, the Supreme Court or its justices were directly involved [00:01:00] with deciding the winner of a presidential election. And we'll talk about both of those times. But let's start with what happens when a state's vote count is disputed.

Dan Cassino: [00:01:08] So the big insight here, [00:01:10] the thing everyone has to understand is that elections, like polls, have a margin of error around them.

Nick Capodice: [00:01:15] This is Dan Cassino, professor of political science at Fairleigh Dickinson University.

Dan Cassino: [00:01:19] That is, and this [00:01:20] what we learned in the 2000 election, that if the race is close enough and by close enough, I mean that someone could theoretically say conceivably say, well, OK, but if you count the ballots this way, I won [00:01:30]. If it's to be counted this way, the other guy wins. So if you can get that margin, where they, where the change in how you're counting the ballots is going to affect the results at that point, [00:01:40] the election is a tie. And because of that, it is not going to result any more by the voters. It is resolved by elected officials and judges.

Hannah McCarthy: [00:01:49] When Dan [00:01:50] says elected officials, he means the secretary of state of that state, right?

Nick Capodice: [00:01:54] He does. And to be clear, the federal secretary of state deals with relationships with other countries. But in most states, [00:02:00] the state secretary of state is the one who deals with elections.

Dan Cassino: [00:02:03] In Bush v. Gore in 2000, the Supreme Court essentially said whoever the secretary of state says won the election, won the election, whether they actually won the election [00:02:10] or not.

Nick Capodice: [00:02:10] Bush v. Gore, 2000, which allowed the previous vote certification made by Florida Secretary of State Katherine Harris to call Florida for George W. [00:02:20] Bush. That is the only precedent we have to go on. And maybe we shouldn't even do that because it was what we call a narrow ruling. That term, by the way, has nothing [00:02:30] to do with how the justices voted. It means that the decision was written for as specific an instance as possible and that it is not likely to be used as precedent for future [00:02:40] cases.

Hannah McCarthy: [00:02:41] But what could get a state's vote to be challenged in court?

Dan Cassino: [00:02:45] If someone believes the secretary of state's actions are violating some important part of the Constitution, most [00:02:50] likely, probably the Fourteenth Amendment, which provides for equal protection under the laws. If you're treating people differently based on whose ballots you're gonna count, whose ballots are not being counted, well, in that case, you can sue. It's going to go to federal [00:03:00] court, to decide who the real winner is and how these things should be decided.

Hannah McCarthy: [00:03:05] You said there was a second time that the Supreme Court was involved. When was that?

Nick Capodice: [00:03:09] That was the election that [00:03:10] should be a whole podcast in itself, 1876 between Rutherford B. Hayes and Samuel Tilden. This dispute happened when the electors were chosen 40 days [00:03:20] after the election.

Dan Cassino: [00:03:21] When we had the electors come in, they registered their votes and Congress said, yeah, we think that was fraud here.

Nick Capodice: [00:03:27] So Congress put together a commission to decide [00:03:30] who got the electoral votes. And that commission included five Supreme Court justices. The commission also had one more Republican than a Democrat. Everybody voted on party [00:03:40] lines and they awarded those votes to Hayes.

Hannah McCarthy: [00:03:43] What does Dan think the process could be like here in 2020? Could it be another Hayes v [00:03:50] Tilden or Bush v. Gore?

Dan Cassino: [00:03:52] I've often argued that the present most similar to Donald Trump is in fact, Andrew Jackson. If Donald Trump loses and says this was fraud, I shouldn't have lost. [00:04:00] This is exactly Andrew Jackson argues in 1824. He doesn't just go away. He instead decides, no, I'm going to push forward. I don't care. I'm going to run again in 1828 and [00:04:10] I'm going to win that time. I'm not going to let this be taken away from me.

Nick Capodice: [00:04:16] That's elections and the Supreme Court. Remember, if you have any questions whatsoever [00:04:20] that you want us to ask our bevy of talented scholars, just go to civics101podcast.org and click ask a question.

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Ask Civics 101: Will We Ever Get Rid of the Electoral College System?

The Electoral College is a system that serves as a buffer between we the people who vote, and the actual election of a president. The way this system works results in what some consider an unfair advantage for certain states and voters. But would we ever actually get rid of the Electoral College? What would that take? What are alternatives to the system?

Rebecca Deen, professor of Political Science at the University of Texas at Arlington, walks us through the what-ifs.

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Transcript

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

Al Gore: [00:00:00] George W. Bush of the state of Texas has received for president of the United States two hundred and seventy one votes, Al Gore and the state of Tennessee has received [00:00:10] two hundred and sixty six votes.

Hannah McCarthy: [00:00:16] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:18] I'm going to get Buttigieg.

Hannah McCarthy: [00:00:19] Today we [00:00:20] are tackling a big what if question that we got from a listener. They ask, what is the likelihood that we will get rid of the Electoral College system? Is anyone [00:00:30] actively working toward that goal?

Nick Capodice: [00:00:32] First things first. We should establish what it is we're actually talking about here.

Rebecca Deen: [00:00:36] First of all, it's not a college. It's not a place.

Hannah McCarthy: [00:00:38] This is Rebecca Deen, professor [00:00:40] of political science at the University of Texas at Arlington.

Rebecca Deen: [00:00:43] It is the process by which we formally choose the president.

Hannah McCarthy: [00:00:47] The Electoral College is a system. It's [00:00:50] a buffer between we, the people who vote and the actual election of a president.

Rebecca Deen: [00:00:56] When we go into the voting booth, we're not actually voting for that [00:01:00] person. We're voting for who that person's party have selected as a slate of electors. These people then [00:01:10] in December, they gather in their state, their state capitals, usually the state legislator, the Capitol building, and they vote.

Hannah McCarthy: [00:01:18] Part of the point of the Electoral [00:01:20] College is that in the event that the uninformed citizenry votes for, let's say, a tyrant, an elector can choose not to then vote for that person, [00:01:30] that would make them what's called a faithless elector, a fail safe in the event that the people choose poorly. We have had a handful of faithless electors over [00:01:40] the course of history, but never enough to actually prevent the winner from winning.

Nick Capodice: [00:01:44] And very quickly, let's talk about winning. The number of electors your state gets is based on population. There [00:01:50] are 538 total electors. So a really populous state gets a lot of electors like California with 55. But a low population state like Nebraska gets just [00:02:00] three. You need an absolute majority of those 538 electoral votes to win, making 270 the magic number.

Hannah McCarthy: [00:02:08] Now, why does anyone want to get rid of [00:02:10] the system? Well, it means that you can lose the nationwide popular vote by nearly one to four and still win the election. And [00:02:20] it means that swing states, states that could vote Democrat or Republican, get the most attention during the campaign.

Nick Capodice: [00:02:27] Basically, a lot of people say that because of all this, [00:02:30] the Electoral College doesn't give us an outcome that represents the will of the majority of voters. So let's get to that hypothetical now. What is the likelihood that we'll get rid of the Electoral [00:02:40] College? And is anybody actively working towards that?

Hannah McCarthy: [00:02:43] And let's get one thing clear. The Electoral College is in the Constitution. So to get rid of it, [00:02:50] we'd have to have a constitutional amendment. Here's what that would take.

Rebecca Deen: [00:02:54] There are two stages, the proposal stage and the ratification stage. The proposal stage [00:03:00] takes two thirds of state legislatures or conventions hold by state legislatures to get a proposal off the ground. But [00:03:10] it takes three quarters for it to be ratified. The bar that the founding fathers set for changing the Constitution [00:03:20] is quite high.

Nick Capodice: [00:03:21] In other words, chances of actually abolishing the Electoral College are pretty slim. Lest we forget, though, the Constitution tells us another little something about how voting [00:03:30] should work in the U.S. that states are in charge of it.

Hannah McCarthy: [00:03:33] As of the publishing of this episode, 15 states and the District of Columbia have joined something called the National Popular [00:03:40] Vote Interstate Compact. If it goes into effect, it means that electors from the states who have joined it will vote for whoever won the popular vote nationally as opposed to just [00:03:50] in their state, essentially making the Electoral College moot. Combined, these states have 196 electoral votes, but the popular vote compact doesn't go into effect unless that number [00:04:00] reaches 270. The magic number supermajority they need more states to join on. And so for now, those states are sticking to the Electoral College process. [00:04:10] That does it for Ask Civics 101. But there are way more questions where that came from. And if you want to throw yours into the mix, we will find the answers. Just click the [00:04:20] link on our home page at civics101podcast.org.

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Reconstruction: The Big Lie

Reconstruction has long been taught as a lost cause narrative.  The true story is one of great force. The great force of a powerful activist Black community that strived to establish a multiracial democracy and achieved great successes and political power. The great force of a violent white community that exploited, abused and murdered those of that Black community who would assert their civil and human rights. The great force of a federal government that was there and then wasn't. This episode is your introduction to that true story.

Our guides to this era are Dr. Kidada Williams, author of I Saw Death Coming and Dr. Kate Masur, author of Until Justice Be Done.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: What Is a Concession Speech?

The concession speech marks the true end of a candidate’s campaign. There may have been a fight over the votes, there may have been recounts and lawsuits, but eventually there is a winner and there is a loser. What that loser says to their supporters is meant to be a reflection of a crucial American principle: the peaceful transition of power.

If you enjoy Civics 101, consider making a gift to help support the show!

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Transcript

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

Archival: [00:00:00] Congratulations to Senator Kennedy for his fine race in this campaign and to all of. I [00:00:10] am, I am, I am sure I am sure his supporters are just as enthusiastic as you are for me.

Hannah McCarthy: [00:00:20] This [00:00:20] is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:00:22] I'm Nick Capodice.

Hannah McCarthy: [00:00:22] And today we are talking about the hallmark of the peaceful transition of power in the United States.

Nick Capodice: [00:00:28] And that would be the concession [00:00:30] speech.

Hannah McCarthy: [00:00:30] Presidential elections end with a single winner and the other candidate eventually has to accept that fact.

Nick Capodice: [00:00:36] I just love the concession speech moment. It's one of those [00:00:40] few instances of graciousness and what can be a pretty rough race after all the work you've done to prove you're better than your opponent, to then have to say, well, the American [00:00:50] people and the Electoral College numbers have spoken. Good luck to my successful opponent.

[00:00:55] It must be pretty tough, but that's how we do it in this country.

Hannah McCarthy: [00:00:58] But to your point, [00:01:00] you never do hear the loser say I lost you barely ever hear the term concede. Actually, concession speeches are pretty much the same year after year. [00:01:10] They tend to follow a formula. Let's take Senator George McGovern. He was the Democratic nominee in 1972 and he lost to Richard Nixon. McGovern takes [00:01:20] the stage, looks out over a sea of media and supporters.

[00:01:25] And step one, he announces he has contacted and congratulated the winner of the [00:01:30] election.

Senator George McGovern: [00:01:30] And I have just sent the following telegram to President Nixon. Congratulations on your victory...

Hannah McCarthy: [00:01:37]  Step two, try to soothe those disappointed [00:01:40] supporters.

Senator George McGovern: [00:01:40] But we're not going to shed any tears tonight about the great joy that this campaign has brought to us.

Hannah McCarthy: [00:01:48] Step three. Thank [00:01:50] everyone who got you to this point.

[00:01:52] Supporters and staff alike.

Senator George McGovern: [00:01:54] The glory days devoted working for.

Hannah McCarthy: [00:01:58]  Step four.

[00:01:59] And this one I truly [00:02:00] love, talk about the democratic process.

Senator George McGovern: [00:02:03] I ask you not to despair of the political process of this country.

Hannah McCarthy: [00:02:09] Step five, [00:02:10] remind everyone of the importance of a unified country.

Senator George McGovern: [00:02:13] The nation will be better because we never once gave up the long battle to renew [00:02:20] its oldest ideals and to redirect its current energies along more humane and hopeful path.

Nick Capodice: [00:02:27] Now, nothing says that the loser of an election [00:02:30] has to give a concession speech. But those last two steps you mentioned, Hanna, the reminder that this is how democracy works and that we have to stick together as a nation. Those have become essential [00:02:40] to tidying up post-election. The winner is the winner regardless of a concession speech. The point is for the loser to remind loyal supporters that [00:02:50] this is OK, that you all accept the results of these speeches do tend to come on election night itself. But when a race is really close, a candidate can hold out. [00:03:00] I remember this happening when George W. Bush and Al Gore brought a fight over the recount all the way to the Supreme Court in 2000. The court did order. The recount stopped and Gore finally [00:03:10] conceded five weeks after Election Day.

