The Fairness Doctrine

What can we do with these invisible magnetic waves in the sky? 

Today we explore what we can say on the air. Are radio and television stations allowed to air their opinions in addition to the news? From 1949-1987 all broadcast media was beholden to the Fairness Doctrine; a law that enforced impartiality and civil discourse. So why did we have this law? How did it work? Why did it end? And finally, what are the arguments for and against bringing it back?

Our guest is Larry Irving, who was counsel to the Telecommunications subcommittee when the doctrine was codified into law (and subsequently vetoed) in 1987. 

US Frequency Allocations 2016, from the National Institute of Standards and Technology

Transcript

Archival: And tender pieces of chicken meat, too. That's what makes this such a grand soup. The lavish emphasis on chicken.

Nick Capodice: Hannah. Our show may be transmitted through podcast apps on the Internet, but we do work for a radio station that we do [00:00:30] NPR.

Hannah McCarthy: That we do, NHPR. Our tagline is News from New Hampshire and NPR. Do we have a slogan, though?

Nick Capodice: You know, I don't think we do. We are a proud public radio station. We've got news and programing all day long. We've got lots of bird themed gifts during pledge drives, and we make a lot of podcasts. But I don't think we have a slogan as far as I know. But you listen to the radio a lot. Right.

Hannah McCarthy: I do, pretty much whenever I'm in the car and it's mostly public radio when I do.

Nick Capodice: Okay. Do you ever hear anything like this? [00:01:00]

Archival: Jack I spent the holidays flying back and forth across this country, and I'm worried the place seems all out of focus. Sea to shining sea.

Archival: We've both flown many times, Shayna. Coast to coast. But we see a different land below. You see the bad aspects of American society. They're there. As a critic, I write about these aspects all the time, and I don't mean to minimize them, but there's so much more.

Hannah McCarthy: Uh, no, I do not ever hear anything like this. What is this? Is it a [00:01:30] debate of some kind?

Nick Capodice: Sort of. It's a clip from CBS's 60 Minutes in 1978. It's a recurring segment that they used to do called Point Counterpoint. One person, usually James Kilpatrick, would state an opinion and then the other person would state an opposing view.

Archival: And Nick, until we have something more than hot air. Suppose we keep our feet on the ground.

Archival: I'm surprised that such a strong law and order capital punishment guy like you, Jack, would draw back [00:02:00] at the prospect of a good old fashioned public hanging.

Hannah McCarthy: I got to be honest. It is kind of endearing to me. I mean, two people having a civil argument on the air.

Nick Capodice: Yeah, I find it that way, too. Everybody waiting their turn. Nobody interrupting each other, nobody shouting. And I'm glad you said civil there, Hannah, because this episode is tied to something I have heard time and time again working on this show. What we need more of in America is civil discourse. And regardless of whether [00:02:30] you agree or disagree with that statement, I think we can all agree that civil discourse is quite lacking in the United States. But in the media, it used to be the law. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about a law that was and continues to be extremely controversial, the Fairness Doctrine, federally mandated [00:03:00] civil discourse in the media. What it was, why we had it, why we lost it, and the arguments for and against bringing it back. But before we talk about what it was, Hannah, first, we need to get just a little bit technical. Okay. Not like Rockwell Retro Encabulator technical, but this story indeed does start with invisible magnetic waves in the air.

Larry Irving: So there's this beautiful thing, this beautifully color coordinated map that lays out spectrum used [00:03:30] in the United States.

Nick Capodice: This is Larry Irving.

Larry Irving: My name is Larry Irving and I was a senior staff counsel for the House Telecommunications Subcommittee when Congress was considering the Fairness Doctrine back in the late 80s.

Hannah McCarthy: Have you seen the map he was talking about?

Nick Capodice: Yeah, actually, I got it right here. Take a look.

Hannah McCarthy: Oh, my gosh, This is beautiful.

Nick Capodice: Could you sort of describe it a little bit for our listeners?

Hannah McCarthy: Yeah, it looks kind of like a giant bookcase full of different colored rectangles, all different sizes, you know, So you've got like your coffee table books [00:04:00] and then you've got your Norton's anthology, and then there's your pocket constitution. And in each of these little squares, it says things like maritime radionavigation or aeronautical mobile. There's a massive block here that says Broadcast AM.

Nick Capodice: And I'll put a link to this image on the episode page of our website, civics101podcast.org. If anybody out there wants to take a peek at it. So, Hannah, these hundreds and hundreds of rectangles represent what can be done [00:04:30] with the broadcast spectrum at different frequencies from zero kilohertz all the way up to 300GHz. So if I wanted to use these magical waves in the air to start my own radio station or non-cable TV station or to just send beeps into space, I need to apply for a license from the FCC, the Federal Communications Commission.

Larry Irving: The license was for what in the 40s 50s. And I would say even today is a scarce public commodity, [00:05:00] which is the electromagnetic spectrum. We as American citizens own that spectrum. So when you look at, you know, whether you're talking about a television station or a broadcast station or a cell phone, the spectrum that those entities run on are all owned by or licensed by the federal government.

Hannah McCarthy: Do you have to pay for a license? Is it like renting a little bit of the spectrum?

Nick Capodice: Sometimes, and the cost varies depending on what kind of license you're applying for. A CB radio license is [00:05:30] 25 bucks. A ship's radio signal is free. Commercial radio can be thousands of dollars. One person actually wrote the question of how much a license costs from the FCC is like asking how long is a piece of string?

Hannah McCarthy: Love That.

Nick Capodice: But it all used to be free. The government would just give it to you. But it came with a caveat outlined in the 1934 Communications Act, the act that created the FCC.

Larry Irving: If you go back [00:06:00] to the original 1934 Communications Act, broadcasters have a public interest responsibility. The way broadcasters got the original broadcast license, they didn't pay for those licenses. They thought they were granted a license by the government and in exchange, they were going to quote unquote, serve the public interest, that public interest service included these kinds of responsibilities. So here's the spectrum now. You serve the public with that spectrum.

Hannah McCarthy: Wait, what does serve the public interest [00:06:30] mean here?

Nick Capodice: That is the question that radio stations asked. Is it our job to present news only? Could you just rant and rave on the air? And after a long legal battle that I'm not going to get into too much here, it involved a man accusing a radio station of airing one sided editorials. The FCC in response passed a new law in 1941 getting more specific. It was called the Mayflower Doctrine. And it said that radio stations [00:07:00] had to be neutral in how they talk about politics, they couldn't say good stuff or bad stuff about political issues or candidates.

Hannah McCarthy: In other words, no editorializing allowed, right?

Nick Capodice: None at all. Just the news and programs. And a few years later, that Mayflower Doctrine was repealed to make way for a new doctrine from the FCC. The subject of this show. The Fairness Doctrine.

Larry Irving: Fairness Doctrine was a policy that the FCC had from [00:07:30] late 1940s until 1987 and required broadcasters to do two things. One, it had to cover interests of of public interest. And the second was it had to give a balanced presentation so that both sides had to be presented. Topical issues, political issues, issues of civic import, public policy issues were the kinds of things that we were really looking at; sewer abatements or mosquito districts or taxes or police funding or school funding or school closings or anything that the that that kind of [00:08:00] was community oriented. That was an issue of topical concern. Those are the issues that they wanted broadcasters to cover.

Hannah McCarthy: So you could editorialize on the radio, but you had to have someone else doing the counterargument.

Nick Capodice: Yeah. And if you were a radio host and you said bad things about a politician, for example, you could lose your license unless you allowed that politician to come on the air and defend themselves for an equal amount of time. And later, as the warm glow of the television entered, American living rooms [00:08:30] also transmitted on the same spectrum, it too became subject to the same restrictions.

Hannah McCarthy: And how did the TV people feel about it?

Nick Capodice: They hated it. Hannah. Because at this time, if you ran a newspaper, you could put whatever the heck you wanted in it, but not TV or radio. You had to be fair in those media and stations even made fun of it together.

Archival: That is the subject of tonight's Point Counterpoint. Jane will take the pro. Michele Marvin point while I take the and [00:09:00] tie Michelle Triola. The counterpoint...Dan Times change and so does the nature of relationships.

Larry Irving: But then I remember Jane Curtin and Dan Aykroyd. They did a riff. .

Archival: You wouldn't know about that, Dan, because there's no old saying about what's behind a miserable failure.

Larry Irving: A lot of broadcasters wanted the freedom to be newspapers. They would, you know, if you if you think about 1940s and 1950s America, you lived in a country [00:09:30] where most people got their news from one of two sources, their local newspaper. And the two or 3 or 4 network affiliates actually was 2 or 3 network affiliates in most towns in those days in the 50s and 60s during the heyday of the Fairness Doctrine. So if you're the guy that owns a broadcasting station, you're wondering why does this guy who has a newspaper where both in the in the business of communicating to our community, he's got a newspaper, he can say whatever the heck he wants to and nobody gives him grief. I've got a broadcast license. I'm just as big a shot. I have just as much influence. But I've [00:10:00] got this these constraints on me. I've got to go back and forth. I've got to let both sides air. I can't just say what I want to say.

Hannah McCarthy: Okay, so why does someone who runs a newspaper have free reign to say what they want but not someone on radio or TV?

Larry Irving: Because that guy, he built his newspaper by going out and buying print and ink, you are using a scarce public resource. As long as there are trees, as long as there's a forest, and as long as people can build printing presses, new newspapers can continue to exist. [00:10:30] There can only be two or 3 or 4 people with these licenses in these local communities, and you got one of them. And the federal government did not get dollars from you for that. They got a promise to serve the public interest.

Nick Capodice: And it wasn't just the big TV stations like NBC and CBS who disliked it.

Larry Irving: Among the biggest antagonists for the Fairness Doctrine were Southern stations because they were forced to cover the civil rights movement or they were forced to cover arguments about desegregation [00:11:00] that they didn't want to cover. And they didn't believe that the people in their community wanted to or needed to hear. You know, when you think about the fact that there was zero virtually zero broadcast licensees in the southern United States at a time we were having a robust discussion of desegregation and civil rights. How do those minority voices get heard?

Nick Capodice: One thing that is fascinating to me, Hannah, about this is that some people on both sides, conservative and liberal, despised [00:11:30] it and some people on both sides loved it. For example, Phyllis Schlafly, who fought to destroy the Equal Rights Amendment, she used the Fairness Doctrine to demand airtime, as did the NRA, but also so the Fairness Doctrine was used to force a pro-segregationist broadcaster in Mississippi off the air.

Hannah McCarthy: Okay, so what happened? How and why did the Fairness Doctrine end?

Nick Capodice: Well, I'll tell you about that. And Larry was there when it happened. But first, we've got to take [00:12:00] a quick break.

Hannah McCarthy: But before the break, here's our reminder that Nick and I share things like magnetic spectrum maps, political board games and trivia about the films of Frank Capra in our newsletter, Extra Credit. It is fun. It is free. It comes out every two weeks. Sign up at our website, civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the Fairness Doctrine. And Nick, at the beginning of the episode, we heard it lasted [00:12:30] until the late 80s. So what happened?

Nick Capodice: Well, Hannah, Ronald Reagan happened.

Archival: The Federal Communications Commission struck another blow for Ronald Reagan style decontrol today by voting to scrap the Fairness Doctrine that has governed the nation's television and radio stations for 38 years.

Larry Irving: And, you know, and you got to remember that the 80s was a fraught time.

Nick Capodice: Again, this is Larry Irving, currently a media consultant, but back then, counsel to the House Telecommunications Committee, [00:13:00] as.

Larry Irving: Fraught as the 60s were going from whatever we whatever government was prior to Reagan. You know, when you go from the New Deal and then you go to the fair deal, then you go to the Great Society, then you go to Reagan shrinking government to the size of that, you could drown it in a tub kind of a philosophy. That's pretty wrenching.

Nick Capodice: President Ronald Reagan had appointed a new head of the FCC, Ron Fowler, who had worked on Reagan's presidential campaign. And Fowler released a report from the [00:13:30] FCC in 1985 saying the Fairness Doctrine violated the First Amendment. And then we get to 1987.

Larry Irving: Two things happened in 1987. One, Congress actually passed legislation codifying the Fairness Doctrine. It had been an FCC regulation, and we codified it. Second thing happened Ronald Reagan vetoed it. So first Congress codified it, then Reagan vetoed it and the votes weren't there to override his veto.

Hannah McCarthy: So this was the law of the land. Everyone was obliged [00:14:00] to follow the rules of the Fairness Doctrine from 1949 on, but it wasn't codified through a piece of federal legislation until 1987.

Nick Capodice: Absolutely. And it was Larry's first bill.

Larry Irving: That's an auspicious way to start your job as a new media counsel for the new chairman of the Subcommittee on Telecommunications. And the very first bill that I'm kind of involved in gets vetoed.

Archival: There will be court challenges to today's FCC ruling, and Congress will almost certainly try to pass the Fairness Doctrine into the law of the land, [00:14:30] despite Ronald Reagan's threat to veto such a move as he did before. In Manhattan, I'm Neal Rosenow, Channel two News.

Hannah McCarthy: So Congress codified it. The president vetoed that codification. Does that mean the Fairness Doctrine was just over?

Nick Capodice: Completely over.

Hannah McCarthy: Did anything change right after that happened?

Nick Capodice: Yeah, pretty much immediately Hannah.

Larry Irving: in 1988, Rush Limbaugh happened. Political organizing?

Archival: No political organizing .No badmouthing our president or his policies. You're a foreigner. Shut your mouth [00:15:00] or get out. And if you come here illegally, you're going to jail.

Larry Irving: And Rush really was the first of, you know, what a lot of people predicted would happen was that you'd get one side and that side would be the side that was, you know, corporatist and conservative. And, you know, the voices of the less politically powerful, the voices of those who were in favor of environmental standards or in favor of regulation, who had less economic [00:15:30] standing or political standing in the marketplace would be stifled. I will I will say almost there's almost a direct line from elimination of the Fairness Doctrine and kind of having this hard core political philosophy on the airwaves to where we are today, where you have the kind of just outrageously provocative sometimes and often factually inaccurate. Is that too much of a euphemism? [00:16:00] Content on the Internet and airwaves.

Nick Capodice: And just to clarify here, while Rush Limbaugh was indeed on the broadcast spectrum and would have been bound to respect the Fairness Doctrine if it hadn't been killed, cable TV, satellite radio, Internet radio, those were not under the umbrella of the doctrine. But had the doctrine survived, that umbrella would almost certainly have been expanded.

Hannah McCarthy: Now, Nick, you have told me on several occasions that [00:16:30] you listen to a lot of talk radio.

Nick Capodice: I do, Hannah. And that's because I want to know on any given day what people of all political leanings are talking about. And honestly, Hannah, there is not a balance when it comes to editorializing on the air. Conservatives can argue that public radio is left leaning, but it's just news. It's people covering stories. You can critique what kind of news and what kind of stories get covered. But no public radio host just sits there and says [00:17:00] what's on their mind for three hours, which is precisely what I hear on talk radio. And that talk radio is almost entirely conservative. Left leaning talk radio is an absolute outlier. I grew up hearing Rush Limbaugh in the backseat of my car as a kid, though in full disclosure, I have to share that my dad had a complete political realignment late in life and denounced conservative talk radio. But while Rush Limbaugh may no longer be with us, his legacy remains.

Archival: So of course. It's important that we have to [00:17:30] pretend now that the COVID panic is starting to wind down much to much to the regret of all Democrats everywhere. We have to gin up the the climate crisis again.

Archival: If the mainstream media, big social media and the Democrat Party say that what you say is misinformation or disinformation, it means they know you know the truth. And I was right.

Hannah McCarthy: Okay. So here's my question. Is there an argument that we should return [00:18:00] to the Fairness Doctrine?

Nick Capodice: There are arguments we should there are arguments we shouldn't. And it comes up in the news more often than I had imagined.

Archival: There are renewed calls for a resurrection of what's called the Fairness Doctrine, a regulation requiring balance in the treatment of political issues. But opponents say it is anything but fair.

Nick Capodice: One argument for returning to the Fairness Doctrine is that it forces us to have substantive discourse.

Larry Irving: But for most things, you know, [00:18:30] you can have a give and take back and forth. You can have a really good argument on the Fairness Doctrine. You can have a really good argument on nuclear power. You can have a really good argument on many things in society without going to extremes. And part of that is, as a reporter, as a journalist, you're always seeking objective truth, or at least historically, we're seeking objective truth. How do you do that? You know, so if you were doing a story on climate, who would you talk to? That's what the Fairness Doctrine is really trying to get to. Letting [00:19:00] the consumer get the same benefit that the reporter or the journalist might get as they were trying to dig through a story. But also making sure that minority voices are heard.

Nick Capodice: And on the other hand, now here I am, Hannah, trying to give equal time to the argument. You could consider the Fairness Doctrine as an affront to the First Amendment, because if we were to redo the doctrine, it would have to be reframed to include cable, to include satellite, internet speech, all that stuff. And anyone could accuse anyone [00:19:30] else of presenting biased, one sided reporting. So think about us for a second. For example, we did an episode on the words of the Second Amendment where three scholars shared a similar interpretation that the words were all about a well-regulated militia and had nothing to do with gun ownership until the 1970s. And to comply, we would have to make an equally long episode with other scholars saying the opposite.

Hannah McCarthy: Okay, this is what I have been thinking about too, that there's this [00:20:00] potential for bothsidesism where if you're going to do a show about how climate change is destroying our planet, you have to get one person saying that it is and another person saying that climate change is not destroying the planet or is not real, which in my opinion would not be good journalism. Does every statement deserve a counterargument? And who makes that determination?

Larry Irving: What is the role of government in our lives? You know, to [00:20:30] a by law, segregated society, economically segregated, politically segregated, personally segregated. And it was the federal government that was forcing that segregation. You know, about the same time that was happening maybe ten, 20 years before the Fairness Doctrine. You literally had stations that would not air Petula Clark touching Harry Belafonte's arm on TV because it offended the sensibilities of folks in the South. That was only 20 years before the end of the of the Fairness Doctrine. I [00:21:00] think it is good to hear smart people who are giving the argument that you don't agree with on a regular basis so that you don't just have you're not just in an echo chamber. That's the argument for it. The arguments against it are with for 35 years past it. I don't know if you can put the genie back in the bottle anymore. I think if we'd kept the Fairness Doctrine on broadcasters, that would have been a good, consistent thing. I believe that objective truth is has has has a value.

Archival: Any [00:21:30] day you look on the lunch or dinner menu of the most popular restaurant in town, you will likely find that one dish featured is chicken.

Speaker10: The retro encabulator has now reached a High level of development and it's being successfully used in the operation of Milford, Trunnions. It's available soon wherever Rockwell Automation products are sold.

Nick Capodice: That's it for the Fairness Doctrine. [00:22:00] This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. Christina Phillips is our senior producer. Jacqui Fulton our producer Rebecca Lavoie our executive producer. Music in this episode by the The New Fools, Blue DOt Sessions, SPeedy the Spider, Autohacker, Shiruky, Peerless, Howard Harper Barnes, Lee Rosevere, Lobo Loco, Lundstroem and the man whose music is fair, balanced, and in key, Chris Zabriskie. Civics 101 is a production of a radio station, NHPR [00:22:30] New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Reconstruction: The Laws of the Land

While Black citizens fought for their civil and human rights in the Reconstruction era, state and federal governments alike passed law and policy pertaining to them. Courts ruled. Legislatures made law. These are the legal shifts that both supported the Black freedom struggle and actively worked against it. Our guides to the last part of our Reconstruction series are Gilbert Paul Carrasco, Kate Masur and Kidada Williams.

This two-part Civics 101 series was made possible in part by a contribution in memory of Martin Leslie Schneider.

Transcript

Sponsor: [00:00:00] This episode of Civics 101 was made possible in part by a contribution in memory of Martin Leslie Schneider.

Hannah McCarthy: [00:00:08] I'm Hannah McCarthy.

Nick Capodice: [00:00:09] I'm Nick Capodice.

Hannah McCarthy: [00:00:11] And this is Civics 101. You're listening to episode three and a three part series on reconstruction. This is a series we have had to approach a little bit differently than your average Civics 101 project because the one on one of reconstruction [00:00:30] is. Well, there is no 101.

Nick Capodice: [00:00:35] As in this is not a simple story.

Hannah McCarthy: [00:00:38] It is not a simple story, but it is a story with clear prevailing facts. And if you do want a baseline understanding of what went on during reconstruction in the United States, we cover that in episode two. And if you want to know why, you probably don't know that story. We cover that in episode one.

Nick Capodice: [00:00:59] But this episode [00:01:00] is going to be a little closer to a 101, right?

Hannah McCarthy: [00:01:03] It is because there are the complex social and political machinations of reconstruction, and then there are the laws, policies and legal decisions that both supported it and worked to tear it down.

Nick Capodice: [00:01:17] So today is Recon Law 101.

Hannah McCarthy: [00:01:20] And in fact, we should just say laws and decisions about slavery and freedom, because it all started before the Civil War. And to that end, [00:01:30] let's bring in an expert.

Gilbert Paul Carrasco: [00:01:32] Okay. My name is Gilbert Paul Carrasco, and I'm a professor of law emeritus at Willamette University College of Law in Salem, Oregon. And I'm now practicing law doing primarily constitutional litigation.

Hannah McCarthy: [00:01:47] Gilbert has worked for the Equal Justice Foundation. He's been a lawyer in the Justice Department. He has litigated civil rights cases across the United States. He was the national director of immigration services for the US Catholic [00:02:00] Conference. He's been teaching law for nearly 30 years, and he has most recently gotten into litigating constitutional law cases pertaining to civil rights. So he knows the Constitution.

Gilbert Paul Carrasco: [00:02:13] I've been very fortunate to have the opportunity to make a difference in people's lives.

Hannah McCarthy: [00:02:21] So if we're going to talk about laws and rights and reconstruction, first, we have to establish why our nation nearly tore itself apart [00:02:30] and what the infection was at the heart of that.

Gilbert Paul Carrasco: [00:02:37] There was a very large business in the enslavement of Africans in the United States. And so this had been the case since the inception of our Constitution. And in fact, in Article four of the Constitution, there is a specific provision that says that enslavement should not be discontinued [00:03:00] by any state until at least 1808. And that really persisted until the very first day after 1808, where the effective date of the prohibition of importation of enslaved persons began.

Hannah McCarthy: [00:03:21] Now, this date, 1808, that is when the trans-Atlantic slave trade was prohibited in the United [00:03:30] States.

Nick Capodice: [00:03:30] So basically you could no longer import people. But that doesn't mean at all that slavery itself was prohibited. Correct.

Hannah McCarthy: [00:03:38] And this is an important bit of mental gymnastics here in the late 18th century. This idea that the seizing and importing of people from Africa was a crime against humanity. It was growing in popularity both in Europe and America, but the ownership [00:04:00] of people and the continued domestic slave trade in the United States that was still acceptable.

Nick Capodice: [00:04:08] And when we talk about kidnaping and importation of people, people who white Americans enslaved. I feel it's important, Hannah, that we point out the degree to which America relied upon and institutionalized racialized slavery. The melanin content of your skin determined your eligibility for enslavement. [00:04:30] That was the default that was the norm in the United States.

Hannah McCarthy: [00:04:34] It was this was a trademark of the, quote, new world, actually, that began when Queen Isabella of Spain told her colonizers that they could not enslave the existing populations of south, Central and North America, while colonizers still found ways around these laws to force indigenous peoples into labor. They also set up contracts to kidnap and import people from Africa. Other European [00:05:00] nations did the same, including Britain, which of course includes the British colonies of America. But there was still an issue, especially among British citizens. Traditionally, enslavement tended to be based on a person not being a Christian. Quote unquote heathens could be held in bondage.

Nick Capodice: [00:05:22] But that has a loophole. If they convert, they might be eligible for their freedom. Right.

Hannah McCarthy: [00:05:29] So what [00:05:30] are the other labor options? There are indentured servants in the colonies, people under contract to work for certain period of time, often white working class Europeans, but also Africans who entered willingly into this contract. There were people coerced into it as well. But either way, these indentured servants would eventually earn their, quote, freedom dues. They would be given autonomy, usually [00:06:00] some land and supplies. But ultimately this is a limited workforce. And eventually that workforce demanded better conditions and shorter contracts. Now, there are also many tribal nations in North America, and indeed, the colonists did enslave them. But these nations also had a support system. And if and when they fled, they were already home and home with powerful people who were actively resisting [00:06:30] that colonization and that enslavement. But people kidnaped from Africa, something so many nations were already involved in doing. For those individuals, home was thousands of miles away. So all that is left for the enslavers is the moral quandary. If Christianity makes these people free, you can no longer enslave them once they convert.

Nick Capodice: [00:06:57] So you take that factor away.

Hannah McCarthy: [00:06:59] You take it away. [00:07:00] Colonists who had always defined themselves as Christians or as English citizens, they started to move away from the definitions of Christian and not Christian. They began to define themselves as white. White means freedom. Not white. Not white begins to mean that not only can you be enslaved, you should be [00:07:30] enslaved. Unlike your religious affiliation, the color of your skin is ostensibly immutable. It cannot be changed. And this was the vile, convenient calculation. Moreover, this shift allowed white people to practice hereditary enslavement. If black means inherently enslavable, then the child of a black enslaved person is born enslaved. Colonial governing assemblies [00:08:00] met and agreed on this. This was not some secret unspoken principle. It was law. It was called Partus sequitur Ventrem and declared that, quote, All children born in this country shall be held, bonded or free only according to the condition of the mother. This means that black women's bodies would be treated as a means to perpetuate enslavement and that their children would be a product for the marketplace. This and [00:08:30] other inherently racist policies are inherent to our government. There's a reason that this is enshrined, albeit without ever using the word slavery in our Constitution. We've got the 3/5 compromise, the importation clause, the fugitive slave clause.

Nick Capodice: [00:08:48] Hannah I think we've pretty well established that the fight against slavery in the US was a long, drawn out, often deadly one. Did anyone ever challenge those constitutional [00:09:00] provisions, the ones that enshrined enslavement?

Gilbert Paul Carrasco: [00:09:06] The famous case of Prigg versus Pennsylvania tested the fugitive slave clause, and that involved an enslaved person who had escaped and gotten to a free state. And the question before the Supreme Court was whether he had to be returned by the person who was sheltering him in the free state, and the court ruled that he did. [00:09:30] And so he was returned to the person who was enslaving others in the south. So it was a long road to true freedom for the formerly enslaved.

Hannah McCarthy: [00:09:45] I want to dwell for a moment on this practice of suing for basic freedom. Black Americans, enslaved or not, brought essential simple questions before the court. Am I considered a person? Am [00:10:00] I considered free? Am I who have always lived in this nation considered a citizen?

Gilbert Paul Carrasco: [00:10:07] The denial of citizenship really dates back to 1856 and the Dred Scott decision. The Civil War was largely a result of the Supreme Court's suggestion that Africans who had been imported into the United States had no rights, that the white man was bound to respect. And that was [00:10:30] really a watershed case because it involved the question of whether Dred Scott, an African American, could assert the jurisdiction of the federal courts to raise the issue of his freedom. And the Supreme Court said that he could not because he had neither state nor national citizenship. And therefore, given the conferral of jurisdiction on the [00:11:00] federal courts, diversity jurisdiction, that is litigants on the plaintiff side and the defendant side from two different states, thereby conferring jurisdiction on the federal courts to entertain cases. He was deemed not to be capable of acquiring any kind of citizenship and therefore diversity jurisdiction didn't apply. So he was denied any rights that he might have asserted in federal court. That, of course, led [00:11:30] to the the violence that occurred in the Civil war and thereafter. So that was really the beginning of the violent intervention of the federal government. And that resulted in the death of just countless people on both sides over the rights really of the 4 million enslaved people who had been imported into the United States.

Nick Capodice: [00:11:57] Intervention of the federal government. [00:12:00] Okay. This is what we're getting to, right? I mean, obviously, the civil war represents intervention, but what about law?

Hannah McCarthy: [00:12:08] So I need to quickly mention that in the 1830, as anti-slavery sentiment continued to rise in the United States, Congress was receiving thousands of petitions from abolitionist citizens demanding an end to enslavement. In response, Congress implemented a gag rule in the House prohibiting discussion of anti-slavery petitions. [00:12:30] It lasted for eight years. Slavery was so essential to America that Congress literally did not want to talk about it. Meanwhile, in both slave states and states where enslavement was prohibited, there were laws oppressing, restricting and undermining black citizens. Reconstruction law was going to represent a seismic shift.

Kate Masur: [00:12:59] And it really [00:13:00] wasn't until there was a full scale rethinking of the relationship between the federal government and the states during Reconstruction, that that changed.

Hannah McCarthy: [00:13:12] I'm bringing in another expert here. You might remember her from the second episode in our series. This is Dr. Kate Mazur. She's a professor of history. She teaches race, politics and law at Northwestern, and she is the author of Until Justice Be Done, a book about America's first civil [00:13:30] rights movement, aka Reconstruction.

Kate Masur: [00:13:33] I think it's, you know, really important to kind of wrap our mind around it, not least because it gives us a sense of the real significance of those reconstruction amendments and the reconstruction of civil rights legislation, the statutes that were passed during that time. You can't really understand how important they were if you don't fully fathom like what the United States was like before that.

Nick Capodice: [00:13:52] When Kate says what it was like before that, does she mean, legally speaking? Yeah.

Hannah McCarthy: [00:13:57] State by state, you essentially had piecemeal [00:14:00] laws with no higher power to appeal to. So we think of the laws of the reconstruction era as pertaining to formerly enslaved people, but that is a limited view. We've been saying that reconstruction is not just about the South, not just about what was going on in the former Confederacy. Anti-blackness is a nationwide poison, and in free states there were laws that restricted movement and basic rights of, quote, [00:14:30] free black citizens. And it was in those free states that important sentiments about citizenship and political rights began to take hold.

Kate Masur: [00:14:40] Your fight was not at the federal level, Right. So what is the entity that's making these unjust laws mean? Right. Right now we're talking about it was the states. And so if you were an African-American person living in Ohio in the 1830 or 18 40s and you were faced with this set of state laws that like, let's just acknowledge, you know, [00:15:00] those residency laws were enforced inconsistently so you could move into a community where you weren't actually forced to register and things like that. From what we can understand, the testimony law, the law barring black testimony in cases involving whites was enforced more consistently. But, you know, the point is, what's the source of these laws and these unjust policies? It's your state government. So if you were to say to Congress, hey, Ohio is doing this, can you stop them? You know, Congress would likely be like, no, because they're [00:15:30] fully within their rights to do it. But so the goal was for black activists and their white allies to try to get these laws repealed at the state level. So you would be approaching the state legislature and saying, you know, we need to get rid of these laws. They're totally unfair. But one of the key questions is, how are you going to do that when, first of all, African Americans in these Midwestern states and across the free states were a small minority of the population, and then in many places, including in the Midwest, [00:16:00] black men were not allowed to vote.

Hannah McCarthy: [00:16:02] This position, by the way, does not mean that black Americans and their allies took no action.

Kate Masur: [00:16:09] One of the ways that people had a political voice, even if they didn't have the right to vote, was by petitioning one of the key strategies. And, you know, people might be familiar with the petitioning drives of the abolitionists and the gag rule and all that stuff. But so here's another example, right? In the states at the state level, African-Americans and the long groups of white people [00:16:30] who at the beginning favored repeal, these laws would petition the state government to sort of say, you know, these laws are unfair and they need to be repealed, and anyone could petition, right? So you didn't have to be a voter to petition. You didn't have to be a man. It could be a woman. There were many petitions for women as well as men, black people, as well as white people. And the petitions were effective in part because under the conventions that were operating in that time period, the legislature, especially if there were a bunch of petitions on the same [00:17:00] issue, they were kind of obligated to respond. That's why the gag rule in Congress was so controversial, was because Congress saying we're not going to respond.

Nick Capodice: [00:17:07] But were the states themselves compelled to respond to petitions like this?

Kate Masur: [00:17:11] They were supposed to respond. And so the Ohio legislature and other state legislatures would produce these records. For the most part, the reports would be negative. So you would have a report that would say, absolutely not. We're keeping these laws. They're really important to the safety and security of our state. Occasionally, there would be like a minority [00:17:30] report where one dissenter on the committee would say, here's my argument for why we should repeal these laws and why we should be listening to the black citizens of this state. But whatever the case, the activists were able to use the committee reports to advance their agenda. So we see newspapers publishing the reports with editorial comments. You know, if the legislature came back with like, we're keeping these laws, we're really worried about black migration. But. State and then an anti-slavery newspaper [00:18:00] or otherwise a newspaper that favored what repeal would publish the negative report and say, look at how horrible our state legislature is. Okay, so.

Nick Capodice: [00:18:09] There were newspapers publishing op eds about how awful their legislatures were in terms of how they treated black citizens.

Hannah McCarthy: [00:18:16] Right. And that helped to fuel political mobilization significantly. This mobilization, these newspapers, this spreading sentiment caught the attention of Republicans at the federal level. [00:18:30]

Kate Masur: [00:18:30] Part of the argument, in addition to kind of the ways that this movement was able to shape public opinion, particularly among white people, was also that some of the men who later become during the Civil War and Reconstruction, very powerful Republicans, began their political lives developing opinions about the injustice of anti-black policies in the free states. We see some of the same figures who are involved in this struggle when it's at the state level and before the Civil War. Then come into power [00:19:00] when the Republicans come into national power with the election of 1860. Now they're able to implement their vision in federal policy, whether it's with respect to some place like the District of Columbia, that's like a special place because it's directly under congressional jurisdiction or eventually, especially after the war is over, changing the shape of the federal system by passing these constitutional amendments that really in a brand new way, put the power of the federal government in the [00:19:30] service of individual rights.

Hannah McCarthy: [00:19:32] And we're going to talk about those individual rights after the break.

Nick Capodice: [00:19:35] But first, a quick reminder that there is so much that does not make it into our episodes. I mean, most of it doesn't make it in.

Hannah McCarthy: [00:19:42] That is true. Most of it. And so much trivia. We love trivia.

Nick Capodice: [00:19:48] Luckily, we have a receptacle in which we put all of that trivia and share with you our listeners. It's our newsletter. It's called Extra Credit. It comes out every other week and you're going to love it. Head on over to our website, civics101podcast.org [00:20:00] to subscribe. And while you're there, ask us a question. We are always looking for episode ideas from our listeners. The best topics come from You.

Hannah McCarthy: [00:20:10] And while you're at our website, consider making a donation to support our work. It means the world to us. You can also do that by clicking the link in our show notes.

Nick Capodice: [00:20:26] We're back. You're listening to Civics 101. This is the third [00:20:30] in a three part series on Reconstruction And Hannah. This time around, we're covering legal stuff. What legislators and courts were doing just before and during Reconstruction and how that law guided and did not guide what went on after the Civil War and after the abolition of slavery. And before the break, we were just about to get to the constitutional amendments that have the same name as the era. [00:21:00]

Hannah McCarthy: [00:21:00] That's right. The reconstruction amendments. So leading up to their passage, we've learned that there was activism and action in the United States that essentially laid the groundwork for the federal government to actually do something about the way that black people were treated in America enslaved, abused, oppressed, restricted and dehumanized between political activism and critical media coverage. The pressure was building and the [00:21:30] first federal step away from existing enslavement. It happened in 1863.

Gilbert Paul Carrasco: [00:21:36] The Emancipation Proclamation really had little legal effect, and we were still in the middle of the Civil War. So it was difficult for the rule of law to prevail in any meaningful way at that time, particularly in the South.

Nick Capodice: [00:21:53] And as we learned earlier in the series, the Emancipation Proclamation, an executive order that declared enslaved [00:22:00] people to be free. It did not apply to all enslaved people, only those in Confederate rebel states that were not yet occupied by union soldiers.

Hannah McCarthy: [00:22:10] And as Gilbert says, it didn't really carry the force of law. Ultimately, it was a good way for Abraham Lincoln to win support of abolitionists in America and abroad. And it did. And this proclamation, by the way, it did not change the legal status of an enslaved person. It did not affect the state [00:22:30] laws that enshrined enslavement.

Nick Capodice: [00:22:32] So how did we get to the laws that actually made some kind of difference when it came to the lives of enslaved people?

Gilbert Paul Carrasco: [00:22:39] The whole question of the prohibition of enslavement was broader than a lot of people realize. But in any case, the focal point really, the people who had been brought to the United States against their will from Africa and there were some very courageous people in Congress [00:23:00] at the time who stepped up and spoke out very forcefully. And that really made a tremendous difference in the adoption of all three reconstruction amendments. I think that the framers of the reconstruction amendments were well aware that it would take all three branches of the US government to eradicate enslavement in the United States.

Hannah McCarthy: [00:23:25] I want to pause here for a moment because, yes, there were people [00:23:30] in the United States Congress who stood behind the reconstruction amendments, but really the 14th Amendment, for example, never would have passed without black elected officials in the South who made certain their cause was given its due. We often think of abolitionist northerners and some Westerners as being the heroes of this legislation. Not only are they not the most important driving force, but northern and Western states do not represent a full throated support of [00:24:00] the reconstruction amendments. I'm going to bring in one more guest here. This is Dr. Kidada Williams. She's a professor of African American and US history at Wayne State University and author of I Saw Death Coming A Reconstruction History Told from the Lives and Perspectives of Formerly Enslaved Americans.

Kidada Williams: [00:24:23] Where did your state really stand on the reconstruction amendments? Because it might surprise you. And part of the reason that matters [00:24:30] is because the 13th Amendment barely passed. And that's even with the Southern states. That's even without the Confederates in the union. So it barely passes. And that tells us a lot about the North and the West. The 14th Amendment runs into similar problems.

Nick Capodice: [00:24:47] These amendments barely passed.

Hannah McCarthy: [00:24:49] The first House vote on the 13th Amendment had 65 nays and 23 abstentions. Nays came from all over the country, including the north and West, [00:25:00] including New Hampshire, New York, Pennsylvania, Illinois, Oregon, Connecticut and New Jersey.

Kidada Williams: [00:25:08] I think looking at reconstruction in the north and in the West matters a lot because it will make the world we live in or make our discussions about reconstruction make more sense.

Hannah McCarthy: [00:25:19] Kidada makes the point that there's a distinction between what amendments like the 13th meant to black Americans and what they meant to members of Congress. Even those members of Congress [00:25:30] who would eventually vote in support of reconstruction amendments at the.

Kidada Williams: [00:25:34] End of slavery with the 13th Amendment, you know, going through Congress, going through the states ratified. What you start to see with a lot with that sort of white majority outside the south is a sort of investment in emancipation being only that release from bondage.

Nick Capodice: [00:25:54] Only release from bondage as opposed to having actual rights, freedom, safety, [00:26:00] etcetera.

Hannah McCarthy: [00:26:01] Right. Often where the black community saw immense promise in federal legislation and fought to ensure it federal investment would be insufficient. For example, enforcing the reconstruction amendments, aka allowing black individuals to safely exercise their civil and human rights.

Kidada Williams: [00:26:19] And as long as the federal government makes clear that it's willing to send troops, is that in the face of resistance to reconstruction policies, that they are willing to, you know, pass [00:26:30] the enforcement acts, that they will do things like install a military governor in order to reconstruct the state and bring it back into the union. Enforcement looks like all of these kinds of things. So like you've got like this constellation of activities that the federal government for a time is participating in. It's not enough to completely ensure all or every single African-American enjoys all of their rights or that they face no resistance. But it does put a damper for at least a short period of time [00:27:00] on denials of freedom.

Hannah McCarthy: [00:27:02] And as we move into the substance of the reconstruction amendments, I want to keep exactly this in mind. A damper for a short period of time on denials of freedom, because by the end of this project, that damper insufficient in and of itself is going to go away.

Kidada Williams: [00:27:25] So this is to the question about reconstruction ending. You don't get federal enforcement [00:27:30] or there isn't support for federal enforcement of the reconstruction amendments from not only elected officials, but their constituents in the north and west. Many of the northerners and Westerners, white northerners and Westerners simply want to move on. They want to deal with westward expansion. They want to focus on U.S Empire. They want to focus on the railroads. They want to focus on anything other than reconstruction.

Hannah McCarthy: [00:27:55] We're going to get to that. But I want to reiterate, there was a white Congress [00:28:00] and then there were the black activists for whom we can primarily thank the successes of reconstruction.

Nick Capodice: [00:28:06] And Hannah, I know that for the first few decades of the constitutional Congress, more than half of the elected lawmakers were enslavers.

Hannah McCarthy: [00:28:14] Even after the Civil war began, when lawmakers from the seceded states left Congress, a full 10% of remaining congressmen were enslavers. So yes, there were abolitionists in Congress. We [00:28:30] would not have anti slavery legislation without them. But any notion that Congress, during and following the Civil War, was a fully abolitionist body would be to deny Like you call him Nick. Yeah. Because...How did yo the truth.

Nick Capodice: [00:28:42] But eventually the federal government did opt to pass constitutional amendments that finally outlawed the institution of keeping humans in bondage in the United States. So can we talk about the reconstruction amendments?

Hannah McCarthy: [00:28:58] Here's Gilbert again.

Gilbert Paul Carrasco: [00:28:59] The [00:29:00] 13th Amendment ending enslavement in 1865. The 14th Amendment in 1868 and the 15th Amendment conferring the right to vote in 1870. And so those developments were essential, really, to bring the entire weight of the federal government to bear on those who would desire to continue enslavement of Africans [00:29:30] in the South, particularly. So that was an essential component of the overall reconstruction.

Hannah McCarthy: [00:29:39] The 13th Amendment passed in Congress in 1865. This is after it had failed in the House of Representatives the year before. As I mentioned, it was ratified less than a month later. Nick, would you read it out loud? Yeah.

Nick Capodice: [00:29:53] Absolutely. Quote, Neither slavery nor involuntary servitude except as punishment for crime, [00:30:00] whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction. Yep.

Hannah McCarthy: [00:30:08] Abolition of slavery. Real abolition. Everybody is free. Ostensibly, that is followed by a quick and essential Section two. Congress shall have power to enforce this article by appropriate legislation. That means Congress can create laws to ensure that this amendment is actually practiced. [00:30:30] All right. The 14th.

Nick Capodice: [00:30:32] All right. This one's citizenship, right? This is it. Am I going to read it?

Hannah McCarthy: [00:30:36] This one is a little long for radio. The 14th says, in essence, that all persons born or naturalized in the US are citizens. It also has an enforcement clause and super, super importantly, has this section. Can you read it? Okay.

Nick Capodice: [00:30:52] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. [00:31:00] Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

Hannah McCarthy: [00:31:11] Nick, do you know what this means?

Nick Capodice: [00:31:13] Kind of. I mean, I recognize life, liberty and property that's in the Fifth Amendment, and it's state specific. Bingo.

Hannah McCarthy: [00:31:20] The right to due process of law now extended to the states as well as the federal government. But [00:31:30] I got to say, again, ostensibly the Supreme Court is going to complicate this. This amendment was passed in 1866 and ratified two years later. We will come back to this. But it did not deliver on its promises. Okay. 15th Amendment. You can read this whole thing out loud. It's short.

Nick Capodice: [00:31:50] Okay. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, [00:32:00] color or previous condition of servitude. It also has an enforcement clause.

Hannah McCarthy: [00:32:05] Sure. Does this one means black men can vote. You can listen to episode two of this series to hear how that went. But these amendments are major because it is the federal government both conferring rights and saying that it has the power to enforce those rights.

Nick Capodice: [00:32:22] I think if I've learned anything from this series, Hannah, it's that the federal government did a truly disappointing job of upholding its end of the bargain. [00:32:30] Yeah.

Hannah McCarthy: [00:32:30] And again, that's going to be in part the fault of the Supreme Court. But let's take, for example, the elimination of enslavement. It comes with a caveat. Enslavement is permitted as punishment for a crime that a person has been convicted of.

Gilbert Paul Carrasco: [00:32:46] The early interpretation of the reconstruction amendments was quite varied. It wasn't nearly as protective of rights as the interpretation of those amendments is today. That's [00:33:00] because the the penal system at the time was really harsh. Someone could be sensed in a criminal proceeding to hard labor for a number of years, for example, and imprisonment is very close to enslavement. Freedom is deprived of the individual. There's a regimentation that demands immediate and complete obedience. There really are very few rights within the penal system [00:33:30] even today.

Hannah McCarthy: [00:33:31] There was something called convict leasing, a way to continue forced labor. Convicted criminals would be, quote, leased to corporations like railroads. And given the ways in which blackness was criminalized, this often meant black individuals in forced labor. And when it came to enslavers, it's not as though they suddenly got on board with freedom. Remember, this is a deeply entrenched practice, a practice that was justified by [00:34:00] the invented belief in the inferiority of black people. And many enslavers remained at heart and slavers.

Gilbert Paul Carrasco: [00:34:09] There were a variety of machinations that continued with regard to enslavement. I think the the policy of servitude of requiring people to continue to have their paychecks withheld until they paid back certain monies for [00:34:30] housing and even tools. In some cases, that was another form of enslavement, and that's really involuntary servitude, which is essentially the same. But that kind of practice is, in some cases, even still with us today. This is particularly applicable to temporary farm laborers, many of whom come from other countries, but it's a form of slavery or enslavement. [00:35:00] And I think that this is one of the practices that the farm owners in the South continued to employ even after the adoption of the 13th Amendment.

Hannah McCarthy: [00:35:16] We have already mentioned a bit the Supreme Court's role in undermining the rights of black Americans prior to the Civil War and Reconstruction. And as the arbiter of the Constitution, a power bestowed on the Supreme Court [00:35:30] by the Supreme Court. The reconstruction amendments were, of course, not immune to the justices interpretation.

Gilbert Paul Carrasco: [00:35:38] In 1873, in the Slaughter-house cases, the Supreme Court entertained the question of whether the privileges or immunities clause would be construed to apply the rights contained in the first ten amendments to the states.

Nick Capodice: [00:35:57] All right. Really quickly, slaughter-house cases, they're [00:36:00] quite.

Hannah McCarthy: [00:36:00] Literally about slaughterhouses. Specifically, there was a slaughterhouse monopoly in Louisiana. Butchers were told that they either had to shut down or pay to work on this single business's premises. And these butchers argued that this single slaughterhouse violated several provisions in the 13th and 14th Amendments, as well as their privileges and immunities in the Constitution itself. They said that this monopoly violated their privilege of operating a slaughterhouse and deprived them of earning [00:36:30] a living. Essentially, if they had to pay to work somewhere, they claimed that was involuntary servitude. This monopoly, they said, violated their new 13th and 14th Amendment rights.

Gilbert Paul Carrasco: [00:36:43] And the court determined that it did not.

Nick Capodice: [00:36:48] What does this slaughterhouse case have to do with black Americans or civil rights? Okay.

Hannah McCarthy: [00:36:53] On its face, potentially nothing unless we are talking about black butchers or black slaughterhouse [00:37:00] owners. But when you look deeper, the court is taking an extremely narrow reading of the 14th Amendment, saying that it only applied to black people and only banned states from depriving black people of rights and a super limited understanding of the Bill of Rights, which is that it only applied at the federal jurisdiction level.

Nick Capodice: [00:37:25] But isn't it a major point in the reconstruction amendments that the federal Government now [00:37:30] has a say on what went on in the States?

Hannah McCarthy: [00:37:32] So you can see the issue here.

Gilbert Paul Carrasco: [00:37:34] Even though there was a dissenting opinion, which was really actually the correct interpretation of the historical context, which maintained that this was the whole purpose of the adoption of the 14th Amendment to incorporate those rights that existed vis a vis the federal government as applied as against the states. And so that was [00:38:00] really a very unfortunate decision, and that's what led to the incorporation doctrine, which is a pretty complicated doctrine, but it adopted each right in the Bill of Rights, almost all of them right by right, case by case over the course of several decades, instead of employing the privileges or immunities clause, which would have done it in one fell swoop and would have applied [00:38:30] the Bill of Rights directly against the states all at once.

Hannah McCarthy: [00:38:37] There was an immense amount of promise in the 14th Amendment. The promise of federal protection. The promise of the Bill of Rights applying to everyone. But the court's opinion in 1873 essentially slowed the broad application of rights to a crawl.

Gilbert Paul Carrasco: [00:38:56] It was clearly within the contemplation of the framers [00:39:00] of the 14th Amendment to have the Bill of Rights apply to the States via the privileges or immunities clause, which is part of the 14th Amendment that was debated. It's clear from the debates that that was the intent of Congress, and the court just missed the boat in the Slaughter-house cases in 1873. They just misconstrued the intended meaning of the 14th Amendment. It took so long. There were cases involving [00:39:30] the Eighth Amendment, the cruel and unusual punishment clause. And essentially there were cases involving the double jeopardy clause, too. You can't try a person twice for the same crime. And those cases yielded the execution of inmates because the court decided that the Eighth Amendment and the Fifth Amendment double jeopardy clause did not apply to states, [00:40:00] whereas if those people had been prosecuted by the federal government, they would have had those protections because they were prosecuted by state governments. They did not.

Nick Capodice: [00:40:12] I assume a decision like this also weakens access to basic rights for black Americans.

Hannah McCarthy: [00:40:17] In an atmosphere of white people actively trying to limit those basic rights, regardless of what the federal government said was now the law.

Gilbert Paul Carrasco: [00:40:26] Well, there were a lot of different methodologies used by the southern [00:40:30] states to disenfranchize the newly freed enslaved people. And there were cases, for example, that interpreted state constitutional provisions that required people before they could register to vote to explain to the satisfaction of the registrar the meaning of arcane provisions in state constitutions. So in Mississippi, for example, there were these very elaborate provisions relating to taxation, [00:41:00] and they would be difficult even for lawyers to interpret. But those were examples of the provisions that the newly freed enslaved people were asked to interpret, and failing that, they were not given the right to register. And that just persisted for decades. Really. It persisted until the Voting Rights Act of 1965 was enacted. And even the [00:41:30] Civil Rights Acts of 1957 and 1960 that were intended to address disenfranchisement. They really were not effective in doing so. And it was not until the stronger provisions in 1965 were enacted that people really could go into court and insist on their right to vote. In some states, the formerly enslaved people actually had the majority, and this was always the fear of [00:42:00] the Southern landowners. They were always fearful of rebellion and being overcome by the enslaved workers on their farms. And as a result of reconstruction, there was a period where the federal government insisted on the franchise being extended to freed enslaved people, and that resulted in the election of [00:42:30] US senators and members of Congress.

Nick Capodice: [00:42:44] We know, though, Hannah, that this period of federal insistence was short lived. And I feel like this wild swing from sweeping federal legislation and enforcement to the Supreme Court saying, now, wait a moment. Those amendments are quite limited. [00:43:00] That must have laid the foundation for what became a very successful reign of white terror and black oppression.

Gilbert Paul Carrasco: [00:43:29] It's quite [00:43:30] remarkable, really to think about it, because after that ended with the withdrawal of the federal troops, that was really not to be even on the table again until really, in effect, the 1970s after the Voting Rights Act really became fully implemented. So it's really a remarkable period in our history that there was representation in both houses of Congress for [00:44:00] a brief period of time before the white legislatures took over again and enacted legislation that made that impossible.

Hannah McCarthy: [00:44:09] And we talked about this in an earlier episode. But I think it's important to reiterate a point that Kidada Williams makes, that one of the most insidious elements of the end of Reconstruction was the dwindling of white support for reconstruction in favor of a goal of white progress to the exclusion [00:44:30] of black progress, white power to the exclusion of black power, white forward motion to the exclusion of black forward motion. Here's Kidada again.

Kidada Williams: [00:44:42] There's a historian who says, Well, you know, there's there's this kind of era of hard feelings, you know, where white unionists are very upset about the war. And I would argue, yes, they are, but they are also invested in white supremacy, [00:45:00] and their investments in white supremacy will make it easier for them to kind of whistle past the violence that's happening in the South with the idea of focusing on reconciliation between the two unions. And so what you get is this fixation on a white peace, a peace between white brothers, irrespective of the black men, black brothers and sisters who are still being targeted in the south. And so this focus on reconciliation often drives a lot of [00:45:30] the, you know, policies toward reunification. You know, so you get things like the Amnesty Act, which takes the last of the guardrails off and allows many, many, many more ex-confederates to come back into government. Right. You know, once they regain authority in governance, they are absolutely steadfast in their commitment to dismantling all of the rights and privileges African-Americans had gained access to. Support for reconstruction. [00:46:00] You know, white support for reconstruction dwindles significantly. And then the Supreme Court does its thing in terms of restricting some of the policies of reconstruction, overturning the Civil Rights Act of 1875, which provided equal access to places of public accommodations. And so reconstruction is, you know, it's deliberately targeted with a lot of these policies and practices.

Nick Capodice: [00:46:27] And then, I mean, it's basically a hundred years [00:46:30] before the civil rights era of the 1960s. It is 100 years before the federal government finally does something again.

Hannah McCarthy: [00:46:38] And over the course of that time, the Supreme Court continued to undermine black rights despite the effort of black Americans. Here's Gilbert again.

Gilbert Paul Carrasco: [00:46:49] There were some important cases brought by African-Americans. Homer Adolph Plessy, for example, tried to assert his right to [00:47:00] occupy a white railway car. He was 7/8 Caucasian. Nevertheless, he was denied the right to occupy white railway car by the Supreme Court. And that led to the whole doctrine of separate but equal That persisted until 1954 with the Brown v Board of Education case. So there were attempts to assert rights under the reconstruction amendments in the early days, Plessy v [00:47:30] Ferguson was an 1896 case. But there were many other cases in that era where African-Americans tried to assert their rights.

Hannah McCarthy: [00:47:39] Gilbert basically says that the South was really strong. It got its way. Jim Crow descended and reigned, and that happened because of a lack of federal enforcement. That happened because lawmakers made a promise to uphold these laws, to crack down on violations, to [00:48:00] protect people. And they broke that promise. That happened because the Supreme Court ruled in ways that would today be called unconstitutional. That happened because the executive branch ordered the removal of federal enforcement and then looked the other way. Basically, if you look at the story of reconstruction, you're looking at the story of a country that after establishing and perpetuating an evil and. Odious basic principle of race based [00:48:30] human enslavement, wherein white people were on top in charge and could and should demean, dehumanize, chain and murder other human beings. Well, our country had a hard time giving that up. In every layer of our federal government found a means to let white America down easy.

Nick Capodice: [00:49:04] So, [00:49:00] Hannah, I know this is the last episode of the series. Is this the end?

Hannah McCarthy: [00:49:10] Yeah, this is the end.

Nick Capodice: [00:49:12] You've just described, and I suppose of the series, have continuously described facts that are truly and I've used this word a few times galling. And then of course, so much of it is awesome in the truest sense of the word that in the face of violence, terror, subjugation [00:49:30] and abandonment, black Americans fought and they kept fighting. You said from the beginning that the story of reconstruction is the story of a black freedom struggle. And I guess it's also the story of a really disappointing government and society.

Hannah McCarthy: [00:49:48] Honestly, as I made this series, I realized the degree to which so much of what I read in textbooks throughout my grade school years is about the victory march. America [00:50:00] getting better all the time. I thought often of the Dr. Martin Luther King Jr. Quote quote, The arc of the moral universe is long, but it bends toward justice. I thought of this because I think it is sometimes true, but it isn't necessarily true for the reasons that many of us think it is. It isn't true because that is the default of the moral universe, [00:50:30] that that's how it is, that that's how humans, specifically Americans, are at their core. At our core, we white Americans have been terrifically disappointing in so many ways. We are a nation of enslavement. We are a nation of deeply entrenched and exactingly planned racism. The bend toward justice is because of people, often black Americans, [00:51:00] who had injustice forced upon them and fought and died to lift that injustice from their lives. And that fight has been helped by those who have used their self-appointed power, including some white Americans for Justice, and agreed that injustice is wrong. I said at the beginning of this series, this is a good story. And by that I mean it's a story we should know.

Hannah McCarthy: [00:51:27] It's a defining story. [00:51:30] It tells us a lot about who we are, where we've come from. We Americans love stories like this. But this is not the version of the story we predominantly tell, but it doesn't really matter. People are telling it anyway, and we all have the option to listen if we want to. That [00:52:00] does it for this episode and for episode three. In this three part series on Reconstruction, you can find the first two episodes of the series and every other episode we have ever [00:52:30] made at our website civics101podcast.org. This episode was made by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. Music in this episode by Cobby Costa, Anthony Earls Ferrell Whooten, Alexander Woodward, Charles Holm, Augusta Williamson. Gerard Fang, Paeta, Saura, Commodity, Toby Tranter, Bonkers Beat Club, Matt Large, Friends [00:53:00] with Animals, Oh the City, Ballpoint, Dharma Beats, Martin Kelm, Cospi, Vicky Vox and Xylo Ziko. If you have a question for Civics 101, please go to the website civics101podcast.org. Again, click on the link on the home page and submit it. You are where we get our best episode ideas. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

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.

This two-part Civics 101 series was made possible in part by a contribution in memory of Martin Leslie Schneider.

Transcript

Rebecca Lavoie: [00:00:00] This episode of Civics 101 was made possible in part by a contribution in memory of Martin Leslie Schneider.

Hannah McCarthy: [00:00:10] This episode contains descriptions of widespread systemic racial harassment, violence and killing. Please take care as you listen. I'm Hannah McCarthy.

Nick Capodice: [00:00:23] I'm Nick Capodice.

Hannah McCarthy: [00:00:24] And this is Civics 101. You're listening to the second episode in our series on Reconstruction, [00:00:30] and this one is called The Big Lie.

Kidada Williams: [00:00:36] I got the K through 12 education that most people get about reconstruction, but that didn't make sense to me because I'm like, well, as a descendant of enslaved Americans, I was like, But they were Black people there and freedom is there. So who failed?

Hannah McCarthy: [00:00:50] This is Dr. Kidada Williams. She teaches African-American and US history at Wayne State University, and her latest book is called I Saw Death [00:01:00] Coming, a Reconstruction history told from the lives and perspectives of formerly enslaved Americans. And for the record, I did not come up with the title of this episode myself. The Big Lie is Kidada's phrase.

Kidada Williams: [00:01:13] A part of the lost cause narrative of reconstruction, which I like to call the Big Lie of the 19th century, is that, you know, slavery was abolished. Black people were given their rights and they didn't make the most of their freedom. And so white Southerners had [00:01:30] to do what they needed to do to resurrect their lives. And so that's why they had to establish a Ku Klux Klan, etcetera, in order to restore restore the proper order of things. And so that's the sort of gist of the narrative. And so if you think reconstruction failed, then, you know, it becomes easy to justify not spending that much time with it.

Nick Capodice: [00:01:50] So in this series, we've already covered the fact that we don't teach reconstruction in American schools the way we could be teaching it. And what Kidada has just described, [00:02:00] that's pretty much the go to trajectory for reconstruction education.

Hannah McCarthy: [00:02:04] With plenty of exceptions. And a lot of teachers out there doing their best to teach the actual truth. But yeah, and when Kidada teaches her students that actual truth.

Kidada Williams: [00:02:14] There is a sense of betrayal. They feel betrayed by what they've been told and more specifically, what they've been denied. You know, they've been denied an understanding of the world we live in, how we got here. Et cetera. And it's been done by people they trusted. But the evidence [00:02:30] is all there. The scholarship is there. The sources are there. The Confederates declarations of secession are there. The reconstruction amendments, the texts are all there. You know, for students to look if can look this up online, then why am I not learning this in school? And some of it is about time and complexity. But my students, they all push back on that. They say, no, this isn't just about time, Dr. Williams. This isn't just about complexity. I may not have understood certain things as a kindergartner, but I definitely understand them in high school. And we are being denied access to [00:03:00] an education that would help us understand the world we live in and fight for our American democracy.

Hannah McCarthy: [00:03:17] Okay, so maybe Civics 101 can have a small part in helping people understand.

Kidada Williams: [00:03:24] I started to dig deeper and realized like this history of Black reconstruction in all of the things that happened and all [00:03:30] of the things that black people accomplished. And then what happened afterwards that wore on African-Americans freedom. I understood the world we live in. I understood all of the history. I understood how we got to this point. And so from that point forward, I loved reconstruction for all of the horrors, for all of the disappointments.

Hannah McCarthy: [00:03:50] Today, we're going to talk about what actually happened, the horrors and the disappointments, because in that swirl of terror and setbacks, there was [00:04:00] a huge, powerful vocal community saying that freedom is theirs to have and to live.

Kidada Williams: [00:04:06] I think it's one of the most amazing periods in American history. There's so much potential, right? There was such a great expansion of freedom and African-Americans were at the center of it. I feel like that. And that's the part that my students say, you know, they tend to cling to their like. But African Americans, they fought for all of this. And I say, yes, they absolutely did. But then that history gets erased.

Nick Capodice: [00:04:38] And [00:04:30] we're going to talk about what is erased.

Hannah McCarthy: [00:04:41] We are. The prevailing narrative, the narrative that supports the big lie is that reconstruction is the governmental project of bringing formerly Confederate states back into the union following the Civil War and facilitating the citizenship of Black Americans, many of whom had been enslaved. On [00:05:00] its face, fine. But a major throughline in that narrative is and it didn't work. It was a failed project. So what is the real substance of reconstruction? It's a Black freedom struggle, a democracy building, nationwide activist movement, perseverance in the face of violent white terror, and a government that was not putting its money where its mouth is.

Kidada Williams: [00:05:27] The federal government didn't enforce [00:05:30] the rights. They didn't provide the protection. And we'll get into, I'm sure, when we discuss the reconstruction amendments that, you know, that there are enforcement clauses in every single one of them. But what we see is that federal officials just don't enforce them. And that has a lot to do with the larger sentiments and investments in anti-Blackness across the country, not only in the south, but also in the north.

Nick Capodice: [00:06:11] Okay. [00:06:00] Can we get a timeline here? Like before we establish what rights were being promised and denied and what was going on in this struggle for true freedom. When and where are we exactly?

Hannah McCarthy: [00:06:23] Okay. Abraham Lincoln was elected in 1860. He ran in part on a platform of not permitting slavery [00:06:30] to expand into the Western territories. Seven Southern states seceded in response to his election and his stance on slavery. War ensued. It was four years of fighting in 1863. Lincoln issued an executive order saying that enslaved people are and would henceforth be free.

Nick Capodice: [00:06:50] And this is the Emancipation Proclamation.

Hannah McCarthy: [00:06:53] It is. Except it only applied to the parts of the nation that were in rebellion and had not yet been occupied by union troops. [00:07:00] A million people remained enslaved. To clarify, enslaved people in, quote, loyal states were not declared free, nor were enslaved people in Confederate states that had come under northern control. And the millions of now, quote, formerly enslaved people, they had this proclamation of their freedom, but it didn't mean they had their freedom.

Nick Capodice: [00:07:25] As in that didn't mean that enslavers suddenly announced to the people [00:07:30] they were enslaving that they were free to go.

Hannah McCarthy: [00:07:32] It was not until Union troop lines reached parts of the Confederacy that most enslaved people could attempt to leave their enslavers. The proclamation did mean that Black men could join the Union Army, though even that meant facing strong discrimination and radically unequal pay. Ultimately, the Emancipation Proclamation did gain Lincoln political support in the North and with some European powers. It's important to be clear [00:08:00] this executive order was not so much about abolishing enslavement as it was about garnering support for the Union cause. And it did.

Nick Capodice: [00:08:09] And when in this timeline was Lincoln assassinated?

Hannah McCarthy: [00:08:12] 1865, more than two years after the Emancipation Proclamation, and just a few days after Robert E. Lee, leader of the Confederate Army, surrendered, Lincoln's vice president, Southern Democrat Andrew Johnson, assumed the presidency. Johnson was a former enslaver He [00:08:30] was regressive, racist, essentially nostalgic for an era of separate and unequal races. And he implemented a postwar plan that was about bringing the South back in both to the union and Congress.

Nick Capodice: [00:08:43] And this postwar plan. This this is Reconstruction.

Hannah McCarthy: [00:08:47] This is Reconstruction. Except Johnson called it restoration. And he gets his plan going while Congress, a majority Republican Congress, was in recess. And this made Congress [00:09:00] really mad.

Kate Masur: [00:09:07] The summer of 1865 and into the fall of 1865 is a really pivotal time for reconstruction. It's a time when a lot of people are watching to see what's going to happen with these new governments that are being established under Johnson's policy. And it's an extremely violent time.

Hannah McCarthy: [00:09:22] This is Dr. Kate Masur. She teaches the history of race, politics and law at Northwestern, and her most recent book is Till [00:09:30] Justice Be Done: America's First Civil Rights Movement.

Kate Masur: [00:09:34] So one of the things that's happening on the ground in the south, there's still a lot of United States forces deployed on the ground. There's tremendous outpouring of violence by white Southerners against Black Southerners and to some extent against white unionists as well. And so by the time Congress comes back into session in December of 1865 and they've been out of session, so Congress couldn't really do anything while Johnson's program was unfolding, you know, they could [00:10:00] have only come into session if the president had called them. By the time they're back in Washington in December of 1865. A lot of Republicans are really dismayed at what's going on with Johnson's policy. And that's kind of the beginning of increasing Republican like solidarity around what the policy should be going forward and trying to take it out of the hands of Johnson.

Nick Capodice: [00:10:20] And just to clarify here, Hannah, when we say Republicans, we're talking about the Republican Party before it realigned its values and its politics, this [00:10:30] Republican Party was relatively socially liberal for the time. It was progressive. And for the most part it was pro-abolition.

Hannah McCarthy: [00:10:37] And the Democrats were, by and large, conservatives for the most part, pro-slavery. Now, Johnson was the rare Southern Democrat who was not, policy wise, pro-slavery, though keep in mind he was a former enslaver, but in reconstruction he promised to disenfranchize wealthy former enslavers and Republicans had this expectation [00:11:00] that he would carry on their preferred plan for this postwar period, a plan with consequences for enslavers. He didn't.

Kate Masur: [00:11:09] It turns out that he. Was not nearly as kind of determined to disempower the southern white elite as he seemed in his initial policy because he began pardoning all of these people.

Nick Capodice: [00:11:21] So this is why Congress was thinking we have to take the power out of this man's hands.

Kate Masur: [00:11:27] Republicans are coalescing with each [00:11:30] other across their own divisions in opposition to the president was important in that they had a kind of shared enemy. And because Johnson, you know, Johnson's vetoes of the Civil Rights Act and the Freedmen's Bureau bill in 1866 were so surprising to so many Republicans, they thought that they they thought that they kind of were on the same page with the president. And then he comes along and vetoes these measures that seem quite reasonable. So a lot of Republicans and so, you know, they're outraged.

Nick Capodice: [00:11:57] All right. Hold on. First of all, Freedmen's Bureau [00:12:00] Bill?

Hannah McCarthy: [00:12:00] The Freedmen's Bureau was a federal agency established early on in reconstruction in 1865 to provide food, clothing and shelter to freed people in the south. A year later, Congress proposed and passed a two year extension of the bureau and its activities. Johnson vetoed its extension, but Congress managed to override that veto.

Nick Capodice: [00:12:22] And Kate said the Civil Rights Act. So when I hear civil rights, I think 1964.

Hannah McCarthy: [00:12:27] Well, that might be because we tend to talk a lot [00:12:30] about the civil rights era, the 1960s in America. But the 1860s, that was the first one. We're going to talk about the reconstruction amendments in greater detail in another episode. But Congress passed the 13th abolishing slavery in the United States in 1865. In 1866, the first ever civil rights law went to Johnson's desk. He vetoed it. Congress overrode that veto, and this act declared that all people born within the US were citizens [00:13:00] regardless of race, color or previous, quote, condition of slavery or servitude.

Nick Capodice: [00:13:06] And this is significantly different from we are abolishing slavery, right to say that being born in the United States makes you a citizen is a completely different ball game.

Kate Masur: [00:13:17] I mean, I think one of the things that that a lot of people don't know or hasn't gotten enough attention is amidst to what we understand is the abolitionist movement, which was a movement against slavery and a movement to [00:13:30] say that slavery was wrong and needs to be abolished. And that is really important. A fair number of people know about that. It gets taught to some extent in our schools, but alongside that was also this movement that was about racial equality and civil rights, right? And these debates in the free states about if you're going to have a free society, a society where you don't have slavery, is it okay to have racial discrimination or are we going to get rid of racial discrimination completely? Or in what realms? And even if those questions seem to us to be like, [00:14:00] well, of course we're opposed to racial discrimination, but actually these were live questions. And it's worth asking how did we get from race based slavery to some kind of consent versus that racial discrimination is wrong, Right. That was not the direction that most white people were going.

Hannah McCarthy: [00:14:26] Kate points out that if you look at what are called Black laws, these [00:14:30] are laws in states like Ohio and Illinois that restricted movement of black people, that prohibited them from serving on juries or in militias. We should not take for granted this principle that the United States was not headed for an apartheid system.

Nick Capodice: [00:14:45] Apartheid being the legal segregation system that South Africa had for decades.

Hannah McCarthy: [00:14:50] Exactly that. Kate says that if you look at what states were doing, you can see that that was a major goal. And let's be very clear here that [00:15:00] while we are talking, by and large about the southern United States and former Confederate states, this anti-Black sentiment permeated the entire country, not just the South. In Ohio, Black people were prohibited from holding office, from voting. Testifying against white people in court. Living in Ohio without proof of their freedom. In Illinois, Michigan, Iowa and Wisconsin, there were strict restrictions on free Black people entering the state. Indiana [00:15:30] and Oregon banned free Black people altogether, with Oregon initially including a provision for whipping Black people who violated this law. Throughout the early and mid-19th century, New York, Connecticut and Pennsylvania restricted or took away entirely a Black man's right to vote. So the Civil Rights Act of 1866 and the federal government proclaiming from on high that people in this country do have rights. That was huge.

Kate Masur: [00:15:59] So [00:16:00] the United States government had never passed a law saying that at the federal level there was going to be any kind of promise of equality, any kind of statement of anti racial discrimination. This was the first time that the US government did that, and it was passed in the winter of 1866 by Congress, by Republicans in Congress. And you know, what it said was basically that all citizens, regardless of race or color, shall have the same civil rights as white citizens. And it didn't literally say [00:16:30] civil rights, but it says the various rights to own property, to enter into contracts, to sue and be sued, things like that that are what 19th century people understood to be civil rights. Highly significant because it gives a federal enforcement mechanism to it says that federal officials, federal marshals, federal judges can step in to what would otherwise be local disputes and enforce the civil rights of people of color. If local officials are not going to or if people can't get justice in their [00:17:00] local and state courts. And so it's an example of really changing the balance of power and putting the federal government behind this idea of nondiscrimination. And that is absolutely the first time that that happened in the United States.

Nick Capodice: [00:17:14] Okay. But isn't this what the 14th Amendment did when it was ratified in 1868? It granted citizenship to all persons born or naturalized in the US.