Al Gore: [00:03:12] And may God bless his stewardship of this country.

Hannah McCarthy: [00:03:18] Of course, there is a bitter sweetness to [00:03:20] it. As a supporter, you're watching with disappointment as your candidate bows out ideally gracefully and redirects the nation's eyes to their new or continued leader. Just [00:03:30] imagine what the candidate is feeling. All that money, energy, effort and time spent convincing people you were the one in what is considered one of [00:03:40] the lovelier concession speeches in American history. Democrat Adlai Stevenson summed it up as he conceded to Republican Dwight D. Eisenhower in the 1952 presidential [00:03:50] election.

Adlai Stevenson: [00:03:50] I was reminded of a story that a fellow townsman of ours used to tell Abraham Lincoln, and they asked him how he felt one after unsuccessful election. [00:04:00] He said he felt like a little boy who had stubbed his toe in the dark and he was too old to cry, but it hurt too much to laugh. [00:04:10]

Hannah McCarthy: [00:04:12] That does it for concession speeches here on Civics 101 got a question about democracy, elections, power, government. [00:04:20] We will find the answer and get it to you posthaste. Click the link on our home page at civics101podcast.org.

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Ask Civics 101: What Is "Court Packing?"

What determines how many justices are on the Supreme Court? What is the process for adding or removing seats on the bench? And what is “constitutional hardball?”

Today we speak with Robinson Woodward-Burns, Assistant Professor of Political Science at Howard University, and author of the forthcoming book, Hidden Laws: How the State Constitutions Stabilize American Politics.

While you’re here, consider making a donation to Civics 101!

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Transcript

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

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

Trump: [00:00:04] Given power, Biden and his supporters would pack the court, you know they're talking about packing the court.

Biden: [00:00:08] The way that people [00:00:10] have a right to determine who's going to be on the court is how they vote for the senators and their president.

Nick Capodice: [00:00:14] You're listening to Civics 101.

[00:00:16] I'm Nick Capodice.

Hannah McCarthy: [00:00:17] And I'm Hannah McCarthy.

[00:00:18] Today, we answer a question from listener [00:00:20] Felix Owusu. He wrote, We've heard so much about packing the Supreme Court since the passing away of Ruth Bader Ginsburg. How does packing the court work?

Hannah McCarthy: [00:00:29] I love [00:00:30] this question because there are a lot of things that we have to define filibuster the nominating process, how seats are added to the court.

Nick Capodice: [00:00:38] Well, let's start with the nominating process. [00:00:40] Simply the president nominee to justice and the Senate votes to confirm them. But this leads to one more term I learned from talking today's guest, Robinson Woodward [00:00:50] Burns. He teaches political science at Howard University. And that term is constitutional hardball.

Robinson Woodward Burns: [00:00:57] Constitutional hardball is the practice by which [00:01:00] partisan actors and usually members of Congress violate constitutional norms or procedural rules to entrench their party interests [00:01:10] and power, usually in the judiciary or electorate, while operating within the rules of the constitutional text.

Nick Capodice: [00:01:17] A prime recent example of constitutional hardball [00:01:20] was the Democrats in 2013 rewriting the Senate rules to remove the filibuster for judicial nominees in the lower federal courts, and then the GOP retaliating by doing the same thing for Supreme [00:01:30] Court seats in 2017.

Robinson Woodward Burns: [00:01:31] Parties, if they want to get their legislative agenda through, rely on tinkering with the rules, passing, for example, budget legislation or tax legislation. [00:01:40] That act was passed under a procedural sort of tinkering that way. And we also, again, see increasingly a rollback of the filibuster.

Hannah McCarthy: [00:01:48] The filibuster, by the way, is a [00:01:50] procedure in the Senate where bills or appointments can be debated endlessly unless something called cloture is invoked, which requires 60 votes. But [00:02:00] back to Felix's question, how do we decide how many justices are on the Supreme Court?

Robinson Woodward Burns: [00:02:05] The US Constitution allows Congress to set the size [00:02:10] of federal courts, and Congress over time has used that to enlarge or sometimes to subtract [00:02:20] federal court seats. This was largely done not for political reasons, but because Supreme Court judges, justices were expected also to serve as federal [00:02:30] judges in federal circuit courts. This was called riding circuit.

Hannah McCarthy: [00:02:33] Riding circuit?

Nick Capodice: [00:02:34] Yeah, the early Supreme Court justices rode in horse drawn carriages across treacherous terrain [00:02:40] to rule on cases across the country. One almost drowned in a swamp. One was attacked by a former defendant. These guys got sick all the time.

Robinson Woodward Burns: [00:02:49] And so as [00:02:50] the circuits were expanded, as the nation increased in territory, so too were Supreme Court seats.

Hannah McCarthy: [00:02:56] Was this court packing?

Nick Capodice: [00:02:57] Robinson says not really. [00:03:00]

Robinson Woodward Burns: [00:03:00] Court packing is a kind of court enlargement done for political reasons. Parties occasionally in Congress have attempted to entrench [00:03:10] their partisan power on the Supreme Court or on the federal courts by using that constitutional authority to add seats and put in [00:03:20] those seats.

[00:03:21] partisan allies.

Nick Capodice: [00:03:22] Like Robinson said, the Constitution clearly lays out how to add seats to the bench by an act of Congress, but it says very [00:03:30] little on how to remove justices from the court. It's a lifetime appointment until death, resignation or impeachment.

Hannah McCarthy: [00:03:37] So if court packing occurs [00:03:40] only when it is a purely partisan divergence from congressional norms, are there any bipartisan solutions, a way to prevent this game of constitutional [00:03:50] hardball.

Nick Capodice: [00:03:51] There is one proposal that was supported by both Republican Senator Ted Cruz and the late Justice Ruth Bader Ginsburg, and that is to set term limits for Supreme [00:04:00] Court justices. And this can be done through an act of Congress or a constitutional amendment.

[00:04:04] One of the arguments for it is that every other democracy in the world has term limits for [00:04:10] justices, as do forty nine out of the 50 states. The U.S. Supreme Court is quite literally unique in this regard.

[00:04:19] That's court packing, Felix, [00:04:20] I hope we answered your question. And if any of you out there have any questions whatsoever, send them our way. Just go to Civics101podcast.org.

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Ask Civics 101: What Is a "Lame Duck" Session?

So what exactly can the current Congress and President do before the newly elected set is sworn in? Our guest is Dan Cassino, Professor of Political Science at Farleigh Dickinson University and he tells all.

Civics 101 is free to listen to but not to make. Donate and support aural civic education here.

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Transcript

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

Barack Obama: [00:00:04] You, you, you, you, you can tell the. You can tell that I'm a lame duck because nobody's following instructions, everybody out to see.

Hannah McCarthy: [00:00:17] I'm Hannah McCarthy. 

Nick Capodice: [00:00:18] I'm Nick Capodice. 

Hannah McCarthy: [00:00:19] And this is Civics 101. Today's listener question is "tell me about the lame duck period between the election and the inauguration. Is there potential for accelerating abuse of power?" So first off, Nick, what is a lame duck period?

Nick Capodice: [00:00:35] The lame duck period is the time between when the president and members of the Congress are elected and when they're sworn into office. And before we dive into what happens during this time, I got to tell you the origin of the expression. It goes back to the colonial era. And a lame duck was used to refer to failing traders and businessmen who were unable to fund their enterprises. So they were just sort of limping along like a lame duck, like a wounded game bird that might be shot by a hunter.

Hannah McCarthy: [00:01:02] So this period goes from election to January 3rd.

Nick Capodice: [00:01:05] Yeah, but it used to be quite a bit longer. 

Dan Cassino: [00:01:08] Prior to the 20th Amendment, so before basically the mid 20th century, the lame duck period was really long.

Nick Capodice: [00:01:15] This is Dan Cassino, the man, the myth, the legend, professor of political science at Fairleigh Dickinson University. 

Dan Cassino: [00:01:21] They still had elections in November, but the new Congress didn't come into session until March at the earliest and was amended to come into session until November of the following year. So you had a very long lame duck sessions and this was a big problem at the time that you wound up with things like, oh, I don't know, in 1860, the civil war starting during a lame duck period. Right. South Carolina seceded after Lincoln's elected before he takes office in March. And so Lincoln has left there saying, I don't know what to do about this. I'm not president yet. And so problems like that lead Congress to adopt the 20th Amendment and shorten the lame duck period.

Hannah McCarthy: [00:01:54] All right. Now we have a much shorter lame duck session, but I want to know what Congress and the president can do in it.

Nick Capodice: [00:02:01] Well, Dan told me in the modern era, not a whole heck of a lot. Before the 1970s, though, presidents sometimes used their pocket veto. See, if a president doesn't sign a bill into law and Congress is in session, it automatically becomes a law. But if the president doesn't sign it and Congress isn't in session, it does not become a law. Also, when the president makes appointments, when Congress isn't in session, they don't need confirmation. They just go right through.

Dan Cassino: [00:02:27] So since the 1970s, Congress got around this problem by never not being around. That is, they just vote themselves into a pro forma session, which for most of the last 20 years meant that Joe Biden, because he lived in Delaware, would take the Amtrak up to Washington, D.C., gavel, end a session saying, yeah, I'm here senseor any business note. Nobody else here. OK, cool, we're done that. And now the Senate was in session for the day.

Nick Capodice: [00:02:49] One thing I want to add here is that Congress can sometimes pass unpopular legislation in a lame duck session because their actions are no longer electorally accountable. And that is fairly rare on the national level. But lest we forget, Hannah, state and local government, always extremely relevant to your life, also has lame duck sessions. And it is not uncommon for a state legislature to pass a bunch of laws that are not popular with the public, especially if that state's House or Senate is going to flip on January 3rd. We saw this in a big way in 2018 in the Wisconsin election when an outgoing GOP Congress worked overnight to pass laws limiting the incoming Democratic governors power.

Hannah McCarthy: [00:03:29] But what about other presidential powers? Can the outgoing president issue executive orders?

Nick Capodice: [00:03:34] Oh, absolutely.

Dan Cassino: [00:03:35] He can order the executive branch around, have the right to do whatever he wants within the laws as prescribed by Congress. The problem the president runs into during the lame duck session, actually, is that a lot of times the executive branch just isn't around. They're on break. It's the Christmas holiday. They're gone. Nobody's around. And we've actually seen some significant attempts to move policy during December run. The fact that people just are on vacation for a couple of weeks and they don't come back until middle of January when the new president sworn in anyway.

Nick Capodice: [00:04:03] One final presidential power during a lame duck session is the power of pardon. Presidents can pardon whomever they like leading up to the end of the presidency as to whether a president can pardon themselves in this lame duck session. That is an issue that has never been in the courts. So we don't really know the answer.

Nick Capodice: [00:04:20] So that is the lame duck in a nutshell, or rather an eggshell. If you have questions will get answered. Just click the ask a question link at the top of our website, civics101podcast.org.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: How Is My Ballot Counted?

What does an election look like when there are tens of millions of early and mail-in ballots to count? With different election laws in every state, what does the count look like and when will we know the final tally?

Miles Parks, who covers voting for NPR, helps walk us through the drawn out process of counting every vote.

If you enjoy Civics 101, consider making a gift to help support the show! And don’t forget to sign up for our newsletter — it’s where we put all the good stuff that doesn’t make it into our episodes!

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Transcript

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

Archival: [00:00:00] "I" state your name...

[00:00:03] The absentee deluge is a headache...

[00:00:07] Well, in fact, I recall you telling me some weeks ago [00:00:10] you thought we might not know for some days because one of the things we take into account at every level tonight, of course, is the absentee ballot.

[00:00:16] Absentee or mail-in ballots are the focus, as [00:00:20] you've been hearing, of a lot of attention.

Hannah McCarthy: [00:00:21] When the polls close on election night in the United States.

[00:00:24] That is when election officials really get to work, especially in a year with a lot of mail [00:00:30] in absentee and early vote ballots. So how are these ballots actually being counted? And when will we know the final tally? This is Civics 101. I'm Hannah McCarthy [00:00:40].

Nick Capodice: [00:00:40] I'm Nick Capodice.

Hannah McCarthy: [00:00:41] Today, we're going to figure out how and when your vote is counted. There are two basic steps to the vote count procedure. The first is processing. The second is [00:00:50] tabulating.

Nick Capodice: [00:00:51] Now processing.

[00:00:52] I know it's relevant to early vote ballots and mail in absentee ballots because these ballots are inside signed envelopes. Election [00:01:00] workers have to compare the signature on the envelope to a signature they have on file from when you registered. If those signatures match and they usually do. That means the vote is valid [00:01:10] and you can count it.

Hannah McCarthy: [00:01:11] In some states, the ballot is inside a second envelope or a secrecy sleeve. If you sent your ballot in without that secrecy sleeve, it is called a naked [00:01:20] ballot. Certain states, Kentucky and Pennsylvania, for example, reject naked ballots. Others like Florida and Georgia, they count the ballot regardless of [00:01:30] a secrecy sleeve.

Nick Capodice: [00:01:30] Now, this process is time consuming, so some states allow it to begin long before Election Day, but many do not.

Hannah McCarthy: [00:01:37] Some states even allow the tabulating, otherwise [00:01:40] known as the counting of the votes to begin before Election Day. Now, no state is allowed to make the count public until after the polls close, but this is how [00:01:50] we get those instant returns in some states. It also explains how some states are able to tell you on election night who the various winners almost certainly [00:02:00] are.

Nick Capodice: [00:02:01] Why almost certainly? If they've counted the early and absentee votes already, all it takes is counting those in-person votes. Right?

Hannah McCarthy: [00:02:09] It depends, [00:02:10] which I guess is my favorite phrase when it comes to explaining the election process. There's kind of two parts to this. This is Miles Parks covers voting for NPR.

Miles Parks: [00:02:18] The thing that you're watching [00:02:20] on your TV when you're watching network coverage on election night that's showing those totals that says, like, you know, President Trump has won Michigan. That's not all of the votes [00:02:30] in Michigan being counted and President Trump has won, but that is the media organization. They're doing projections.

Nick Capodice: [00:02:37] So in other words, when networks basically award a state [00:02:40] to a candidate, that's just a super, highly educated guess.

Hannah McCarthy: [00:02:44] Yeah, that's part one. The guess. And then there's the actual count.

Miles Parks: [00:02:49] There's the official [00:02:50] tally of the election results, which is like the gospel for like who won this election by how many votes. That always takes weeks like that is never [00:03:00] something we know on election night.

Nick Capodice: [00:03:01] We have never known?

Hannah McCarthy: [00:03:03] Well, we've always had absentee ballots, in part because of our active duty military. 22 states and Washington, D.C. [00:03:10] allow absentee ballots to arrive sometime after Election Day as long as that ballot is postmarked on or sometimes before Election Day. And some states [00:03:20] plan to count those absentee ballots on election night, while some say they're not going to get around to it until the day or days after the election.

Nick Capodice: [00:03:29] Let me make sure I get this right. [00:03:30] Whether a state is able to report almost all of its votes on Election Day has everything to do with its rules about how ballots are accepted or rejected when [00:03:40] those ballots are received and what order they plan to count those ballots.

Miles Parks: [00:03:44] There's more than 8000 different voting jurisdictions in this country, and every single one of those 8000 does [00:03:50] it slightly differently. The thing that voters need to understand the most is that absentee ballots take longer to count than in-person votes. That's not a bad thing, though. [00:04:00] That's not something that people should be freaked out about.

Hannah McCarthy: [00:04:02] So don't freak out. Breathe in. Breathe out and watch the tallies roll in.

[00:04:10] That's [00:04:10] all she wrote on the vote, folks, if you have a question about what is going on in the world right now and how this democracy actually works, ask us and we will find the answers for you. Just click the [00:04:20] link on our home page at Civics101podcast.org.

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Made possible in part by the Corporation for Public Broadcasting.

The Election

What actually happens on the day of the election and in those that follow? Where did your ballot go and how is it being counted? Who keeps our election secure? This is the how and when of vote-counting in an American election, and what you need to know about Election Night 2020.

Our guides are New Mexico Secretary of State Maggie Toulouse Oliver, Casey McDermott, Miles Parks and Matt Lamb.

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

Civics 101

The Election

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

Hannah McCarthy: [00:00:04] The first time I ever voted and this is not an exaggeration. I was shaking with anticipation. I waited in line, walked up to the poll worker, gave them my name, got my ballot again, butterflies in my stomach. And then I stepped into the booth, pulled the curtain closed behind me. My heart is actually racing at this point. And I filled out my ballot so excruciatingly carefully because God forbid, I mess up and they don't count it right. And then finally, lightheaded from the sheer excitement of it, I walked that ballot over to the ballot box, feed it in, get my I voted sticker and then.

Nick Capodice: [00:00:48] Then?

Hannah McCarthy: [00:00:49] And then, I don't know all that anticipation, all that energy and excitement, all for what? My ballot just disappears into this black box and [00:01:00] my job here is done. And now I go home and watch the election night returns. And I wonder.

[00:01:05] Did my vote actually count and how do I know?

[00:01:12] Am I one of those hundreds of thousands of votes under that candidate's name in my state? Where did my ballot go? Who read it?

Nick Capodice: [00:01:21] So the first time you voted, you had an existential crisis.

Hannah McCarthy: [00:01:24] And I didn't really solve it until about a week ago. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:29] I'm Nick Capodice.

Hannah McCarthy: [00:01:30] And we are about to find out how a vote goes from your mind to the ballot to the count, to the election of the people in charge of us.

Maggie Toulouse Oliver: [00:01:38] So, you know, this is where the sausage making of the election process comes into play.

[00:01:44] This is Maggie Toulouse Oliver.

Maggie Toulouse Oliver: [00:01:46] New Mexico secretary of state. I was elected and basically immediately began serving as secretary of state in December of twenty sixteen. Prior to that, I was the county clerk in Bernalillo County, [00:02:00] which is the Albuquerque metropolitan area for 10 years. So I ran the elections there at the ground level.

Nick Capodice: [00:02:05] And as secretary of state, she also oversees elections at the state level, right?

Hannah McCarthy: [00:02:09] Yes. In New Mexico, the elected secretary of state, is also the chief election official. It's that way in a lot of other states, too. But sometimes the chief election official is actually an individual or a commission appointed by the governor. Sometimes it's the lieutenant governor. Sometimes it's a commission appointed by the legislature. And that's what you need to keep in mind throughout this episode. There is no one way we do elections in the United States. The Constitution is clear on this one. Elections are up to state legislators.

[00:02:42] The one thing that is consistent and extremely secure ballot processing process.

Maggie Toulouse Oliver: [00:02:48] What looks like a very simplistic process to a voter is actually an extremely complex process on the back end. And it's that way by design. First of all, your ballot when it comes into the custody [00:03:00] of the election officials. So when you're putting it into a voting machine or when it's received back through the mail at your county clerk or at your local election officials office, it goes then into a very strict chain of custody. It's going to be time stamped. It's going to be put in a locked ballot box. This is overseen at all times, either by your local election official staff or by your bipartisan group of election officials.

Nick Capodice: [00:03:26] It sounds like all that first Election Day nervousness was warranted in a way, you're taking part in a complex, high stakes process.

Hannah McCarthy: [00:03:35] It was actually a relief to me to learn about this process. It was a reminder of exactly how seriously states take Election Day.

[00:03:44] And when it comes to what does happen to my ballot, once I mail it in or feed it into the ballot box?

Maggie Toulouse Oliver: [00:03:50] Whether it's separating them from their envelopes, getting them ready to feed into a voting machine, every single one is going to be accounted for one by one. If there is a discrepancy, [00:04:00] your election officials are going to go back and try to account for that discrepancy. What happened? You know, oh, actually, we received an envelope back but didn't have a ballot in it. Right. And make that notation. And there's a whole process post election that most folks don't know about the canvass of the election, which is basically an audit. And what your election officials and those bipartisan boards are doing is going back and doing exactly this, what we call reconciliation to ensure at the end of the day that every single ballot was indeed counted. And if it wasn't, why?

[00:04:35] And to be able to explain, you know, it was rejected or it was spoiled or or what the reasoning is so that we literally have a record in place for every single ballot cast.

Nick Capodice: [00:04:45] I'm listening to this painstaking process and I'm thinking to myself, OK, but everyone is saying this year, 2020 is going to be different because way more states are making mail and voting available to everyone. We just don't know [00:05:00] how smoothly or quickly the counting process is going to go.

[00:05:03] Well, let's start with that mail in ballot itself.

Casey McDermott: [00:05:06] Whether your ballot is mailed, whether your ballot is hand delivered to a local election official, once it arrives at your local clerk's office, it stays in a vault until the day of the election.

Nick Capodice: [00:05:21] Oh, Casey!

Hannah McCarthy: [00:05:22] Yes, this is Casey McDermott, someone who we are lucky enough to work with at New Hampshire Public Radio. She covers and very well, I might add, voting and elections for the station and reminded me that, yes, those mail in ballots are super protected.

Casey McDermott: [00:05:37] One person actually told me that their vault is fireproof.

Hannah McCarthy: [00:05:41] Depending on your state.

[00:05:43] You were either automatically mailed in absentee mail in ballot or had to request one by the deadline. Now, for most states, that deadline is mid-October, though some allow an application as late as November 2nd or 3rd. And depending [00:06:00] on your state, you may have needed an excuse of some kind like illness or physical limitation to. Qualify for absentee voting and again, depending on your state, you may be required to have a witness sign your ballot as well.

[00:06:14] That ballot then goes into an envelope, which then goes into another security envelope and you sign it and you send it in either by the United States Postal Service or depending on the state and your preference, dropping it off in person at an election office or at an official outdoor ballot box.

Casey McDermott: [00:06:31] So the absentee ballot arrives inside an envelope, inside another envelope. And preprocessing allows local election officials to open that first outside envelope. And what they can do is they can look at that inner envelope that holds the absentee ballot. They can't open that inside envelope to look at someone's votes, but they can look at the the envelope that holds the ballot to make [00:07:00] sure, for example, that it's signed. They can look at the person's name on the ballot to make sure that they meet the requirements to vote in that community. They can get a lot of the stuff that they normally wouldn't have to wait until Election Day to do. They can get a lot of that done before the day of the election. But the ballots are not taken out of the inside envelope until Election Day and they're not counted until Election Day.

Hannah McCarthy: [00:07:26] I should clarify that is the mailing process in New Hampshire.

Nick Capodice: [00:07:29] Don't say it. Let me guess. It depends on the state.

Hannah McCarthy: [00:07:32] It does. Certain states allow vote counting up to two weeks before the election, but the vast majority don't allow counting until the polls close.

Nick Capodice: [00:07:42] I got one more mail in ballot question. We did this whole episode on how tax the Postal Service has been since the pandemic started. And yet all these ballots being mailed, some of them from states where you can request a ballot as late as the eve of Election Day or Election Day itself. So that means some ballots will be arriving [00:08:00] after Election Day.

Miles Parks: [00:08:03] In general, this election, the thing that voters need to understand the most is that absentee ballots take longer to count than in-person votes.

[00:08:13] That's not a bad thing, though. That's not something that people should be freaked out about.

Hannah McCarthy: [00:08:17] This is Miles Parks. He covers voting for NPR. I reached out to him after watching a video he made about ballot counting post-election. That was basically a gentle PSA to not lose your mind if you don't know who the president is on election night.

Miles Parks: [00:08:33] Let's take a step back here.

[00:08:35] None of these things are mistakes or problems, really, even if some people want to make it seem like they are.

Hannah McCarthy: [00:08:41] Between mail in ballots, different state rules for processing and various deadlines for receiving a ballot. The whole thing is probably just going to take longer this year.

Miles Parks: [00:08:53] I had an election administration expert say basically it's like if you had to write thank you cards for your [00:09:00] Christmas gifts and you get 10 Christmas gifts, you're like, oh, that's fine. All right, ten Christmas cards. But then you like next year, you just wake up and you have a thousand Christmas gifts.

[00:09:10] Like the act of writing a card is not difficult, but the act of doing it a thousand or in the case of some of these counties, twenty thousand, thirty thousand envelopes to be opened. Even just that those little things add up to take a lot more time.

Hannah McCarthy: [00:09:24] I do you want people to keep in mind it's not like election officials are totally unprepared for election night. Maggie Oliver brokedown, New Mexico's process for me, for example.

Maggie Toulouse Oliver: [00:09:34] So in my state, our county clerks are actually already actively in the process of accepting absentee ballots back and making sure the required voter information is is attached to that ballot so that it can be qualified starting as many as 10 days and as few as five days before Election Day. County clerks will assemble their absentee precinct boards and begin the actual process [00:10:00] of counting, processing and counting those ballots.