Hannah McCarthy: [00:17:23] Well, that's another piece of the enforcement principle. Amending the Constitution itself carries an immense [00:17:30] amount of weight. It further gives the federal government teeth to say this is a violation of a fundamental American.

Nick Capodice: [00:17:37] Right, as in the law of the land says this person is a citizen and that means they are due X, Y and Z.

Hannah McCarthy: [00:17:45] And this is all well and good in theory. Those words are important. But Reconstruction tested that theory. I've told you that the true story of Reconstruction is primarily that of Black Americans fighting to assert [00:18:00] their promised rights, their freedom. And that is the story we are going to tell. That's after the break.

Nick Capodice: [00:18:07] But before the break. A quick reminder that Civics 101 exists because of you. This project could not happen without the support of our listeners. So if you're someone who's able to make a contribution to the show, we are asking you to take a moment today and do exactly that. And we promise to do our best to keep making a show worthy of that listener support. You can make a contribution right now at our website, civics101podcast.org, [00:18:30] or by clicking the link in the show notes.

Hannah McCarthy: [00:18:37] We're back. You're listening to Civics 101, and this is the second episode in our three part series on reconstruction. And Nick, as you know, we're calling this episode The Big Lie. That is because the truth of Reconstruction, what was really happening and who mattered most during the years following the Civil War is often glossed over [00:19:00] or erased. And this podcast has the joyful and painful marching orders of trying to tell the truth about America. So here we go.

Nick Capodice: [00:19:14] And Hannah, right before the break, you had said that legislation like the Civil Rights Act of 1866, like the 13th and 14th Amendments, these were all well and good in theory, but reconstruction is where they were tested. So what did emancipation [00:19:30] and citizenship really look like for Black Americans?

Hannah McCarthy: [00:19:34] To understand that, let's go back a bit before our emancipation.

Kidada Williams: [00:19:39] The vast majority of white Americans, not only in the South, but in the north and the West, believed that released from bondage and maybe paid for their labor is all Black people should get at the end of slavery.

Hannah McCarthy: [00:19:53] This is Dr. Kidada Williams again. We first met her at the beginning of this episode. Kidada wrote a book called I [00:20:00] See Death Coming. In it, she shares the stories of formerly enslaved people and the lives they built under the promise of reconstruction and in the face of extreme white resistance and violence.

Kidada Williams: [00:20:11] So the abolitionist movement is a multiracial movement. But when we look at the white folks in there, the vast majority of them can thread the needle very easily. Slavery is wrong, but we believe that only white people should enjoy a piece of the American pie. So this is, you know, their sort of worldview.

Nick Capodice: [00:20:29] So sort [00:20:30] of looking at slavery itself as a vile institution, but not looking at the actual human beings in bondage, Black human beings as equal people who needed the same rights and privileges.

Kidada Williams: [00:20:42] So there's a lot of resistance to emancipation because there's concerned about what might follow, including black people pressing for and possibly getting racial equality and coming through the Civil War, accepting emancipation, The Emancipation Proclamation as a way to quickly end the war [00:21:00] is something that unifies many white northerners and Westerners. But in their minds, they say, Well, this is all there is to it, because the Emancipation Proclamation says nothing about equal rights. It says nothing about equality. It says nothing about voting rights. Okay, fine, we will accept this. But at the end of slavery with the 13th Amendment, you know, going through Congress, going through the states, ratify what you start to see with that sort of white majority outside the south is [00:21:30] a sort of investment in emancipation, being only that release from bondage.

Nick Capodice: [00:21:36] And with that kind of prevailing white worldview. It sounds like emancipation is. not really the great promise it might seem on its face.

Hannah McCarthy: [00:21:45] And Black Americans call bunk.

Kidada Williams: [00:21:48] African-Americans and their allies. That's not what they think. You know, they believe that what African-Americans are entitled to after slavery is justice. And what justice [00:22:00] looks like is everything that slavery didn't. So for them, they wanted freedom to mean everything that slavery did not. They wanted what the historian Hassan Jefferies called freedom rights. And these are all the rights and liberties that Americans take for granted. Slavery had denied black people these rights, and black people were determined to have them. But the white majority, like I said, believed that emancipation should only mean release from bondage. And so it [00:22:30] takes white abolitionists like Thaddeus Stevens, Charles Sumner, Lyman Trumbull and others to go back through and say, you know, black people are running into a wall of resistance. So for one, enslavers didn't release them all from bondage easily. There's a lot of violence, extensive violence as people are trying to get away from slavery.

Hannah McCarthy: [00:22:54] We need to pause on this prior to the end of the war, but long thereafter [00:23:00] to emancipation and the prohibition of enslavement did not mean instant freedom or safety. And again, this is not something that we reinforce in American schools, but it is so important to understanding the truth of this era.

Kidada Williams: [00:23:15] We see extensive violence from 1865 on forward. So this is before African-Americans get the right to vote. And I think that's the point that I was trying to make earlier about enslavers, not just releasing people from bondage, like very easily, [00:23:30] like we get these stories. I should be clear, they do exist. There are instances where enslavers pull the people they hold together in bondage and say, You're free. You're free to go. You can stay and work if you want to. What's also happening at this time is there are people who are saying, Well, you can't leave or you can leave, but your children have to stay. Which is an act of violence. Right. And if you try to if you try to resist, if you try to get your children, if you try to take your children with you, you're going [00:24:00] to be attacked. You might even be killed in the process. What we know is that we don't even know how many African-Americans are killed going back to farms and plantations to get their loved ones out of bondage because they're still being held there in violation of the Emancipation Proclamation and then definitely in violation of the 13th Amendment. And so, you know, there are instances where, [00:24:30] you know, African-American men who served in the war leave the war and they go home to the farms and plantations where their loved ones were held, and they're killed in the process of trying to liberate or to get their people out of bondage because they're still being held there against their will. So there's a lot of violence and there are a lot of attacks on newly freed peoples. And this isn't just sort of spontaneous violence. This is deliberate targeting.

Hannah McCarthy: [00:24:58] Something entirely missing from my education. [00:25:00] And I will hazard to guess that of many students in America are the stories that Kidada tells in her book. The stories of individual people who faced truly horrifying threats and violence. People who at a base level were simply attempting to leave the institution that the federal government had declared prohibited.

Kidada Williams: [00:25:24] There was a report of a clergyman, I believe it was, who reported that along [00:25:30] some of the roads in Alabama, the roads stank of dead or slain African-Americans all along the road. And it's presumed they were trying to escape. You know, and there are reports of attacks on people, newly freed people. People who've managed to get away from their enslavers. They're killed, you know, just going about their daily business. You know, a lot of them are apprehended on boats [00:26:00] as they're trying to leave along the rivers or they're shot on the boats. One woman there's a story of a woman who was traveling. She's newly free. She's even got like chickens with her and a coop. And she and the chickens are thrown into the river to drown. And what you know, what they say is that she can go to the Yankees, Right. You know, which is what she was trying to do, probably trying to get away from the people who held her in bondage. And so there is resistance to black people leaving farms and plantations. [00:26:30] There's resistance to them establishing work agreements. There is violent resistance when African-Americans resist not being paid for their labor. There's resistance when African-American parents won't apprentice their children to the people who held them in bondage. And this resistance is a denial of African-Americans rights to be free. And so African-Americans are experiencing extreme amounts of violence, and the historical records are full of accounts. [00:27:00] You know, there are generals who say there are too many people to count and Freedmen's Bureau agents are writing down they're sending in reports to D.C. about all of the people who were killed. And this is before 1868.

Nick Capodice: [00:27:20] So the government knew they had reports.

Hannah McCarthy: [00:27:23] To me, this makes the absence of these stories in American education all the more galling. Yes, [00:27:30] the government knew there is documented evidence of this violence. I want to make very clear what Black Americans were up against when I say lynching. Nick, do you know what I mean?

Nick Capodice: [00:27:43] Yeah, I think of murder, violent murder often by a group, often of Black people, and often by hanging.

Hannah McCarthy: [00:27:54] More than 2000 Black Americans were murdered during the reconstruction era. This [00:28:00] looked like North Carolina in 1865, when six Black men demanded pay for their labor and were killed for asking. This looked like Arkansas in 1866, when 24 Black men, women and children living in a refugee camp were found hanging dead from the trees. This looked like Louisiana in 1868, when 53 Black people were attacked and killed by a white mob in order to suppress their vote. We do [00:28:30] not often tell these stories, Nick, but if we're going to understand what Black people were fighting against, what the stakes were when it came to being paid for work, attempting to participate in the political process, we need to actually understand and acknowledge this murder was a common tactic to suppress civic and economic participation.

Nick Capodice: [00:28:54] And Hannah, what was the federal government doing in the face of all this? Like they know they know about [00:29:00] the violence, the killing, their sweeping denials of rights. Isn't it their responsibility to step in?

Hannah McCarthy: [00:29:07] Well, first things first. Federal enforcement was never really sufficient. But yes, they did do some things. They passed laws when they heard reports of violence of Black Americans being denied the right to marry, to establish contracts, to own land, to practice religion, to access schools. [00:29:30] Congress voted And the Civil Rights Act we mentioned earlier was passed to address what congressmen are being told in no uncertain terms was the violent resistance to what should be basic existence in America.

Kidada Williams: [00:29:51] So the Civil Rights Act of 1866, the original title is an act to protect all persons in the United States of their [00:30:00] civil rights. And so it essentially says, be it enacted by the Senate and House of Representatives of the United States of America in Congress, that it that all persons born in the United States and not subject to any foreign power are hereby declared to be citizens of the United States and such citizens of every race and color withoutrillionegard to any previous condition of slavery or involuntary servitude except [00:30:30] as punishment for a crime.

[00:30:33] Shall have the same right in every state and territory in the United States to make and enforce contracts to sue, be parties and give evidence to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property [00:31:00] as is enjoyed by white citizens. What this means is that all of those things that black citizens had been denied the right to make contracts, the right to marry, to have their marriages recognized, the right to access and purchase land, to sue and testify in court. Ostensibly Black citizens now had those rights. The federal government is now saying African-Americans have a right to have [00:31:30] all of these rights.

Kidada Williams: [00:31:32] And that if states deny them, there will be consequences. And so what we see is that as a result of African-Americans agitation and activism for this more just world, for the freedom rights that they believe they're entitled to, we see federal officials laying down. They sort of establish this new order with the civil rights bill of 1866. And I'll just say, like and it is an extension [00:32:00] of the rights that free Black people have been agitating for before the Civil War. You've got people like Martin Delaney and others who are facing these denials of their freedom, their right to movement. Et cetera. And they're saying, you know, Delaney is one of those people who says we have a birthright citizenship. You know, we have a right to all of these rights and privileges that all other Americans enjoy by virtue of us being born here. And so this isn't something that, you know, radical Republicans just sort of [00:32:30] decide that they're going to do out of the goodness of their hearts. It's because they understand, but they believe that there should be justice after slavery. And they are definitely listening to African-Americans about the resistance they're encountering to their freedom.

Nick Capodice: [00:32:58] Hannah, this feels like a major [00:33:00] part of the point that scholars like Kidada Williams and Kate Masur are trying to get across, that things weren't happening because white politicians wanted it to be so, because they felt it was the good and right thing to do. Progress for Black Americans was the result of Black Americans fighting for.

Hannah McCarthy: [00:33:16] It and saying to government officials, give us the tools to fight for it.

Kidada Williams: [00:33:20] So one of the things that we see in terms of black people's political activism during this period is black people are suing left and right. Right. They are suing in [00:33:30] court. And even their right to sue is contested. It's questioned, especially in light of the Dred Scott ruling. Whether or not they even have the right to sue for someone denying them pay for their labor or denying them access to land, all of that is still up in the air. It's question. But African-Americans are steadfast. So African-Americans are protesting. They're writing letters. They're sending delegations to D.C. And what federal officials recognize is that they essentially have to [00:34:00] authorize or they have to make a public statement that African-Americans have a right to have rights.

Nick Capodice: [00:34:07] So I know we see the Civil Rights Act and the 13th and 14th Amendments, but what about the vote? At what point does Congress finally decide, you know, what enfranchisement is included in citizenship, at least for men?

Hannah McCarthy: [00:34:22] Even that Nick comes out of violence, resistance and documentation on the part of black Americans who know they have a [00:34:30] right to what they're being denied. So Congress knows about these protests. They're reading the letters. They're meeting with delegates of Black Americans and they're finally saying, okay, well, what else might help here? And they decide maybe if African American men have the right to vote, maybe if they have the power to govern, maybe if they have authority, they can protect themselves.

Kidada Williams: [00:35:06] They [00:35:00] might be mayor, they might be deputies, etcetera, so they can enforce the law to help protect their rights. And so the push for voting rights for African Americans in the South, part of that has to do with the idea that they might be able to ward off some of this violence if they have authority in local governance. African-americans who were free before the war certainly wanted [00:35:30] it, and they believed that newly freed African-Americans should have it. So there is desire for it. But the sort of anti-Blackness and the concern of a large free black population, particularly a voting one, was enough to give most white Americans pause. So there wasn't uniform, there wasn't universal support for black people voting. There is a lot of sort of white fear and concern, which we must put in scare quotes because it's manufactured about black people voting [00:36:00] and having a say in American democracy. So there isn't widespread support for it. But there the sort of drumbeat for radical Republicans gets louder and louder as they're as they are hearing and reading about these reports of this sort of war that white Southerners are waging on African-Americans freedom.

Nick Capodice: [00:36:22] Is this around the time that Congress passes the 15th Amendment, that states are prohibited from denying the vote to anyone based on the color of their skin? [00:36:30]

Hannah McCarthy: [00:36:30] The 15th Amendment was passed by Congress in 1869 and ratified in 1870, nearly five full years after the official end of the Civil War. Of course. What have we learned here? Words are one thing. Enforcement is quite another.

Nick Capodice: [00:36:47] One of the things I do remember from learning about Reconstruction is that there were troops in the South to enforce these rights to protect Black Americans who were exercising them. But from all this, it doesn't really sound [00:37:00] like black people and their rights were being meaningfully protected at all.

Hannah McCarthy: [00:37:04] Right. See, you did have federal troops in certain areas, but not thousands of them. The war is over. Soldiers are ready to go home. Ex-confederates are saying, Hey, we surrendered. What are you still doing here?

Kidada Williams: [00:37:18] So there's intense pressure to sort of reduce the reduce the footprint of the US Army. And so that army is shrinking, right? And [00:37:30] so even when you have instances where there is a troop buildup, we're not talking about thousands and thousands of troops. We might be talking about a couple of dozen, you know, and a lot of times they're stationed in, you know, Jackson, Mississippi. But the violence is happening 300 miles away. Right. You know, or it's happening, you know, 200 miles away. And because the people who are targeting African Americans freedom are calculating. Right. You know, they're not necessarily going to do it while [00:38:00] federal troops are there. You know, they'll do it in the areas where they're not. And so a lot of this violence goes unpunished and it goes unpunished because, you know, not only because of white Southerners, but because of white northerners and their kind of indifference to what's happening in white Westerners in terms of their indifference to what's happening in the region.

Hannah McCarthy: [00:38:19] Kidada says that though white unionists in the South could be of some help to these targeted communities, it was never enough to save everyone, and troops rarely [00:38:30] arrived soon enough to stop murders. What is happening during reconstruction is that formerly enslaved people are asserting their rights loudly and the threats of violence, the threats to their lives. These are not sufficient to stop that.

Kidada Williams: [00:38:47] You know, there are Black majorities in, you know, different places in Mississippi, in Louisiana, etcetera. And so African American men are able to not just vote, but run for office and [00:39:00] win. And they vote a lot and they win a lot. And what we see them do once they are elected into office is they help implement some of the most democratic reforms, some of the most egalitarian reforms in the south that had been seen.

Hannah McCarthy: [00:39:19] Black officials established public school systems in the South. They created asylums. They campaigned for land reform. They ensured access to funds [00:39:30] and resources for other Black citizens to establish businesses.

Kidada Williams: [00:39:34] What they are trying to provide for the entire nation is or for the entire region, particularly in the South, are all the rights, privileges and freedoms that have been denied to them. And so they're actually very, very successful. And that is why they are targeted.

Hannah McCarthy: [00:39:51] Over 2000 Black men served in office during Reconstruction. The first Black US senator, Hiram Revels, was elected in [00:40:00] 1870, which is an indication of the long existing political organization and will of Black Americans held back only by the denial of basic rights. There was Joseph Rainey, the first Black American to serve in the US House of Representatives. Robert Elliott, another representative who fought public discrimination in Washington, DC. Tunis Campbell. Probably the most influential Black politician and voting rights advocate in Georgia. Black women, even without the right to vote, were [00:40:30] civic leaders during Reconstruction. Frances Ellen Watkins. Harper went toe to toe with white suffragettes, urging them to acknowledge the privilege of their whiteness. Maria Stewart, one of the first Black woman to ever speak publicly, wrote to her Black audience and extolled them to pursue education and demand political rights, saying they should sue for their rights and privileges and know why they could not attain them.

Nick Capodice: [00:40:55] And I have to confess to you, Hannah, these are not names I know, which seems part and [00:41:00] parcel of the big lie that Kidada has described, this idea that it was just too much, too difficult for a multiracial democracy to thrive. These figures prove that to be false. And the brutality, the horror, the violence that we've talked about that just makes these political successes all the more impressive.

Kidada Williams: [00:41:20] I think that's part of, you know, that sort of the mythology, the lost cause mythology of reconstruction, which is that black people, they didn't do anything with freedom. Black people are targeted [00:41:30] specifically because of what they achieved in freedom. You know, you rarely have instances where African-Americans are just sort of are being targeted by groups like the Klan, you know, for just being shiftless. That's not why they're being targeted. They're being targeted because they are acquiring land or they have land because they're running for office or they have been elected into office because they have. Establish their own businesses because they have established schools, churches that, you know, all of [00:42:00] the stuff. And so it is not because African Americans weren't doing enough. It was because in the minds of white Southerners, they were doing too much. White Southerners had told themselves that, you know, the sort of lie they you know, the lie they spun was that Black people were lazy. Right. But Black people were very industrious and they were litigious. They sued, Sued. Sued. Sued. Sued. Suit sued. Trying to get cases that would make it out of local courts and up into federal courts. They wrote federal officials, they signed [00:42:30] petitions. They went to D.C., They did everything they could. And then that is why they were targeted.

Hannah McCarthy: [00:42:40] I've been thinking about the reasons why this part of the story is not widely told, this important and horrifying history. And to me, it ties pretty closely with attempts to suppress all sorts of education related to the Black experience in America. For example, the [00:43:00] attempted banning of books that tell the true stories of integrating schools. Growing up Black in the 1960s and 70s in the US, the aftermath of police killings of Black people to attempted bannings of words like injustice in the classroom. If white people today can separate themselves from the actions of white people in the past, from the systems of oppression that were cemented in eras like reconstruction, then [00:43:30] they can feel like they are somehow on the right side of history. But that requires not actually knowing the history. That requires telling mythologies instead. That's the big lie. And that approach to history started even as that history was being made.

Kidada Williams: [00:43:53] So you do have a lot of white northerners and Westerners subscribe to the Lost Cause mythology about the Civil War and [00:44:00] about reconstruction, and that's because of those underlying investments in white supremacy. Now, while they're doing that, they're also casting themselves as all abolitionists, right? So they're, you know, creating their own mythology. And this is a story that many of us who are born in the Northeast or the Midwest get right. We were all abolitionists. And the truth of the matter is that they were not, Kidada says.

Hannah McCarthy: [00:44:24] There are so many myths that are born of investments in white supremacy. The idea [00:44:30] of pulling oneself up by your bootstraps, for example, doesn't acknowledge the ways in which the federal government helped white people pull them up. It's convenient to cast Black people as not living up to the promises of reconstruction, the promises of freedom.

Kidada Williams: [00:44:46] It becomes the convenient story to justify lynching them, disfranchizing them, and segregating them in order to protect white supremacy. So when we're thinking about this, we've got to be very clear on if you understand how white supremacy [00:45:00] works, if you understand its end goals, then all of these moves make sense, right? But if you don't want people to understand white supremacy, if you don't want people to understand how it works, what you do is you create a convenient narrative, which is what we get with the lost cause narratives of the Civil War and Reconstruction. And people are willing to go along with that. And and if they are, then that protects white supremacy and it keeps it in place.

Nick Capodice: [00:45:29] And Hannah, [00:45:30] it does end. There is a conclusion to this period that we were never really told the truth about. Because the truth has the real potential of making white people uncomfortable. The truth would reveal complacency and complicity. Eventually, all of the promise and the power gets suffocated. So how does Reconstruction end?

Hannah McCarthy: [00:45:55] Kidada says there was a widespread desire for reconciliation among white people, [00:46:00] one that completely ignored the oppression of Black people. It was basically okay. We had this war, we had this conflict. But we are a nation of progress, of westward expansion, railroads. The Amnesty Act of 1872, which removed most of the penalties put on former Confederates. Most importantly, this act let former Confederates back into the government.

Kidada Williams: [00:46:27] You know, once they regained authority in governance, [00:46:30] they are absolutely steadfast in their commitment to dismantling all of the rights and privileges African-Americans had gained access to. And then the Supreme Court does its thing in terms of restricting some of the policies of reconstruction, overturning the Civil Rights Act of 1875, which provided equal access to places of public accommodations. And so reconstruction is, you know, it's deliberately targeted with a lot of [00:47:00] these policies and practices.

Nick Capodice: [00:47:02] So this pretty clearly, I mean, in addition to everything else we've talked about in this episode, reveals how very much reconstruction was not something that failed. The project was not inherently impossible or broken or too much for Black Americans to handle. It was actively dismantled.

Kidada Williams: [00:47:22] Its overthrown and abandoned. So as overthrown by the violence in the south and it's abandoned by white northerners and Westerners [00:47:30] who simply want to move on and don't want to acknowledge that white Southerners are waging war on African-Americans freedom. And so, like, you know, we've got the 1877 date that people say reconstruction ended, but a lot of reconstruction policies continue to sort of stay in place until like the the last decade of the 19th century. It takes about two and a half decades. You know, a lot of it has to do with African Americans still continuing to focus on voting. So even [00:48:00] despite all of the violence and you see this with a lot of testimonies before Congress, with the Klan hearings, what they say is I'm going to continue to vote. They're not going to stop me from voting. And so a lot of African-American men continue to vote, and it's because they continue to vote. They continue trying to exercise authority and governance so they can protect their other rights. They see voting as the way to protect all of their other rights. And so African-Americans are still voting. And what. The [00:48:30] ex-Confederate states. And then more broadly, the southern states do is they start to target voting. Right. Violence isn't enough.

Hannah McCarthy: [00:48:42] This is when you see a rise in new voting policies, a poll tax which deliberately targeted working class Black men when that wasn't enough because it couldn't prevent all Black men from voting. There were the literacy tests and the understanding clauses. Well, [00:49:00] Black men who can read can pass those.

Kidada Williams: [00:49:03] And so that's when you'll you know, you'll see, you know, white southern states or southern states, they will go with the grandfather clause, which is sort of like the coup d'etat. Right. You know, only, you know, men whose grandfathers could vote before the Civil War. Now, they don't care that a lot of those Black men would have white grandfathers. Right. They don't care about that. I mean, they would have known that that wasn't the point [00:49:30] to the people who were, you know, passing these laws because they don't recognize the parentage of these white men who have been sexually exploiting girls and women during slavery. And so but it does become like the final straw where they're able to just sort of like knock down all of the, you know, use a bowling ball to knock down all the pins. It takes a while for them to disenfranchize African-American men. And it's only once they do that that they can get Jim Crow in terms of segregation in place. [00:50:00]

Hannah McCarthy: [00:50:01] The term Jim Crow is thrown around a lot. This era is typically, as Kadada mentioned, said to have started in 1877.

Nick Capodice: [00:50:11] Which is when, in very brief, Congress settled the disputed election between Rutherford B Hayes and Samuel Tilden. Basically, Republican Hayes was awarded the presidency on the stipulation that he would remove federal troops from some states in the South.

Hannah McCarthy: [00:50:27] And in doing so, allow anti-Black violence [00:50:30] and law to thrive. Now, as Kidada also said, it was not an overnight dissolution of Black political power. What happened was years and years of suppression, oppression, violence and law making on the part of white Americans paired with a lack of federal investment. The term Jim Crow comes from a white performer who used to dress in Blackface, a racist, exaggerated stage makeup that distorted, [00:51:00] stereotyped and subjugated Blackness in appearance, language and character. The term Jim Crow became a racial epithet for Black people, and then later, that term was used to describe laws that oppressed and essentially criminalized Black existence. Reconstruction was brought to an end.

Nick Capodice: [00:51:24] And then we lied about it.

Hannah McCarthy: [00:51:27] Yeah. And then we lied about it. That [00:52:00] does it for episode two in our Reconstruction series. We've got one more covering the laws and federal regulation, or lack thereof in the reconstruction era. But keep in mind, there's only so much that we can fit into these episodes and so much more scholarship [00:52:30] and information out there. Make sure to read Kidada Williams's book, I Saw Death Coming and Kate Masur's until Justice Be Done as well. There will be links to these as well as many more resources at our website civics101podcast.org. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. Very special thanks to Jada Lightning for all of her help on this episode. Music In this episode [00:53:00] by Ingrid Witt, The Big Letdown, Sven Lindvall, Daniel Fridell, XIVI, Duplex Heart, Amber Jaune, Chris Zabriskie, Anemoia and Xylo Ziko. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Reconstruction: Why We Didn't Learn About It

The Reconstruction Era, a period in American history at the end of and immediately following the Civil War, is one of the single most important and instructive periods in American history. It has also, historically, been one of the least taught. Why is that, and what are we missing by not learning about it? Well, a lot.

In this, the first in a three-part series on Reconstruction, we speak to Mimi Eisen of the Zinn Education Project about America’s first Civil Rights Era and why most of us don’t know enough - or anything at all - about it.

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Transcript

Rebecca Lavoie: [00:00:02] This episode of Civics 101 was made possible in part by a contribution in memory of Martin Leslie Schneider.

Hannah McCarthy: [00:00:11] I'm Hannah McCarthy.

Nick Capodice: [00:00:12] I'm Nick Capodice.

Hannah McCarthy: [00:00:13] And we're just going to get straight to it. Nick I have wanted to talk about Reconstruction for a long time on this show. I just didn't entirely know how. It's a term that we use to talk about an era of American history, a period following America's civil [00:00:30] war, a period when formerly enslaved people were ostensibly freed from bondage and also ostensibly free to exercise their rights. It's a term we use to talk about constitutional amendments that are often pointed to as fundamentally changing human rights in America. It's also a period that we do not talk about.

Mimi Eisen: [00:01:03] Reconstruction [00:01:00] is one of the most consequential and instructive eras of US history and also among the most suppressed in K through 12 education and in public memory.

Hannah McCarthy: [00:01:14] This is Mimi Eisen.

Mimi Eisen: [00:01:15] I'm a historian and program manager for the Zinn Education Project and coauthor of our report on Teaching Reconstruction, Erasing the Black Freedom Struggle How State Standards Fail to Teach the Truth About Reconstruction.

Hannah McCarthy: [00:01:29] Okay, So if we're going to [00:01:30] talk about what we don't talk about and why I think the first step should be to establish in very broad terms what Reconstruction is.

Mimi Eisen: [00:01:39] It was this time during and after the Civil War with the emancipation of 4 million enslaved people in the South of immense possibility for wealth redistribution and progress towards multiracial democracy.

Nick Capodice: [00:01:54] Okay, Hannah, I have never heard Reconstruction described in hopeful terms or [00:02:00] using the word possibility.

Hannah McCarthy: [00:02:02] Yeah, and that's what we're trying to address here. The possibility or really we should call it the promise that came with the abolition of slavery were the rights and privileges of being an American citizen. Free Black citizens had been fighting for them long before the Civil War, and now there would be a nationwide struggle for the right to actual freedom, to movement, to employment, to [00:02:30] enfranchisement, to property ownership, to education, to safety, to in short life and liberty, all of which was met with violent resistance and white terrorism.

Mimi Eisen: [00:02:47] And this Reconstruction project was a grassroots, Black led movement to rebuild the country in ways that actually meet the needs of regular people and that prioritized equity [00:03:00] and justice on an unprecedented scale. This was a movement for fair labor and land ownership, education, political representation, joy and kinship, reconstituting communities after emancipation. And it was successful in some major ways. And it was also a movement that white supremacists responded to overwhelmingly with terror, violence and fraud and dismantled and all sorts of ways.

Hannah McCarthy: [00:03:39] This [00:03:30] episode is part of a series about Reconstruction. We're going to cover so much more about the truth of this era, the myths about it, the human stories, the reverberations. But first, I want to establish why one of the most significant eras of American history is also one of the least taught. I mean, Nick, what was your experience [00:04:00] of learning about reconstruction?

Nick Capodice: [00:04:02] Well, remember, I learned about it sort of at the end of the school year. We had just gotten to it and then we had to wrap up for tests. I remember words like carpetbaggers and scalawags. I remember that it was a period after the Civil War. It was a period that eventually and quickly ended. And also maybe that it was about trying to ease former Confederate states back into the Union. And I ultimately remember that it was a failure.

Hannah McCarthy: [00:04:28] I got pretty much the same [00:04:30] lesson in public school in the 1990s in Massachusetts, which, to be clear is not to say that this was a universal lesson across the country, but significantly, the lessons that I personally learned were centered on the actions of the federal government and not at all on the Black freedom struggle. But that was 30 years ago, right? So what's going on now? Mimi and a team at the Zinn Education Project spoke to teachers across the country about what is being taught in public [00:05:00] schools in the US today when it comes to Reconstruction. And many of these teachers she spoke to asked to remain anonymous.

Nick Capodice: [00:05:09] Why are you not supposed to answer surveys if you're a teacher or something?

Hannah McCarthy: [00:05:13] It's not that, actually. These teachers were answering these questions in 2021, when states across the country began introducing bills restricting what schools can teach when it comes to race, history, generally sexual orientation, politics, gender identity. These [00:05:30] teachers, in short, were scared.

Mimi Eisen: [00:05:33] An example that actually always stands out to me is in 2021, when one of the groups Moms for Liberty put a bounty on teachers heads in New Hampshire, if they teach the true history of this country, if they explain to students how we got here.

Speaker5: [00:05:48] Another big concern for Moms for Liberty critical race theory, a concept typically taught in law school that seeks to understand and address inequality and racism in the US. The Moms for Liberty [00:06:00] New Hampshire chapter offering a $500 bounty for anyone who turns in a teacher using CRT in the classroom. The governor of New Hampshire signed a law in June banning CRT in the.

Mimi Eisen: [00:06:12] And since 2020, 42 states have introduced bills or taken other measures to ban accurate histories from classrooms, and 18 have imposed these bans. And these tactics have had a chilling effect on history education. [00:06:30]

Hannah McCarthy: [00:06:30] This bounty, by the way, came in the form of a tweet offering money to anyone who caught a teacher teaching anything that violated a new state law, banning certain.

Nick Capodice: [00:06:40] Lessons, certain lessons like what.

Hannah McCarthy: [00:06:43] This law and many laws like it across the country banned schools from teaching that anybody is, quote, inherently racist, sexist or oppressive, consciously or unconsciously, based on their race, sex or other characteristics. Other states target [00:07:00] things like teaching the idea of unconscious bias based on race or that the US is fundamentally racist or sexist.

Nick Capodice: [00:07:08] Right. We've heard a lot from teachers about this right?

Hannah McCarthy: [00:07:10] And what we hear is that laws like this make teachers and administrators afraid. While they may want to teach accurate history to tell their students the truth, they are concerned about being perceived as literally breaking the laws of their state. And then on top of this, there are many parents and advocacy groups across the country, almost entirely [00:07:30] white, continuing a long tradition of anti equality resistance among white parents that don't want books like, you know, Ruby Bridges Goes to School or words like 'injustice' and 'inequality' to be part of lessons, period.

Archival: [00:07:45] Parents beware of terms like social justice, diversity, equity, inclusion. If they ignore their our input, we will vote them out.

Archival: [00:07:55] If you have materials that you're providing where it says if you were born a white male, you were born an oppressor, you [00:08:00] are abusing our children. The VI.

Archival: [00:08:01] Program is a Trojan horse that will bring in a slippery slope, a slippery slope that will ultimately end in critical race theory, white repentance and the Mcdonaldization of America.

Archival: [00:08:12] Students critical race theory isn't being taught here. But that didn't stop dozens of parents from flooding a recent school board meeting to protest it.

Archival: [00:08:20] I will do everything I possibly can to fight to the bitter end until you prove to me that you are not teaching my children that they are racist just because they're white.

Nick Capodice: [00:08:33] So [00:08:30] when Mimi says chilling effect, she means teachers pulling back some on teaching certain things to preserve their jobs just in case.

Mimi Eisen: [00:08:42] Florida Governor Ron DeSantis and his people have banned African American studies and not AP, European or World history or the other AP offerings, just the African American Studies course, which they said lacks significant educational value. And [00:09:00] a lot of people are really pushing back on that. I was just reading a Washington Post article on Marvin Dunn, a professor in Florida, who takes students to significant. The state, places where Black communities made their homes in the late 19th and 20th centuries. Lynching sites, Cemeteries. To give students a real scope of this history and to ground it in place. And he was saying in this article that he'll continue to defy these laws and many others will, too, and have been resisting this [00:09:30] anti history movement.

Hannah McCarthy: [00:09:31] So there are the Marvin Dunns of the world who say, no way, I'm teaching it anyway. And by the way, I want to keep in mind throughout this what and who is actually being erased when history is taught this way. A Black civil rights struggle, typified by widespread mobilization. We can access this history. We can access the stories of powerful political figures and an organized community demanding to exercise their rights in a multiracial democracy. [00:10:00] There are thought, and political leaders like Frederick Douglass, a name that many will recognize, but even a focus on a few brilliant and standout figures belies something so much bigger.

Mimi Eisen: [00:10:12] They are part of a larger movement. They didn't do it all on their own. That's that's the truth. And so I think studying coalitions is really important. Like people in Alabama working in the Black press, people in Iowa calling to remove the word white [00:10:30] from the state's voting laws, or a colored convention in Delaware where people met to discuss and demand resources to educate their children. So I'll start with Frances Ellen Watkins Harper, who was a writer. She was a writer, a public speaker, a teacher, and someone who really recorded this history, recorded the stakes of the moment in her work. She moved south after the Civil War to teach and advocate for Black landownership. She [00:11:00] challenged some of the people we always hear about, like Susan B. Anthony and Elizabeth Cady Stanton and even Frederick Douglass, because they had competing visions of suffrage that didn't include Black women. And she really challenged that.

Hannah McCarthy: [00:11:13] And by the way, if you're thinking, okay, but Frances Ellen Watkins, Harper isn't in my textbooks, maybe not, but her poems, short stories, essays and speeches are not hard to find.

Mimi Eisen: [00:11:29] I also want to [00:11:30] highlight Tunis Campbell, who did many things and lived in many places, too. But in the 1860s, he helped to establish schools on the Georgia Sea Islands. He then bought over a thousand acres and helped establish a community of Black landowners. He was on the Board of Registration in Georgia to help Black men vote. He was one of the first state senators and helped other Black men rise in politics, too. He served as justice of the peace, but [00:12:00] he bought those 1000 plus acres of land after Andrew Johnson pardoned Ex-confederates in the area and let them, like reclaim the Georgia Sea Islands. And while serving on the board of Registration, Campbell was poisoned and survived. And while serving in office, he was eventually expelled by the majority white legislature for being Black and later indicted and sent to work on a chain gang. And you can read about a lot of this in a pamphlet he wrote in 1877 [00:12:30] about his experiences. So again, we have like a primary source account from someone who most people don't know about, I would say, and who really exemplifies the achievements and the terror of that period in the freedom building movement and what he did with his community under the constant threat and reality of physical and political violence.