[00:10:04] The goal will be that. Fast forward to election night at 7:00 p.m. when our polls close here, county clerks will be able to begin posting early voting totals right away as the Election Day result totals are coming in throughout that evening, posting those as those come into them and then as quickly as possible, posting as many absentee voting results as they can. And of course, the more ballots that we have factored into those totals, the more likely we are to be able to say with confidence what the outcomes of those elections are going to be on election night.

Nick Capodice: [00:10:42] Ok, so some states may very well be able to tell us the winner on election night.

Hannah McCarthy: [00:10:45] It all depends on how the legislature and the election officials have decided the process is going to work. But still, we will almost certainly not have a clear winner on election night.

[00:10:56] Here's Miles again.

Miles Parks: [00:10:57] A couple states, especially a couple [00:11:00] of battleground states, Pennsylvania, Wisconsin, Michigan. The laws have not been adjusted to basically catch up with the fact that there is going to be so many more mail ballots. So election officials in these states are kind of have their hands tied behind their backs. They can't even open those envelopes. They can't do any of that processing work until either on Election Day. They can start doing that. In Michigan's case, that just passed a law that allows election officials to do it the day before the election. But regardless, that's going to put these local election officials in a really tough spot where they're going to be like having to open all of these ballots, check all these signatures, do all this work, you know, working 20 hours in a row. Twenty four hours in a row, four days in a row to try and get all these absentee ballots counted.

Nick Capodice: [00:11:46] I can't help but anticipate that with a little bit of dread, Hannah, because I'm used to knowing on election night who the president is going to be.

[00:11:53] Yeah, maybe you have to stay up a little later on certain years or maybe the other candidate doesn't make their concession speech for a day [00:12:00] or two. Or there was that long, endless night in 2000 where there's a bunch of hanging chads in Florida. But that wait this year is going to be tough.

Hannah McCarthy: [00:12:09] Miles reminded me that the winner of the presidency, who we learn about on election night, that isn't based on a complete count of the votes. That's just a network projection on election night.

Miles Parks: [00:12:20] We have never known the actual results. We've known unofficial results about who was going to win, who is projected to win, and those projections because of all the absentee ballots that are coming in, because they take longer to count and because it's harder for some of these media companies to model this out. Those projections might take a little longer this time around.

Hannah McCarthy: [00:12:43] Here is the thing about that lag time, though. It is true that you shouldn't freak out. It's true that the waiting period is a sign that all votes are being counted, but there's a good chance the delay will be misinterpreted.

Miles Parks: [00:12:58] I can guarantee you that the [00:13:00] longer it takes for us to have a result that. People have confidence in whether that's from media organizations they trust or from election officials. The longer that takes, the more conspiracy theories are going to happen. That is like the pinnacle of everything that makes a good conspiracy theory is like happening at that moment. At the same time, people have a political interest in forwarding those conspiracy theories, even people who are potentially running for office. You know, we've seen this we saw it in twenty eighteen in Florida where then Governor Rick Scott was running for a Senate seat. He was ahead by a bunch of votes after Election Day and then a couple of days after, which is normal, the absentee ballots were still being counted in some of the bigger jurisdictions. He comes out and does a does a press conference where he basically accuses the election officials of fraud, says, you know, I don't know why my lead is dwindling. I don't know where these absentee ballots are coming from.

Hannah McCarthy: [00:13:57] Mistrust in the election process comes from a [00:14:00] lot of places, politicians sometimes so mistrust when things aren't going their way. You know, something must have gone wrong here because I'm not winning or something will go wrong with this type of voting. And it won't be legitimate. But it also comes from the voter experience. I spoke with Matt Lamb, an assistant professor at Austin Community College, about this. What might make one person's election experience different from another's?

Matt Lamb: [00:14:28] Let's take states where they require voter I.D., African-Americans and Latinos or Latinos are less likely to have a voter I.D. than white voters, and even when they do, they're less likely to have the type of voter ID that can be quickly verified. And what I mean by that is here in Texas, we if you get a driver's license, it has a magnetic strip on [00:15:00] it that can be easily swiped. And your information comes up on the computer and it's and that's that. Well, in the state of Texas, African-Americans are statistically less likely to possess a driver's license if you have another type of ID, even if it is acceptable. Usually they don't have that magnetic strip. So what does a poll worker have to do? They have to pull out their poll book. They have to look up that person's records. And, you know, that can take time, especially if there's some question as to whether or not the actual ID presented meets state requirements.

[00:15:36] And so one of the misconceptions, I think, about the disparities in polling places is that they are inherently intentional, that public officials try to create disparities in polling place conditions.

[00:15:55] And no, I can't prove that it's not going on, at least [00:16:00] to some degree. I think it's far more likely that elections officials sometimes make assumptions about populations that just don't hold true on the ground.

Nick Capodice: [00:16:11] But you do hear people blame the city or blame the state when, for example, polling places close. I know that since 2016, something like 20000 polling locations have closed. And some states like California, Kentucky, North Dakota, they've closed over half of their locations, which then means less accessibility, especially, it seems, in communities with majority minority populations.

Hannah McCarthy: [00:16:39] Which followed a weakening of the 1965 Voting Rights Act in 2013.

[00:16:44] The Supreme Court said states no longer have to prove to the federal government that election law changes are not discriminatory. And this is an important distinction to make. There are election officials like Secretary of State Maggie [00:17:00] Oliver. And then there are the legislators, the people who make the election law in a state as they are empowered to do by our Constitution.

[00:17:10] And politics certainly does play a part in the state legislature.

[00:17:14] But the people actually running the election?

Matt Lamb: [00:17:17] In terms of the actual administrators, the county clerks, the elections, divisions of counties and local jurisdictions, believe it or not, even the ones that are elected, they take their fiduciary responsibility to make the voting process as smooth and as accessible as possible. Very seriously, they are ultimately accountable to their local jurisdictions, to their friends and neighbors. They want people to vote. They want anybody who is eligible and wants to vote to be able to vote.

Hannah McCarthy: [00:17:53] That said, if you have to wait in line for hours and hours and then deal with voter I.D. issues that [00:18:00] make you feel mistrusted, then you have had a bad customer experience with your government. But what you can do is show election officials how they should prepare for the future. You do that by turning out to vote and voting for the legislator who you want in charge of your election law.

Nick Capodice: [00:18:17] This is basically you saying, like, I want to talk to the manager. So if election law changes in our favor, maybe we'll start to trust elections a little more. But I do wonder, what is all this mistrust and elections mean for our country? My big takeaway so far is that we have more reason to trust the process than to not write. There are lots of problems, but they can be corrected. So how do we deal with all that rhetoric out there that says election night this year is going to be a sham?

Hannah McCarthy: [00:18:50] Here's Miles again.

Miles Parks: [00:18:51] The biggest thing is that that I've been trying to preach is that we over the last 20 years have seen [00:19:00] an overall decline in confidence in the legitimacy of our elections. And that was always a very abstract thing to me when I heard about, like professors talking about it's really important for people to have faith in, like how elections work and that they're fair. And that's really the case when you start talking about a peaceful transfer of power, not necessarily going down any conspiracy rabbit holes of if like what President Trump would do if he were to lose and all that stuff. But just in terms of the real possibility of violent unrest, considering how polarized the country is, and I think people need to really connect in their brains when they share on social media a theory about any thing about elections being fraudulent or being questionable or votes being suppressed for nefarious purposes.

[00:19:58] There are real issues [00:20:00] with our election system. But people need to understand that there also has to be a baseline of confidence for us to live in a peaceful country.

Hannah McCarthy: [00:20:09] One last thing, Nick, and this was something Casey McDermott and Maggie Oliver both said, which finally settled that black box. What next question that I used to have about my ballot in the election.

[00:20:23] This is actually a transparent process. Officials aren't trying to do things behind your back.

Maggie Toulouse Oliver: [00:20:30] Most folks don't understand how transparent our election processes actually are. There is literally nothing that happens in an election in the United States behind closed doors. There is always either a bipartisan group of local election officials who really are just volunteers from your local community who are engaging in the process of helping election officials run the election. Or there are observers, watchers from political parties, from candidates, from third party organizations, [00:21:00] from academic institutions that are observing the election process to make sure that everything is going the way that it's supposed to, that it's following the law, that all of the I's are being dotted and T's are being crossed.

Casey McDermott: [00:21:11] I was talking to a local election official recently and just asking, what do you make of all of the rhetoric around elections and whether or not they can be trusted lately? And she was like, well, I just ask them, do you trust your neighbors? And maybe they don't trust their neighbors and maybe they have other reasons for not trusting their neighbors. But in general, remember, your neighbors are the ones that are doing this. And I think that's a really good gut check for a lot of people.

Nick Capodice: [00:21:40] All right, chin up, vote and believe in it.

[00:21:44] And remember that your election officials know more about the election than your friends on Facebook. So give them a call. It is their job to help you.

[00:22:02] This [00:22:00] episode was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jackie Fulton.

[00:22:08] Erica Janik transmits all communication official or no in double-signed envelopes. Music in this episode by Florian Decros, Silent Partner, Scanglobe, Revolution Void, Paddington Bear and Emily A. Sprague. We're here for you and only here because of you and you know, democracy and its beautiful, maddening complications. If you have questions about this country, any questions, no matter how small, no matter how obvious the answers may seem. Ask us. We will make an episode for you. Send us an email at Civics101@nhpr.org. Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: Why Is Our Voting Age Eighteen?

We take it for granted that the voting age is eighteen in the United States, but it hasn’t always been this way. We lowered that age from twenty-one in the seventies — so does that mean we could lower it again? Who gets to make that decision? Ask Civics 101 is on the case.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: How Did the Supreme Court Become so Important?

How did the Supreme Court go, according to Alexander Hamilton, from “beyond comparison the weakest of the three departments of power” to the grand body that rules on the constitutionality of federal law? Ask Civics 101 takes a closer look at the highest court in the land, appointments and the relationship between party and justice.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: What is the Hatch Act?

What is the Hatch Act? When was it created? Its purpose is to restrict political speech from any federal employee (including members of the Cabinet and USPS employees) while they are working but what are the penalties? Who is exempt? And finally, has anyone been fired for violating it? Let's find out.

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Made possible in part by the Corporation for Public Broadcasting.

Freedom of the Press: Part 2

Note: There is a more recent, updated version of this episode - check our episodes page!

A free press, ideally, learns what is happening in our democracy and passes that information on to us. How, then, do we learn the truth about this country when there’s so much misinformation, so many opinions, claims of fake news and widespread mistrust of the truth?

Joining us again for part 2 are Melissa Wasser and Erin Coyle.

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

Civics 101

Freedom of the Press Part 2

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

CNN Arrest footage: [00:00:37] Wherever you want us, we will we will go, we are just getting out of your way when you were advancing through the intersection.

Hannah McCarthy: [00:00:42] So have you seen this clip, Nick?

Nick Capodice: [00:00:45] Yeah, I've seen it.

CNN Arrest footage: [00:00:46] I'm sorry, Your Honor. OK, do you know why I'm under arrest, sir? Why? Why am I under arrest?

Hannah McCarthy: [00:00:53] This is the end of May of this year. Twenty twenty. During protests in Minneapolis following the police killing [00:01:00] of George Floyd, a CNN television crew was arrested by police as they were filming. So this is on live television.

CNN Arrest footage: [00:01:09] We're all about to be arrested. That's our producer.

Hannah McCarthy: [00:01:13] Officers said that the crew refused to move, even though you hear them offer to move or they later released the crew after learning they were news media, even though the crew told them they were news media.

CNN Arrest footage: [00:01:25] Right now on live television in handcuffs. I've never seen anything like this.

[00:01:32] I'm being arrested now.

Hannah McCarthy: [00:01:34] So I watched this and I was like, OK, well, what about the First Amendment? Isn't that a violation of the freedom of the press?

CNN Arrest footage: [00:01:46] The police are now saying they're being arrested because they were told to move and didn't.

Hannah McCarthy: [00:01:55] This is Civics 101, the podcast refresher course on the basics of how our democracy works. [00:02:00] I'm Hannah McCarthy.

Nick Capodice: [00:02:01] I'm Nick Capodice.

Hannah McCarthy: [00:02:02] And this is part two on Freedom of the Press. And it's a murky one because, well, press freedom can seem a little tenuous these days.

Melissa Wasser: [00:02:11] In 2020 alone.

[00:02:13] One hundred and eighty eight journalists have been attacked, 60 of them have been arrested.

[00:02:18] This is Melissa Wasser, a policy analyst with the Reporters Committee for Freedom of the Press.

Melissa Wasser: [00:02:24] There's been many damaged equipment searched in search and seizure of that equipment.