Hannah McCarthy: [00:12:59] There are [00:13:00] so many Black figures before, during and after Reconstruction who could be household names? Octavius Catto helped to desegregate streetcars and baseball in Philadelphia. Mary Ann Shad Cary, one of the first Black female lawyers in the US and a prominent lecturer and newspaper woman. Hiram Revels first Black American elected to the US Senate. Harriet Jacobs, who exposed the abuses of enslavement in the life of a slave girl. [00:13:30] And all of these leaders worked against structural racism. And if you live in a state where the law says subjects of inherent racism are forbidden, you are much less likely to hear from the powerful community members who fought against it.

Nick Capodice: [00:13:46] Because under these laws, subjects like slavery are really risky or subjects like Reconstruction.

Hannah McCarthy: [00:13:54] Or subjects like Reconstruction. So here is what teachers had to say to Mimi and her [00:14:00] team.

Mimi Eisen: [00:14:12] There were teachers who really explained kind of what they do pedagogically and how they really engage students in more active activities and lessons than what you would get from a textbook. And to really sort of step into these histories and, you know, imagine what they were like [00:14:30] and what choices people had to make. And there were teachers who said, you know, they have not been offered the professional development, that they need to know this history or they feel like they are rushed through it or they're afraid to teach it because of what's going on with the anti history movement or that they never learned it themselves. And so there was a whole mix of of responses and a whole mix of needs to respond to.

Hannah McCarthy: [00:14:59] We should [00:15:00] be very clear here, Nick, that just like Mimi said, there are teachers who are teaching this period as fully as they can and doing a really good job. But for many out there, the supports, the resources, the structure to teach Reconstruction fully and truthfully are not there and often push back.

Mimi Eisen: [00:15:23] Is it is an immensely difficult time for teachers in particular facing these sweeping attacks on [00:15:30] education and still navigating the pandemic.

Nick Capodice: [00:15:32] But Hannah, this part of the conversation is so specific to now, right? Yet neither you nor I got a sense of what Reconstruction really meant when we were at school decades ago. So not teaching the truth about Reconstruction has been going on for a long time, hasn't it?

Hannah McCarthy: [00:15:49] It sure has. Let's start with what is at the heart of not teaching certain American histories.

Mimi Eisen: [00:15:58] There's sort of a patchwork [00:16:00] of tactics to suppress truthful teaching. Mean standards to begin with, so often reflect the historical narratives endorsed by people in power and people specifically who want students to learn the master narrative of this country in a way that glosses over racism, classism, sexism, you know, people who don't want students to understand the causes of the inequities that exist through all sorts of institutions and areas of life, or to be inspired [00:16:30] by people through history who fought to address them, who envisioned something better, because then students might question and want to upend the status quo. And people, you know, who benefit from the status quo don't want that happening.

Nick Capodice: [00:16:45] That is truly a history is written by the victors narrative, isn't it?

Hannah McCarthy: [00:16:49] You know what? Especially with Reconstruction. I feel like the idea of a victor and not in a celebratory way, but in a someone got the upper hand over another way might [00:17:00] be useful for understanding what happened, because in the true story of reconstruction, there is a struggle, a fight for what Mimi described earlier, a multiracial democracy, and the people who got to tell the story after the fact are the ones who used force to make sure it didn't happen.

Nick Capodice: [00:17:20] So, Hannah, is this where this idea of Reconstruction as a failure comes from?

Hannah McCarthy: [00:17:25] In large part, But of course, as always, it's more complicated than that. And [00:17:30] we'll get into it all after the break.

Nick Capodice: [00:17:32] But before that break, just a reminder to our listeners that this show is listener supported. You're going to hear some ads from time to time. And yes, those do indeed help us out. But the most reliable and most rewarding support we get is from you. If you like what we do, consider making a donation in any amount at our website, civics101podcast.org.

Hannah McCarthy: [00:18:03] We're [00:18:00] back. You're listening to Civics 101. And just before the break, we were talking about this notion of Reconstruction as a failure, which is a myth. It's a total construct.

Nick Capodice: [00:18:14] And when you say a failure, you mean basically that it was this attempt to give Black citizens a civic and an economic role in the country, and that attempt didn't work.

Hannah McCarthy: [00:18:22] Yeah. And built into that narrative is this sense that it was never going to work, which puts the quote unquote failure [00:18:30] on the shoulders of those Black citizens and also, by the way, totally evades the truth, which is that black citizens were taking stepping into their rightful civic and economic roles, and those roles were being wrenched from their hands. Instead, this narrative presupposes a Black inferiority, an inability on the part of Black citizens to foster a multiracial democracy, to succeed in positions of political power, even to vote for the, quote right candidates [00:19:00] that white people could do it and Black people could not. And a lot of this story stems from what is called the Dunning School.

Mimi Eisen: [00:19:09] The Dunning School gets its name from William Dunning, who was a historian at Columbia University in the late 1800s, early 1900s. But the Dunning School of thought was much bigger than him or the university. It was the dominant approach to reconstruction scholarship for much of the 20th century, starting in the Jim Crow era and [00:19:30] pushing a lost cause narrative. You can see it in popular culture in a lot of ways, like Woodrow Wilson's favorite film, Birth of a Nation in 1915, which he played at the White House, an incredibly racist and popular film at the time that heaps praise onto the Ku Klux Klan and the lost cause of the Confederacy or Gone With the Wind in 1939, you know, glorifying the antebellum South Song of the South in 1946, which [00:20:00] features at Disney World's Splash Mountain, which Disney just closed and so on. Essentially, it was a school of thought that denied Black achievements and celebrated white supremacy and casted reconstruction as basically an illegitimate endeavor for multiracial democracy that was meant to fail.

Hannah McCarthy: [00:20:24] See if you told the true story of Reconstruction, you would have to admit to a series of powerful [00:20:30] progressive actions on the part of Black people, followed by violent suppression on the part of white people, and this narrative being a false one, a purposeful manipulation of the truth. This is not something that scholars have only just noticed. In 1935, W.E.B. DuBois wrote Black Reconstruction in America. This was a popular book at the time, and DuBois lays it out pretty clearly. He says the average American youth would come out of their education, "without any [00:21:00] idea of the part which the Black race has played in America, of the tremendous moral problem of abolition, of the cause and meaning of the Civil War and the relation which reconstruction had to democratic government and the labor movement today."

Nick Capodice: [00:21:17] So DuBois was saying in 1935 that Reconstruction education evades the actual truth, and it means that students aren't going to understand a massively significant era in American history, [00:21:30] or for that matter, the role that a massive percentage of our population has played in that history.

Hannah McCarthy: [00:21:36] DuBois points out that teaching history this way is an exercise in ego inflation and crafting an admittedly false sense of pride. Nearly 90 years later, the actual history still goes untaught because the actual history is often one of Black efforts and white backlash.

Mimi Eisen: [00:21:59] For example, [00:22:00] during Reconstruction, Black communities founded the first public school systems in the South, and then white supremacists burned over 600 school houses down. And that's definitely an underestimate. People who were once enslaved were now serving in Congress. The voter suppression and a variety of intimidation tactics ended that level of Black representation for almost a century until the civil rights movements of the 1950s and 60 seconds. And these later struggles stemmed [00:22:30] in many ways from Reconstruction. And they continue today.

Nick Capodice: [00:22:35] And this idea of politically successful and powerful people who were formerly enslaved is such an important one. It's the exact opposite of that false narrative. You mentioned earlier the suggestion that reconstruction was a failure and that failure rests on the shoulders of Black citizens. I mean, that's a story of insisting on what you're promised in the promised [00:23:00] land, which is a story you'd think we'd love here in America. But in this case, we actively leave that part out. I feel like so much of what we're actually taught about this period is just this was a government project gone awry.

Mimi Eisen: [00:23:15] And this idea that Reconstruction was really, above all, a project of the federal government to officially reincorporate the former Confederate states back into the United States after the Civil War. I mean, in some standards [00:23:30] and textbook narratives, it's almost as if there are no subject acts, like there are no actual people. It's just branches of government and entire states as key actors. A lot of the time, which is really dry and also inaccurate, of course, to sort of. Separate the actions of people from the goals and the outcomes of history. And when people do show up, they're often presidents or members of Congress, state leaders or other elites. And there's a focus on the debates [00:24:00] and policies and politics between them. There's very little, if anything, on how formerly enslaved people and their coconspirators allies, coalitions at the grassroots level really organize, demanded and drove reconstruction's achievements. A lot of standards and textbooks cast Black people as objects, sort of of the government, of the economy, of white people in this period. So the core of this movement, the radical visioning and the revolution [00:24:30] to establish a much more equitable country and actually free society gets misrepresented or just lost in a lot of narratives.

Nick Capodice: [00:24:37] Alright. Standards and textbooks. I'd like to dig into that just a little more, because you said earlier that even among teachers who do their best to tell the truth about the subject, they don't have the supports for it. And I'm assuming that standards and textbooks are a big part of that.

Hannah McCarthy: [00:24:52] Let's start with the standards issue. And by the way, that's a word that's thrown around a lot when it comes to education. A standard [00:25:00] is something that students are supposed to learn at a certain grade level. Every state sets their own. And typically the state standard for Reconstruction knowledge looks like this.

Mimi Eisen: [00:25:10] One way we see this now is in a framing of the successes versus failures of reconstruction that appears in so many standards and beyond. There's this binary of was reconstruction a success or a failure which is so common and hides, especially in the word failure, the way that white [00:25:30] supremacists very intentionally destroyed it precisely because of its successes. And another way that I'll mention is a lot of standards today still use the term carpetbaggers and scalawags, which are terms that were mainly used by white Southerners to belittle northerners who moved south carpetbaggers and white Southerners, scalawags who supported reconstruction. So they often use those descriptions without really being [00:26:00] critical of them or providing more context. And so a lot of standards and teaching materials are coming from that lost cause perspective and casting reconstruction through this white supremacist lens, whether or not the people who write or use those materials realize the extent of it.

Hannah McCarthy: [00:26:18] That part, whether or not the people actually writing the materials realize what they are communicating feels to me like it sums this issue up pretty well, that [00:26:30] the true history of Reconstruction has gone untaught for so long that we don't even know what we don't know. I mean, for example, even in this episode, we have been speaking about reconstruction as an era focused on Black citizenry. And it was, but it was also a nationwide project that saw the subjugation and oppression of Indigenous people, of Chinese people, of Mexican people.

Nick Capodice: [00:26:54] Also, Hannah, those words that I mentioned earlier, carpetbaggers, scalawags. I do [00:27:00] remember those words. I mean, white people moving to the south were described using these words, and the words themselves are white propaganda.

Hannah McCarthy: [00:27:09] Yeah, exactly. Carpetbagger is a term that was applied to white northerners who came south, perceived by many white southerners as being financial opportunists. But what was also going on is that these, quote, carpetbaggers were aligned with Republican politics. Republicans at the time, of course, were the Liberal Party. This was prior to the party's ideological [00:27:30] realignment that would come later. Many believed in democratizing the South in a free, multiracial democracy. The same went for the people who were called scalawags. Basically, those were white people who supported the fundamental tenets of Reconstruction. So those words show up in written educational materials and cloud the narrative. And speaking of those written materials.

Mimi Eisen: [00:27:53] They're not all bad, but they usually support the idea that US history is like one [00:28:00] long victory march. You can see it in the titles even, you know. And so the story of Reconstruction has to fit into that in some way. And textbooks are a different and much bigger medium than standards, which was, you know, more the focus of our report. But they reflect them in a lot of ways and they reflect a lot of the larger misconceptions around reconstruction. For example, Georgia has an eighth grade standard that asks students to basically draw a chart and compare [00:28:30] and contrast the goals and outcomes of the Freedmen's Bureau and the Ku Klux Klan. So they're saying compare the goals and outcomes of an agency created to respond to the needs of formerly enslaved people and poor white people in the South and border states at Civil War with a white terror group, as if they might be morally equivalent. And I was just looking at a textbook that describes the Klan's activities as, quote, fun and games while [00:29:00] then describing the violent reality in the margins, like there's something about a lynching in the margin. So in both there are these sorts of like staggering contrasts that make light of white terror during Reconstruction or extend some sort of like moral legitimacy to the wrong people.

Nick Capodice: [00:29:20] Fun and games with the Klan. That's galling.

Hannah McCarthy: [00:29:25] Yeah. And again, we're going to get deeper on the whole true history in other episodes. [00:29:30] The point here is, in part, yeah, the textbook Mimi describes wildly misrepresents a violent white group, and it also literally marginalizes the truth.

Mimi Eisen: [00:29:44] I'll also say that textbooks often refer to Reconstruction as a failure or have that like successes versus failure. Unhelpful comparisons. They tend to dedicate a lot of space to governments and white elites and ex-confederates, [00:30:00] and they often relegate marginalized people to like the actual margins of the page and different colors from the main narrative, as if they're just supplemental to the main story or accessories to it. And I remember being, you know, a middle school and high school student and, you know, you're supposed to outline a chapter of a textbook and the parts in the margins like don't count for that. You just ignore those.

Hannah McCarthy: [00:30:25] One last piece of the Reconstruction roadblock in our schools, Nick, is timing, [00:30:30] which is tied to standards, what our teachers have to teach and when.

Mimi Eisen: [00:30:35] The reason they're such this time crunch is that Reconstruction often appears as the halfway point in a two year chronological US history classes. So it'll fall at the beginning or end of a grade of an academic year. For example, eighth grade history courses are often designed to cover like the Constitution to Reconstruction, 1776 [00:31:00] to 1877. And so a lot of classes never get to it or they have to rush through it. Sometimes it's hard to get to the last unit of the year or there are just other things going on at that point.

Hannah McCarthy: [00:31:13] I just want to reflect on this for a moment to reinforce that what is being rushed through. Rule is the nation's first Civil Rights era, an era of immense historical importance.

Mimi Eisen: [00:31:26] Standards and curricula will also often combine the Civil War [00:31:30] and Reconstruction into one unit. Sometimes they'll even just have the Civil War era extend through 1877 and asked students to assess the damages of the war or the legacies of the war without even mentioning reconstruction, really. And so a lot of educators can end up spending several weeks on the Civil War and little to no time on its aftermath, because that's, you know, what they're expected to do.

Hannah McCarthy: [00:31:55] And again, I just want to remind us what it is. We are not supporting teaching in schools [00:32:00] here. Mimi mentioned the word revolution earlier. That's because Reconstruction was a radical time, a time of immense successes of community building and political power and resistance. I'm going to get into all of that in other episodes, but you need to know that Black citizens were running for office and winning, and those newly elected politicians implemented reforms. They established schools. They created community resources [00:32:30] so that others could establish businesses and grow wealth. They were very successful. And all of that was in the face of violent opposition. It wasn't a lost cause. It was a fierce attempt to establish an equitable society.

Mimi Eisen: [00:32:48] The fact that this revolution was cut short and how it was cut short gives so much context for where we are today because these issues that people grappled with. At the time are still among [00:33:00] the most pressing issues of today. You know, we still see disparities in education and health and wealth and labor and equal treatment under the law and surging state violence and white terror groups. And so this history gives us and our students so many insights into the world that we inherited. And when we can make those connections, as we learn about events and people who lived over 150 years ago, we can start to see patterns and see [00:33:30] ourselves and our communities in the values and goals of those people who struggle for justice in the past. And they can inform and inspire us to see our roles in history making today and to work towards a more just future. So I think it's just. An incredibly relevant period.

Nick Capodice: [00:33:52] So, Hannah, what does the future of teaching Reconstruction look like? I mean, amidst laws that have this chilling effect [00:34:00] and over 100 years of flawed scholarship and flawed resources, does Mimi see a positive path forward?

Hannah McCarthy: [00:34:08] I mean, what Mimi can do is make recommendations, right?

Mimi Eisen: [00:34:12] So one major shift would be and I know all of this is easier said than done, so, you know, it takes a lot of a lot of work and a lot of kind of efforts and a lot of people and moving parts, but to teach Reconstruction extensively at multiple grade levels [00:34:30] and not as a bookend unit at the start or end of a school year, allowing it to be a more central unit.

Hannah McCarthy: [00:34:36] Mimi also suggests that Reconstruction could be approached thematically instead of chronologically to work on that timing issue. Teaching voting rights. Reconstruction is a major touchstone. Talking about education in the US, Black citizens founded the first public school systems in the southern United States during Reconstruction.

Mimi Eisen: [00:34:55] That sort of curricular shift can be quite powerful and [00:35:00] there's no one way to do it. But just thinking about history more in that lens can help, especially as time goes on and these classes often start at the same moment in history, you know, over 400 years ago. But the years keep coming. So we got to we got to figure out what to do about that as well. You know.

Hannah McCarthy: [00:35:22] And Nick, Mimi and her team are, of course, not the only ones out there studying this period, telling the truth about this period, [00:35:30] researching and teaching and creating supports and shifting the perspective. And so this series is going to attempt to share exactly that. The truth from the mouths of those who've been studying it and shouting it from the rooftops all along. It's like Mimi says, the years keep coming. What happened during Reconstruction? It isn't just the past, it's prologue for today.

Mimi Eisen: [00:35:58] This history is so important [00:36:00] for our students and for all of us to know if it's taught accurately. It shows us that history is made at the grassroots level, that racial capitalism has a long legacy in this country, but so do blueprints and movements for an equitable future. And it shows us that progress is not guaranteed, that it's never a straight line, but it is possible and that these these possibilities open up when we see ourselves in history, when we see how much of what we encounter today is rooted in centuries old struggle [00:36:30] and know the stakes as we move forward. But what students learn about Reconstruction in school tends to be decades behind the scholarship, and that's why we're so focused on improving it.

Hannah McCarthy: [00:36:53] That's it for this episode. But it is just the beginning of our three part series on reconstruction. Keep listening. We're [00:37:00] going to delve deeper into the true history and the laws, policies and actions of the government when it came to our nation's first Civil Rights era. I strongly, warmly encourage you to go to ZinnEducationproject.org/reconstruction to see both their report and the myriad resources they're providing to help us better understand this under-taught era of American history. There's only so much we can share on this podcast, and there is an immense amount of incredible scholarship [00:37:30] out there. Music In this episode by MindMe, Water Mirrors. Chris Coral, DAJANA, Ingrid Witt, The Big Let Down and Xylo Ziko. You can get the transcript for this episode along with every other episode of Civics 101 ever made at our website civics101podcast.org. There you will find tons of resources, ways to contact us and the names of all of those who make this show happen. Speaking of, this episode was produced by me, Hannah McCarthy with Nick Capodice. Christina [00:38:00] Phillips is our senior producer. Jacqui Fulton is our producer, and Rebecca Lavoie is our executive producer and a huge shoutout and very special thanks to Jada Lightning for all of her help, insight and thoughts on this episode. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Defamation, Libel, and Dominion, Oh My!

What is defamation? Libel? Pre-trial discovery? Actual malice? Today we go into everything tied to the recently settled Dominion Voting Systems vs Fox News Network defamation lawsuit; including slander, libel, discovery, settlement, and the "whackadoodle email." 

Our guide through the world of defamation legalities is Jane Kirtley, Silha Professor of Media Ethics and Law at the Hubbard School of Journalism and Mass Communication at the University of Minnesota. We talk about why these lies were presented to the public, and the possible reasons why Dominion chose to settle instead of continue with the trial.

Transcript

Archival: Welcome to the Lead. We have some breaking news for you. I'm Jake Tapper. Moments ago, we learned there is a settlement, a settlement in the high stakes trial between Dominion Voting Systems and Fox. Dominion was suing Fox for $1.6 billion, saying the trial was.

Archival: Expected to be a barnburner. Check out the long line to get into the Delaware courtroom.

Archival: Court documents revealing how the most prominent Fox News stars and executive privately mocked Donald Trump's election lies while promoting them [00:00:30] publicly.

Archival: Quote, The wind tells me I'm a ghost.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about defamation, specifically a breakdown of the terms and legalities surrounding the recent lawsuit, Dominion Voting Systems versus Fox News Network. We are going to cover such salacious words as slander, libel, actual [00:01:00] malice, and also some more benign sounding words like discovery and settlement.

Hannah McCarthy: Okay, Nick, before we get into the definitions, we always say that we love talking about court cases because they are at their foundation stories. What is the story of this lawsuit?

Nick Capodice: It seems like yesterday, Hannah, Election night, November 3rd, 2020. You remember that night?

Hannah McCarthy: I do.

Archival: It's been clear for a while that the former vice president is in the [00:01:30] lead in Arizona and was most likely to to win the state. It has been in the category that we call knowable, but not callable for about an.

Nick Capodice: It would take several days until the tally was final. But Joe Biden defeats Donald Trump in the election, getting 306 electoral votes to Trump's 232 and also winning the popular vote by about 7 million votes. And we're going to come back to President Biden's win in Arizona in a little bit Hannah Because it's a crucial part of this story. But about a [00:02:00] week later, November 12th, the former president, Donald Trump, tweeted falsely that, "radical left owned Dominion voting systems", deleted 2.7 million votes for him nationally. Now, Dominion had created voting machines that were used in 28 states in this election, many of them swing states. And in the months to come, several hosts at Fox, including Maria Bartiromo, Tucker Carlson and Lou Dobbs, had guests on, most notably Sidney Powell and [00:02:30] Rudy Giuliani, echoing that lie.

Sidney Powell: President Trump won by not just hundreds of thousands of votes, but by millions of votes that were shifted by this software that was designed expressly for that purpose.

Nick Capodice: And it was actually two falsehoods there. Not only did Dominion not throw out any votes, they are not by any stretch of the word, a radical left owned company. Dominion sued Fox News for defamation, and on April 18th, 2023, [00:03:00] the case was settled out of court and Fox agreed to pay Dominion $787.5 million.

Hannah McCarthy: That's a lotta million dollars. Nick, this is referred to as a defamation lawsuit. So what exactly is defamation?

Jane Kirtley: Well, you know, they call it a defamation case. I think it's technically a libel case.

Nick Capodice: This is Jane Kirtley.

Jane Kirtley: I'm the Silha professor of media ethics and law at the University of Minnesota. I'm [00:03:30] a lawyer. And I guess that's all you need know.

Hannah McCarthy: So it's not a defamation case?

Nick Capodice: No, no it is a defamation case. But defamation is the sort of bigger umbrella term. Defamation is a statement that damages somebody's reputation and it encompasses slander and libel.

Hannah McCarthy: Slander being spoken words that harm someone's reputation and libel being written words that do the same thing.

Nick Capodice: Exactly.

Hannah McCarthy: But if these inaccurate claims were said [00:04:00] by people, why is it libel?

Jane Kirtley: Libel, at least traditionally is written something that's published in a newspaper, for example, or in a book. But as communications technology has evolved? Libel now generally includes speech that is published in any venue or by any means. It would include digital speech. It includes broadcast speech. Slander traditionally meant spoken, false and defamatory [00:04:30] statements. The legal liability for those kinds of statements, and particularly the damages, was always much less than for libel, because the idea was that slander floats out into the ether and then it disappears. And if you're not standing there hearing it when somebody says it, then you won't know about it. And so therefore, your reputation will be harmed to a much lesser degree.

Nick Capodice: But now that the things we say are recorded and broadcast, we often [00:05:00] use the libel standards when we are talking about digital speech.

Hannah McCarthy: What does someone have to show to claim somebody committed libel?

Jane Kirtley: Libel suits are based on basically three things. One, that you publish something that is false. Two, that you publish something that is defamatory, which means that it harms somebody's reputation. And three, that you published it with some degree of fault.

Nick Capodice: Now Hannah, Dominion, even though it is a [00:05:30] company, is what we call a quote, public figure, someone or some elected official or some corporation that offers goods or services to the public or has sought some kind of spotlight. And First Amendment protections are different for public figures than they are for private figures who have sought no such spotlight.

Hannah McCarthy: Nick, are we public figures?

Nick Capodice: I don't know. Hannah. Are we? It'd be pretty great if we were.

Hannah McCarthy: I don't know if it would be pretty great. You fewer [00:06:00] protections. So if Dominion's a public figure, what does that mean for this case?

Jane Kirtley: Public figures as well as public officials must meet a standard that's called actual malice. The standard was established by the US Supreme Court in 1964 in a case called New York Times versus Sullivan.

Speaker10: In the testimony offered by the plaintiff, there were only two brief references to the petitioners. The first was [00:06:30] that their names appeared in the advertisement, as published by the New York Times on March 29th, 1960.

Hannah McCarthy: Oh, I know this case. It deserves a deep dive on its own someday. This is the one where the New York Times ran an ad criticizing the way police in Montgomery, Alabama, treated civil rights protesters.

Nick Capodice: Yeah, and there were some inaccuracies in that ad, and the police commissioner, L.B. Sullivan, sued The New York Times for libel. In the court's unanimous opinion, Justice William Brennan [00:07:00] wrote that the newspaper was not liable because they did not commit, quote, actual malice.

Jane Kirtley: Now, people get very confused about the term actual malice because they assume that it means, oh, we have to show that the publisher hated you, but it's not the dictionary definition of malice. It's a very specific term of art. That means that you knew or had reason to know that what you published was not true. And that [00:07:30] latter part had reason to know is often referred to as reckless disregard for the truth. So, for example, let's say you and I'm citing an actual case here, you're a reporter that's doing a story on a candidate shortly before an election. It's a it's going to be a terrible, devastating story that is probably going to destroy this person's candidacy. Someone comes to you before [00:08:00] you run the story and says, I have an audio recording here that is going to prove to you that the allegations you're about to make are not true. And the reporter says, I don't need to listen to that. I don't need to hear that at And the Supreme Court said that kind of behavior could constitute reckless disregard for the truth because you had an opportunity to hear conflicting evidence and chose not to avail yourself of that. Now, [00:08:30] this is not a formal set of legal principles that the court has established, but that's the kind of behavior that might constitute actual malice.

Hannah McCarthy: So if this case went to court, the burden of proof would have to show that Fox One made inaccurate statements about Dominion voting systems, and two, knew those statements were inaccurate.

Nick Capodice: Right, and three, that the statements damaged their reputation and cost them money.

Hannah McCarthy: Did [00:09:00] this false narrative cost them money?

Nick Capodice: Well, Dominion sure claims they did, Hannah. They said that as a direct result of this false narrative, people pulled out on contracts to use their machines, a loss that they cited as 1.6 billion with a B dollars.

Hannah McCarthy: Okay. So Dominion files a lawsuit, but who exactly are they blaming for the libel? Was it the hosts? Was it the guests they had on the show, like Giuliani and Powell, or was it the whole Fox Corporation? [00:09:30]

Nick Capodice: It's funny you should ask Hannah. The answer to that is yes. The case we're talking about today is Dominion V, Fox News Network, and it is one of many, many ongoing lawsuits related to these claims. There are lawsuits against the Fox hosts individually, lawsuits against Powell, Giuliani and others. And it's not just dominion, but there are other voting machine, companies like Smartmatic. All of these lawsuits are still around. But back to this specific lawsuit, $1.6 Billion in Damages [00:10:00] claimed by Dominion from the Fox News Network. And now we move on to something called Discovery.

Jane Kirtley: Before a case goes to trial. There's a stage that's called the pretrial discovery stage. And during that stage, both parties have the opportunity to ask questions of the other side to demand the disclosure of relevant documents and to call people in for depositions, [00:10:30] which are opportunities to orally question them about things that are relevant to the case. In the course of the pretrial discovery, Dominion requested and got from Fox a long, long digital paper trail of exchanges between people from Rupert Murdoch, CEO of Fox, all the way down to the hosts and some of the journalists where they talked about [00:11:00] the whole all the allegations about voter fraud and problems with election integrity.

Nick Capodice: To call out one specific claim, Hannah Sidney Powell was on Maria Bartiromo's show on Fox and Powell. All said that she had evidence that Dominion had deleted or even flipped votes.

Sidney Powell: We have so much evidence. I feel like it's coming in through a fire hose.

Nick Capodice: And what we know now after the pretrial discovery is that Powell shared one source with Bartiromo [00:11:30] and her producer just before the segment. It was an email. The author's name is not known. I encourage our listeners to read it. You can just Google exhibit 259 or you can Google one of the messages nicknames. It's called the quote, wind email. As the author claims the wind talks to her. Or the wackadoodle email as the author closes the message with the line that some of her claims are, quote, pretty wackadoodle. This email is full of unsubstantiated claims that Dominion machines were created [00:12:00] to throw elections. But also in it, the author explains her visions, her prophecies, her dreams that she's had since she was a child. The author says that she was, quote, internally decapitated in a car accident in 1992 and that Supreme Court Justice Antonin Scalia did not die of a heart attack, but was killed in a human hunting expedition. Now, I'm not pointing all this out for comedic value. Hannah this is clearly a very troubled person. But I think you [00:12:30] and I can agree that this kind of email is not the sort of evidence around which a new segment should center a conversation. And this was cited as evidence in Dominion's case. To prove this point, Fox was showing actual malice. They knew that this was not correct.

Jane Kirtley: What the internal communications showed was, to say the least, many of the people at Fox were very skeptical of these claims, and some of them flat out called them insane [00:13:00] wackadoodle. There's no proof of this.

Nick Capodice: I'm just going to share a few of the internal communications among Fox hosts and producers that are expletive free here, Hannah. Communications that said, the claims by Powell and others were, quote, ludicrous is complete BS totally off the rails, and in all caps, mind blowingly nuts.

Jane Kirtley: So all that was made available before the trial even began. And based on that record, the [00:13:30] judge did something very significant when both Dominion and Fox had asked for an award of summary judgment, which would have meant that one or the other would have won and there would have been no trial, The court granted a partial summary judgment and specifically said that everything that Dominion was complaining about was indeed false. As a matter of law.

Hannah McCarthy: As in the statements made on Fox were false.

Nick Capodice: Yeah. And that word is important. Hannah. False. [00:14:00] The word false has a deeper legal significance here. The trial was going to happen in Delaware, but the judge applied New York libel laws which said that if a statement was a mixture of fact and opinion, it's considered fact. It is not a false statement. Your opinion is protected under the First Amendment.

Hannah McCarthy: Okay. So if I say aliens are real on the news, that is protected because it's just my opinion that aliens are real, which they are, by the way. [00:14:30]

Nick Capodice: Yeah You don't even have to say I believe aliens are real. You can just say aliens are real. But if you said aliens are real and I have proof of it and that proof is a screencap from Mac and Me, that would be false. And the judge said that all of the statements that were made on Fox were false. They were not opinion.

Jane Kirtley: That was a huge loss for Fox because true opinion is absolutely protected under the First Amendment. But by [00:15:00] declaring it and statements of fact and then going the next step, as the judge did, and saying and all this was false, the issue of truth or falsity was not going to be something the jury could consider at trial. The only thing that they would be asked to decide was whether Fox acted with actual malice.

Hannah McCarthy: So what happened next? Did they go on to determine if actual malice was committed?

Nick Capodice: Well, they didn't get there because right after that judge's determination, the lawsuit was [00:15:30] settled. And I'm going to get into what that means right after the break.

Hannah McCarthy: But before that break, a shout out to listener 50 plus personal trainer who left us this really nice review on Apple Podcasts, ending it with Today. I have become a monthly sustainer. I should have done this a long time ago.

Nick Capodice: Oh, my heart swells hearing that. Hannah. Thank you. 50 plus. Personal trainer.

Hannah McCarthy: Thank you. 50 plus personal trainer. If you enjoy our show, do what they did to support it with a gift in any amount at Civics101podcast.org.

Hannah McCarthy: We're [00:16:00] back. We're talking defamation, libel and all things tied to the Dominion versus Fox News lawsuit. So, Nick, you said that Fox settled.

Nick Capodice: They did.

Hannah McCarthy: How much did they pay Dominion again?

Nick Capodice: $787.5 million.

Hannah McCarthy: So that's a lot of money, but it's not quite the 1.6 billion they were asking for.

Nick Capodice: That may be Hannah, but this was like most cases [00:16:30] in the US, a civil case, not a criminal case. It was two individual parties engaged in litigation. The state was not involved.

Jane Kirtley: The only penalties that can come out of a case like that would be monetary penalties.

Nick Capodice: Again, that's Jane Kirtley, professor of ethics and law at the University of Minnesota.

Jane Kirtley: That is that Fox, had it been found liable, would have to pay some money to Dominion. And exactly how much money that would be would be something that the jury would have to [00:17:00] decide. They would not be bound by the amount of money Dominion asked for in its suit. That's just an amount of money that Dominion raised in the complaint. It doesn't mean that that's what the jury would have awarded had they gone all the way through trial. And I think a lot of people and the news we unfortunately contribute to this because they write headlines that always pick up on the amount that the plaintiff is asking for, but that can bear very little relationship [00:17:30] to reality.

Nick Capodice: However, were the case to have gone to trial, Dominion could have asked for Fox to pay the amount they say they lost due to these falsehoods, and they could have also asked for punitive damages.

Jane Kirtley: Punitive damages are damages that are intended to punish somebody for really egregious conduct. And, you know, your listeners are probably familiar with this in other contexts, like in, say, a product liability action, you can seek actual damages [00:18:00] for the physical harm that you suffer if your hospital bills, things like that. But if a jury were to decide that, say, the manufacturer of a drug or something like that had acted recklessly or irresponsibly or hadn't followed protocols, they could ask for punitive damages, which are designed to punish the defendant for improper conduct in libel cases in this country. Most big ticket libel damages consist primarily [00:18:30] of punitive damages. And I think that could well have happened in the Dominion versus Fox case, too. But ultimately, my point is it's only money. Nobody was going to go to jail in this case.

Hannah McCarthy: What I want to know is why Dominion settled. It sounds like Jane has been saying they had a really strong case. And the judge made it clear in pretrial that the claims made on Fox were indeed false, [00:19:00] not just someone's opinion. Why give up on the bigger payout?

Nick Capodice: Well, we don't know all the reasons why, especially since Dominion was quite openly mad about all this.

Jane Kirtley: If a corporation can be angry. Dominion was angry at Fox.

Archival: Fox has admitted to telling lies about dominion that caused enormous damage to my company, our employees and the customers that we serve.

Jane Kirtley: And angry at them not only for the things they said specifically about their voting systems, but also [00:19:30] all of their allegations, actions which appear to be baseless about problems with the integrity of the election in general. So I can't speak for Dominion, but my guess is that they made a calculation that was if we go to trial, we probably have a very good chance of winning, at least on some of the allegations, because the issue of whether Fox acted with actual malice or not would be something the jury would have to [00:20:00] determine based on testimony of all of the Fox people that were going to be brought in to be questioned and to be cross-examined. Everybody from Rupert Murdoch on down.

Nick Capodice: And no matter no matter how confident you are or how much evidence you have, nothing is certain when you get people on the stand.

Jane Kirtley: It's a credibility issue, isn't it? And a juror is going to have to sit and listen to somebody like Sean Hannity or Tucker Carlson and make a judgment [00:20:30] about whether that you're wants to believe them or not. And this is always risky, no matter how clear cut it might seem, based on the pretrial filings. When human beings get into the courtroom in front of 12 other human beings, there's always going to be a lot of factors that play into their assessment of whether there should be liable or not. My own guess is that had the case gone to trial, Fox probably would have won on some of the [00:21:00] allegations and lost on others. And if that happened, then there's no doubt in my mind that the case would have gone on appeal and eventually Fox would have tried to take the case to the US Supreme Court regardless of the outcome. That would take years. I mean, literally years. And so if you're Dominion, you have to ask yourself, do I want to get caught in that kind of morass of uncertainty that could last for years? Or do [00:21:30] I want to take the money and run? And I think that that was probably a big part of their decision to settle.

Hannah McCarthy: How much is that settlement going to hurt Fox?

Nick Capodice: Well, Jane said that they are going to have to pay that money, but we don't know how they're going to cover it. There is the possibility it could be covered by their insurance or they just have to swallow it and just pay $787 million.

Hannah McCarthy: How much money does Fox have anyway.

Nick Capodice: In 2021, Hannah Fox says annual revenue was about $13 [00:22:00] billion.

Jane Kirtley: To me, the big question is will this settlement percolate down to their loyal viewers and will they see this as essentially an admission that Fox was knowingly telling them lies? And I think it's very unlikely that that will happen for two reasons. One, because Fox is not covering this very much and most of their loyal viewers only watch Fox as their primary source of information. But [00:22:30] number two, I think that Fox has been extremely careful in the statement that they issued, which we now know for sure was brokered during the settlement agreements. They have a very grudging acknowledgment that the judge found that the statements that they made were false. That's a very careful wording. It's saying this is what the judge found and it is suggesting to someone, at least like me, that they would say and on [00:23:00] appeal, we would have asked an independent appellate judge to reconsider that ruling. And perhaps that judge would determine that those weren't Wolf statements. And there's nothing in their statement that they issued basically admitting to any kind of fault. It's almost like, you know, we got hit by a brick wall. We we published false information. It really wasn't our fault. They didn't say that in so many words. But but the point is, they didn't [00:23:30] apologize or indicate that they had done anything wrong and in fact, went on to say in their statement that Fox has the highest journalistic standards. So they're still clinging to that. And that's what their viewers are going to hear. So, frankly, I don't think that in the sense of trying to punish Fox or teach Fox a lesson, I doubt that this case has done really much of any of that. And it was probably unrealistic [00:24:00] to think that it would.

Hannah McCarthy: I think my last question is why? Why would a news organization purposefully and frequently push a false narrative in the first place?

Nick Capodice: Well, Jane says it all comes back to that one moment on that election night. 9:20 p.m. Mountain Time. Fox News did something before anyone else did.

Archival: The Fox News decision desk is calling Arizona for Joe Biden.

Archival: I think a lot of people still aren't [00:24:30] totally sure about Arizona either. Some people think that may have been called a little too early.

Jane Kirtley: After Fox called Arizona for Joe Biden, a lot of their viewers abandoned them and went to other alternative right wing sources like Newsmax, for example. And some of the communications indicated that that Fox sort of went into a panic, that they saw themselves [00:25:00] being abandoned by their loyal viewers because they weren't telling them what they wanted to hear. So they quickly recalibrated and said, okay, so we're going to keep on having Sidney Powell or Rudy Giuliani come on and talk about the election being stolen, because that's what our viewers want to hear. And that is is a pretty troubling revelation, not because there's anything wrong with Fox wanting to make sure that its [00:25:30] revenues and viewership stay up. That's what publicly traded commercial news outlets do. They want to keep their audiences. There's nothing in and of itself wrong with that. But if you're basically saying we'll tell any lie we have to tell to keep our audience, that's pretty bad. And I think it justifies the many other news organizations who have been pointing at Fox and saying, you know, other readers and viewers, you may not always agree with us, but [00:26:00] at least we're not deliberately going out lying to you.

Nick Capodice: Last thing for me, Hannah. I mentioned it earlier, but it bears repeating. This settlement is by no means the end of this story.

Jane Kirtley: The Smartmatic case, which is another voting systems case, is is one that is still going forward. Smartmatic has made very clear that they've been following the Dominion case closely, taking notes, paying attention. And I [00:26:30] am sure that they are not going to back off on their suit against Fox. So the story is not over yet. As long as that case and the many other cases against other people that appeared on Fox, like Mike Lindell from Minnesota, the Mypillow guy and any number of other people, those cases are still out there and they remain to be adjudicated on some day in the future.

Archival: Mypillow CEO Mike Lindell, [00:27:00] a vocal supporter of former President Trump and election denier, has been ordered to pay $5 Million related to his false claims over the 2020 election. Lindell had offered that amount of money to any cybersecurity expert who could prove his data wasn't really from the election. A software developer in Nevada did just that and then filed a lawsuit when he didn't get paid.

Nick Capodice: That is defamation, Dominion and Fox. Who knows [00:27:30] what the future shall hold. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. Our staff includes senior producer Christina Phillips, producer Jacqui Fulton and executive producer Rebecca Lavoy. Music In this episode by Cycle hiccups, Blue Dot Sessions, Aiyo, Damma Beatz, Fabien Tell, Molife, Aks and Lakshmi, Tyra Chantey. Ben Elson, HoliznaCCo, Emily Sprague, Lobo Loco, Randy Butternubs, and the guy who REALLY won the election, in my heart at least, Chris Zabriskie. Civics [00:28:00] 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

US vs: Freedom

How free are we? Are some countries more free than we are? What does freedom even mean?

In this episode in our "US vs" series, we talk with the co-author of the Human Freedom Index, Ian Vasquez, about how we rank in our measure of liberty. Then we do a deep dive into Freedom of the Press with Jenifer Whitten-Woodring, co-author of the Historical Guide to World Media Freedom: A Country-by-Country Analysis.

Here are some links to other episodes we've done that explore our ever-changing tally of who gets those freedoms in the first place:

Declaration Revisited

The Bill of Rights

The 19th Amendment

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Transcript

Sonic boom.

Nick Capodice: You know that music, Hannah?

Hannah McCarthy: I do.

Nick Capodice: That is Guile's Theme from Street Fighter 2 which a clever listener pointed out I misidentified in an earlier episode as the character selection music.

Hannah McCarthy: Wow, this listener really knows their street fighter.

Nick Capodice: You might say it's in their ken Hannah. So if we are indeed flying around the globe battling a green mutant from Brazil and a masked [00:00:30] bullfighter from Spain, you know it is time for another us versus or us versus where we see how United Staters measure up to the rest of the world. You're listening to Civics 101, by the way. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are measuring something that seems immeasurable. Freedom.

Speaker4: Freedom and fear. Justice and cruelty have always been at war. Let's not forget.

Speaker5: That freedom is more powerful than fear. [00:01:00]

Ian Vasquez: One of those constructive forces is the enhancement of individual human freedoms. I've always liked George Orwell's blunt and unadorned statement. He said. Freedom is the right to say no.

Hannah McCarthy: Now, Nick, how do you propose we measure freedom?

Nick Capodice: An excellent question. Now we have done many episodes on to whom freedoms do or do not apply throughout our long history. I'm talking the Declaration Revisited, the 19th Amendment. The Bill of Rights, links to all of those [00:01:30] in the show notes. This episode being a US versus, a series that we do from time to time, I'm just going to focus on the state of freedom right now, and my game plan is I'm going to do sort of like a 30,000 foot view of freedom generally. And then in the second half, I'm going to dive into one freedom in particular, specifically the freedom of the press, because, you know, that's us. But to your question, how can we assess freedom?

Ian Vasquez: We measure 83 distinct indicators and in broad [00:02:00] categories of freedom in the 165 countries.

Nick Capodice: That is Ian Vasquez, vice president for international studies at the Cato Institute and coauthor of the Human Freedom Index.

Hannah McCarthy: The Cato Institute is a think tank in D.C., though, right? Can you just give a quick summary of what think tanks are, what they do?

Nick Capodice: Sure. Think tanks are research institutes that hire experts to study certain topics. And this is the important part. Advocate for policy. We're talking like the RAND Corporation, [00:02:30] the Brookings Institution and the Heritage Foundation, for example. Some think tanks are nonpartisan and others promote particular political positions. And the Cato Institute creates a presence for and promotes libertarian ideas in policy debates.

Hannah McCarthy: Small l, libertarian, so generally less government. So they do have a point of view?

Nick Capodice: Absolutely.

Hannah McCarthy: Okay. So what is the Human Freedom Index?

Nick Capodice: It's a report. It's about 500 pages. It comes out every year. And what it [00:03:00] does is it measures specific indicators of a nation's freedom. This report is the source for the annual news pieces that come out, seeing how one country or another has climbed or slipped in the rankings around the world.

Speaker8: Round the world, we hear cries for freedom. Some nations have a lot of it, some do not. Now, when it comes to freedom, where does Canada rank? Joining me now from Halifax, Nova Scotia.

Ian Vasquez: The Human Freedom Index is a global measurement of of personal, civil and economic freedoms. What we look at [00:03:30] are things like the rule of law or safety and security or freedom of expression or freedom of association or freedom to trade internationally. Whether a country has sound money or not, that's a that's an economic freedom. And so when we put together the data that we get from third parties, whether it be the World Bank or the United Nations or universities and reputable third party sources, and put them together, we create this this index of human freedom [00:04:00] that we believe gives a reasonably accurate picture of the state of global freedom and the state of freedom within countries.

Hannah McCarthy: They take data from third parties measuring 83 indicators of freedoms, and they turn that into a score. Exactly. Before you tell me that score, do Ian and the people who make this index have a working definition of what freedom itself is?

Ian Vasquez: That's a very good question because of course everybody has their own definition of freedom. George Bush had his definition of freedom. [00:04:30] Al Qaeda has his definition of freedom. Hugo Chavez has his definition of freedom. Ours is a very simple definition, and it's the absence of coercive constraint. The idea that you can lead your life the way that you want as long as you respect the equal rights of others. And so that's the working definition that we use when we look at things like freedom of religion or freedom of the press and so on.

Hannah McCarthy: So don't bury the lead here Capodice, how did the US do in the latest rankings?

Nick Capodice: Well, we did okay, [00:05:00] but to be honest, we have done better.

Ian Vasquez: In the year 2000, the United States ranked number six out of 165 countries. In our latest index, which comes which covers the year 2020, it ranks 23.

Hannah McCarthy: 23rd place.

Nick Capodice: I don't even know if they give you a ribbon for 23rd.

Hannah McCarthy: Who does score higher than us? Which countries do allow people to live their lives as they wish as long as they respect the rights of others?

Ian Vasquez: Well, I mean, the top performers do [00:05:30] have high scores across the board in in in personal and economic freedoms so that you just name the top ten so that you have a sense of them. That's Switzerland, New Zealand, Estonia, Denmark, Ireland, Sweden, Iceland, Finland, the Netherlands and and Luxembourg.

Nick Capodice: One thing you might notice about the current top ten, Hannah, nine out of these ten are European countries. However, if you go just a little further down the list.

Ian Vasquez: If you [00:06:00] look at the top quartile, you start to get a little bit more of a of a variety. It's not just some of the countries you would suspect would be the freest. It includes former socialist countries. I mean, the top ten already includes one Estonia, which is really a top performer, but it includes also Asian countries like Taiwan and Japan. Korea, of course, it includes a couple of Latin American countries like Chile at 32, Uruguay [00:06:30] at 36. It shows what I think is world progress over the long run of freedom spreading.

Hannah McCarthy: So given that this report ranks us at 23rd, what does that mean for us? The word freedom is in our national anthem. It's in our Bill of Rights. It's used in just about every State of the Union address. And so many aspirational messages like political ads. Should we pump the brakes a little? Should [00:07:00] we change how we talk about ourselves?

Nick Capodice: Ian says yes and no so.

Ian Vasquez: We can say that it's still among the freest nations in the world, certainly in the top quartile. But I don't think that we can say that the United States is a bastion of liberty, as a lot of Americans would like to think of the United States in those terms. And I think a lot of the world has traditionally thought of the United States in those terms. I don't think we can say that anymore. And so, [00:07:30] in a way, the United States parallels what's gone on in the world. But but as one of the most important nations, certainly with a big impact in the rest of the world, the loss of freedom in the United States is very worrisome.

Hannah McCarthy: Does Ian say what has caused this decline? Which of those 83 indicators are lowering our score?

Ian Vasquez: The area that deteriorates most significantly during this period of time is the rule of law.

Nick Capodice: The rule of law being [00:08:00] that laws are stable and they apply equally to everyone.

Ian Vasquez: And that's particularly worrisome because of course so many freedoms depend on a good rule of law and that deterioration in the United States is more pronounced than in other countries. And what we think is going on there over the past couple of decades is, is that that's a result of the war on terror, the wars that are going that had been going on or were initiated during that time period abroad, the war on drugs, [00:08:30] the weakening of property rights in the United States.

Nick Capodice: We've talked a lot about property recently on the show, Hannah, But to recap, if you're a person experiencing poverty, you are significantly more likely to be affected by a government construction project, for example.

Hannah McCarthy: Right. The use of things like eminent domain. This is where the government can claim private property to promote economic or social development. It's got critics on both sides of the aisle. The person who owns an apartment building is compensated, but not the people who live in it. They just [00:09:00] have to find somewhere else to live.

Ian Vasquez: The financial crisis also weakened people's confidence in the rule of law, partially because of the way that the government responded in so many ad hoc and arbitrary ways, seemingly favoring some well connected industries and and even companies. There was this perception, which I think is correct, of the sort of the rise of cronyism, which of course, is absolutely contrary to the rule of law. And that coincides with the rise [00:09:30] of populism in the United States with the rise of Trump and populism and the Democratic Party, where the the the narrative is, hey, guys, the rules of the game are rigged. You can't trust them. You can only trust me. You know, this is only a strong man can can, can fix things in the system. The institutions aren't good. Look at this judge with his first name and his last name. And look at this journalist. He's he's also look at all of the media. It's all corrupt. [00:10:00] I mean, I myself have serious criticisms of some of the media and so on. But you can't just undermine facts or an entire set of institutions because you disagree with something or you have legitimate criticisms.

Nick Capodice: Ian says that one category in the index has dramatically lowered in the last two years not just in the US but worldwide. And it is freedom of movement.

Hannah McCarthy: Now, is this tied to the COVID 19 pandemic? [00:10:30]

Nick Capodice: Absolutely. Directly tied.

Ian Vasquez: There were severe restrictions at the local level. At the national level. I mean, international travel just came to a stop. It was basically forbidden international movement of people. So much economic activity was basically forbidden. People in many parts of the world were essentially prohibited from even leaving their houses for long periods of time. So this was a severe limitation on freedom.

Nick Capodice: And to be clear, Hannah, this report is not a criticism or an [00:11:00] endorsement of specific COVID protocols. This is just an assessment.

Ian Vasquez: We're just measuring what's happening. We're not saying that under certain conditions and and during certain times this measure or that measure is justified or not justified. I mean, certainly the the autocratic regimes of the world used COVID restrictions or COVID as a as a pretext to crack down on their opponents and on their own citizens in ways that [00:11:30] would have been harder for them to get away with had it not been for COVID.

Speaker10: Rights groups accuse Mr. Erdogan of using the crisis to tighten his grip on power, critics say. Another example of the pandemic giving the government more control in a series of moves that could lead to instability.

Hannah McCarthy: This report, Nick. Honestly, to me, it's a little bit bleak. Are there any areas where we are doing well freedom wise?

Nick Capodice: Yeah, there are. And I don't want to be all doom and gloom today. [00:12:00] There is an area we most certainly could improve on, but comparatively is quite strong and that is the freedom of the press. But before we talk about it, we've got to take a quick break.

Hannah McCarthy: And before that break, just a reminder that Nick and I write a fun filled grab bag newsletter every other week. I imagine Nick will put a link to the full Human Freedoms Index in the next one. That newsletter is called Extra Credit, and you can sign up at our website, civics101podcast.org.

Nick Capodice: And while you're there, please consider making a donation to support the show. It [00:12:30] means an awful lot to us.

Hannah McCarthy: We're back. We're talking comparative freedom. And before the break, Nick, you said that you were going to get into the freedom that's near and dear to my heart. The Fourth Estate.

Nick Capodice: That's right. Me too. Hannah Now that we've done sort of a general freedom overview, I'm going to focus just on this one. A deep dive into the freedom of the press.

Speaker8: Freedom of information. Is a fundamental [00:13:00] human right and the touchstone of all the freedoms to which the United Nations is consecrated.

Hannah McCarthy: How do we measure that?

Jenifer Whitten-Woodring: I'm glad you asked that, because as someone you used to teach a lot of research methods, courses, I always tell my students, you cannot use a measure unless you understand how you've defined what it is the measure purports to be measuring.

Nick Capodice: This is Jenifer Whitten-Woodring, political scientist and dean of the Honors College at UMass Lowell. [00:13:30] She is also the coauthor of The Historical Guide to World Media Freedom, a country by Country Analysis.

Jenifer Whitten-Woodring: We were gathering data for every available country going back to 1948. So it was a huge project, and we needed a measure that was a measure and a definition that was simple. So the way that we define it is the ability of journalists to criticize the government about issues that really [00:14:00] matter, issues that if people were to become aware of them, people would become so upset potentially that they would call for the leader to be overthrown. So think along the lines of the Watergate scandal and President Nixon

Speaker1: Nixon again and again last week, observers in the courtroom were heard to say, you know, the White House could be telling the truth, but nobody will ever believe it. Fred Graham, CBS News, Washington.

Hannah McCarthy: If that's Jenifer's metric for measuring press freedom, [00:14:30] how did the United States do?

Jenifer Whitten-Woodring: So using that definition, I would say the US hasn't budged very much over time. And that's that might come as a surprise to people. But when you think about it, journalists in the US have been able to criticize government about issues that really matter, and that hasn't really gone away even under Donald Trump when there was this quite a bit of well, [00:15:00] he described it as a media war, right? But journalists were critical of him and he was critical of them.

Speaker1: You know, you're a fake. You know that your whole network, the way you cover it, is fake. And most of you and not all of you, but the people are wise to you. That's why you have a lower a lower approval rating than.

Jenifer Whitten-Woodring: But even so, journalists were able to criticize President Trump and they are able to criticize President Biden about issues that really mattered. Now, the degree to which they do so is contested. [00:15:30] They don't have to do it in order for the press to be considered free, but they have to have the potential to do it. So it's all about the potential to criticize government about issues that really matter.

Nick Capodice: I just want to jump in here, Hannah, with a quick grain of salt because not everyone agrees with Jenifer's assessment. Reporters Without Borders, which is a non-governmental organization that aims to maintain freedom of information around the world, ranks the US 42nd in press freedom.

Jenifer Whitten-Woodring: 42 [00:16:00] below Burkina Faso and Moldova and the Ivory Coast and South Africa. I don't agree with that assessment. I don't agree that the US should be below Burkina Faso or Moldova for that matter. I think it's somewhat political with Reporters Without Borders. They are one of those agencies that really focuses on media infractions. So there's a lot of coverage of nasty things that happen in the US and, you know, things that political [00:16:30] leaders are saying that are that might discredit the media a little too much. So I think that's that's kind of what we're seeing there.

Hannah McCarthy: Jenifer disagrees with that low ranking from Reporters Without Borders, but that's because she measures different things than them.

Nick Capodice: Yeah, the index from Reporters Without Borders measures infractions more than, you know, successes. But it cites information, chaos and severe polarization, both weakening the freedom of the press and both objectively on the rise [00:17:00] over the last few years.

Hannah McCarthy: Okay. Do you have an example of a country that's maybe similar to us in terms of political structure, but does press freedom differently?

Nick Capodice: Sure do.

Jenifer Whitten-Woodring: Let's look of India, right? So like the US, a large democracy, but unlike the US, there are substantial limitations on media freedom. First of all, in India you cannot get news on the radio unless [00:17:30] it's from the government controlled radio.

Speaker1: This is all in. Radio giving you the news for quick news updates round the clock. Follow us on our Twitter handle at EIR news alerts.

Jenifer Whitten-Woodring: Now, newspapers are fairly free to print whatever they want, Television also reasonably free to broadcast whatever they want. But there is this limitation on radio, which I think is fascinating. But radio, if you think about it, is the most [00:18:00] accessible form of media. You don't have to read. You don't have to afford a computer. You don't have to you know, you don't have to have a television. You don't necessarily have to have a television signal. Radio signals easier to get.

Nick Capodice: And Jenifer said that India is not alone, that in those countries where the government controls some aspects of the media and not others, radio is typically the first one they try to regulate. Because if you live [00:18:30] in a rural area, radio is more accessible than television. And there are so many jobs where you can listen to the radio while you work, but you can't look at a TV or stare at your phone.

Hannah McCarthy: All right. Speaking of government controlled radio, I didn't think we'd have to get into it, Nick, but I now think we got to get into it. Yeah.

Speaker1: Wednesday, the Twitter owner targeting National Public Radio via his social media giant. He likens NPR with state controlled media similar to Russia [00:19:00] Today or Xinhua in China.

Nick Capodice: Early April 2023, Elon Musk added the label state affiliated media to the Twitter account label of NPR, National Public Radio. Hannah, you and I work for NPR, New Hampshire Public Radio, which is not a part of NPR.It's what's called a member station, meaning we air NPR content on our station, along with local news and programs like us. Musk has since said that label, quote, might not be accurate, end quote. And [00:19:30] as of this recording, April 17th, 2023, that label has been changed to government funded media. In response, NPR is no longer providing content on Twitter and many public radio stations around the country, including ours, NHPR, have followed suit. But I got to say, regardless of how you feel about public radio, the fact is that funding comes from grants. And to throw a number out at you in 2020, these grants accounted for less than 0.1% of NPR's total revenue. [00:20:00] And while we're at it, while we're talking government funding, it might be worth mentioning here that, like a lot of American corporations, Elon Musk's companies have received many billions of dollars in government subsidies over the last 20 years.

Hannah McCarthy: All right. Thank you for getting that out of the way.

Nick Capodice: Yep.

Nick Capodice: If anybody wants to learn more about that, get something off your chest, ask some questions, drop us a line civics101@nhpr.org. Because while the government has no say whatsoever in [00:20:30] what we do here You listener, your questions do define what topics we cover on the show. You don't even have to make a donation.

Hannah McCarthy: Okay. I'm glad that Jenifer feels that freedom of the press is strong in the US. Specifically according to her metric that we are able to criticize the government, But that ranking from Reporters Without Borders is worrisome. How could we do better when it comes to freedom of the press?

Jenifer Whitten-Woodring: It's touchy, though, right? Because media journalists are very dependent [00:21:00] on political and economic and powerful people. Generally speaking, those leaders, we need them as journalists to get our information for our stories. I'm using the Wii because I used to be a journalist, so I'm very well aware of what it's like to try to interview a public official. And they won't talk to you. Or what if your public official just doesn't hold any news briefings or news conferences? And we've seen that in the US, right? So access to information [00:21:30] is always going to be a challenge. So we could improve journalists access to information for sure.

Nick Capodice: The other concerning issue we have with journalism in the US is something I think all of our listeners are aware of. It is a combination of a very polarized audience and commercial pressures.

Jenifer Whitten-Woodring: News organizations have to make money. That's how they survive. Npr needs donations. Npr also gets donations from [00:22:00] big benefactors too, right? You have to get an audience or you're not going to get the donations. Commercial radio, television, Internet sites. If you're a commercial, you have to get advertising revenue, and you can't get that if you don't have an audience. So the problem is now how do you get audience? That's what leads to a lot of sensational coverage. That's what leads to a lot of, I think, politicized coverage [00:22:30] that we have. We've got Fox News demonizing Democrats. And frankly, MSNBC News is doing the same thing to Republicans. And, you know, there are some cases where the reporting on from MSNBC has been a little sloppy, quick to run with a story rather than check the facts as long as it makes a Republican leader look bad. And then we see Fox News now with the the case about the the elections and the contested elections [00:23:00] and the results possibly just blatantly reporting information that they knew to be false. I think this is the commercial pressures are probably the biggest problem and the biggest threat to the quality of the news media that we have in the US.

Hannah McCarthy: Nick, after talking to Jenifer and Ian, do you think there's any way the US could climb back up in the Freedom charts?

Nick Capodice: I honestly don't have an answer to that, Hannah. Doing this episode [00:23:30] left me with more questions than answers. All these indexes measure different things and freedom, which means so much to us, to our national identity. It's such a nebulous thing. Freedom for who, exactly? Your freedoms in the US vary depending on what year it is, what state you're in, the amount of money you have, your gender, the color of your skin, whether you're LGBTQ+ or not. And all we do here at Civics 101 is try to keep an [00:24:00] eye on it all. Maybe I should just close all this out with some Aaron Sorkin. Hannah, a little clip from one of those shows that had a lot going for it and a lot against it. The Newsroom.

Ian Vasquez: A straight face you're going to tell students that America is so star spangled awesome that we're the only ones in the world who have freedom. Canada has freedom. Japan has freedom. The UK, France, Italy, Germany, Spain, Australia, Belgium has freedom. So 207 sovereign states in the world, like [00:24:30] 180 of them have freedom...

Nick Capodice: That’s a little bit on freedom today, this episode was made my me Nick Capodice with you Hannah McCarthy. Christina Phillips is our senior producer, Rebecca Lavoie our Executive Producer, Jacqui Fulton our producer. Music in this episode by ryan kilkenny, timothy infinite, flux vortex, sven lindvall, xavy rusan, lobo loco, howard harper barnes, patrick patrikios, yung kartzx, twin musicom, yoko shimamura, and that makes the good music free, chris zabriskie. Civics101 is a production of NHPR, New Hampshire Public Radio. [00:25:00]

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Made possible in part by the Corporation for Public Broadcasting.

How Can The Government Ban An App?

A social media app with 150 million American users — Tiktok — is under intense scrutiny by the U.S. government. The threat is "sell or be banned," but how and why can the government do that? What does this kind of business restriction look like? We talked to Steven Balla of George Washington University to get the low down on regulations and bans in the United States.

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Transcript

Hannah McCarthy: [00:00:02] Nick, we've been hearing the word ban an awful lot lately.

Nick Capodice: [00:00:06] We sure have.

Hannah McCarthy: [00:00:07] Because the government is threatening to ban a wildly popular social media app. You know, I've.

Nick Capodice: [00:00:14] Never been on it myself, Hannah. I don't know if we should advertise that.

Archival: [00:00:17] Well, lawmakers on both sides of the aisle in Congress remain skeptical about the safety of one of the most popular social media apps in the world.

Archival: [00:00:24] We're not just talking a social media ban, Andrew. We're talking about sort of a direct attack on our relationship [00:00:30] with China. And TikTok has more than.

Archival: [00:00:32] 150 million monthly users in the US alone, but faces growing calls for it to be banned over fears about China's access to user data.

Hannah McCarthy: [00:00:42] And every time I hear that word ban, I think to myself, what would that even look like? Like, how does something like that happen? Is the government even allowed to do that?

Steve Balla: [00:00:55] So bans could be theoretically enacted by any number of government actors. So [00:01:00] you could have Congress, through the legislative process, take statutory action. You could also have the executive branch take action. And that would be typically through the president issuing an executive order or an agency of the federal government, like the Environmental Protection Agency or the Federal Communications Commission or the Department of Transportation issuing a regulation. So you have legislation from Congress, executive orders, regulations from the executive [00:01:30] branch. And then the third possibility is action by a judge, by a court.

Nick Capodice: [00:01:36] All right. So in other words, you can ban stuff.

Hannah McCarthy: [00:01:39] This is Civics 101. I'm Hannah.

Nick Capodice: [00:01:40] Mccarthy. I'm Nick Capodice.

Hannah McCarthy: [00:01:42] And today we are talking about how and why the government can ban something. And in this episode, because everyone's thinking it, I'm just saying it. We're going to be looking at TikTok. Oh, and that person who knows what he's talking about.

Steve Balla: [00:01:55] That's Steve. I'm Steve Balla, a professor of political science and co-director [00:02:00] of the Regulatory Studies Center at George Washington University in Washington, DC.

Nick Capodice: [00:02:09] Okay, So now that we've established that bands can in fact occur, what does it actually mean? Like with TikTok, would I just like try to open the app and it wouldn't be there?

Hannah McCarthy: [00:02:20] Well, Steve actually brought up China as an example, and not incidentally, by the way, TikTok is owned by a Chinese company.

Steve Balla: [00:02:28] In the Chinese context, [00:02:30] many of our social media apps are banned by the Chinese government. Like literally Google is told, you know, if you're going to have this product available on the Chinese Internet, you have to follow certain rules. Google says, well, we're not going to follow those rules. Well, then it's wiped off. I'm not sure what the US government's plan is, to be frank about, you know, what the ban would look like in the US context. But if we think about it, even on the Chinese side, there are plenty of Chinese users [00:03:00] of Facebook and Twitter. They of course will use VPNs and all of that. And there of course, there are hundreds of millions of Chinese who don't scale the Great Firewall, but plenty do. And so you can imagine whatever the instrument might be that, you know, some entity the United States government might use to ban a social media platform, that they're still going to be a lot of interest if it's popular among users, to find a way [00:03:30] to have access to it.

Hannah McCarthy: [00:03:35] A VPN, by the way, is a virtual private network. It encrypts your Internet use and basically disguises you online. That includes your location. So in the event of a ban, people could try to use one to access the app anyway. So there are a few things the US could do. It could force a sale of TikTok, presumably to a US company. It could insist that TikTok be [00:04:00] removed from app stores. So no more downloads, no more updates. Eventually the app just becomes really difficult to use. Also, they cannot force all Americans to delete it from their phones, but they can criminalize its usage.

Nick Capodice: [00:04:14] But even though it's criminalized, people could still use it. Albeit sneakily.

Hannah McCarthy: [00:04:19] Life finds.

Nick Capodice: [00:04:20] A way. And can we establish why this ban is hanging over Tiktok's head right now?

Steve Balla: [00:04:25] Anytime you mention China in the current political environment, [00:04:30] there's definitely a fear associated with the threat that China might pose militarily, economically, politically to the United States, to the Western world order, all of that. And so it's a really interesting tightrope for elected officials to walk between, on the one hand, a very popular platform, and on the other hand, the fact that it's, you know, emanated from a country that many feel is the primary threat to the United States and [00:05:00] its view of the world order. So it's a real balancing act for members of Congress.

Nick Capodice: [00:05:05] So TikTok being an app that's owned by a Chinese company is seen as a threat.

Hannah McCarthy: [00:05:11] Congress has pretty much insisted that TikTok is sharing user data with China. And given the way the US government perceives China, that is a problem for them.

Nick Capodice: [00:05:20] What allows the US to take action like this, be it Congress or the executive branch or the judicial system?

Hannah McCarthy: [00:05:27] Well, a ban is a business restriction, right? But it [00:05:30] can't be arbitrary. It has to relate to regulation and regulation. Sounds like a catch all term, but actually Steve says it is highly specific.

Steve Balla: [00:05:40] A regulation is something that's actually defined in a statute called the Administrative Procedure Act of 1946. That defines what a regulation is. In government speak, there's like a specific [00:06:00] definition of what a regulation is that separates it from any other instrument of policymaking. Regulations tend to have general impact. So that is a regulation would generally limit a company's discretion to pollute in this way or to sell a product in that way. But a regulation generally has a it's a general future applicability. [00:06:30] Okay.

Nick Capodice: [00:06:31] General future applicability. So like don't pollute. But we won't get too specific here.

Hannah McCarthy: [00:06:37] Yeah. And then there comes the enforcement, like, say a company X is polluting. Well, luckily we have this higher level rule that already took care of that possibility. So the government has the power to do something.

Steve Balla: [00:06:49] You know, enforcement action has to come out of some preexisting authority. So just like when an agency writes a regulation, it has to have an underlying legislative [00:07:00] authority. When an agency takes some kind of enforcement action, it has to be on the basis of some kind of higher level policymaking authority. It could be regulatory authority. It could be legislative authority, because there are cases where Congress writes a law specifically enough so that we know what our obligations are under the law. What unites all of this is the enforcement actions that are taken have to have some prior general policy [00:07:30] making authority, either from regulation or legislation or some court decision. So the underlying authority could come from any of the three branches. When we think about.

Hannah McCarthy: [00:07:41] It, like in the case of TikTok, House Speaker Kevin McCarthy said that Congress would move forward with legislation to address national security concerns related to the company.

Nick Capodice: [00:07:51] And once you've got that legislation in place, something like a ban could follow or even be a part of that legislation.

Steve Balla: [00:07:59] So we could almost [00:08:00] have a hierarchy here where you have a law. It's the broadest statement of policy coming out of Congress, but leaves a lot unsaid. The authority then to say the next step of things is delegated to an agency. They write a regulation that's much more specific than the law, but still has very general applicability. And then once that regulation is in place, it needs to be enforced or implemented. And so if there's a regulation on the books that says [00:08:30] a facility can't use this technology to emit pollution into the air, then that's the general statement. The ban or the enforcement action or the sanction is the action that is taken against a particular firm or a facility that's by virtue of inspection or something else found to be in violation of the regulation. And so, like when so when I hear words like ban [00:09:00] or sanction or enforcement, I tend to think of that's if we're nesting the dolls here, that's like your legislation, regulation and then enforcement and bans and sanctions, penalties, fines, those would all be manifestations of how a regulation would be applied in the context of a specific facility or firm or what have you.

Hannah McCarthy: [00:09:32] Of [00:09:30] course, that's not the only place rules, regulations and even bans can come from. We'll have that after the break. You're listening to Civics 101 and we're talking about how something like a ban, say, on your favorite social media app can happen in the United States.

Nick Capodice: [00:09:55] So, Hannah, I've got that regulation and restrictions and things like bans [00:10:00] have many layers with a hierarchy of rules and institutions establishing and enforcing them. But what about something like an executive order when the president unilaterally says this is just what's happening and it's happening now because those do pretty much just happen? Can the president simply just institute a ban?

Hannah McCarthy: [00:10:20] Okay. Two things. Yes. And that doesn't mean an executive order does not need justification.

Steve Balla: [00:10:28] Say it's an executive order [00:10:30] that President Biden says, I think immediately upon it being signed, some interested party that's hurt by the action will take legal action in the courts. And so then that will start to wind its way through the judicial system. The exact legal nature that that dispute will take will be a function, of course, of what's the rationale that the administration uses to justify the ban and, you know, how that might be open to legal conflict. [00:11:00]

Nick Capodice: [00:11:00] Okay. And also, suppose there's the fact that executive orders don't have much staying power, like if TikTok were banned by an executive order, that same order could just be unwound, overturned by another president or even the current one.

Hannah McCarthy: [00:11:14] Bingo. And by the way, it's not just executive order regulations that could be challenged.

Steve Balla: [00:11:21] Oftentimes, if we talk about the context of agencies taking regulatory actions, it will be. Whether they [00:11:30] have the authority in the first place to take that action. So years ago, decades ago, the FDA issued a regulation banning certain advertising and sales practices of cigarets, especially in the vicinity of schools. And that was immediately met with a legal challenge. That said, irrespective of the underlying merits of, you know, protecting children [00:12:00] from nicotine and its addictive properties or whatever, irrespective of all that, the FDA doesn't have the authority to enact that kind of regulation because Congress never gave it the authority. So in that case, the FDA, in justifying its authority, said, well, you know, they basically referenced their statute that Congress had legislated decades prior and said on this broad charge [00:12:30] in this decades old statute, in effect, we have the authority to take this action.

Nick Capodice: [00:12:38] So no matter who bans a social media app, there's a chance that ban will be challenged by whomever it affects.

Hannah McCarthy: [00:12:44] And when you've got 150 million users, which TikTok does, many of whom are young people who advertisers want to target through social media, the potential for groups being affected is high.