[00:02:30] And during the Black Lives Matter protests alone this summer, over 740 reported aggressions against the press. We saw it in Minnesota when the CNN crew got arrested, we see it at rallies by the president where he could say something negative and kind of fanned the flames.

[00:02:51] And you see the crowd reacting to the highest office holder in the land saying these people are fake news. [00:03:00] They're not giving you the real information.

Trump: [00:03:02] Fake news, fake news. They are fake.

Reporter at Trump rally: [00:03:06] You can hear there is a chorus of those and other chants of this Trump crowd here in Tampa, Florida, they're saying things like saying I'm. Go home and fake news, Wolf. Obviously, all of those things are false. We're staying right here. We're going to do our job and report on this rally to all of our viewers here tonight.

Nick Capodice: [00:03:24] Hannah to your question. Is it illegal to, for example, arrest the press while they're working? Was that a violation of First Amendment rights?

Erin Coyle: [00:03:33] Well, the First Amendment doesn't protect us against breaking laws.

[00:03:39] There is a circuit court opinion that says that the First Amendment is not a license to trespass or steal. I can't say I'm a journalist, so I'm going to go steal all of the information to write this article.

[00:03:54] This is Erin Coyle, a media law and history of journalism professor at Temple University. So [00:04:00] when it comes to restricting the press, her point is that journalists don't necessarily have special privileges. The freedom of the press clause says simply to sum it up, Congress shall make no law abridging the freedom of the press. And in fact, the Supreme Court has had a fairly narrow reading of that clause. For example, there's a case called Houchins versus KQED, Inc. The court ruled that the press did not have the right to enter a jail, to film that the press had the access that the public had, and that was it.

Erin Coyle: [00:04:37] And these things can become really challenging when covering a live event. For instance, when I was living in Baton Rouge several years ago, there were journalists who were they were charged under a law that allows arrests [00:05:00] for impeding traffic on a state highway and just accidentally having one foot go on to that state highway. One instance was seen as you're impeding traffic, you broke the law. We're going to charge you. The First Amendment law related to access essentially says that the access rights that journalists have are there because they're the public's rights. And we get to go where the public could go so we don't get special treatment to be able to step into a highway and tell traffic to stop because we could get a better photograph or better video from being at that angle.

Nick Capodice: [00:05:50] I hear her, the press can't be breaking the law to do its job, but isn't the whole point of the press to witness and report on what's going on so [00:06:00] the American people know what's going on? How can they do that? In other words, what makes them a free press if they can be arrested while doing their job?

Erin Coyle: [00:06:09] It's very disappointing to see how journalists are being treated. It's disheartening to see journalists getting injured and having to wear body armor and gas masks to go do their jobs. And very disappointing to see journalists getting arrested for covering protests. And yes, I read the arguments that, well, the law enforcement couldn't tell who's a member of the press and who is a protester.

[00:06:42] I think the key question there is where members of the press doing anything wrong.

Hannah McCarthy: [00:06:46] This is what really clinches it for me, because if we look back at that CNN tape, for example, the cops are saying back off and the reporter saying, OK, yeah, we'll go wherever you want, but then they get arrested anyway. Or when [00:07:00] it comes to curfew and mobility orders, basically the governor saying get off the streets by 6:00 p.m. You can't go here, here, here.

[00:07:07] Well, many states explicitly build media exemption into that.

[00:07:12] But that hasn't necessarily mattered lately.

Press covering protests: [00:07:16] We're news media hour news media, head out, media is exempt from curfew.

Hannah McCarthy: [00:07:38] Here's Melissa again.

Melissa Wasser: [00:07:40] We found that most most Americans believe a free press is super important.

[00:07:45] They know it's the First Amendment.

[00:07:47] They can name it in the in the five freedoms, but they don't see why it's at risk. And that's really troubling.

Nick Capodice: [00:07:58] Just to jump in for a second, when Melissa says [00:08:00] the five freedoms, she's referring to the five freedoms enshrined in the First Amendment, they are religion, speech, assembly, petition and of course, press.

Melissa Wasser: [00:08:11] There have been signs over the past few years that, you know, it is under attack.

[00:08:18] I mean, the most serious, right, has been the murder of the journalist at the Capital Gazette in direct response to their reporting about the shooter.

[00:08:30] We've seen during the protests. They've been pepper sprayed and tear gassed. They've received death threats. How many we saw those hoax bomb threats at CNN. They if we also think about women and people of color and queer journalists online, the amount of online harassment that journalists get, I mean, there's signs all around us and it can and it consistently gets worse and worse and worse.

[00:08:58] And I think there needs to [00:09:00] be even more general awareness that these are the signs that, you know, freedom of the press is kind of slipping, at least in the United States.

Nick Capodice: [00:09:09] But did Melissa or Erin say why this is happening now? I know you've got a debate about what the press is actually free to do, but this is more than that. What has caused press freedom in the United States to slip?

Erin Coyle: [00:09:24] We can see patterns of presidents being very upset with the press throughout history.

Hannah McCarthy: [00:09:30] Yeah, when the president doesn't like or respect you, well, good luck getting other people to.

[00:09:37] It's the job of the press to find and tell the truth about people in power. And they do that by assembling information, gathering data, talking to witnesses and experts and then conveying an account of what they found and what it means and that much scrutiny, that intense analysis of what you do and say and how it affects people. Well, [00:10:00] who would want that?

Erin Coyle: [00:10:38] It's just human nature to want to defend ourselves if we see something nasty about us and put it out, and it's no wonder to me that people get upset when that happens. So part of this is probably just part of human life. But [00:11:00] also, I was listening last week to a tape recording of President Nixon being very upset with The New York Times and using some colorful language about why he wasn't going to talk with anyone from The New York Times because he was angry with news coverage.

Richard Nixon: [00:11:22] If I were going to give an interview to people, Why would I give it to a newspaper man anyway. Give it to a television man. Darn right. He will never be in my office as long as I'm president. Never. And no man from the Times will ever be in my office as long as I'm President. It isn't worth it. Agreed? I sure do. That's it.

Nick Capodice: [00:11:46] But it's not just the people in power who are wary of the press these days, it's also the people who aren't even necessarily being written about members of the public who have a negative perception of media.

Erin Coyle: [00:11:57] So I think today it's [00:12:00] very concerning to have these discussions about can there be trust in journalists today when people are hearing the term fake news and when fake news gets applied to something often on an emotional basis rather than on a basis of whether something is accurate or not, that contradicts what we teach journalism is supposed to be. Journalism is supposed to be accurate, and sometimes people are not going to like the truth.

[00:12:37] Erin reminded me that, of course, there was a world of print media before the First Amendment. And in that world, truth was not a defense against a claim that something was a lie. Like with libel cases, libel is printing something false about someone that can damage their reputation.

Nick Capodice: [00:12:58] Hold up. I want to make [00:13:00] sure I understand you here. You're saying that the truth was not a viable defense against a claim that something is libel?

[00:13:09] Well, in this case, seditious libel. Sedition is anything that inspires or causes people to rebel against a state or a monarch. And under English law, seditious libel was illegal before we had the First Amendment.

Erin Coyle: [00:13:27] As we know it now, printers were published for seditious libel and seditious labels essentially made people in power or authority and the government look bad or hurt their reputation. And under seditious libel laws, the greater the truth, the greater the libel. It wasn't until the 17th thirties that their notion was accepted that truth could be a defense for libel. And [00:14:00] that didn't come from the law. That came from a very persuasive argument that jurors in the colonies accepted the seditious libel laws still existed after the seventeen thirties.

[00:14:16] It just wasn't very likely that people in the colonies were going to support punishing truthful criticism of a government authority.

Nick Capodice: [00:14:32] Truthful criticism of government authority. So basically you're allowed to say something negative as long as it's backed up by evidence.

Hannah McCarthy: [00:14:41] Yeah, and within that, it's important to recognize what is a statement of opinion and what is a statement of fact. There's a lot of opinion out there right now, some of it based on fact and some of it based on it. Kind of nothing. Give me an example you're talking about. All right. So if someone writes that graph, for example, covid-19 [00:15:00] could have been handled better in the United States. They're basing that opinion on caseloads and the responses of people in power to the virus. Right. But if someone says that testing people for the virus is what leads to more cases, that is something based on paranoia and fear. Maybe not science or fact. And because of the Internet, because anyone can say anything and we can all read it, there's more stuff out there than ever. And these days, when that opinion is made public, especially if it's an opinion about somebody, you might hear it and dismiss it as fake news, especially if you don't like it. And then you might take it a step further and say that the media outlet itself is fake news.

[00:15:47] So when we're calling things fake news, that can end up being really confusing. I mean, how do we know what is fact or not?

Melissa Wasser: [00:15:54] People are smart. They they know where they want to be able to turn for news.

[00:15:59] I [00:16:00] think sometimes people kind of get tripped up between what is news and what is opinion. And it's not invalidating any network or paper or anything like that.

[00:16:11] But sometimes, you know, there's people who are reporting the news and reporting the story directly to people, whether that's, you know, photojournalists or writing news articles online or giving them directly on broadcast or what you're doing on radio.

[00:16:27] You know, it's it's important that people understand the factual stories. But there's also people who give opinions about different things on both sides, across the political spectrum. And when people don't agree with the story that they're hearing, they might think, oh, they don't like the president, they don't like Congress, they don't like my state governor. They're fake news.

[00:16:52] And it is so it really does kind of like weaponize that term and demonize the press.

Nick Capodice: [00:16:58] So, Hannah, with the acknowledgement [00:17:00] that you and I are members of the press, this demonizing of the press feels like it could have seriously negative consequences. One of the reasons the framers enshrined that free press in the Bill of Rights is in part that they saw what could happen if the goings on of government were kept hidden from the people. This idea that sunlight is the best disinfectant, as they say, that exposing potential corruption and bad deeds is the best way to stop corruption and bad deeds from happening in the first place. The press is ideally there to protect democracy.

[00:17:34] But if we don't trust the press or we call the truth lies, then we're not actually aware of what's going on anymore.

Erin Coyle: [00:17:41] A society in which people know enough about our government to be able to have a say, to have informed discussions and debates, to cast informed votes.

[00:17:55] We need journalists out there doing their job. Journalists [00:18:00] are out there representing all of us, going to the trials. We can't take off work to go to going to protests that we might not be healthy enough to go to taking those risks to provide us with information.

Hannah McCarthy: [00:18:20] Erin brought up this one point that I think is pretty important, that it's not just that the public may feel they can't trust journalists. It's also that a government opposed to the press may result in a press that's afraid of the government.

Erin Coyle: [00:18:35] One of the concerns that arises when talking about freedom of speech and freedom of the press is that some government actions can be a deterrent. And there are some instances in which. The. Potential punishment or potential fine would be so [00:19:00] great that people might not be willing to address that topic. It's just too much risk to be able to take to be able to address that specific topic. And that's called a chilling effect.

Nick Capodice: [00:19:20] I wasn't aware of the term chilling effect until I took a class on the First Amendment in college, but yeah, it's it's a big deal.

[00:19:27] It's basically censorship, discouraging the exercise of legitimate rights and in this case, the freedom of the press with legal threats.

[00:19:37] Like the threat of a lawsuit or the threat of a passage of a law that's basically intimidating to the point that it prevents people from exercising their rights.

Erin Coyle: [00:19:45] When we think about the tradition of press freedom and societal expectations for press freedom. It's hard to believe that there are not a set chilling effects that could [00:20:00] be occurring right now because of journalists being called nasty things or people engaging in intentional intimidation of the press. Those are very important factors for us to consider and to address.

Nick Capodice: [00:20:18] So here's where we're coming back around to a principle that we talk about a lot on the show, which is that it doesn't really matter what's written in the Constitution or our laws and statutes if we don't uphold it and protect it, and that the government can basically do whatever the government wants to do.

[00:20:37] If we want to stop or change that, we need to do something about it. But we definitely can't do something about it if we don't know what's going on. So what do we do?

Melissa Wasser: [00:20:48] You know, there are ways to to fix these things, including not demonizing the press to make sure that journalists are protected when they go to do their jobs from assault, arrest and threat of retaliation. [00:21:00]

[00:21:00] And that could be at the federal level through a bill in Congress or at your state level or even local level with local city councils or mayors signing executive orders. You know, it's it's a full level. It's it's at all three levels.

[00:21:15] And so I think it is in front of them. And maybe sometimes people are turning a blind eye and not realizing how threatening these little acts are until they all add up and then it'll be too late. So I think it's really changing the hearts and minds of people, too, to see why these all constitute risks to press freedom.