Nick Capodice: [00:12:58] And you mean for both the users and [00:13:00] the advertisers?

Hannah McCarthy: [00:13:01] Which brings me to one giant consideration in all of this. The government does care what people think and really cares about the economy.

Steve Balla: [00:13:10] And we live in a democracy. And of course, Congress, members of Congress are paying attention to what's, you know, what their constituents are asking for, what they're excited about, what they're fearful of. And so that might drive some of what happens in the policymaking arena. The other thing is we [00:13:30] can think about business is maybe a particularly important constituency because so much of how politicians are evaluated depends on the performance of the economy.

Hannah McCarthy: [00:13:41] Something that I found really revealing about this regulation conversation, Nick, is the Venn diagram of consideration going on when the government goes after a company. In the Tik Tok case, there's the perceived security threat, the generalized fear of Chinese influence. There's broadcasting to this other [00:14:00] nation that we will literally ban their access to the American people. And then there are the American people. And where those two meet, that is where law, regulation and yes, bans happen.

Steve Balla: [00:14:14] There is a process and a structure to a government actor taking an enforcement action against some company. But that doesn't mean that we still don't live in a democratic political system where [00:14:30] officials are elected to enact particular agendas. And so that's certainly the case. So it's a real dichotomy in that on the one hand, you know, the this is a legal administrative process and the enforcement actions really have to pay homage to the underlying law and administrative regulations. But on the other hand, we this still is all occurring in a political system where where actors have [00:15:00] specific constituencies they're trying to satisfy. They have their own personal objectives. And so oftentimes the language of the law, you know, statute regulation can be used in a political way. And so we like to think we would like to really have a simple separation, that there's politics over here. And then there's the administration over, like the administration of law and policy over here [00:15:30] and reality. Those two things are totally interchangeable and impossible to separate. So even though there's underlying processes and authorities, they're certainly still subject to political impulses.

Hannah McCarthy: [00:15:44] Speaking of politics, just one last thought here. Tiktok is many things to many people, but importantly, the app has functioned as a tool for organizing around social justice and as a venue to talk about things that might be hard to talk about at home, [00:16:00] especially among younger people. So when we talk about banning it, there's certainly something at stake here beyond viral dances. Oh, and by the way, this episode has been all about the federal government. But I would be remiss if I didn't tell you that states can do and are doing their own thing with social media. As of the publishing of this episode, Utah had passed a highly restrictive social media regulation for younger people, and other states may just follow suit. Say it with me, people state and. Like you call him Nick. Yeah. Because...How did yo Local government is where [00:16:30] it happens. Pay attention. All right, that's it. Thanks for listening. This episode was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. Music in this episode by Rymdklang Soundtracks, [00:17:00] Dirk Dehler, Kirk Osamayo, Anemoia, Modern Monster and Simon Matthewson. If you've got a question about civics, government just generally want to know what on earth is going on around here, do not hesitate to reach out. You can submit your questions at civics101podcast.org. Either we'll try to find the answer or we'll find somebody who knows way better than us to answer it for you. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How do Indictments and Grand Juries Work?

What are grand juries? Who gets picked for one? What does an indictment mean?  What's next? Why does it seem like this process is taking so long?? 

Today we explain all the legal processes surrounding the recent indictment of former president Donald Trump, as well as what the Constitution has to say about all of this.

With us is Albert "Buzz" Scherr, professor of Criminal Law and Justice at UNH Law. 

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Transcript:

Archival: And we begin tonight with the breaking news. Multiple sources telling ABC News that former President Donald Trump has now been indicted.

Archival: Trump was under investigation by the DA's office for his alleged hush money payment to adult film star Stormy Daniels during the 2016 campaign. This indictment is under seal, according to sources, and the exact charges are not yet known at this time.

Archival: But this is a moment in history, the first time ever, that an American president or former president has been charged with a crime. [00:00:30]

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

Hannah McCarthy: And I'm Hannah McCarthy.

Nick Capodice: And today we are going to explain the basics of the legal procedure that is currently going on in New York involving former President Donald Trump. We are going to focus on systems and definitions here. We're going to define grand juries, indictment, arraignment, extradition, the role of a district attorney and what the Constitution says or does not say about all of this. And we're going [00:01:00] to be as specific as possible. But I want to say two things right off the bat. First off, Donald Trump is currently the subject of several criminal investigations, but this episode is going to focus on the one in New York centered on the payment of $130,000 to Stormy Daniels, an adult film actor. And number two, Hannah, when we're talking about legal procedures, we have your favorite uniquely American caveat.

Hannah McCarthy: Federalism.

Nick Capodice: Federalism.

Albert Scherr: You [00:01:30] know, there are 51 different criminal jurisdictions in the United States. And so New York is different than mass is different than California is different than Texas.

Nick Capodice: That is Albert "Buzz" Scherr, Law professor and chair of the International Criminal Law and Justice Program at UNH Law.

Albert Scherr: At a certain level of generality, an indictment is an indictment. A grand jury is a grand jury no matter what. But the more you descend into specific procedure, the more variation [00:02:00] you get.

Hannah McCarthy: Okay, given that we are both One nation and 50 nations bundled up, I think the first thing we have to define is a grand jury. What does it do?

Albert Scherr: A grand jury is a judicial body interposed in between the government, the prosecutor's office, and an individual to protect an individual from a prosecutor [00:02:30] who is just engaging in charging people by virtue of not liking somebody. And it is a body of individuals, varies from state to state, usually 17 to 23 or so. The prosecutor puts evidence in front of them in secret without any defense lawyer there, and they at some point decide whether there is probable cause to believe the crime has been [00:03:00] committed.

Hannah McCarthy: So a grand jury guards against prosecutors just bringing anyone to trial for anything whatsoever.

Nick Capodice: Yeah. And New York, along with many other states, does grand juries this way. The prosecution shares evidence, sometimes brings witnesses in to testify, and the grand jury decides whether or not to go to the next step, which is indictment. At least 12 members of that grand jury have to vote and say, yes, there is a case here. This person should be [00:03:30] charged.

Hannah McCarthy: And Buzz says there's no defense lawyer there. Does the defense or the person under investigation get to participate in any way whatsoever with this step?

Nick Capodice: Nope, not at all. That happens during the trial itself.

Hannah McCarthy: Who gets to be on a grand jury?

Nick Capodice: Grand jurors are selected the same way as other jurors in your district. Be that from voter rolls, car registration, etcetera. But unlike a petit jury which deliberates during a trial in a grand jury, there is no voir dire. That [00:04:00] is no process to ensure that a jury is impartial.

Hannah McCarthy: So it's random selection. There are no lawyers debating on whether or not one juror or another should be struck for cause.

Nick Capodice: Right. And I mean, you know, the judge will ask if you're related to anybody in the case, for example. But it's not like a petit jury where you're interviewed about your beliefs and your legal history and all that. Also, serving on a grand jury can take a long time.

Albert Scherr: A grand jury sits for anywhere from a month to two months, depending [00:04:30] on the jurisdiction, and they hear evidence on a whole bunch of crimes. It would be startlingly inefficient to have a separate grand jury called in for each potential crime. The grand jury will sit for two months, maybe not every day in every weekday in the two months, but they'll sit frequently during that two month period. And the prosecutor will bring in evidence most frequently a police officer [00:05:00] who's investigated the case to testify. This is what's happened in this case. This is what this person said. This is what that person said. You know, the rules, excluding hearsay and all that, don't apply. The rules of evidence don't apply at grand juries. So it can be a more efficient process. But, you know, the grand jury may hear evidence of, you know, 10 or 20 potential crimes in a day.

Nick Capodice: There are special grand juries, by the way, like investigative grand juries. But that's not what we have here. [00:05:30] The grand jury that voted to indict Donald Trump on March 30th was a regular grand jury.

Hannah McCarthy: Okay. Can we move on to that next step? What exactly is an indictment?

Albert Scherr: Indictment is a formal charge that says a grand jury has found probable cause to believe you've committed this crime. And it's a written document that details the elements of the crime the individual is alleged [00:06:00] to have committed. And a summary of the factual information supporting that legal allegation.

Nick Capodice: As of recording these words, 6 p.m. on Sunday, April 2nd, 2023. We do not know the exact nature of the indictment. It is sealed, but CNN has reported that there are at least 30 counts related to business fraud.

Hannah McCarthy: Okay. We've got the grand jury which heard evidence from the prosecution. They voted to indict Trump. What is the next step in the process?

Nick Capodice: After indictment, we [00:06:30] move to arraignment.

Albert Scherr: Arraignment is... Two things usually happen at an arraignment, 2 to 3 things. One, you enter a plea of guilty or not guilty. Two, if you don't have appointed counsel, you are appointed counsel before the arraignment. If you can't afford counsel. Number three, bail is set.

Hannah McCarthy: Will bail be set for former President Trump?

Albert Scherr: Yes, bail will be set in New York. You can't [00:07:00] be held in jail in lieu of bail on a nonviolent offense. So, you know, bail may be set in a certain amount, but certainly Donald Trump will be able to. It's not going to be the case that he's going to be arraigned and be held.

Hannah McCarthy: There will be bail, but he likely won't be held.

Nick Capodice: Right, he's not going to be kept in a cell or at a police station until the trial. The arraignment, by the way, is when booking happens. That's, you know, fingerprints, mug shots, etcetera. And [00:07:30] here is a moment where what's going on with Donald Trump deviates from what usually happens.

Albert Scherr: In those states where the norm is more often as it is in New York, where the norm is more often, that the police arrest you and your booked and they charge you with a felony and then you're arraigned and then you wait until the grand jury decides whether to indict you or not. Once you're indicted by the grand jury, [00:08:00] there's another arraignment on the indictment rather than the more informal charge that originally was placed against you. He has not been arraigned because this is, you know, sometimes they don't arrest them until the grand jury returns the indictment. It looks like it's less a political charge by the prosecutor if he funnels all the evidence that the prosecutor has through the grand jury, rather than he or she and the police make a decision and charge them and [00:08:30] then wait to go to the grand jury, It just it's better optics for the prosecutor to depoliticize what is happening.

Hannah McCarthy: I saw a tweet from our dear friend and social studies teacher, Andrew Swan, who was preparing a lesson for how he'd talk about this with his students. And he asked what would happen if Donald Trump refused to leave Florida to go to New York for the arraignment.

Nick Capodice: All right, Here is where we get into the next entry in our glossary, Hannah: Extradition. But first, we've got to take a quick break.

Hannah McCarthy: And as always, [00:09:00] before the break, Nick and I like to tell our listeners that we have a sometimes serious, usually not so serious newsletter that you should subscribe to. It is called Extra Credit, and it comes out every two weeks. Check it out, as well as hundreds of other free episodes and a ton of other stuff at our website, civics101podcast.org.

Hannah McCarthy: We're back. We're talking processes and definitions related to the recent indictment of former President [00:09:30] Donald Trump. And Nick, you were just about to get into what happens if, hypothetically, Trump refused to leave Florida.

Albert Scherr: Then extradition proceedings would ensue.

Nick Capodice: Again, that's Buzz Scherr, professor of criminal law and justice at UNH Law.

Albert Scherr: The Constitution basically says if somebody is charged in one state with a crime and they flee the state, the other state shall render that person back to the the charging state. There's [00:10:00] a procedure, the interstate extradition compact, that all the states in the country have agreed to that outlines a procedure. And the state of New York would get certain documents to a court in Florida. They would seek extradition of Donald Trump. The court would look at those documents. There would be a hearing to see if those documents were adequate. And then if the court grants it grants the request for extradition, then [00:10:30] the governor orders that the person be arrested.

Hannah McCarthy: The governor orders the arrest.

Nick Capodice: Yeah.

Hannah McCarthy: Which is Ron DeSantis.

Nick Capodice: It is indeed. Ron DeSantis has not formally announced his 2024 presidential campaign, but he has spoken of it in private. Governor DeSantis tweeted on the night of Trump's indictment, quote, Florida will not assist in an extradition request. His tweet also included some incendiary and inaccurate language I'm not going to include here, by the way.

Hannah McCarthy: Can [00:11:00] a governor do that, though? Can they refuse?

Albert Scherr: It's rarely tested, but it could be unconstitutional for a governor to refuse to extradite somebody who's made it through all the process that the uniform extradition statute allows for, Because the Constitution does not say the governor may send him back to the charging state. It says it shall send him back. So, you know, it's an interesting constitutional question [00:11:30] whether Governor DeSantis, if he refuse to finish off the extradition and send him back, whether that would be constitutional or not.

Hannah McCarthy: I want to go back to the person in charge of the prosecution in this case, district Attorney Alvin Bragg.

Archival: There you can see him there, Alvin Bragg, the Manhattan district attorney. He and his office now have just put out a statement. It says, This evening we contacted Mr. Trump's attorney to coordinate his surrender to the Manhattan district attorney's office for arraignment on a [00:12:00] Supreme Court indictment, which remains under seal. Guidance will be provided when the arraignment date is selected. All right. So not much from Bragg's office, but at least something. I'm going to read it again...this evening...

Hannah McCarthy: What are district attorneys?

Albert Scherr: They are the most powerful players in the criminal legal system in any jurisdiction in this country. They have the exclusive authority to [00:12:30] decide whether to charge somebody or not, either by bringing evidence in front of a grand jury or with misdemeanors charging them without the requirement of going through a grand jury. They have a relatively unfettered discretion on who to charge. Fettered only by can they get an indictment from a grand jury.

Hannah McCarthy: So district attorneys are the chief prosecutors in a given district.

Nick Capodice: Right, and they're not always called district attorneys. Some states call them county attorneys. Some states call them state attorneys. South Carolina [00:13:00] calls them solicitors. There are about 2300 of these chief prosecutors in the United States, and anyone can contact them.

Albert Scherr: Anybody. You could contact the district attorney and say, I have evidence that, you know, Buzz Scherr committed a crime, Here's my evidence, and they could send off their investigator. The district attorney's investigator is the local police department to to investigate the evidence you present to them So anybody can contact the prosecutor [00:13:30] and say, you know, time to go after Buzz for these. Here's all the evidence that I have. And then in theory, at least, they'll do an independent investigation and they'll trot it in front of the grand jury.

Hannah McCarthy: Are DA's elected by the people? Or are they appointed in some way?

Nick Capodice: They're usually elected. Though three states appoint them.

Hannah McCarthy: Okay. Before we move on from the DA, Nick, I've heard it mentioned often on social media over the last three days. District Attorney Alvin Bragg is a Democrat and Donald Trump is a Republican. [00:14:00] Does party affiliation have anything to do with this process?

Albert Scherr: In terms of political optics? Yeah. It's being made an issue of. But, you know, there is no jurisdiction in the country that says you can only indict a Democrat if you are a Democrat, you know, or you can only indict a Republican if you're a Republican. The PR campaign that's been at play for some time is trying to make something [00:14:30] of that. Yet another reason for interposing the grand jury in between the prosecutor and the individual. I mean, that's a perfect example. It cleanses to some extent the prosecutor from a charge of you're just doing it because you hate Trump.

Hannah McCarthy: It feels like it's taken a long time. Donald Trump's former private attorney, Michael Cohen, pled guilty to campaign money violations for this in 2018. Has [00:15:00] it taken an inordinate amount of time for this or is that just how it works?

Nick Capodice: It has taken a long time. Hannah and Buzz says part of the reason for that is that the prosecution is being very, very thorough.

Albert Scherr: The district attorney, Alvin Bragg, wants to make all the obvious reasons abundantly certain before he charges Trump that he his investigated this case as fully as he possibly can and [00:15:30] developed all the possible evidence that he can on either side of whether he committed the crime or not and put it in front of the grand jury. It's been vetted as deeply as possible. That actually is unusual. Truth be told, Donald Trump has gotten way, way, way more process out of the grand jury than the regular New York resident gets. Not that you'll ever hear that coming out of his [00:16:00] PR people's mouth or his lawyer's mouth. Alvin Bragg knows for certain that this is the case of his lifetime and he wants to have as many ducks, chickens and other animals in a row as possible before he the charge comes out.

Hannah McCarthy: The last thing I want to talk about here is the constitutionality of this indictment. This is the first time a current or former president has been charged [00:16:30] with a crime. Does the Constitution say anything about whether this is possible?

Albert Scherr: It doesn't say they can't be. So it speaks with silence. Formally as a legal matter, as a constitutional matter, there's not a thing in the way of charging an ex-president, you know, or Vice President Aaron Burr got charged. Spiro Agnew got charged. So [00:17:00] and the only reason Richard Nixon didn't get charged is Gerald Ford pardoned him. So there's absolutely no constitutional bar or other bar in the way of charging an ex-president.

Nick Capodice: Also, Hannah, there is nothing in the Constitution about whether a felon or even a person currently in jail can run for office, be elected and serve as president of the United States. But there is something in the Constitution, specifically the 14th Amendment, [00:17:30] about disqualifying people for running for office. This is called the disqualification clause. It's Section three of the 14th Amendment, which says that anyone who took an oath to protect the Constitution cannot serve public office in the United States if they, quote, have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof. Now, this clause had not been used to remove someone from office since 1869 after the Civil War until [00:18:00] September 2nd, 2022.

Archival: Our top story barred from office, founder of Cowboys for Trump and now former Otero County Commissioner Coy Griffin, punished by a New Mexico judge for his role in January 6th. So what's next?

Nick Capodice: A judge in New Mexico cited that clause to disqualify a county commissioner from holding office due to his participation in the insurrection at the US Capitol on January 6th.

Hannah McCarthy: Going back to this case, did Buzz have any predictions as to what was going to happen next in the indictment of Donald [00:18:30] Trump?

Nick Capodice: Yeah, he said not really. At this moment, as there are so many counts, not to mention all the other concurrent trials. But one thing we can count on is variety itself.

Albert Scherr: There's going to be a lot of variation, and all that matters in the end is when the prosecution puts witnesses in front of the jury. The judge is going to say to the jury at the end of the case. As to [00:19:00] each count. Here's the law that I'm telling you you are to apply. Up to you to decide whether the prosecution, given the facts that you have heard, has proven they violated this law beyond a reasonable doubt. And they'll do that. There'll be 30 different charges. Assuming all the counts get to the jury, there'll be 30 different ways of the jury evaluating them.

Nick Capodice: Something [00:19:30] just have to add at the end here, Hannah, Before I said goodbye to Buzz, there is a relevant concept that I wanted to explain to me by a legal professional. It's an idea that there exists something called the rule of law.

Albert Scherr: It's a much used term. The risk with much use terms is they lose meaning. But in fact it's as powerful a concept as exists in ordering society. When [00:20:00] a government passes a law, the rule of law is that law is followed. We don't ignore the law and do whatever the hell we want to. Your individual conduct is ruled by the law. The government's conduct is ruled by the law, be it the Constitution or a statute. Legislators conduct is is ruled by the law and without the rule of law, [00:20:30] at the most fundamental level, you have chaos. Because if following what the law says is discretionary, like, yeah, I don't like that law, so I'm not going to follow it. You know, that's not a world that over time is a healthy place. It's not healthy to live in a country like that.

Nick Capodice: That's [00:21:00] indictments. Grand juries. Arraignment. All that razzle dazzle. This episode was written and produced by me Nick Capodice with you Hannah McCarthy thank you. Our staff includes senior producer Christina Phillips, Producer Jacqui Fulton, and Executive Producer Rebecca Lavoie. Special thanks to Buzz Scherr, first time someone’s been kind enough to speak with me over a weekend, and to the many wonderful sschat teachers and others who threw questions our way; the amazing Cheryl Cook Kallio, Jamie Grettum, Mrs Cole (sorry I couldn’t get to Federalist 10 in this one, I promise I’m working on it), Brianna Davis, Eric Biggart, Liz Melahn, and the one who makes the beat go on, Andrew Swan. Music in this episode by Asura, Jesse Gallagher, KieLoKaz, Cooper Cannell, Sarah the Illstumentalist, Peter Sandberg, From Now On, Spring Gang, timothy infinite, Peter Sandberg, emily sprague, Twin Musicom, and the man whose music is unimpeachable, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Who Writes Bills?

If you've learned about things like Separation of Powers and Checks and Balances, you know the tried and true notion that Congress makes the laws, the executive branch enforces them, and the judicial branch interprets them. But would it surprise you to hear that's not how it goes most of the time?

Today we explore who really writes the majority of legislation in the US, and how it got to be that way. We talk with Dan Cassino of Fairleigh Dickinson University, who breaks down that first step of the legislative process.

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Transcript

Schoolhouse Rock Archival: “When I started I was just an idea!”

Hannah McCarthy: Wait, wait, wait, wait. Nick, we already did this.

Nick Capodice: Yeah

Hannah McCarthy: We did “how a bill really becomes a law.” And I'm even putting a link to it in the show notes so that we can put the kibosh on the whole Schoolhouse Rock thing.

Nick Capodice: That's fair. That little hopeful 1970s animated scrap of paper has gotten a lot of airtime here on Civics 101. Fine. But [00:00:30] Hannah, I want to focus on that first step of the legislative process and just that first step. And to do it, I would like you to imagine a senator lying in bed, unable to sleep, tossing and turning all night.

Hannah McCarthy: What could be interrupting their slumber?

Nick Capodice: Well, over the weekend, the senator was in their home state and they went for a walk along the beach and they saw, to their abject horror, a flotilla of trash; bottles and [00:01:00] cans and plastic bags, carpeting the shore. And the vision of it haunts their sleep.

Hannah McCarthy: How awful. Something must be done.

Nick Capodice: Something must be done. Exactly. And just before dawn, inspiration strikes. The weary senator flies back to DC, takes out a pen, writes some words down, and silently hands it to the Senate clerk.

Hannah McCarthy: Sounds like a Frank Capra film.

Nick Capodice: And this bill goes through committee. It's voted on. Claude Rains shows up and [00:01:30] eventually it makes its way to the desk of the president to be signed into law. Our senator watching on with a tear in the eye.

Hannah McCarthy: It's a story that I would really love to watch on a cold night, you know, But it's not really how laws are written, is it not?

Nick Capodice: Not even remotely.

Hannah McCarthy: So how are they written?

Nick Capodice: Well, Hannah, hold on to your hat. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today [00:02:00] we are talking about who actually writes the laws that govern our country.

Dan Cassino: So, Nick. Here's what I'd ask. Have you ever actually read a bill.

Nick Capodice: That is the voice of the person who is dandled me on his knee and explained government to me more than anyone else in my life; Dan Cassino, professor of government and politics at Fairleigh Dickinson University.

Hannah McCarthy: Well, have you, Nick, I mean, answer the man's question. Have you ever read a bill?

Nick Capodice: Well, I've tried. I mean, I've started to read a few, but honestly, whenever I've tried to, you know, look over [00:02:30] a substantive piece of federal legislation like an economic spending bill or whatever, I give up pretty quickly because they're often over a thousand pages. But to illustrate what a regular old everyday bill is like, Dan picked one for us to look at.

Dan Cassino: So let's take a look at a bill that I think has a pretty good chance of coming up. Was sponsored by Chuck Grassley. It's Senate bill right now. 223. It's a bill to amend the Controlled Substances Act and here's here's what the bill says. Section 1 or 2 of the Controlled Substances [00:03:00] Act. 21 USC 802 is amended number one by Redesignating, paragraph 58 as paragraph 59 two by Redesignating. The second paragraph designated paragraph 57 relating definitions here as drug felony as paragraph 58 three between paragraphs 5758 so as resized re-designated and 59 as so redesignated two m's to the left. Now, that is gibberish. That doesn't make any sense.

Hannah McCarthy: That is gibberish. What is this law even about?

Dan Cassino: So what it what it actually means is that there is [00:03:30] a technical problem with the way the paragraphs are set up. So there's there's a paragraph under what is a serious drug felony in the US code and there's supposed to be a bunch of subheadings like this is what a serious drug felony is, and one of the subheadings is off, but they have a section there about the indentation. It's not indented enough, so it's not clear if we say serious drug felony, if it includes this subsection below where it says serious drug felony, you're like, well, that's the wrong paragraph number. It's not indented. Is it supposed to be indented? So that's what that bill does. It changes the indentations and moves [00:04:00] around a paragraph.

Nick Capodice: That bill about paragraphs and indentation passed in the Senate on February 1st, 2023. And the question is, did Senator Chuck Grassley write it?

Dan Cassino: It is beyond the scope of my imagination to imagine that Senator Chuck Grassley of Iowa sat down and said, let me just write this down. I think we need 57, needs to be 58. He doesn't know this. And why should he? That's not his job.

Hannah McCarthy: But [00:04:30] isn't that his job? Isn't the main job of members of Congress to write these bills?

Nick Capodice: Sort of? The main job of members of Congress is to listen to their constituents, the people they represent. But when it comes to the writing of the bills that become laws, that's not always in their wheelhouse.

Dan Cassino: I mean, if you read a bill like read the actual it's like looking at source code for a computer program. You're like, Oh, yeah. I mean, in theory this means something, but you can't figure out what it is because it has to refer to every part of the federal code that interacts [00:05:00] with.

Nick Capodice: Have you ever done any computer programing Hannah?

Hannah McCarthy: I have not, but I'm going to guess you have.

Nick Capodice: Yeah.

Three, two, one CONTACT!

Nick Capodice: Just a tiny bit. I used to subscribe to 3-2-1 Contact magazine, and they'd have these pages of code for a computer game that I would type into my apple, see. And I was terrible at it. And it never worked because the lines of code reference, other lines of code. And if any one of them had any mistakes at all, the whole thing would collapse like a house of cards. And if we're talking about proposed [00:05:30] bills, every line has to work with the federal code.

Dan Cassino: If you see an ad for a lawyer, they've got all those books by them. That's the federal code, right? It's huge. It's voluminous. You don't know what's in there. You've never read it. No one has ever read it. You couldn't read it if you wanted to read it.

Nick Capodice: To put it in perspective, Hannah; the federal code is 220 times longer than the Lord of the Rings trilogy with nary a riddle or a boulder throwing tree in sight.

Hannah McCarthy: I will have no slights thrown against the Lord of the Rings today.

Nick Capodice: Fair enough.

Dan Cassino: So [00:06:00] how do you know how to write a law? Well, legislators often have an idea of what they want to put into a law. But even when they have an idea on their own or suggest to them by a constituent, they don't actually put that into law. So what they actually do is we have a staff in Congress of Ghostwriters for Laws. This is the Office of Legislative Counsels. And the Office of Legislative Counsels actually takes what the legislator says they want to do and puts it into a version of an actual passable law that can interact with all the other types of laws in there. And [00:06:30] this is important because if you just put a law in the middle of it, that's a bomb going off in the middle of federal code. It will probably interact with all these other parts of federal code. It won't make any sense.

Nick Capodice: As of right now, the Office of the Legislative Counsel, who helps members of Congress write laws that aren't spaghetti code, that don't screw up or other bazillion laws. This council has 76 full time staff, most of them attorneys, and they are as nonpartisan as you can get.

Dan Cassino: They are actually, for members of Congress. They are the most respected office. Members of Congress [00:07:00] love these guys. They are totally neutral.

Hannah McCarthy: Okay. So bills can be tough to write because they're intended to become laws. And laws are technical by necessity because they interact with thousands of other laws. So members of Congress write bills to benefit their constituents, and they do so with the help of the Office of the Legislative Counsel.

Nick Capodice: Ehhhhh

Hannah McCarthy: What?

Nick Capodice: Well, I mean. Yeah, that's what I thought. That's what I thought when I set out to make [00:07:30] this episode, I thought that because I knew my checks and balances that the legislative branch writes the laws, the executive branch enforces them and the judicial branch interprets them. But Dan, Dan laid a big one on me and I have been wrestling with it ever since He did.

Hannah McCarthy: Let me have it Capodice.

Dan Cassino: Congress doesn't write the majority of their own bills, even through the Office of Legislative Council's. Rather, about two thirds of the bills that pass through Congress are initially written and proposed [00:08:00] by the executive agencies themselves.

Hannah McCarthy: What?

Nick Capodice: I know.

Hannah McCarthy: You're telling me that the executive branch is responsible for writing two thirds of our laws.

Nick Capodice: That's what I'm saying. Executive agencies. There are 438 executive agencies and subagencies, and some are colossal, like the Department of Defense and some are not like the Marine Mammal Commission.

Hannah McCarthy: Okay, you got to walk me through this. Can you give me an example?

Dan Cassino: Sure. All right. So one of the big things we [00:08:30] have to worry about, Congress supposed to worry about is interstate transit. Right. In the Constitution, you have to have interstate transportation. So we've got a problem. The Mississippi River.

Nick Capodice: Climb in the old paddle steamer Hannah and shout Mark Twain, because we're measuring the depth of the mighty Mississippi.

Dan Cassino: Now I'm going to take a flat bottom boat down the Mississippi River. And the problem I've got is that because of flooding and because of different levels of water in the Mississippi River, we have to change how much tonnage I can put on my flat [00:09:00] bottom boat going down the Mississippi River. Now, there's gonna be an agency whose job it is to regulate this. And Congress says we have no idea what the tonnage per square foot of hull space can be on a flat bottomed boat going down the Mississippi River, depending on the seasons. Of course, we have no idea what that's supposed to be. We're going to have an agency.

Nick Capodice: Congress knows very little about this, but they're the ones who pass laws according to the Constitution. So it sets up an executive agency. I'm just going to call it the FBBA Flat Bottom Boats Agency. [00:09:30] The president appoints the head of that agency and then the agency hires a ton of nonpolitical professional river and boat tonnage savvy folk to run it. They write rules that have the force of law, and things seem like they're going fine.

Dan Cassino: But we got a problem. We got a problem because there's all these other boats on the Mississippi. They're crowding things and Congress goes the agency, Hey, what is going on with you guys? You're supposed to be regulating the Mississippi River, regulating these flat bottom boats. We're having accidents. We're having delays. What is going on? And the agency goes, We can't help you, [00:10:00] man. We're just regulating the tonnage. We're regulating the boats. I can't regulate these other things that are going on in the river. So Congress says, fine, we're going to write a new law that will help you figure this out. So Congress does its oversight. It it hears from the agency that it needs a new law and the agency is then going to help Congress write the law. Now, the Office of Legislative Counsels is going to do the actual ghost writing on the law, But the agencies have their lawyers as well, and no one knows what is in [00:10:30] the law covering the agencies better than the agencies themselves do. It's about expertise. Congress created these agencies in order to give them in order to give Congress expertise to handle these problems. Congress doesn't want to deal with. Congratulations. These agencies now have more expertise than Congress does.

Hannah McCarthy: Okay. I was surprised to hear that stat, that two thirds of laws are written by executive agencies and not Congress. But it does make a lot of sense, doesn't it? You want the people who actually know about something [00:11:00] to be the ones to write the laws. Was it always this way?

Nick Capodice: No, it wasn't. First off, 200 years ago. The federal government wouldn't get involved in things like flat bottom boats. And second, this idea that agencies should have professional staff and not political staff. That happened after a fateful morning in 1881.

Dan Cassino: This goes back to the assassination of James Garfield,

The murder of James Garfield...up On the scaffolf high... My [00:11:30] name is Charles Guiteau..

Hannah McCarthy: The assassination of James Garfield.

Nick Capodice: Yeah, well, before Charles Guiteau killed President Garfield, all the people in these agencies were hired at the whim of the president.

Dan Cassino: We have to understand in the mid 19th century, the first nine months to a year, all the president did was appoint people jobs. He had thousands of jobs to fill. And so anyone who helped him out during the election. They got a job. This was called the spoils system thanks to Andrew Jackson.

Nick Capodice: But the reason [00:12:00] Garfield was assassinated was that a man felt he was owed a job. And that man was Charles Guiteau.

Dan Cassino: Who thought because he wrote a speech that he thought had been used to help James Garfield, he should be secretary of state, but he would settle for ambassador to England. So he shot the president. The president eventually died and they reformed it.

Nick Capodice: So the VP, Chester Arthur becomes the new president and nobody wants this to happen again. So Arthur signs a bill that mandates that if someone wants to work in an agency, [00:12:30] they can't just be handed the job as a favor from the president. They need to prove they know what they're doing in the civil service.

Hannah McCarthy: Oh, is this where we get the civil service exam?

Speaker7: It is!

Looking for a job with the state is a little different than looking for a job with the private sector. About 80% of state jobs are filled by people who have taken civil service exams. The exam process is made up of just three main steps...

Nick Capodice: If you want to work in the post office for the TSA, for the FBI, for customs, [00:13:00] for myriad agencies, you've got to take a test to prove you have a base understanding of that agency and its operations.

Hannah McCarthy: Now, so far, this is all pretty logical. People who know stuff help Congress make laws, and only people who prove they know stuff can get a job at those agencies. It's all about information.

Nick Capodice: Well, Hannah, I'm glad you said that. If you were in a particularly cynical mood and I asked you what the prime motivator was [00:13:30] for all political action, what would you say?

Hannah McCarthy: Honestly?

Nick Capodice: Yes.

Hannah McCarthy: Money. Lobbying. Outside interest groups spending tons of cash to influence politicians and to get their way.

Nick Capodice: Yeah, and I would tend to agree with you, but Dan changed my mind on this a little bit. He told me it's not necessarily about money. It's just about information. And I'll tell you what he means by that right after this break.

Hannah McCarthy: But first, before we talk about information, [00:14:00] Nick and I have an awful lot of it that we like to share with our listeners, If you like trivial, deep dives into the fun histories that make us the way we are, you will like our free newsletter, extra credit. It comes out every two weeks and you never know what's going to be in it. Sign up at our website civics101podcast.org.

Hannah McCarthy: We're back. You're listening to Civics 101 and we are talking about who writes the bills that become laws in the United States. And Nick, before the break, you said that contrary to what many of us think, [00:14:30] it's not all about the money.

Nick Capodice: That's correct.

Dan Cassino: It's never about the money. What it's about is information.

Nick Capodice: Again, that's Dan Cassino, professor of government and politics at Fairleigh Dickinson University.

Dan Cassino: We often talk about this in terms of outside interest groups. And the thing we really worry about in political science is outside interest groups performing called legislative capture. That is a situation where the outside interest group has all the information and therefore can [00:15:00] tell Congress whatever they like. And Congress is going to wind up doing what the agency wants. People talk about this in terms of, oh, you know, the NRA gives money to Congress and that's what drives it. It's never about the money.

Nick Capodice: Legislative capture, as in these interest groups like the NRA, the ACLU, the Sierra Club, the Christian Coalition, they capture the legislative branch because they hold all the cards. They know everything.

Dan Cassino: If the NRA has better information about gun laws [00:15:30] than Congress does, then they wind up being able to manipulate Congress and get Congress to whoever they want. The same thing is true of AARP. AARP knows more about Social Security and Medicare and problems with those programs than Congress does. And because of that, they can then dictate to Congress, Hey, you guys need to do this. We worry about this in terms of interest groups. But what people miss out on is that the most powerful interest groups are not the NRA and the AARP. The most powerful interest groups are, in fact, federal agencies, federal agencies advocating for themselves, saying we need more authority [00:16:00] to do something when those agencies are trusted. Their expertise gets trusted. So they are going to wind up having very influential in what bills get put forward and even writing what those laws actually are.

Nick Capodice: And I want to make this crystal clear, Hannah, because it's something I think everyone has been through in some way or another in their lives. We've worked together a long time, right?

Hannah McCarthy: Yeah, I think maybe six years at this point.

Nick Capodice: And, you know, there have been times that I've been like this specific aspect of my job is very complicated. I can't really explain it all. Let me just [00:16:30] take care of it.

Hannah McCarthy: I do, though in some aspects I think we all do that. We all have a particular set of skills, right?