Hannah McCarthy: [00:21:39] I think the bottom line is that it's not really about whether you agree with the news or coverage of the news, the publishing of provably true information about our government and communities is necessary to maintaining a healthy democracy.

[00:21:57] That's how we make sure the Constitution is [00:22:00] actually upheld. Not liking what we learn about our government can actually be a sign that good journalism is being done. And there's a reason that we say knowledge is power. And in American democracy, it's one of the few true powers that we, the people have.

[00:22:35] Our listeners are what make us us if Nick and I were just shouting into the void with no curious, skeptical, civic minded people out there to hear us, well, we would just have to close up shop. But here you are letting us bend your ears and joining us as we try to figure out how this democracy works. It's our privilege and delight to offer this to you for free. But [00:23:00] the one snag is that Civics 101 is not free to make while the team here mostly subsists on civic pursuit. We do also need money to survive and equipment and all sorts of other stuff that comes at a cost that Nick and I are blessedly spared the details of. But my point is, if you like Civics 101, if you find it useful, if you want us to keep going and to join our efforts to maintain a healthy democracy here in these United States, please take a moment and donate to Civics 101. We believe there's power in understanding how this country works. With your help, we can keep figuring it out and sharing it with you. Check out the donate link on our home page at Civics101podcast.org.

[00:23:51] That does it for this free press today. This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jackie Fulton. Erica Janik, [00:24:00] besides the five freedoms before every meal. Music in this episode, by broke for free, blue dressed man, Lee Rosevere and Daniel Birch, Scott Gratton, Ikimashoo Aoi and spectacular sound productions. You may have noticed that we have this new thing we're doing, by the way, called Ask Civics 101. You ask us about what's going on in this ever evolving democracy. And we make you and everyone else a short and sweet episode answering that question. So if you've got a burning query about our government or politics, you can email us at Civics 101 at any nhpr.org and we will get cracking and ask Civics 101 just for You. Civics 101, supported in part by the Corporation for Public Broadcasting and is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: What Does the 25th Amendment Say About the President Stepping Down?

The 25th Amendment tells us what happens if the President is unable to do his or her job -- namely that the Vice President steps in. But under what circumstances does that actually happen, and how has this amendment been invoked before?

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: How Do Recounts Work?

A recount may be undertaken if there are concerns about human error or fraud… and in some states, there are laws about close elections automatically triggering recounts. Recounts can happen in local, state, federal, and even presidential elections. How do they work? And how often does a recount change the outcome of an election? Let's find out.

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Made possible in part by the Corporation for Public Broadcasting.

Presidential Debates

Today we’re exploring the relatively recent phenomenon of Presidential Debates. How are they run? When did we start doing them? Why was George HW Bush looking at his watch?? And most importantly, why should we keep doing them?

Our experts in this episode are debate scholar Alan Schroeder, and Executive Director of the Commission on Presidential Debates, Janet Brown.

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Episode Resources

Graphic Organizer: Have your students take notes on this sheet while they listen to the episode

Civics 101’s handy VP debate nonverbal expression tracker

C-SPAN’s debate analysis worksheet: Modes of Persuasion, using ethos, logos, and pathos

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

Civics 101

Presidential Debates

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

Nick Capodice: [00:00:07] September 26, 1960, nine thirty p.m. The show Peter Gunn had just finished airing on NBC and then 66 million Americans tuned in to watch a revolution in the process for selecting a president.

Howard K. Smith: [00:00:24] Good evening. The television and radio stations of the United States and their affiliated stations are proud to provide facilities for a discussion of issues in the current political campaign by the two major candidates for the presidency. The candidates need no introduction.

Howard K. Smith: [00:00:41] The Republican candidate, Vice President Richard M. Nixon,

[00:00:44] Vote for Nixon and Lodge November eight.

Howard K. Smith: [00:00:46] And the Democratic candidate, Senator John F. Kennedy. According to rules...

Nick Capodice: [00:00:57] I'm Nick Capodice

Hannah McCarthy: [00:00:58] I'm Hannah McCarthy.

Nick Capodice: [00:00:59] And this [00:01:00] is one Civics 101 one, the podcast refresher course on the basics of how our democracy works. And today we're talking about the relatively recent tradition of presidential debates. When did they start? Who decides how they're run? Why do we do them? And what we should be looking for when we watch them? Hannah what is your first debate memory?

Hannah McCarthy: [00:01:19] I would say it's more like an entire season of debates. It was during the Obama McCain election of 2008. And I I knew that I would be turning 18 a couple of days after the election. So I watched these debates with a great deal of pain in my heart because I knew I wouldn't actually be allowed to vote in that election.

Nick Capodice: [00:01:41] I think I saw Saturday Night Live parodies of the debates before I saw the real ones.

Dana Carvey as George HW Bush: [00:01:45] A thousand points of light. Stay the course.

Nick Capodice: [00:01:51] I think my first visceral staying up late, watching the debate memory is October of 1992 between actually, I should say among, George [00:02:00] H.W. Bush, Bill Clinton and Ross Perot.

Hannah McCarthy: [00:02:03] Oh, that's right. That is the first and so far only three candidate presidential debate. That's so cool. You opened with a clip from the 1960 debate between Nixon and Kennedy, which I know was the first televised debate. But it's certainly not the first debate, is it?

Nick Capodice: [00:02:25] Well, here's Alan Schroeder, he's professor emeritus at Northeastern University and he's the author of several books on presidential debates.

Alan Schroeder: [00:02:33] Well, there were the live debates such as the Lincoln Douglas debates, the senatorial debates of 1858.

Nick Capodice: [00:02:39] 1858. Those debates were for a Senate seat, not for the presidential election. But what's interesting about them is they were published two years later when Abraham Lincoln and Stephen Douglas were the presidential candidates. But until the late 19th century, candidates for president did little personal campaigning. Their supporters did most of the campaigning [00:03:00] and attacking of opponents.

Alan Schroeder: [00:03:01] So pre broadcast, there were debates held in person between candidates. They were these big events where spectators would show up by the hundreds and bring picnic baskets and sort of make an all day activity out of it.

Nick Capodice: [00:03:17] But once broadcasting radio and then television came on the scene, there were more attempts to introduce political debates.

Hannah McCarthy: [00:03:24] What was it in 1960 then that caused this change? Why the debates then?

Alan Schroeder: [00:03:29] They were really a creation of the television networks of that era who wanted to be taken more seriously. You know, they were entertainment media, but not so much information media. So the networks in the late 50s saw an opportunity to legitimize themselves by doing political debates on television. And they got John F. Kennedy on board. And once he was on board, Nixon sort of couldn't get out of it without looking like a coward. And so that's how we got the first debates [00:04:00] in 1960.

Nick Capodice: [00:04:01] So Americans who listened to that first debate on the radio were pretty split on a winner. But television viewers enormously favored Kennedy.

Hannah McCarthy: [00:04:10] Why? What happened?

Alan Schroeder: [00:04:11] Nixon had been hospitalized before the first debate and had only recently been released. So he was he had lost a lot of weight. He was pallid. He was lured by the Kennedy people into thinking that John F. Kennedy hadn't used makeup. So by God, he wasn't a use makeup either. And he does look bad. You know, you look at it now and it is you know, he is this scarecrow that the sweating scarecrow that history remembers him has. But you could definitely see how uncomfortable he was and and ill at ease and ill in general.

Nick Capodice: [00:04:49] So in this debate, Nixon and Kennedy were seated when not taking questions and then they would rise to speak behind a shared podium to a panel of news reporters.

Richard Nixon: [00:04:58] I would suggest, Mr. Vanocur, that, [00:05:00] you know, the president that was probably a facetious remark. I would also suggest as far as...

Nick Capodice: [00:05:06] And when Nixon was behind the podium, you could sort of see him bending his knee in discomfort as he answered questions. Now, Kennedy Kennedy had prepared for this debate. He had studied camera angles. He'd read a lot about TV. He wore makeup.

John F. Kennedy: [00:05:21] I come out of the Democratic Party, which in this century has produced Woodrow Wilson and Franklin Roosevelt and Harry Truman and which supported and sustain these programs.

Nick Capodice: [00:05:30] But Nixon treated this just like another campaign event and refused to wear makeup.

Alan Schroeder: [00:05:35] Nixon himself went on what he called a milkshake diet, where he just started pounding the calories and in a hope of gaining weight again and did look better in the later debates. He also learned the hard way to use makeup.

Hannah McCarthy: [00:05:49] I feel like there's so much more to lose in a debate than there is to gain, like a single gaffe, a single mistake, or even what [00:06:00] you look like can affect your electability.

Nick Capodice: [00:06:03] Yeah, maybe this is why after 1960, there were no presidential debates until 1976.

Hannah McCarthy: [00:06:10] Ok, this brings me to the question of who decides how these things are going to go. Like, are they seated or are they standing? How much time do they get? Who asks the questions? Do the candidates fight with each other behind the scenes and then come up with a mutual solution?

Nick Capodice: [00:06:28] They do not.

Alan Schroeder: [00:06:29] Well, every general election, presidential debates since 1988, it has been sponsored and staged by the Commission on Presidential Debates. And then the candidates can either agree or disagree and they'll try to negotiate a little bit around the margins. But basically, they don't have as much clout. The campaigns don't have as much clout anymore as the debate commission.

Hannah McCarthy: [00:06:52] I didn't know that there was a commission on presidential debates.

Nick Capodice: [00:06:55] I didn't either!

Hannah McCarthy: [00:06:56] What do they do?

Janet Brown: [00:06:57] The Commission on Presidential Debates is [00:07:00] a private, nonprofit, nonpartisan corporation based in Washington, D.C. We were created in 1987 and have been doing the general election, presidential and vice presidential debates ever since 1988. We select the moderator and the moderator selects the questions which are not known to the commission or to the candidates.

Nick Capodice: [00:07:24] This is Janet Brown, the executive director for the Commission on Presidential Debates. I called her a week before the first debate of this election cycle.

Nick Capodice: [00:07:32] How are you, Janet?

Janet Brown: [00:07:34] I'm insane. Thank you for asking.

Hannah McCarthy: [00:07:36] How many debates has she run?

Janet Brown: [00:07:38] 30 debates,

Hannah McCarthy: [00:07:39] 30?

Nick Capodice: [00:07:40] 30! The rules that the commission sets are public knowledge, like the format, who the moderator is, the dates. But there are non-public agreements as well. It's not all out in the open. In 2012, a Time reporter published Obama and Romney's memorandum of understanding. That's a document that's the secret [00:08:00] rules for a debate. And that included no direct questions from one candidate to the other, no requests for a show of hands, no call outs to any non-family member of the audience, and an agreed upon comfortable temperature. To be clear, the commission manages presidential and vice presidential debates, not the primary debates. Those are run by the party. And as such, they can get a little wacky.

Rand Paul: [00:08:23] I don't trust President Obama with our records. I know you gave him a big hug and if you want to give him a big hug again.

Ronald Reagan: [00:08:23]  I am paying for this microphone.

Nick Capodice: [00:08:39] For presidential debates, the commission adopted the journalist panel format that we heard about from the 1960 debate. That's a format that continued in every debate from 1976 on.

Janet Brown: [00:08:49] But it became clear that if you could reduce the number of other participants on the stage and focus more time and attention on the candidates, that's what serves [00:09:00] the public best. So starting in 1992, we experimented with having at least part of one debate that was run by a single moderator.

Hannah McCarthy: [00:09:10] I'm curious about the town hall format of debates where the audience is a bunch of uncommitted voters and they're speaking directly to the candidates. When did we start doing that?

Janet Brown: [00:09:22] Town hall format actually goes back to 92. It was introduced that year and has proven very popular with the public for one primary reason. People identify with the citizens who have been selected to ask questions of the candidates. As you can well imagine, it changes the dynamic if a candidate is answering a question from a citizen as opposed to a journalist.

Anderson Cooper: [00:09:46] One more question from Ken Bone about energy policy. Ken?

Ken Bone: [00:09:50] What steps will your energy policy take to meet our energy needs while at the same time remaining environmentally friendly and minimizing job loss for fossil power [00:10:00] plant workers?

Janet Brown: [00:10:01] And the nature of those conversations is is quite different than it is when you have a journalist who is conducting the whole debate and and asking the questions. It's a particular privilege to work on those because needless to say, those citizens don't do television on a daily basis. This is this is a a very unusual thing. They come to it with such seriousness and sense of purpose on behalf of their fellow citizens. And that's that's a particularly meaningful one to be a part of.

Hannah McCarthy: [00:10:36] How do the candidates even prepare for these?

Nick Capodice: [00:10:38] They each hire someone to be their sparring partner. It's a crucial role in preparing for debates. Their sparring partner is usually a savvy politician who impersonates their opponent like not their accent or clothing or anything, but their persona, their ideas, the way they might phrase questions and answers. And they do mock debates for days on end.

Hannah McCarthy: [00:10:58] So Janet told us that the [00:11:00] candidates don't know the questions that they're going to be asked. But when they learn who the moderator is going to be, do they prepare based on who that person is?

Nick Capodice: [00:11:11] Yeah, they do. Here's a clip of former President George H.W. Bush talking to journalist Jim Lehrer about his opinion on debates.

George HW Bush: [00:11:18]  Ugly. I don't like em,

Jim Lehrer: [00:11:21] Why not?

George HW Bush: [00:11:22] Well, partially, I wasn't to good at them. Secondly, there's some of it's contrived show business. He promised to get the answers ahead of time. Now, this guy, you got Bernie Shaw on the panel, and here's what he's probably going to ask you. You got Lesley Stahl over here and she's known to go for this and that. And you can be sure I remember what Leslie's is going to ask...

Nick Capodice: [00:11:43] And as we learned with Nixon in 1960, the visuals of a debate can matter as much as what is actually said. Alan told me one of the most telling moments in debate history involved the first George Bush glancing down at his watch during a town hall debate, giving the impression to the studio audience and [00:12:00] the audience at home that he had no interest in being there now.

George HW Bush: [00:12:03] Was I glad when the damn thing was over? Yeah, and maybe that's why I was looking at it. Only 10 more minutes of this crap.

Nick Capodice: [00:12:10] That was the town hall debate where a member of the audience asked Bush this question.

[00:12:14] Yes. How has the national debt personally affected each of your lives?

Nick Capodice: [00:12:20] And Bush actually said, I don't get it. And he stayed behind his podium and he honestly did not answer the question.

Alan Schroeder: [00:12:26] And then Bill Clinton comes in right after him and walks to the edge of the stage and directly engages the woman and asks her about her life and empathizes, as only Bill Clinton could do.

[00:12:38] How has it affected you again? You know, people who lost their... Their home. Well, I've been governor of a small state for 12 years. I'll tell you how it's affected me every year. Congress and the president...

Alan Schroeder: [00:12:54] And so, you know, it was it was a telling moment that I think matters, even though it's [00:13:00] trivial in a way, it matters because presidential campaigns strive so hard to control everything that goes out to the public. And so when something busts through the veneer like that, it's, I think, our job as voters to pay attention.

Hannah McCarthy: [00:13:18] You've got the moderated debate. You've got the town hall style debate. Are there any plans for like any other kind of debate format in the future?

Nick Capodice: [00:13:27] Yeah, Janet said there were some ideas boppin around.

Janet Brown: [00:13:28] But if you look back at different debates, there are ones that stand out. And as it happens in Massachusetts and senatorial and gubernatorial races from some years ago, where essentially the moderator served almost as a timekeeper and the candidates were willing to do debates that that essentially were conversations between the candidates.

Janet Brown: [00:13:55] From our work, it's clear that the public wants the maximum [00:14:00] amount of attention and time focused on the candidates. That's who they're trying to learn about. So if we can continue to work toward having the candidates with minimal intrusion, interference by the moderator, that obviously is what the public really finds very, very valuable.

Nick Capodice: [00:14:20] And the commission is responsive and flexible to these debates as they happen. After the first debate in this cycle,

Chris Wallace: [00:14:28] Your campaign agreed that both sides would get two minute answers uninterrupted. Well, your side agreed to it. And why don't you observe what your campaign agreed to...

Nick Capodice: [00:14:43] They made a public statement that they would revisit the format and the rules and a source close to the commission said they were considering cutting mics if the candidates kept interrupting each other.

Hannah McCarthy: [00:14:53] I will say it did recently read that people tuning in to the Trump [00:15:00] Biden debate, the most recent one, 84 percent, said that the debate wasn't going to change their mind either way. So what is the point of a debate if not to change minds?

Alan Schroeder: [00:15:15] I think debates are very important, even if they don't really decide the election, because there's not much during the campaign that belongs to the people, to the voters. But debates do. The journalists have to step aside. The candidates have to respond spontaneously and in real time. And we just don't get that many peeks behind the curtain. And so when one is offered to us, I think we have to pay attention as far as what to keep an eye on during the debate. One of the things that always fascinates me is how do the candidates treat each other? You know, what are they doing when the other person is speaking? What are their facial [00:16:00] expressions toward the other person? And I think you can kind of get some insight into them as human beings just based on that that very little point. How do we treat other people?

Janet Brown: [00:16:13] At the end of the day, they are individual human beings and they're running the gauntlet of a very public and rough and tumble campaign or service. And you are constantly reminded of the poignancy that these are people and that their decisions will involve those closest to them and change their lives.

Howard K. Smith: [00:16:36] I've been asked by the candidates to thank the American networks and the affiliated stations for providing time and facilities for this joint appearance. Other debates in the series will be announced later and will be on different subjects. This is Howard K. Smith. Good night from Chicago.

Nick Capodice: [00:17:02] All [00:17:00] right, that's debate.

Hannah McCarthy: [00:17:03] No, it isn't.

Nick Capodice: [00:17:04] Yes, it is.

Nick Capodice: [00:17:06] Today's episode was produced by me Nick Capodice with you Hannah McCarthy. Thank you.

Hannah McCarthy: [00:17:10] Jacqui Fulton knew Jack Kennedy. Jack Kennedy was a close personal friend of Jacqui's. And Senator, you're no Jacqui's Jack,

Nick Capodice: [00:17:17] Erika Janik is our executive producer and she paid for this microphone.

Hannah McCarthy: [00:17:20] Music in this episode by Chad Crouch, Dyala, Scott Holmes and that composer with the beats so nice and crispy, Chris Zabriskie.

Nick Capodice: [00:17:27] You like political ephemera and deeper dives into these topics. Don't you? Please join our biweekly newsletter, Extra Credit. It's snappy. It's fun. It's at civics101podcast.org.

Hannah McCarthy: [00:17:38] Civics 101 is supported in part by the Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

Nick Capodice: [00:17:50] Oh, come on, do you think I'm not going to put this in here, the greatest debate zinger of all time, we referenced it in the episode, but [00:18:00] you just got to hear it. 1988 vice presidential debate between Dan Quayle and Lloyd Bentsen.

Dan Quayle: [00:18:06] I have as much experience in the Congress as Jack Kennedy did when he sought the presidency. I will be prepared to deal with the people and the Bush administration, that unfortunate event, whatever occur.

[00:18:21] Senator Bentsen?

Lloyd Bentsen: [00:18:24] Senator, I served with Jack Kennedy. I knew Jack Kennedy. Jack Kennedy was a friend of mine. Senator, you're no Jack Kennedy.

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Made possible in part by the Corporation for Public Broadcasting.

Freedom of the Press: Part 1

Note: There is a more recent, updated version of this episode - check our episodes page!

The only working-class job enshrined in the Bill of Rights, a free press is essential to the health of the democracy. The citizens deserve to know what’s going on, so the framers made sure that news could be printed and information disseminated. But how does the press actually do that? Are they upholding their end of the bargain? What does the best version of the press and the news look like?

Helping us report this one out are Melissa Wasser, Michael Luo and Erin Coyle.

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TRANSCRIPT

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

Civics 101

Freedom of the Press: Part 1

Archival from case: [00:00:01] The case, of course, raises important.

[00:00:05] Difficult problems about the constitutional right of free speech and free press.

Hannah McCarthy: [00:00:15] June 13th, 1971, New York Times subscribers wake up to a story about U.S. entanglement in Vietnam. Now, at this point, we've been involved in the Vietnam War for about a decade.

[00:00:27] It was the first televised war, the first time Americans could witness the violence in real time.

Archival from Vietnam War: [00:00:33] Someone dead over there, Sergeant.

[00:00:35] Where? Hit in the crater, sir. This is the worst way to go, everyone agrees.

Hannah McCarthy: [00:00:42] And this New York Times article reveals that the Pentagon has done a study into three decades worth of U.S. involvement with Vietnam.

Archival from case: [00:00:49] On Monday, the attorney general sent a telegram to The New York Times asking them to stop and to return the document. The New York Times refused.

Nick Capodice: [00:00:59] Oh, [00:01:00] the Pentagon Papers.

Hannah McCarthy: [00:01:01] Yeah. The infamous Pentagon Papers, which revealed that the executive branch had lied to both Congress and the American people about the extent of its involvement in Southeast Asia.

[00:01:13] The report was leaked in The New York Times, wrote about it and published some of its contents.

[00:01:18] The attorney general is like, you can't do that. You have to give those papers back and stop writing about them on time said no.

Archival from case: [00:01:25] And on Tuesday, the United States uh started this suit.

Hannah McCarthy: [00:01:31] You're listening to Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:33] I'm Nick Capodice.

Hannah McCarthy: [00:01:34] And today we are talking about the civilian job that was so important to our framers, they enshrined it in the Bill of Rights, the free press, the very thing that hung in the balance of this Pentagon Papers case.

Nick Capodice: [00:01:48] Hold on before we take a step further. And maybe this is glaringly obvious to everyone, but what is the press?

Hannah McCarthy: [00:01:56] The press is a little hard to define these days, [00:02:00] in part because anyone can publish or broadcast anything online. But ideally, the press are people who seek out research and verify the truth and then share that truth with others, people who work for newspapers, radio stations, magazines and television networks, people who learn as much as possible about a subject and then pass all of that information on to news consumers. So those are, you know, readers, listeners and viewers who want information about the country.

Nick Capodice: [00:02:33] Ok, take me back to the Pentagon Papers.

Hannah McCarthy: [00:02:36] All right. The New York Times says, no, we are not giving these papers up and we are going to keep writing about them. It is our First Amendment right.

[00:02:44] This case went from district court to the Supreme Court in 12 days.

Nick Capodice: [00:02:49] What was the United States arguing in the case?

Archival from case: [00:02:52] On the claim, as I understand it, that the disclosure of this information would result in an immediate grave threat [00:03:00] to the security of the United States. However, it was acquired and however it's classified.

[00:03:05] Yes, Mr. Justice.

Nick Capodice: [00:03:06] An immediate grave threat to the security of the United States.

[00:03:10] That is something I feel like we hear a lot when it comes to executive privilege, that the president can keep certain conversations and events private because they're protecting national security.

Hannah McCarthy: [00:03:21] Which is exactly what the president was claiming in this case.

Melissa Wasser: [00:03:25] President Nixon claimed that he had executive authority to basically force the Times to not publish this classified information. And so the court had to kind of wrestle with the question of whether the constitutional freedom of the press by the First Amendment was less of a need than the need of President Nixon in the executive branch to maintain secrecy.

Hannah McCarthy: [00:03:53] This is Melissa Wasser.

Melissa Wasser: [00:03:54] I am a policy analyst for the Reporters Committee for Freedom of the Press.

Hannah McCarthy: [00:03:58] Nixon claims he can [00:04:00] basically suspend the Times' his First Amendment right to freedom of the press.

Melissa Wasser: [00:04:05] And that dealt with what's called a prior restraint.

[00:04:09] And so basically, the court said if you want to exercise a prior restraint on information, you want to stop it before it comes out. If you want to exercise that prior restraint, you have to make sure that there's evidence that you show that by publishing that information would cause a grave and irreparable danger.

Nick Capodice: [00:04:30] Prior restraint, by the way, means preventing somebody from publishing or saying something. So in this case, preventing The New York Times from continuing to publish about the Pentagon Papers. And also, I want to point out that grave and irreparable danger, it's not anywhere in the Constitution. That idea comes from Schenck v United States, a 1919 Supreme Court case that established that First Amendment rights could be restrained, but only and this is a big but only if their expression resulted in a, quote, clear [00:05:00] and present danger to the country.

Hannah McCarthy: [00:05:03] And in this case, New York Times, the United States, the court ruled that it was on the Nixon administration to show strong evidence of that clear and present danger.

[00:05:14] And that it had not sufficiently done so.

Melissa Wasser: [00:05:18] And so at least in that case, the Supreme Court held that The New York Times had the right to print the materials, and that's how we got the Pentagon Papers out into the world.

Interview with NYT post-case: [00:05:28] Well, my reaction was very simply one of joy, one of delight, and one of the now we'll go back to business as normal

[00:05:37] at the Times.