Nick Capodice: Skills I've acquired over a very long career.

Hannah McCarthy: And we kind of become experts at that one thing.

Nick Capodice: Yeah, we've become known at our organization as the go to person for that skill, and we're covetous of it sometimes because we continue to do things the way we like and people depend on that skill and they ask us to do that thing over and over again and it benefits us. And it's not just in our work lives. Like if [00:17:00] you're the best tank in your guild in World of Warcraft, you're going to get asked to tank a lot of raids and you get better loot because you do and better gear because you do, which means you're going to be even more in demand.

Hannah McCarthy: Is that the first World of Warcraft reference that we have used in this show?

Nick Capodice: I think it might be the first, but being the one who knows everything about a topic, be it in our jobs or in school or in Azeroth, is an enormous power.

Dan Cassino: And that's very problematic, right? Because we want members of Congress to be exercising independent judgment, [00:17:30] to be looking at these bills and saying what they really want. And we get this idea of legislative capture. That becomes a real problem because the members of Congress are not really looking at it themselves. They're just kind of saying, because this agency says they need it or this interest group says they need it.

Nick Capodice: And I'm going to bring this back to money. Now, Hannah, you know what an iron triangle is?

Hannah McCarthy: Absolutely. We have had teachers asking us to do an episode on iron triangles for years.

Nick Capodice: Do you want to break it down real quick?

Hannah McCarthy: Okay, I'll do my best. Three points in a triangle, you have an executive agency like the Department of Agriculture. [00:18:00] That is point one. They want to get farmers money because that's what they do. Point two is the Agriculture Committee in Congress who also want to get farmers money. And point three are special interest groups representing the farmers themselves who naturally want more money, who help elect members of Congress who pass bills giving farmers more money. And this triangle is iron because it's unbreakable.

Dan Cassino: Everyone's trying to get everyone more money. And so you just get out of control spending. That's [00:18:30] not the actual story here, because members of Congress are not really motivated by raising money. Hold on.

Hannah McCarthy: Hold on here. What does he mean, "Members of Congress aren't motivated by raising money?"

Dan Cassino: They don't care that much. Think about it. If I'm a member of Congress and I raise a bunch of money, what can I do with it? I can use it to run for reelection. Okay, that's good. But if I have a choice between doing something that's going to upset my constituents and doing something to raise [00:19:00] going to get me money, I'm going to avoid upsetting my constituents at all costs because the only thing I can do with that money is try and win back the constituents that I've just upset. So I'm not going to do something that upset my constituents. Oil companies don't give money to members of Congress to make them like oil companies. They give money to members of Congress who already like oil companies to try and make sure they stay in office. The money is not changing anyone's vote on anything. What matters is the information. So if I am a member of Congress, an oil company [00:19:30] comes to me or farmer, or the Department of Agriculture comes to me and says, Hey, we need you to do this. I know, oh, I trust those guys. If AARP comes to me and says, Hey, Social Security, we need this technical fix in Social Security, I go, Oh, cool. Well, you guys know about this, and I don't want AARP to put me on a list of people they want to get rid of. So therefore, I'm going to do what you say. Does it matter that AARP gives me gives me money? Not really.

Nick Capodice: When I did an episode on Citizens United, check it out. Dear listener, link in the show notes, et cetera, [00:20:00] the thing that surprised me the most was that in the grand scheme of things, corporations and special interest groups were not giving the staggering sums of money I had expected to political campaigns. It was mostly wealthy, very wealthy individuals.

Dan Cassino: The NRA has been fantastically successful for 50 years, despite actually giving very little in federal elections. They don't have to because people trust them. And that trust is what's so important.

Nick Capodice: Now, hold on. Just a quick [00:20:30] clarifier here, because I feel a few of our listeners might disagree with this; people out there who don't trust the NRA or the ACLU or AARP. It is not we, the public, who have to trust special interest groups or executive agencies. Dan's talking about members of Congress. And to use his example of the NRA, if you're a senator who wants to pass a pro gun bill, you might not even know where to start. The NRA is going to help you out. They're going to give [00:21:00] you rock solid data, legal advice, polling stats. They'll just take care of it for you.

Dan Cassino: The thing people worry about is, oh, what if these agencies what if these interest groups start lying to members of Congress saying there's a problem when there isn't really one? And that almost never happens? Because the thing these agencies have, the most important thing these agencies have is credibility. They go to members of Congress, say, hey, or more likely, their staff member, we need you to do this. This needs to happen. Here's our report on this. If they lose credibility and people stop believing what they say, [00:21:30] they've got no pull. They've got nothing. Okay, look, iron triangles are real, but they are not about money. They're about information. Number one. And number two, they're much more complicated than a triangle. It's not just three things. The version I've seen in politics is the iron sphere. Like it's a sphere. It's like a Dyson sphere. Because everyone is working together, but it's all about information flow. That's all it is. Like the money. People. This is what I hate when people say, Oh, but they give all this money. Like, yeah, the money is for access. [00:22:00] That's all the money is. The money is for access. So I can give you the report I wrote. Except in New Jersey, where it kind of is about money, but that's beside the point.

Nick Capodice: That’s who really writes the bills today on Civics 101, and don’t worry NJ I love you and so does Dan, he lives there. This episode was written and produced by me Nick Capodice with you Hannah McCarthy. Our staff includes Senior Producer Christina Phillips, Producer Jacqui Fulton, and Executive Producer Rebecca Lavoie. Music in this episode by Broke for Free, Kelly Harrell & The Virginia String Band who sang that traditional song about Charles Guitau, Eric Kilkenny, HoliznaCCO, Sarah the Illstrumentalist, Autohacker, Eden Avery, Margareta, SPring Gang, Kilokaz, Moore and Gardner, Scanglobe, Scott Gratton, the Green Orbs, and the executive agent in charge of music beds that move along briskly, Chris Zabriskie. There was NO music by Queen in this episode even though I feel Flat Bottom Boats make the rockin world go round. Civics 101 is a production of NHPR, New Hampshire Public Radio.

Nick Capodice:

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Made possible in part by the Corporation for Public Broadcasting.

Paying Income Taxes

The idea that the more you have, the more you’re expected to contribute in taxes, is a foundation of our income tax system. And there is one government agency that oversees it all: the Internal Revenue Service. 

However, the tax code itself, and the IRS, are subject to the will of politicians - who might have special interests of their own. We talk about how politics, wealth, and power influence how people file for their taxes in the first place, how some of the wealthiest Americans have the lowest income tax rate, and who is held accountable for paying their "fair share."

We talk to Eric Toder, Institute fellow in the Urban-Brookings Tax Policy Center at the Urban Institute; Beverly Moran, Professor of Law at Vanderbilt University, where she focuses on federal income taxation, including individuals, partnerships, tax-exempt organizations and corporate; and Joe Thorndike, Director of the Tax History Project at Tax Analysts.  

Curious about the history of the income tax? Check out our companion episode, Why Do We Have An Income Tax?

Also, check out The Secret IRS Files, ProPublica’s investigation into the tax records of the .001%.

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Transcript

Filing Taxes_HMPass.mp3

Hannah McCarthy: Hi, Nick.

Nick Capodice: Hey, Hannah.

Hannah McCarthy: Nick, Why do we pay income taxes? Why are we expected to give some of the money we earn to the government?

Nick Capodice: Whew. Well, I'm not a big time city lawyer, Hannah, but I feel like it's like the government is expected to do something for us in return for those taxes. Right. By making and enforcing laws, providing security and protection, [00:00:30] giving us ways to live and work and travel safely, and to help us access basic things like food or shelter.

Hannah McCarthy: Yeah, that's the idea. But there's also something really important about our tax system. We put a lot of emphasis on fairness.

Archival: How can you judge if a tax is fair to the taxpayer? Well, most people today accept the principle that a person should be taxed according to his ability to pay. As a result, we have a graduate [00:01:00] or progressive income tax.

Joe Thorndike: Look, I mean, no one likes paying taxes, right? We all have to do it because somebody has to pay the bills.

Hannah McCarthy: This is Joe Thorndike. He's the director of the Tax History Project. Civics 101 talked to him back in 2017.

Joe Thorndike: But that means that we want to make sure that everyone else is paying their fair share. Right? I mean, that's the that's the central trope of tax paying in America, their fair share.

Hannah McCarthy: The idea that the more you have, the more you are expected to contribute has been built into our income [00:01:30] taxes from the beginning. And there's supposed to be one government agency that oversees it all, the IRS.

Archival: The Internal Revenue Service, maintains a streamlined operating organization which handles yours.

Hannah McCarthy: And this idea might make sense on paper, but in practice.

Archival: It is tax season, a dreaded time for some Americans feeling burdened as they complete forms that many argue have become [00:02:00] too complicated.

Archival: The IRS kicked off this tax filing season with approximately 6 million unprocessed returns from last year.

Archival: This morning, an investigation reveals just how little some of the richest Americans pay in taxes. It's wealthy taxpayers with less transparent sources of income who are less likely to pay. They can hire lawyers and accountants to help sidestep the tax collector.

Archival: Many lower income people paid for tax filing when their returns should have been free.

Hannah McCarthy: This is Civics 101. [00:02:30] I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And today we're talking about paying income taxes and how the system we designed built around everyone paying their fair share actually works when politics, wealth and power get involved. By the way, if you're curious about why we have an income tax in the first place, we have got a whole episode on that. You can find it at our website, [00:03:00] civics101podcast.org.

Nick Capodice: Yeah, Hannah, I'd love to actually start with the IRS itself. I feel like they kind of get the fuzzy end of the lollipop. They're the one government agency that everyone loves to hate.

Joe Thorndike: Well, you know, officially it's part of the Treasury Department. It is not the largest federal agency, but one of the largest. And more to the point, it's probably the most important for most regular Americans. This is the the main point of contact between Americans and the federal government. [00:03:30] I mean, if you think about it, what other agency touches your life so directly, you know, and threatens to put you in jail regularly? I mean, it's it's unusual, right?

Hannah McCarthy: And the Internal Revenue Service actually used to be called the Bureau of Internal Revenue.

Nick Capodice: Huh. So why did they change their name?

Joe Thorndike: It was renamed in the 50 seconds, partly to just because they were in the middle of a big reorganization and wanted to communicate that, but also to try to say, hey, we're about service. You know, we're not all about putting people in jail. We're also about taxpayer service. And that is actually a big part of the agency's [00:04:00] job because you'll hear this sometimes we have a voluntary tax system that means that our compliance is done by us, not by the agency. So they've got to be they've got to be helpful to us.

Archival: It is only through your willingness to voluntarily fill out your personal and business returns and pay your taxes, that the job of collecting and processing is accomplished as quickly as it is.

Joe Thorndike: I call it, you know, like fiscal citizenship is a way to think about it. And the [00:04:30] IRS is the agency that that makes that real. It makes sure that we are all doing what we're supposed to do and that none of us are shirking our responsibilities.

Nick Capodice: Okay. Joe says voluntary, but that implies that you can choose not to do it. And yeah, sure, you can choose not to pay your taxes, but that is against the law.

Hannah McCarthy: It is.

Hannah McCarthy: Think of it this way Some of our taxes are compulsory. They are taken automatically out of a paycheck like the payroll tax, for example, or added to the price of something like a sales tax. [00:05:00] But our income tax is a little more complicated. You do have to pay it, but you have some freedom and responsibility about how much you pay and when you pay. All right.

Nick Capodice: So is this why our income taxes aren't just automatic like we actually have to fill out a tax return?

Hannah McCarthy: Tax returns are not exclusive to the United States, but they are unique here because of how complex they are. In some countries, income tax [00:05:30] is a simple compulsory tax, and most people do not have to think much about it at all. Employers and financial institutions automatically deduct taxes from people's income and send it directly to the government.

Nick Capodice: And that is withholding, right?

Hannah McCarthy: That's what it's called. And the taxpayer might get a receipt at the end of the year, but there's not much else they need to worry about.

Nick Capodice: But we have withholding here in the US.

Hannah McCarthy: We do. The IRS does have a lot of information already about how much money you earn and [00:06:00] how much you're paying in taxes right out of those earnings throughout the year.

Eric Toder: Now, they know a lot about what our income is because they get reports from our employers.

Hannah McCarthy: This is Eric Toder. He's an institute fellow at the Urban-Brookings Tax Policy Center. He worked in tax policy for the Treasury Department, at the IRS and in the Congressional Budget Office.

Eric Toder: They get reports from our financial institutions about the interest and dividends we receive. We get reports about the retirement [00:06:30] pensions we get. So those numbers go to the government as well as to the taxpayer.

Nick Capodice: And then around tax season, we get a receipt for that.

Hannah McCarthy: Yeah, like the W-2, which comes from your employer and says, Hey, here's how much you made and here's how much you already paid in taxes.

Nick Capodice: Okay, So part of filing your tax return is confirming those numbers. And then if you owe more to the government, you pay it or sometimes sometimes you get money back.

Eric Toder: But there are a lot of pieces of information. [00:07:00] The government doesn't know if you're self-employed, if you run your own business, they don't know how much income you make. You get various deductions. Our tax system is very complicated. There's a lot of allowances. They don't know how much we gave to charity unless we tell them. So you can't claim that deduction. So there's a whole bunch of information that you need to supply.

Hannah McCarthy: And that gets us to the two other steps of the tax return. The first is incentives. Like if you donate it to charity or [00:07:30] bought an electric car, incentives usually make your tax bill go down and a lot of times they show up as a refund or a check straight from the government. You may also get a refund if you paid too much in taxes during the year.

Nick Capodice: All right. What's the second step?

Hannah McCarthy: The second step is to report any additional income you earned that should be taxed. This usually makes your tax bill go up.

Nick Capodice: All right. So when it comes to a voluntary tax, you don't have to apply for incentives, [00:08:00] but you can You do, though, have to report all of your taxable income, even if it doesn't show up on your W-2.

Hannah McCarthy: You do. And the IRS is supposed to help you do that correctly.

Beverly Moran: So the Internal Revenue Service really is tasked with three different things.

Hannah McCarthy: This is Beverly Moran. She's a professor of law and sociology at Vanderbilt University, where she focuses on federal income taxation.

Beverly Moran: One thing is to get you those returns, get you to fill out those returns, [00:08:30] process those returns, get you your money, get the money from you. And about a third of its budget goes to that. Another is be a friend, a helper and a support to all the taxpayers who just want to comply. So be there to answer questions, provide lots of educational materials, and about a third of its budget goes to that. And then the other third is enforcement. Okay.

Nick Capodice: I want [00:09:00] to talk about enforcement for a little bit. Are Americans generally good about paying their taxes? Because I feel like the looming threat of an audit has been part of our pop culture. As long as I've been alive. And we hear all the time about people getting in trouble for not paying their taxes.

Joe Thorndike: You know, Americans are really remarkably good about paying their taxes. We have very high compliance rates relative to other countries. But that doesn't mean we would if no one was looking over our shoulder.

Hannah McCarthy: This is Joe Thorndike [00:09:30] again.

Joe Thorndike: It's a it's a delicate balance between enforcement and voluntary compliance, supported by the agency with help, you know, and information. The agency has to do both. It has to make sure that we understand the rules and that we, you know, are trying to comply with them as best we can. They also have to do, you know, the other side of that is the stick where they say, and if you don't do it, we're going to come for you.

Hannah McCarthy: And here's Eric Toder.

Eric Toder: As far as the compliance issues, our tax gap, according to IRS estimates, are roughly 15% [00:10:00] of of taxes owed are not paid in a timely manner. Some of that money is recovered later by enforcement.

Nick Capodice: So the tax gap just means the percentage of taxes that aren't actually paid. And how much money is that for 2021?

Hannah McCarthy: The estimate was about $600 billion. Put another way, this is 3% of the GDP, the gross domestic product.

Nick Capodice: That is not an insignificant amount, especially when entire government agencies are funded by [00:10:30] a lot less than that. So what does this look like?

Eric Toder: There are three components of the tax gap. There's people who have a responsibility to file but don't file in taxes and owe money. There's people who file their taxes or report their income or their tax liability incorrectly underreport how much they owe. And there's people who might report how much they owe but just don't pay.

Nick Capodice: Which one of these is the most common?

Eric Toder: Of those three components, about 80% is underreporting. [00:11:00] So that's the biggest component. The biggest source of underreporting is in the individual income tax system and the self-employment part of payroll taxes. And the biggest group of people who underreport are small business people. Why is that? Well, if you're a wage earner, the government withholds wages from your paycheck. And your employer sends a W-2 to the IRS. So the IRS knows what your wages [00:11:30] are. So the areas in which people can most easily avoid income is if they operate an independent business. They have self-employment income and don't get a 1099. And that's where, you know, especially if you're operating in cash, it's easy to hide your income.

Nick Capodice: What does he mean by hiding your income?

Hannah McCarthy: There are a lot of ways to hide your income. The most obvious example is simply not putting it into a financial institution [00:12:00] like a bank that will send that information to the IRS.

Nick Capodice: So like, instead of putting it in your bank account, you just keep it in a safe in the basement?

Hannah McCarthy: Sure. Or a metaphorical safe, like a trust or a company you set up that may provide goods or services, but its real business is holding your wealth or opening an offshore account in another country that does not report to the IRS.

Nick Capodice: Yeah, but the IRS still has ways of investigating that, right?

Hannah McCarthy: They do. And that's where enforcement [00:12:30] comes in. Checking in on how much people or corporations claimed they earned an income and how much they paid in income taxes and whether there is any discrepancy in between.

Nick Capodice: Like, hypothetically, if someone said they only made 50 grand a year, but they just bought a $5 million house and a new car.

Hannah McCarthy: That might be something to look into. Or if someone just does not fill out their taxes at all.

Eric Toder: You know exactly how much you owe. And those sources of income, how much you have to report. And [00:13:00] if you're at all savvy, you know, the government knows that, too. And they have computer matching programs that can check on you.

Nick Capodice: So an audit.

Hannah McCarthy: Sometimes it's not even officially called an audit. I think a lot of us have this idea in our minds that if there's an issue with our tax return, an IRS agent is going to show up at our door. But that's not the reality for a lot of people, especially when the issue is easy to fix. The IRS has ways of investigating your finances and then follows up if something does not seem right. [00:13:30]

Eric Toder: They don't have to send an IRS agent. They just can send you a letter. You reported this. Our records show you owe this. Please explain why you didn't pay. That's not even counted as an audit.

Hannah McCarthy: A tax return might require a lot of information. Meaning there are a lot of ways people can mess up their tax returns, intentionally or not. And the tax gap isn't just because of income taxes. There are other taxes like estate or gift taxes that contribute to that gap.

Nick Capodice: Okay, [00:14:00] So most of the tax gap is because of underreporting. And for someone like you or me, Hannah, this might not mean a full scale audit, but what about for like a corporation or someone who has millions or billions of dollars in income?

Hannah McCarthy: Okay. So you are touching on an important distinction here, how tax enforcement like an audit, looks for the majority of Americans versus how tax enforcement looks for extremely wealthy people and corporations. About 28% [00:14:30] of the tax gap comes from the top 1% of taxpayers. So wealthy individuals and corporations contribute to the tax gap in slightly different ways. But they both have one advantage that I want you to keep in mind that we, the average taxpayer, do not political clout and influence.

Nick Capodice: All right. So how do the wealthiest Americans like Jeff Bezos, for example, the CEO of Amazon, one of the richest men in the world, [00:15:00] somehow end up paying basically nothing in income taxes? How does that happen?

Hannah McCarthy: They're really good at making their taxable income look smaller than it is.

Archival: Newsflash, John, the super rich, they're not like us. The tax code is designed to favor the investment income of the mega wealthy over the regular earnings of everyone else.

Hannah McCarthy: These individuals are more likely to have the type of wealth that is not subject to income tax in the first place, like stock and [00:15:30] property.

Nick Capodice: So they're making their billions in various ways that most of us aren't making money.

Hannah McCarthy: And on top of that, they can afford to hire teams of tax experts that help them maximize the benefits of all of those incentives that lower their tax burden. These are incentives that we have to donating to charity or putting money in a retirement account like an IRA.

Nick Capodice: Alright, so if one of us had an IRA, we might put 4% of our income into it every year, and that's probably a few thousands of dollars a year, if you're [00:16:00] lucky.

Hannah McCarthy: Yeah, but if you're someone like Peter Thiel, the founder of PayPal, you might put millions of dollars into that IRA.

Archival: Tech mogul Peter Thiel turned a Roth IRA account into a $5 Billion tax free piggy bank and not.

Hannah McCarthy: Pay income taxes on it. And then you can withdraw that money later on. You may pay some fees for doing so, but it is exponentially cheaper than paying income taxes in the first place.

Nick Capodice: And this is [00:16:30] something that's come up in Congress. I remember there was legislation about capping these IRAs back in 2022.

Hannah McCarthy: And that is the thing about taxes, right? They're political. Our tax policy is determined by elected officials. So when we find out that certain people might be exploiting tax policies in ways that go far beyond their intended purpose, it's up to politicians to patch the holes if they want to.

Beverly Moran: And there's a big incentive [00:17:00] for those people, the very wealthy people, not to have a strong IRS, because a third of what the IRS is supposed to do is let Congress know when this, you know, stuff is going on so that if it's legal, the law will be changed, pursue it. If it's not legal, Right. Expose it to punish it. So the fewer lawmen there are out there. Right. The [00:17:30] better for the gangsters to do what they want to do.

Eric Toder: Now, there's also an issue with corporations, with large corporations, but that's a completely different problem. Large corporations generally do not hide their income, but they do engage in transactions to avoid tax, many of which are legal, but some of which cross the line and some of which are arguably on one side of the line or the other side of the line. So [00:18:00] in some sense, audits of large corporations are kind of like a bargaining game that the return the corporation submits as an opening bid. The IRS agent comes in and says, No, no, you owe this. And often this stays in the courts for years.

Hannah McCarthy: So the IRS budget was a little less than $14 billion in 2022. But that money has to be split between collecting [00:18:30] taxes, helping people file their tax returns and enforcement. So only a fraction of that money can be spent investigating any one case. Now, put that up against an individual or corporation that has billions or even trillions of dollars.

Archival: When a formula or a computer code is registered abroad, say in Zug, a US company is allowed to claim that a lot of its taxable profits are there, even if most of its sales are in the US.

Hannah McCarthy: For [00:19:00] example, take a company like Microsoft. The IRS investigated Microsoft in 2012 for avoiding US taxes on $39 billion of profit that it had moved to Puerto Rico. And Microsoft was like, this was a business decision, not a tax evasion scheme. But the IRS wanted to prove that it was done to avoid taxes. So they launched the most expensive IRS investigation to date.

Nick Capodice: How'd it go?

Hannah McCarthy: Well, Microsoft suddenly [00:19:30] had IRS agents digging through their financials, but also emails the behavior of the executives.

Archival: Microsoft products are primarily developed in the United States. They benefit from US research and development tax credits. Every time, though, a microsoft product is sold, 47% of the sales price is sent to Puerto Rico.

Hannah McCarthy: The IRS was being aggressive. It knew that it had the power to investigate, and it put as many resources as it could into doing that. And [00:20:00] that scared Microsoft and other corporations like it that had not experienced the IRS investigating this aggressively.

Nick Capodice: So what did Microsoft do?

Hannah McCarthy: So Microsoft started lobbying Congress to remove some of the IRS investigative powers, and other corporations joined in.

Nick Capodice: And I got to just say, this is in 2012, just two years after the ruling in Citizens United, which gave corporations and wealthy individuals the ability to spend unlimited money on elections. [00:20:30]

Hannah McCarthy: Yep. And eight years later, while the IRS was still investigating Microsoft, Congress passed legislation that limited the IRS ability to conduct these investigations. And by the way, ProPublica has done some amazing reporting on this. And more broadly, how corporate and private interests impact our tax laws. You can find a link to that in our show notes at Civics101podcast.org.

Nick Capodice: And just going back to wealthy individuals for a minute, they also have the ability to put their hands on the legislative process. [00:21:00] Yes.

Hannah McCarthy: And indeed they do.

Archival: A new report finds the IRS is auditing people making more than $200,000 less than others.

Eric Toder: But the IRS is doing less audits of corporations than they used to. They're doing less audits of high income taxpayers. They're doing less audits of partnerships.

Nick Capodice: But what does that mean for you and me, the everyday people who just don't have a ton of wealth, who are just trying to follow the law, pay our taxes on time, and maybe, just [00:21:30] maybe get some of those incentives that we're entitled to.

Hannah McCarthy: We'll get to that right after the break. But before we do, you hear the term tax deductible donation quite a bit. And we're even talking about it on this particular episode. And I'm just here to remind you that you can make just that two Civics 101 anytime you want. You can go to our website, click the donate button, and you can skim a little bit off the top of your taxes at the end of the year. And you know, you'll be supporting [00:22:00] a show about democracy and American government that truly believes that people should know the truth about the place where they live. So what's wrong with that?

Nick Capodice: Nothing at all. You do it at Civics101podcast.org. All right, Hannah, so far we've talked about how the IRS is supposed to make sure everyone pays their taxes and help people do it, and that this idea of paying our fair share isn't quite as fair as it sounds, because wealthy individuals and corporations have been able to both [00:22:30] weaken the IRS and influence tax policies that benefit them. So what effect has that had on the IRS and us?

Hannah McCarthy: This is Eric Toder again.

Eric Toder: Over the last ten years, there's been a substantial reduction in the funding of the IRS and in the resources available to the IRS.

Hannah McCarthy: And funding cuts haven't just affected investigations. They've affected that other thing the IRS is supposed to do help people pay their taxes.

Archival: Fewer [00:23:00] than 15,000 employees handled over 240 million calls in the first half of last year. That's just one person. For every 16,000 calls.

Eric Toder: Taxpayers get much worse service when they try to call call the IRS for questioning and get the full answer.

Hannah McCarthy: Nearly everyone pays taxes, so our tax base is huge. That's a lot of people to worry about and a lot of complicated taxes. This is Beverly Moran.

Beverly Moran: You [00:23:30] know, you want to talk about stories. I used to do my taxes by an and I would do a lot of people's taxes by hand. And the reason why I would do it is because my job was to teach people about taxes. Right? So I felt like every year I should like, do my taxes, do some other people's taxes who are different situations, not rely on an accountant or software like actually [00:24:00] deal with the paperwork. This is how long ago it was in 1990. I lived and worked in three different states. I sold a house and I bought a house and my tax return was 58 pages long. And doing it by hand, I had to make sure that every time a transfer like a number from page five to page 32 or whatever, it had to be. Right. And and I just knew [00:24:30] and I'm proud of my ability to do like math in my head was like, no, I have to use software. And I felt defeated. Right now, if I have to use software. Why are you asking people who may not have access to computers, may not have access to a desk or a place where they can keep a whole bunch of paperwork, may be working 2 or 3 jobs. Why [00:25:00] does a person like that have to make a decision in their life? Am I going to do my own taxes or am I going to go to somebody else?

Nick Capodice: And the IRS is trying to oversee all of this while also dealing with political pressure and ups and downs in funding and resources.

Hannah McCarthy: And the millions of us who are just trying to file a tax return to comply with the law and get the deductions and tax credits we're entitled to. Those of us who don't necessarily have a tax expert on speed dial, [00:25:30] we feel the effects.

Beverly Moran: There's something called the Taxpayer's Advocate. And one of the things that they do is they produce a report. I think it's every six months sort of on what's the state of what's going on in terms of relationship between taxpayers and the IRS. Right. And they've reported that 90% of the phone calls that go into [00:26:00] the IRS are never answered. And then the 10% that are answered, that doesn't mean that you necessarily got the right department or you're not cut off in the middle of the phone call or you get the wrong answer. And on top of it, the IRS just recorded that they're looking into software because what they discovered was that tax preparers have been buying software that allows them to jump to the head of the line. [00:26:30] Like, you know, when you call at seven 35in the morning and you get told that, you know, there's a 30 minute wait and four hours later, you're still on the phone. It's because these tax affairs have paid for software and they jump to the front of the line. So if you're just sitting there, a taxpayer, you don't know what benefits. You have to you don't know if you've made a mistake. You can't get anybody on the phone.

Nick Capodice: So you could spend an entire day or [00:27:00] multiple days just trying to get help. And honestly, it just feels really unfair that it's so hard to be able to do something that you're legally obligated to do because there aren't enough resources to do it. The people at the.

Beverly Moran: Irs are not trying to hurt anybody. And yet you could understand why millions of people hate them and it's not their fault. It's the fault of this system that they're in.

Hannah McCarthy: 90% of taxpayers rely on the outside help of tax experts [00:27:30] or software. You don't have to rely on help. You can fill out your tax forms by mail or over the phone, but many people do not do that. This gets us to how we ended up with the prevalence of tax preparation software in the late 90 seconds and early 2000. Businesses offering tax software started popping up for anyone with access to a computer and the Internet, and they helped you fill out your tax return. And in 2001, the IRS was tasked with overseeing tax preparation software. This is something people are clearly [00:28:00] using, right? So the IRS should have some oversight. One of the mandates was to make sure the software was available and accessible for people who needed it.

Beverly Moran: Congress passed a law saying that the Internal Revenue Service had to make sure that taxpayers could file their returns for free. And from that time till now, the rule has been that people who are below a certain income level, [00:28:30] which I believe for 2022, was $73,000, should be able to go on line and file their taxes for free.

Hannah McCarthy: Basically, Congress passed a law that said that at least 70% of people had to have access to free tax preparation software. And to figure that out, the IRS calculates a max income that 70% of Americans fall under. That's where that $73,000 comes from. If your income was less than 73,000 in [00:29:00] 2022, you qualify for a free tax return.

Nick Capodice: Did the IRS develop its own software?

Hannah McCarthy: Not exactly.

Beverly Moran: What happened was that the IRS by that time was already being squeezed. Right. And so what it did was it made a contract with all these not all of them, but about ten companies so that those companies would provide the free filing.

Nick Capodice: All right. So the IRS outsourced it. They did. [00:29:30]

Hannah McCarthy: These companies, many of which offer tax preparation software for fee, normally agreed to have tax software that people could use for free, which people could find if they went to the IRS website. The problem is that these companies are just that, you know, they're businesses. They want to make money.

Nick Capodice: Okay. But if 70% of people could go to the IRS website and find free tax filing software, what do these companies get out of it?

Hannah McCarthy: Well, for one thing, they get name recognition. They get to [00:30:00] advertise as a company that offers free filing and that boosts the number of people who will seek them out without going through the IRS website, especially if they buy thousands of commercial spots, you might click on an ad or Google free Tax return and end up on their website that way. And once they have you on their website, they can try to make you pay for tax services instead.

Beverly Moran: And what happened? These companies, at least according to the Treasury Department, they [00:30:30] put algorithms in their software that constantly moved people from the free site to the paid site. And you can just imagine if you've done the whole return and now you see you're going to get a $2,000 refund, But all of a sudden this return that you thought was free is $50. And they're telling you, oh, you don't even have to pay the $50, we'll take it out of your refund. You might just throw up your hands and say, okay, take the $50, [00:31:00] You know, And that's what they're counting on.

Hannah McCarthy: And we've got to give credit to ProPublica. Again, they did an investigation into the major software companies that proved that they were making it very, very hard to find and stay on the free file program. For example, TurboTax even went as far as removing its free file page from Google's search results. So if you Googled TurboTax or TurboTax Free File, you would never get a result that actually took you directly to that page.

Nick Capodice: So basically, [00:31:30] there is absolutely no way to get to the free file software unless you went through the IRS. Even if you clicked on a link from TurboTax that said, hey, file your taxes for free.

Hannah McCarthy: Exactly.

Nick Capodice: Well, that that's like that sounds patently illegal. I mean, if you're going to offer a certain software, but make it basically impossible for people to get to that software, you're not really offering that software.

Hannah McCarthy: Yeah. And the inspector general of the Treasury and the taxpayer advocate called these companies out. [00:32:00] Congress investigated.

Beverly Moran: And so the the government was trying to force these companies to do. Right. What did they do? They left the program and then they went and did all sorts of. Advertising, which everybody's seen like that. Free, free, free, free, free, free, free.

Archival: That's right.

Archival: Turbotax Free is free, free, free, free, free.

Beverly Moran: And they did the same thing. So that's still 70% of people who file [00:32:30] taxes are not owned by companies or people. Right. Should be eligible for that program. And less than 3% get a free return each year.

Hannah McCarthy: By 2021, both H&R Block and TurboTax had pulled out of the Free File program, so they are no longer mandated by the government to provide free tax filing for anyone. They may have free filing software as part of their business and they may advertise it, but that does not mean it will be easy to find. [00:33:00]

Nick Capodice: But there are still other companies that are mandated to provide free filing software, right?

Hannah McCarthy: Yes. And Beverly has some advice for how to find these services and some general wisdom for all of us taxpayers who are just trying to file our taxes correctly.

Beverly Moran: Okay. So the first thing is people should know that for most people, really and truly, you can go on the IRS website, you can get a company that will [00:33:30] walk you through it. They give you two choices. One is they give you a return and you just fill it out yourself. And the other is it's it's like other software. They ask you questions and based on the answers to those questions, they fill in the amounts.

Nick Capodice: So one is a more hands on approach where you fill in the answers and then they file the return for you.

Hannah McCarthy: Yeah. Or they give you the paperwork that you need to fill out by yourself.

Beverly Moran: It really is possible to get a free return, [00:34:00] so you should not allow yourself to be deterred in that, you know, if it pops up and you're supposed to pay, you're on the wrong software and you need to just move over to the next software. If you make less than $73,000 and you don't have like crazy things going on, like you just inherited $1 million, the chances are very high that you have a right to a free return.

Nick Capodice: Well, if I inherited $1 million, I think that my [00:34:30] first phone call would be to an accountant to figure that out. Anyways.

Beverly Moran: Number two, always go to the IRS website for the free file. Start at irs.gov. Do not do a search engine search because you will be guided to the wrong place.

Hannah McCarthy: Our producer googled free file taxes and the first two results were ads for tax preparation software from TurboTax and H&R Block that promised free online tax filing, which, as we just learned, they [00:35:00] have no obligation to provide anymore. However, the first non-ad result was irs.gov.

Beverly Moran: Number three, you should have all your quote unquote paperwork. And for most people, that paperwork is going to consist of W-2 forms. Don't be shocked if you only have a few pieces of paper. You're only supposed to have a few pieces of paper.

Nick Capodice: Okay. Have all your paperwork. [00:35:30] What else?

Beverly Moran: Also understand that if you're not John Dillinger.

Archival: This is John Dillinger, the greatest bank robber of all time.

Beverly Moran: You really don't need to be that afraid of an audit. I mean, most of what you need to fear about an audit comes from the fact that the IRS is underfunded, which means that you should always make sure you have the name and the identification number [00:36:00] of the person you talked to. You should keep track of phone numbers. If you put anything in the mail, you should make sure to keep a copy just because even though you're dealing with people of goodwill, all they're sort of in chaos over there and you don't want to get caught in the chaos or you don't want to add that to their chaos or have their chaos come into your life.

Hannah McCarthy: This [00:36:30] episode was produced by Christina Phillips with help from me, Hannah McCarthy, and Nick Capodice. Jacqui Fulton is our producer. Rebecca Lavoie is our executive producer. Music In this episode by Baegel, Poddington Bear, Anemoia, Kesha, Mama Zula, 91Nova, [00:37:00] Metre and Arc du Soleil. If you liked this episode and even if you didn't consider leaving us a review on Apple Podcasts or wherever you get your podcasts. We read them all. They really do help us. We love your feedback. Civics 101 is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Who owns the sky?