Hannah McCarthy: [00:05:40] The important thing to take from this case is that the Supreme Court really came at it from a strong defense of the freedom of the press clause like they can. I just have you read this quote from Justice Hugo Black's opinion?

Nick Capodice: [00:05:53] Sure let me try my best Hugo Black here...

[00:05:56] The press was to serve the governed, not the governors. The [00:06:00] government's power to censor the press was abolished so that the press would remain forever free to censure the government. The press was protected so that it could bear the secrets of government and inform the people.

[00:06:14] So Justice Black makes no buts about it does he, the press needs to be protected.

Hannah McCarthy: [00:06:18] And he gives us the reason why, he says it right there in the opinion, the press was protected to expose the secrets of government and inform the people. If you think about the checks and balances that keep everybody honest and on track in U.S. government, the press acts as this additional check from the outside.

Melissa Wasser: [00:06:39] It's up to the press to be that accountability measure to keep the government transparent and make sure that people are always aware of what the government does. And so, I mean, the press is so vitally important, especially today, when there's been a lot of protests around racial justice. There's [00:07:00] been a full pandemic that we're currently living and working in. And people want information. People want to know what Congress does and how that affects them, especially when it comes to additional unemployment benefits or, you know, the stimulus check in the first round of the Cares Act, you know, people were really concerned.

Hannah McCarthy: [00:07:19] We know what we know about the daily workings of government because reporters ask questions, they investigate. They track bills and budgets. They keep a finger on the pulse of government, and then they pass it on to the people.

Nick Capodice: [00:07:34] I think we should point out to Hannah that a good journalist or news organization doesn't just hear about something and pass it on. They do their research. They make sure it's true before they share it. And if they can't verify it, they don't share it. And if it doesn't serve their audience, they don't put it out there.

Hannah McCarthy: [00:07:53] Yeah, that's one important thing about the Pentagon Papers to The New York Times spent weeks reading [00:08:00] that report before they decided what were the most necessary and responsible pieces of information to share with the public. They didn't just release the whole thing without context at a much lower stakes level. When I was making this episode, I didn't just speak with people and share what they said. I researched freedom of the press before and after these interviews. I even researched what our guests talked about to make sure that I could talk about it in a way that made sense. And I fact checked.

[00:08:30] And this episode went through multiple rounds of editing before it went out into the world,

Nick Capodice: [00:08:34] Because the whole point of journalism ideally is that it's serving the people. And again, I say ideally because a lot of the information that's out there is not researched, it's not fact checked or edited, but in a government that's supposed to be by and for the people, access to true information about the government is a necessity.

[00:08:54] Thus, the freedom of the press clause.

Hannah McCarthy: [00:08:57] Which is just sitting there in the middle of the First [00:09:00] Amendment right, it goes, Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances. The press both have a First Amendment right and disseminate the information that allows us to exercise our First Amendment rights before we go any further.

Nick Capodice: [00:09:31] And I think we should point out that you and I are beholden to this.

[00:09:37] We are members of the press, and it's not just about rights, it's about responsibility. We are supposed to find and tell the truth so people who listen to us know the truth.

Michael Luo: [00:09:50] So. So the Hutchins' Commission report is kind of considered responsible for the idea of social responsibility as [00:10:00] a notion in the press.

Hannah McCarthy: [00:10:02] This is Michael Luo.

[00:10:03] I'm the editor of newyorker.com, which means I run the online editorial operation of The New Yorker. And when I can, I try to write. Usually about politics and media.

Hannah McCarthy: [00:10:18] Michael recently wrote about this thing called the Hutchins' Commission.

Michael Luo: [00:10:21] Which was a group that met in the 1940s and produced this little book called A Free and Responsible Press. And one of the things that they talked about in the book that I think is a good summary of the importance of the press and democracy is it talks about how a free society depends on the consumption of ideas and the press is an essential component of that traffic of ideas.

Hannah McCarthy: [00:10:50] Now, this is a moment in history where publishers were huge, powerful entities and many members of the public viewed the press as self-interested [00:11:00] and corporate, you know, just trying to commercialize and get bigger. And in the 1940s, fascism was booming in Europe and Americans feared that it could infiltrate the U.S.. So you've got this existential threat and mistrust of the information being spread to the American public. So the publisher of Time and Life Magazines commissioned this inquiry into how the media can best serve democracy. This group gets together to figure out whether the press is doing its job of keeping everyone informed in order to keep democracy alive.

Michael Luo: [00:11:35] They kind of laid out a bunch of key functions of the press, things like providing a daily accurate account of the of the day's events, providing a forum for common discussion, being accessible to everyone, providing a representative picture of society. And just across the board on all of these things, [00:12:00] they were just saying that the press fell short.

Nick Capodice: [00:12:03] That doesn't sound too dissimilar to today. People are worried now about democracy being threatened and people are dissatisfied with the press, which is part of the reason why Michael wrote about this 1940s report today in 2020.

[00:12:16] And a lot of what the commission found wrong with the press are things that we still hear today.

Michael Luo: [00:12:22] A lot of the things actually they found sound familiar today, like they blame sort of the rush to scoops and sort of novelty, they called it. They blamed business interests. They blamed being the press, being vulnerable to manipulation and things like that.

Hannah McCarthy: [00:12:38] At the end of the book, the commission offered some solutions and the focus was on social responsibility. The press had a lot of power, so they had to wield that properly, give citizens the information they needed to foster a healthy, strong democracy.

Michael Luo: [00:12:54] The ultimate conclusion and the one that the one that I think is [00:13:00] still really relevant today was that it called upon the press to that the burden was upon the press itself to fix itself and to improve itself.

Nick Capodice: [00:13:08] I'm always down with self-improvement, but how does the press fix itself, especially when good journalism is often drowned out by a flood of misinformation?

Michael Luo: [00:13:18] You know, we're kind of swimming in information. We're constantly encountering information. A lot of people actually do not on social media, not go on looking for news, but they kind of bump into it. And the question is like, how much news can you actually absorb like that?

Hannah McCarthy: [00:13:33] Michael has thought a lot about what would help us be more informed citizens. And for him, one potential answer is journalism with more context that goes more in-depth and that is consumed more slowly, which is tricky. Right, because how do you convince people to basically eat their vegetables when there's so much candy out there? How do you convince news organizations to grow vegetables when candy is [00:14:00] the thing that sells and selling is what supports the news?

Nick Capodice: [00:14:05] First off, roasting vegetables instead of boiling them. That's a good start, but really making them more enticing.

Hannah McCarthy: [00:14:14] What I find really fascinating about all of this is that our understanding of freedom of the press and how it's tangled up in social responsibility, that is something that happened over centuries of journalism. We can't know for sure what the framers meant. Right. But we created a very weighty freedom and obligation out of that clause in the Bill of Rights. I want to introduce you to one more guest here.

Erin Coyle: [00:14:37] Hello, I'm Erin Coyle. I am an associate professor at Temple University in Philadelphia. And I teach journalism, law and ethics and journalism, writing and reporting. My research focuses on freedom of expression.

Hannah McCarthy: [00:14:54] I asked Erin, you know, we know, for example, what Justice Hugo Black thinks [00:15:00] the framers meant by not abridging the freedom of the press. But what did the framers say they meant?

Erin Coyle: [00:15:05] They were probably thinking more about the word liberty and freedom at that time. From what my reading shows. And the press was different then than it is now. So scholarship really indicates that at that time they were thinking about printers and there was a history of having government censorship of printers, meaning that to be able to print and distribute information, people would have to get permission from some government authority to be able to print and distribute the information.

Hannah McCarthy: [00:15:47] And that, of course, is an easy way to control what citizens are allowed to learn. If the government can say something cannot be printed, then it cannot be distributed. And that means any number of things [00:16:00] will never come to be known by the public.

Nick Capodice: [00:16:02] It was actually a pretty vulnerable choice for the framers to make when you think about it, preventing ostensibly for all time the people in charge from limiting what gets said about them. But then again, those same men had recently printed an attack on their own government by way of the Declaration of Independence when they wrote this amendment.

[00:16:20] So our nation really began with a form of press freedom.

Hannah McCarthy: [00:16:24] That's both really important and pretty basic freedom of the press and journalism means a lot more today. It means journalists are protected from certain retaliation. If they report on the government, it means a reporter can request information from and about the executive branch. It even means that a news team should be allowed to determine what they report on without the business interests of their organization getting in the way. I asked Erin where all of that came from.

Erin Coyle: [00:16:56] So some of this comes from journalists. The notion of [00:17:00] independence and financial independence comes from journalists. We can't have something like that coming from the government because of the First Amendment. But the discussion of press freedom is really different today than it could have been in the eighteen hundreds. For one thing, the Supreme Court really addressed press freedom as something that could be applied to protect journalists against state laws as well as federal laws.

[00:17:35] For the first time in the early 1960s.

Nick Capodice: [00:17:38] It seems like, as freedom of the press has been strengthened in the courts, so too has the responsibility of the press to exercise itself responsibly. Like, if you're demanding access and protection, you have to do it in part on the basis of serving democracy.

Hannah McCarthy: [00:17:58] I talked earlier about journalism [00:18:00] being about not simply publishing or sharing a piece of information, but about sitting with that information, making judgment calls, about whether it's a helpful, safe thing to share journalism, freedom of the press, social responsibility to support an informed citizenry. It's not just about what we do print or broadcast.

Erin Coyle: [00:18:22] It's also about what we don't is one point that isn't often talked about with New York Times versus the United States.

[00:18:32] Well, journalists from The New York Times took weeks to carefully go through those documents and took their time to find out are these valid? Is this real information? And they didn't just put everything online like we would today. They didn't print an entire classified report. They [00:19:00] selected the information that was most important for information. No, journalists make really important decisions and we trust journalists to be working for the public's interest. And there are times that means that we have to consider people's safety.

Hannah McCarthy: [00:19:25] I think my biggest takeaway from all of these discussions is that the press is powerful.

[00:19:30] The framers made the press powerful by giving it the freedom to print without requiring permission. And the press and the courts over time made the press even more powerful. And such as that, power grew, so did our responsibility.

[00:19:45] We taught our readers, listeners and viewers to expect certain things from us. So what does that mean in an era of widespread protest, fake news and a worldwide pandemic? [00:20:00] Check out part two of freedom of the press to see if I can rise to that responsibility.

[00:20:19] This episode of Civics 101 was produced by me, Hannah McCarthy, with Nick Capodice. Our team includes Jacqui Fulton. Erika Janik exercises a lot of prior restraint when it comes to dealing with our shenanigans. We have long-planned to find a way to answer listener questions directly, and we have finally done it. We've got a new thing called Ask Civics 101. It's broadcast here in New Hampshire every Monday and goes into our podcast feed every Friday. It's simple, you email or tweet us a question and we find the answers and make you an episode. We're all just trying to figure out how things work around here. Civics 101 is supported in part by the [00:21:00] Corporation for Public Broadcasting and is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: Why Is the American Campaign Season so Long?

In the United States, campaign season begins long before primaries and caucuses, and ages before the general election. In the past few presidential elections, some people announced their candidacy nearly two years before election day. And listener Charlie wrote in to ask, "Might you consider discussing why the election ‘season’ takes approximately two years?" Indeed we might, Charlie! And we did! Here comes another installment of Ask Civics 101 with NHPR broadcast host Peter Biello where we tackle why, exactly, the American election season is so long.

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Made possible in part by the Corporation for Public Broadcasting.

Ask Civics 101: Why Do We Have the Electoral College?

The Electoral College was created as a bulwark, a barrier between the people and the vote for the president. The founders feared giving people too much power so they created a system that put a check on the people's vote by "men of virtue" (and they were all men at the time). It is because of the Electoral College that a person can win the presidency even if they lose the popular vote — but how does it work, exactly?

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Made possible in part by the Corporation for Public Broadcasting.

Introducing Ask Civics 101: What Are We?

We get a lot of questions here at the show. While we try to answer them in some form or another with our full-length episodes, we’ve always wanted a way to answer you directly. So we launched Ask Civics 101! Send us your questions and we’ll get to the bottom of things for you.

Our inaugural episode addresses a question (and critique) that we’ve received for years here at the show. It's an oft-lobbed claim, "We're not a democracy, we're a republic." And it's half true! We are a republic. But we're also a democracy.

What does that actually mean, and why is the question important? For our first-ever Ask Civics 101, we're answering this not-so-straightforward question: what are we?

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Made possible in part by the Corporation for Public Broadcasting.