If you own land in the United States, do you own the air above it, too? Justine Paradis, Senior Producer at Outside/In from NHPR brings us the airy truth of property rights in air and space in this special collaboration. 

The answer will take us from Ancient Rome (as it occasionally does) to the United States courts, from a world when air travel was science fiction to the world where we know there are valuable resources on the moon... and we all want them.

Guests for this episode are Colin Jerolmack, Michael Heller, George Anthony Long, and Deondre Smiles.

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Transcript

Nate Hegyi: [00:00:00] I'm Nate Hegyi, joined today by Nick Capodice. And Hannah Mccarthy.

Hannah McCarthy: [00:00:03] Hello.

Nick Capodice: [00:00:03] Hello, Nate.

Nate Hegyi: [00:00:04] Hi. So our episode begins with a tale which we might call the chicken and the airplane.

Nick Capodice: [00:00:14] Well, this sounds a little bit like a fable. Is the chicken going to get a thorn stuck in its paw?

Nate Hegyi: [00:00:19] I don't think chickens have paws. It's talent. Like I liked Paul better. It's 1942, well into the Second World War. It's been five years since Amelia Earhart disappeared into the Pacific Ocean.

Hannah McCarthy: [00:00:33] Okay. So airplanes are still a relatively new invention, but they're not brand new. You're not going to necessarily think it's like a dragon in the sky.

Nate Hegyi: [00:00:42] Exactly. So this guy, Thomas Lee Crosby, is this chicken farmer in South Carolina. He lives less than half a mile from a municipal airport, which wasn't a big deal until the US military leased the airport in 1942. And so this [00:01:00] is wartime. So we've got heavy bombers, transports, fighter planes. They're taking off. They're landing oftentimes right over Cosby's farm. And they are flying like low, like barely missing the tops of the trees.

Nick Capodice: [00:01:14] Wow, that sounds unlivable.

Nate Hegyi: [00:01:16] Well, yes, His family, they're losing sleep and his chickens are so freaked out by the lights and the noise that when the planes fly over. They literally throw themselves into the walls in fright and die.

Nick Capodice: [00:01:34] They die in fright.

Nate Hegyi: [00:01:36] Yeah. 150 of his chickens die this way. And eventually Cosby loses his poultry business. And so he decides to sue the United States. And he argues this. He says, I own this property, including the air right above my house. And you, the US military, you have trespassed. So what do you guys think? Do you think he's right, folks?

Nick Capodice: [00:01:56] Well, let me just say, I am fascinated to learn the answer to this [00:02:00] because we did an episode on whether or not Santa is a criminal. And a lot of that had to do with, you know, who controls or who owns the airspace above your home, above your property, what is trespassing. So I'm desperate to learn this.

Nate Hegyi: [00:02:13] Well, that is that is the question here. Who owns the skies? I'm Nate Hagee, host of the HPR podcast Outside in a show about the natural world and how we use it.

Hannah McCarthy: [00:02:29] And I am Hannah McCarthy, and Nick Capodice and I are the co-hosts of Civics 101. Also from NHPR, ours is a podcast about how our democracy works.

Nick Capodice: [00:02:40] Yeah, or how it's supposed to work most of the time.

Nate Hegyi: [00:02:43] Today, we're teaming up to talk about a subject that connects both of our shows. Property from just above the ground to high in the sky, all the way to the dang moon, where nations are fighting over who gets to do what in outer space. Outside and producer Justine Paradise answered this one for us. So [00:03:00] I'm going to step out and let her take it from here. Make it so.

Justine Paradis: [00:03:11] So I want to start with a 1500 year old principle. Today, it's a principle about private property rights, and it comes from medieval Rome. It's called ad coelum. And it goes like this. Whoever owns the soil, it is theirs. Up to heaven and down to hell.

Nick Capodice: [00:03:31] Up to heaven and down to hell.

Justine Paradis: [00:03:33] Indeed. And by the way, ad coelum, I have heard this pronounced different ways. I don't speak Latin, but we're going to go with ad coelum. This was a principle articulated by a medieval Roman jurist, then absorbed into English common law. And then in the United States, English common law got adopted by many states, at least where it was, quote, not repugnant to the Constitution or laws of this state. Can you think of something that might be repugnant [00:04:00] to these United States of America?

Nick Capodice: [00:04:02] I sure can, Justine. Kings.

Colin Jerolmack: [00:04:05] The Founding Fathers were obsessed with preventing tyranny of government.

Justine Paradis: [00:04:09] This is Colin Jerolmack. Colin is a professor of sociology and environmental studies at NYU. And he explained to me that Thomas Jefferson especially saw owning property as a big part of democracy.

Colin Jerolmack: [00:04:21] He envisioned a democracy meaning that every sovereign citizen owns land and owns enough land that they are self-sufficient. And the idea of that was if you are self-sufficient, then you don't need the government to give you certain basic needs. And so land sovereignty was basically a way of checking government authority. And the Jeffersonian idea, which really won out, I should say won out for white males, was that you are really not a citizen if you don't own land.

Nick Capodice: [00:04:49] Right. And to reiterate what we've said in several episodes at the beginning of America's history, only white males with property could vote. And this idea [00:05:00] won the day, so to speak.

Justine Paradis: [00:05:02] Yeah. And so strong protections for private property were really a founding principle of this country. But the point is, for this particular story, and part of the reason why this was such a big deal here is because of how other countries had previously approached private property specifically of up to heaven and down to hell and that down to hell part. What we're really talking about is mineral rights.

Colin Jerolmack: [00:05:25] In every other country, more or less, to varying degrees. The government owns the mineral rights and so you own the surface. But if the government wants to mine, the government makes that decision and then the individual doesn't, you know, doesn't have a choice and the individual does not directly profit from that.

Justine Paradis: [00:05:43] In England, landowners did have mineral rights except for one maybe repugnant detail.

Colin Jerolmack: [00:05:49] There was a huge caveat to mineral rights ownership, which is that the Crown retained pretty much every valuable mineral. So you technically own the subsurface, but if there was oil [00:06:00] or silver or gold or diamonds in that subsurface and you obtain it, the government owned that.

Nick Capodice: [00:06:07] Aha. Oh, that's interesting. So the English crown gets your diamonds naturally.

Justine Paradis: [00:06:12] Whereas in America, if a company wants the mineral rights to your land, like to frack, for instance, they have to ask permission and probably pay you for the right to frack that methane. And that is why Colin's book about fracking is called.

Colin Jerolmack: [00:06:27] Up to Heaven and Down to Hell.

Nick Capodice: [00:06:29] Oh, there it is.

Colin Jerolmack: [00:06:30] The so called Founding Fathers. This was a very conscious decision. America is the only country in the world where the majority of land ownership, private land ownership, includes the mineral rights and the air above.

Hannah McCarthy: [00:06:44] And the air above.

Justine Paradis: [00:06:45] So let's turn our attention to the skies. This country boasts a rich history of property disputes, both large and small, over the 1800s and early 1900s. And for a while, cases [00:07:00] concerning ADD column are looking at disputes much closer to the ground than the heavens like overhanging branches. For example, the courts say ad coelum that's a trespass and a nuisance. Protruding eaves, cornices, windows, roofs, walls. You can't use them to get around a property line.

Nick Capodice: [00:07:19] All right. So you can't build your way over someone else's land. Their property is theirs.

Justine Paradis: [00:07:24] You cannot that's a trespass according to case law. You don't even have to be touching the ground in order to have trespassed. In 1925, Montana's Supreme Court held that shooting a duck over a neighbor's land is trespassing into their airspace, even though the trespass is temporary, even if you miss even if it does, no damage. In Iowa in 1902, there was a case disputing an arm extended over a property line to retrieve their own ladder.

Hannah McCarthy: [00:07:53] A guy reached over to grab his ladder. It strikes me that maybe there were some other issues going [00:08:00] on. If there is a case about that.

Justine Paradis: [00:08:02] These particular neighbors did not have a peaceful relationship in addition to the arm in question, bricks and, quote, opprobrium, epithets frequently cross the fence. And when these families went to court to settle the question of this arm extended in malice. Ad coelum.

Nick Capodice: [00:08:19] Oh.

Justine Paradis: [00:08:19] As one judge in Montana observed in 1925, quote, It seems to be the consensus of the holdings, the courts in this country that airspace, at least near the ground, is almost as inviolable as the soil itself. The reasoning in many of these rulings is that the landowner has a right for use and enjoyment of the land. In the case of airspace, that might even mean light and air. In other words, the enjoyment of a nice view. Do you remember how you can lease or sell the mineral rights below the ground on your property? Yeah. Yeah. So the [00:09:00] same is true of air rights. Let's take the example of New York City.

Nick Capodice: [00:09:04] All right? Now we're cooking.

Michael Heller: [00:09:05] The rules are actually quite complicated for how tall you can build and for where you can transfer those air rights to and from.

Justine Paradis: [00:09:11] This is Michael Heller. He's a professor of property law at Columbia University and coauthor of a book called Mine How the Hidden Rules of Ownership Control Our Lives.

Michael Heller: [00:09:21] In New York and many states, air rights are a piece of property, just like a cup of coffee that can be bought and sold and traded and mortgaged. And they're understood by real estate developers as property just as solid in some sense as the ground on which they hover above.

Hannah McCarthy: [00:09:37] This doesn't surprise me at all, having lived in New York, actually.

Justine Paradis: [00:09:41] Yeah.

Hannah McCarthy: [00:09:42] Oh, yeah. I mean, space is so precious. So precious. A parking spot costs like 800 bucks a month, you know?

Nick Capodice: [00:09:49] So I used to give walking tours in New York, and I would see these really tall buildings in sort of much lower neighborhoods. And I was always like, How could they build that tall when everyone else is clearly forbidden [00:10:00] to stop above five floors? And I found out that they could just buy the air from other buildings and put it on top of their own. And it blew my mind.

Justine Paradis: [00:10:09] Yeah. And that's how developers get around these height restrictions in certain neighborhoods. And there's, of course, a big money colored reason they might be motivated to do that.

Michael Heller: [00:10:18] Each story that you go up in New York is increasingly valuable. It's not just one more story, but it's 1.5 x or two x. The tallest unblockable views have an enormous premium, so it's that premium which actually helps turbocharge the air rights market in New York City.

Justine Paradis: [00:10:45] So backing up a bit, going back to our story of ad coelum. Courts have been ruling in favor of this doctrine for over a century. But this idea of up to heaven that's challenged when something happens that the Romans maybe [00:11:00] did not anticipate.

Hannah McCarthy: [00:11:02] Oh, flight. Right?

Nick Capodice: [00:11:03] Yeah.

Nick Capodice: [00:11:04] Sky Dragon.

Michael Heller: [00:11:07] Airplanes caused problems that literally at all different levels. If the US were to have decided which was possible 100 years ago, that the ADD column doctrine actually did continue all the way up until we had outer space, then air travel wouldn't have been possible, right? It would have taken too many negotiations to have a single airway from New Hampshire to New York. That would have been an impossible flight.

Justine Paradis: [00:11:31] So by the 1920s, the U.S. government is trying to start to put air traffic regulations in place like the 1926 Air Commerce Act passed by Congress, which authorized the secretary of Commerce to establish an altitude. So an actual number that basically put a cap on the rights ofad coelum.

Nate Hegyi: [00:11:51] There were different legal routes that we could have used, but the one that we settled on was to say that as a legislative matter above 1000 feet [00:12:00] simply isn't your space to clarify.

Justine Paradis: [00:12:02] That's a thousand feet over cities and towns and settled areas. It drops to 500 feet everywhere else. But this act failed to address a very important part of Flight two actually taking off and landing. Which brings us back. To our chicken farmer. So where are we in this story? Hannah.

Hannah McCarthy: [00:12:26] All right. We started out with the chicken farmer, Thomas Cosby. He sued the United States. He said, you know, you completely ruined my poultry farm. My chickens died of fright. You owe me money. And the United States says, no, we can use the airspace. You can't. You can't come at us for that. That's perfectly legal.

Justine Paradis: [00:12:43] Yes. And so Cosby, again, who lives right next to an airport where U.S. military planes are gliding in way lower than 500 feet. His case is based on an important part of the constitution.

Michael Heller: [00:12:58] The chicken farmers protection was grounded [00:13:00] in the Fifth Amendment of the US Constitution. It was grounded in what's called the takings clause.

Justine Paradis: [00:13:05] All right. You two are journalists on that American history beat. Can you give us some insight here, Nick? What is the takings clause of the Fifth Amendment?

Nick Capodice: [00:13:13] So basically, the takings clause is kind of tied to what we think of as eminent domain. Basically, the government can't take something from you for its own use without giving you compensation for it. You know, the government can say, hey, we need this land or we need this thing. We're going to take it. But they have to give something in return.

Justine Paradis: [00:13:35] And here's how the Supreme Court ruled. It said by flying their planes in this manner, the United States had effectively confiscated Cosby's property. And according to the Fifth Amendment, he was due just compensation, effectively confiscated.

Hannah McCarthy: [00:13:47] That is fascinating. I love law. So he was due money?

Justine Paradis: [00:13:51] Yeah. He got 2000 bucks at the time. That was the kind of money that could buy a house. The Supreme Court wrote in the majority opinion that they must rule this way because [00:14:00] if they did not, quote, the owner's right to possess and exploit, the land would be destroyed. But even though they ruled that Cosby was due damages, the court also explicitly wrote that ad column, The idea that those land rights go infinitely upward. That has no place in the modern world.

Nick Capodice: [00:14:21] So, Justine, the Supreme Court's ruling says that legislation that had been on the books, on a basic level, it is constitutional to make the air a public highway. You don't you, as an American, do not get enjoyment of your property all the way to heaven.

Justine Paradis: [00:14:40] You got it.

Nick Capodice: [00:14:50] So this was in the 1940s, Justine.

Justine Paradis: [00:14:53] Yes.

Nick Capodice: [00:14:54] It's so interesting that so many years later we kind of are coming back to where we started with our founding with this [00:15:00] principle, you know, which made it to life, liberty and the pursuit of happiness. But it was based on an idea of life, liberty and the pursuit of property. That's where we got that expression. So we're coming back to our founders kind of principles of property being the thing that is yours in the United States.

Justine Paradis: [00:15:17] Yeah.

Hannah McCarthy: [00:15:17] Yeah, But of course, you know, it's not that straightforward. Like, if you look back to what our framers were doing there, they're tying citizenship and property together, but they're barring so many people from that mechanism. Right. Enslaved people, women who were themselves considered property. And then later on in American history, the government continues to block people from owning property, especially black people in America. I mean, this carried throughout the 20th century. So it's really not that pure.

Justine Paradis: [00:15:46] Yeah, absolutely. I mean, I think when I asked Colin, Gerald Mack, that professor who wrote the book on fracking earlier, you know, do you think that this worked? Do you think that property helping us be more free as a society, as a nation, did that work? And [00:16:00] he was like, absolutely not. You know, so I'm very happy that the Declaration of Independence says life, liberty and the pursuit of happiness. You know what I mean?

Hannah McCarthy: [00:16:09] I think it is hilarious that the founders saw life, liberty and the pursuit of property and they just sort of took well crossed that one out. They agreed. You know, let's not say it like that, thank goodness. Or that's how the story goes anyway.

Justine Paradis: [00:16:35] All right. So that's the sky's in the sense of the earthly atmosphere. Next up.

Tim Curry: [00:16:40] I'm escaping to the one place that hasn't been corrupted by capitalism. Space.

Justine Paradis: [00:16:52] That's after the break.

Hannah McCarthy: [00:17:07] Before [00:17:00] the break. This is just a friendly reminder that although we tried to pack as much as we can into Civics 101 episodes and invite our friends from shows like Outside/In to give you even more. There's a lot that doesn't make it into this show. If you want to hear about everything else we research that ends up on the cutting room floor, we have a place for that. It's called the Extra Credit Newsletter. It is super easy to sign up at Civics101podcast.org and it's one of those, in my mind, fairly rare fun things that you find in your inbox. It's free. It's genuinely a pleasure to read and there's just so much I need to tell you about. Again, you can sign up at Civics101podcast.org. We're back. You're listening to Civics 101. And today's episode [00:18:00] is very special because it's a collaboration with our friends at Outside In. And just before the break, producer Justine Paradis was telling us all about the rules and regulations that govern who owns the skies. And now we're going even higher to the final frontier.

Nick Capodice: [00:18:18] Justine, have you heard my Worf impression?

Justine Paradis: [00:18:21] No.

Nick Capodice: [00:18:22] It's basically just me blowing out of my nose going, sir. That's all I got. Sir.

Justine Paradis: [00:18:32] All right, we're back. Nick Capodice. Hannah McCarthy of Civics 101.Hello.

Nick Capodice: [00:18:36] Hello.

Hannah McCarthy: [00:18:37] Hello.

Justine Paradis: [00:18:39] A few minutes ago, we talked about the altitude where navigable airspace begins, according to the United States. There are actual numbers here. Do you remember?

Nick Capodice: [00:18:48] Yes, they do. Basically 500 feet or a thousand feet, depending on if you're in like a city or a town or whatever.

Hannah McCarthy: [00:18:54] But what about where outer space begins? You know, when does it stop being sky and [00:19:00] start being space?

Justine Paradis: [00:19:02] Glad you. Asked.

George Anthony Long: [00:19:03] Well, that's an unresolved question.

Hannah McCarthy: [00:19:05] Of course it is.

Justine Paradis: [00:19:06] Of course. It's an unresolved question. By the way, this is George Anthony Long. George is an attorney. And these days he specializes in space law.

Nick Capodice: [00:19:14] Space law.

Justine Paradis: [00:19:15] Space law. He did need to go back to school to get an extra special law degree for it. So I reached out to George because I wanted to understand how property and territory work in space to ask the question who owns the sky beyond Earth? But yeah, George says there is no consensus in the international community about where air space ends and outer space begins.

George Anthony Long: [00:19:38] To be true. Space is just one of those areas. You sort of at the certain point, you know, when you're there. But the whole point is when you get there, you know, what point is that you arrive there? That's where it's unclear.

Nick Capodice: [00:19:51] All right. Well, this is an echo of a famous Supreme Court statement in an obscenity case in which Justice Potter Stewart said, quote, I'll know it [00:20:00] when I see it. So we've got kind of this unexpected overlap between space and obscene material here. Quick and strange aside, Justine, I read once that Supreme Court justices in the seventies used to watch obscene material. They'd have like a a movie get together.

Justine Paradis: [00:20:18] All of the Supreme Court bros would get together.

Nick Capodice: [00:20:21] Yeah, And watch some. Yep.

Justine Paradis: [00:20:24] All right.

Nick Capodice: [00:20:24] I think they even called it movie day.

Justine Paradis: [00:20:26] What, are you kidding me?

Nick Capodice: [00:20:27] Nope. True story.

Justine Paradis: [00:20:34] So space law is governed by just a handful of treaties through the United Nations.

George Anthony Long: [00:20:40] Generally, there are five international space law treaties.

Justine Paradis: [00:20:44] The first and biggest one is the Outer Space Treaty of 1967.

George Anthony Long: [00:20:48] That is the cornerstone of space law.

Justine Paradis: [00:20:52] And I think the major thing to understand is that the context for this treaty was the Cold War, and among the principal stakeholders [00:21:00] were the Soviet Union and the United States. It was just ten years after the Soviet Union had launched the first manmade satellite into space.

Nick Capodice: [00:21:08] Yeah. Sputnik. Two years before the United States put a man on the moon. So we're mid space race here.

Archival: [00:21:17] Our objective is not to continue the Cold War, but to end it. We have signed an agreement, the United Nations, on the peaceful uses of outer space.

Justine Paradis: [00:21:34] The first article of the Outer Space treaty says, well, actually, do one want. You want to read this?

Hannah McCarthy: [00:21:41] Sure. The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province [00:22:00] of all mankind. What a nice notion. When was the last time you heard something like that? Wowsers.

Nick Capodice: [00:22:08]  This sounds like Antarctica, actually.

Justine Paradis: [00:22:10] I think it is very similar to Antarctica and for similar reasons, because we didn't want to be fighting a war down at the South Pole. So we were saying, okay, let's just agree not to do that. Let's not go there, because that would that would be awful, you know? The treaty also says states can't build military stations in space. They can't occupy the moon. We can't put nukes in orbit or anywhere in space. Basically, it says we agree that we go forth in peace.

Hannah McCarthy: [00:22:37] Okay. But as Nick and I recently learned in an episode about the Space Force, which is specifically designed to protect stuff in space, it's not that straightforward, right? Like space is filled with satellites that help defense systems. And we are certainly looking toward the future as potentially having some conflict having to do with space.

Nick Capodice: [00:22:57] Yeah, the reality isn't as high minded [00:23:00] as this go forth and peace language aspires it to be.

Justine Paradis: [00:23:03] I think when you hear the old speeches of JFK where he says, you know, essentially let's go forth in peace, you can kind of hear the threat in his voice.

John F. Kennedy: [00:23:11] All of us salute the brave cosmonauts of the Soviet Union. The new horizons of outer space must not be riven by the old, bitter concepts of imperialism and sovereign claims.

Justine Paradis: [00:23:32] Other treaties of that era dealt with the more practical matters of space law. And in many ways, these treaties mirror ideas in maritime law. So the Law of the Sea, one way it's similar is that you have an obligation to help other ships in distress, just as you would in most cases at sea. But one way it's different from the sea is that objects can also crash to earth. It's like, what happens if a satellite lands on someone's house? Here's George. [00:24:00]

George Anthony Long: [00:24:00] Damage on the face of the Earth is absolute liability. So there is no mitigation of saying somebody else is at fault. It really doesn't matter. The launching state or states are absolutely liable. But if if an accident happens in space, such as if two space objects collide, then it's fault liability and that somewhat equivalent to your fault liability for regular traffic accidents.

Nick Capodice: [00:24:30] So this is like the space law version of the fine print of a car insurance policy.

Justine Paradis: [00:24:35] Another difference from maritime law is the law of salvage. Do you know this one? At least at sea?

Hannah McCarthy: [00:24:40] I know that when I play my favorite video game, I can pick up anything in the sea that I want, Justine.

Justine Paradis: [00:24:46] There you go.

Hannah McCarthy: [00:24:47] If it's out there, I'm allowed to pick the flotsam. Right.

Nick Capodice: [00:24:50] I thought that if you, you know, dug something up from the ocean, you were obligated to return it from whence it came.

Justine Paradis: [00:24:57] You get a reward?

Nick Capodice: [00:24:58] Yeah.

Nick Capodice: [00:24:59] It's kind of [00:25:00] like our Fifth Amendment stuff again. You get compensation for it.

Justine Paradis: [00:25:03] Not so in space.

George Anthony Long: [00:25:03] The Outer space treaty makes the ownership of a space object and any component part of the space object. The ownership is perpetual. You never lose it.

Justine Paradis: [00:25:16] And that becomes a problem because nobody can clean up anybody else's broken satellites. So all this space junk is just building up. Finally, like maritime law, there's a treaty called the Registration Convention.

George Anthony Long: [00:25:27] Which sort of suggests that countries register space objects that they launch with the United Nations.

Justine Paradis: [00:25:36] But the operative word here is suggests.

George Anthony Long: [00:25:39] It is not a requirement and it is not always done.

Justine Paradis: [00:25:44] I mean, I don't know. Can you think of an instance in which a country might be disinclined to register their space objects?

Nick Capodice: [00:25:49] Yeah, Like if it's a secret spy satellite?

Hannah McCarthy: [00:25:51] I don't think we should name any countries here. But I know what we're all thinking.

Justine Paradis: [00:25:55] I know what we're thinking. Spy satellite? Yeah. The International Space [00:26:00] Station is kind of a special case in all of.

George Anthony Long: [00:26:02] This International Space Station as a orbiting platform with different sections by each partner to the space station has its own section. United States has its portion of space station, and United States law applies in its section. Japan has its section. Japanese law applies in its section. And then they have all the agreements of how they will resolve differences.

Nick Capodice: [00:26:33] I'm very familiar with all the different sections in the ISS because of my son's obsession with space.

Justine Paradis: [00:26:38] Oh really? I know that your son is quite a thorough researcher, so we'll have to run this by him to see what I think.

Nick Capodice: [00:26:44] He'd appreciate that.

Justine Paradis: [00:26:50] The Outer Space Treaty was signed almost 60 years ago. And while that version of the space race is over, we're in a new era of extraterrestrial exploration. [00:27:00] And it's not just state rockets headed up there anymore. Private companies like SpaceX are putting objects into orbit now. And it's a time when we're renegotiating the question, who owns the skies?

Deondre Smiles: [00:27:12] You know, when you ask, well, who owns the sky? My initial reaction is like, well, nobody owns the sky, right?

Justine Paradis: [00:27:16] This is Deondre Smiles. He is an assistant professor of geography at the University of Victoria.

Deondre Smiles: [00:27:22] I'm Ojibwe. From my own kind of cultural perspective, it would be really weird for me to say, Oh, we we own the sky because we don't. We were in relationship with the sky. We have accountabilities to the sky, like through, like clean air.

Justine Paradis: [00:27:36] Deondre is the author of an article called The Settler Logics of Outer Space, which argues that the language that we use around traveling into space, like as a pioneer of space, as the next or even the final frontier, that that language is really familiar.

Hannah McCarthy: [00:27:51] Yeah. And that that is very purposeful. Justine I have learned a lot about the American principles of Manifest Destiny and expanding westward. And there's [00:28:00] definitely the sense that once we get to California and we hit the ocean and by we, I mean this is a philosophy of white settlers. We started sort of hanneke looking around for somewhere else to go. And so that meant, you know, like spreading democracy to other countries for a while. And then when space was an option, there was a very real anxiety about getting there. Like that race with the Soviet Union was very much tied to America's notion of being the expander of always having a frontier.

Justine Paradis: [00:28:30] And Deondre is just one of many folks writing about this and about how. Bringing a different approach to space means having accountability to places even beyond the planet.

Deondre Smiles: [00:28:42] We need to instead think about the deep embedded knowledge that sits in places. There's this kind of idea that like, Well, it's empty, right? There's no nobody. It's living in outer space. There's no life there but an indigenous, you know, plural sort of reading of this would say, Well, just because there's nothing living there doesn't mean that it's still [00:29:00] not a space that we have to treat with respect and care and really think about why it is that we're going into outer space in the first place.

Justine Paradis: [00:29:12] One reason why we're going into outer space and space. Law expert George Anthony Long thinks this is one of the biggest issues that will test space law as it exists now is mining.

Hannah McCarthy: [00:29:23] Mining as in like asteroids have a lot of good stuff on them. And just like in the fantastic TV show The Expanse, we're going to have all these factions formed just because there's a lot of money and asteroid minerals resources.

Justine Paradis: [00:29:39] Absolutely. And even not just in asteroids, but the moon. The moon has a lot of frozen water and helium three, which is in high demand on this planet. And helium three also has nuclear fusion potential. But remember, don't these celestial bodies belong to no one.

George Anthony Long: [00:29:56] Who cannot own property in space? [00:30:00] Article two of the Outer Space Treaty prohibits a state from exercising sovereignty in space or any celestial body or the moon. And while that is a very noble goal, I'm not sure how practical that's going to be, because the question becomes how do you protect a mining site or keep other people away from your mining site without exercising some form of control?

Justine Paradis: [00:30:31] So there are a couple different efforts to figure this out, this dilemma around mining. One of them is called the Moon Treaty, but very few countries have signed on to this one.

George Anthony Long: [00:30:42] It talks about the prohibition of property rights and it talks about having the obligation to share some of the wealth that's gained from, let's say, resource extraction or mining in space.

Nick Capodice: [00:30:55] But like the great space powers, I'm talking the U.S., China or Russia, [00:31:00] they haven't signed on to this.

Justine Paradis: [00:31:01] No, they have not. And within the United States, we've got a law that passed in 2015 which says something different that you may not be able to claim an entire asteroid, but if you extract resources from it, you are entitled to those.

Hannah McCarthy: [00:31:15] This is very funny because is this the United States just saying, well, we have this law like because that's not a treaty. It's not between other nations.

Justine Paradis: [00:31:27] It's not. But meanwhile, NASA is leading something, an international agreement called the Artemis Accords, which is sort of affirming some of those principles in the old treaties, but is also trying to carve out more legal room for space mining. But it's still affirming that space is for all humanity ideal of that original outer space treaty of 1967.

Hannah McCarthy: [00:31:49] Yeah, and I can only imagine that once we actually start to be able to extract and acquire them, things are going to change pretty drastically.

Nick Capodice: [00:31:58] On a basic level, like the idea of towing [00:32:00] an asteroid onto the planet that's just pure diamond and suddenly diamonds don't mean anything anymore.

Justine Paradis: [00:32:05] We're going to have to have a new De Beers company or what is the name of that company?

Nick Capodice: [00:32:09] De Beers. Or you can just be like, Oh, those are space diamonds. Those are inferior. He got me a ring, but it had a space diamond on it.

Justine Paradis: [00:32:17] It's not serious. I mean, yeah, I agree with Hannah. Whatever the solution is, it looks like we're going to be entering into a new era of space exploration. A Chinese mission in 2020 already brought back helium three from the surface of the moon. What? And China has definitely not signed the Artemis Accords.

Nick Capodice: [00:32:33] What I think's most interesting about this is it's kind of like anything goes until suddenly it doesn't anymore. Like, that's how we've done things so far. You know, ad column goes until it doesn't anymore. And yeah, right now we don't have nukes in space or real guns and space, and we're not mining space diamonds, But that's going to happen. And when it does, we're going to have enough have to do another episode, I think.

Justine Paradis: [00:32:57] I think so. I mean, it's interesting because [00:33:00] there's this there's this idealistic language around space that does feel quite Star Trek like no one can occupy it. But the thing is, when you put something into orbit, especially geostationary orbit, that's really valuable orbital space, and if a satellite is in that space like it's technically occupying it, no one else can be there. So it's it's already pretty fuzzy, you know?

Nick Capodice: [00:33:24] Well, it's scary to me, too, Justine. The number of things that we are putting in space is growing exponentially as the years go by, and they all just stay there like nothing gets taken out. If space junk gets to be too big, if there's too much of it, we'll never be able to leave the planet again because there's a whirling ball of steel that surrounds our planet and that terrifies me.

Justine Paradis: [00:33:45] And it affects us on earth, you know, like.

Hannah McCarthy: [00:33:49] Right.

Justine Paradis: [00:33:49] I don't imagine that I'm alone when I like, think about looking up at the moon and seeing the lights of a truck backing up like a construction zone or a mining pit. You know, I feel [00:34:00] a little like Thomas Cosby, like, hey, you you trespassed on something fundamental here, you know?

Nick Capodice: [00:34:16] Well, that is who owns the skies from heaven to hell here on Civics 101. This episode was a collaboration between Civics 101 and Outside/In, both productions of New Hampshire Public Radio. It was produced, reported and mixed by our colleague and dear friend Justine Paradis. You can find more of her work as well as the rest of the team at outside, in and outside in radio talk or wherever you get your podcasts. By the way, if any of you out there are interested in Hannah's favorite video game right now, it's called Anno 1800. And it's mine, too. Special thanks to Jim Salzman and Laura Donahue, whose article, Who Owns the Skies, was a major resource for this episode. This episode was edited [00:35:00] by Taylor Quimby and our executive producer, Rebecca Lavoie. Our staff here at Civics 101 includes Christina Phillips and Jacqui Fulton. Music In this episode from Lobo Loco, Proprietor, Triple Bacon, Larry Poppins. Gabriel Lewis. Ben Nelson, Bonkers Beat Club, Bommel Anthony Earls. David Zesty and the Sky That Nobody Can Own, Chris Zabrisky. It's Zabriskie, but you know what I mean? Civics 101 and Outside/In our productions of NHPR. New Hampshire Public Radio.

Nate Hegyi: [00:35:33] Woohoo!

Hannah McCarthy: [00:35:51] My mother has actually used her merchant marine card to get a lot of help and like a lot of passage in her life time passage. Yeah. [00:36:00] Yeah.

Nick Capodice: [00:36:00] Big air quotes around that.

Justine Paradis: [00:36:02] So you. So when you're in distress at sea, when your mom is in distress, at sea... I didn't make that mean to make that a your mom joke but.

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Made possible in part by the Corporation for Public Broadcasting.

The 2008 Financial Crisis Explained

In this episode, we ask how the actions of various American financial institutions caused a global recession and destroyed the livelihoods and homeownership of millions of American people. Then we figure out what the federal government decided to do about it. This is the 2008 financial crisis as told by Amy Friend, Chief Counsel to the Senate Banking Committee as the Dodd-Frank Wall Street Reform and Consumer Protection Act was written.  

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Transcript

The 2008 Financial Crisis Explained

Hannah McCarthy: [00:00:00] Uh, so, Nick, you know why I've brought you here today?

Nick Capodice: [00:00:04] I do.

Hannah McCarthy: [00:00:05] And my understanding is you're not terribly thrilled.

Nick Capodice: [00:00:08] No, because this is the sort of stuff that my brain, it just turns off, and it has for decades, and I'm excited to change that.

Hannah McCarthy: [00:00:19] All right, Nick. Well, I have got an industrious young entrepreneur story for you. Okay.

Nick Capodice: [00:00:25] I wasn't expecting that to start us off, but I like those as a rule.

Hannah McCarthy: [00:00:29] That's great. So it's 1844. A young man named Higham is living near Rome, PA, Germany, with his mom, his dad and his two brothers. Dad's a cattle dealer, but Higham decides he's going to strike out on his own. He's 23. He emigrates to the US, he changes his name to Henry and gets to peddling household goods around Alabama.

Nick Capodice: [00:00:53] Household goods? It's not like the most profitable business, but it's sort of a tried and true start.

Hannah McCarthy: [00:00:58] Yeah, it's a start. And [00:01:00] he manages to save enough money to open up a general store in Montgomery.

Nick Capodice: [00:01:04] Well, this is a nice story.

Hannah McCarthy: [00:01:05] It is a nice story.

Nick Capodice: [00:01:06] Is this Montgomery Ward?

Hannah McCarthy: [00:01:08] Montgomery, Alabama. Oh, So then one of Henry's brothers comes over from Germany, right? And then the other. And they all work together, and the store sells what they call Southern domestics. So sheets, shirts, yarn, a lot of stuff made from cotton.

Nick Capodice: [00:01:23] Okay, So cotton in the 1850s. That's right. And also in the south. So this is an industry pretty much entirely dependent on enslaved labor.

Hannah McCarthy: [00:01:33] Right. And that is going to come into play here in very short order. So these brothers, they add another cotton aspect to their business. They make the decision to accept cotton as payment for goods in their store.

Nick Capodice: [00:01:46] Raw cotton.

Hannah McCarthy: [00:01:47] That's right.

Nick Capodice: [00:01:47] Cotton. That I assume they can quickly turn around and sell.

Hannah McCarthy: [00:01:51] It is a hot commodity. And remember that word, Nick? Commodity. So Henry takes a trip to New Orleans in 1855, and he catches [00:02:00] yellow fever. Oh, dear. Yeah. Oh, dear. Is right. He dies, but his brothers carry on and eventually they go full cotton. Full cotton. They become cotton commodity brokers.

Nick Capodice: [00:02:11] So this is what's happened. That combination of words. As soon as you put them together, it made my brain turn off.

Hannah McCarthy: [00:02:16] Well, turn it back on, friend. It just means they buy raw cotton and they sell it to people who do something with it.

Nick Capodice: [00:02:22] Okay, I can get that. So. Like, they're the middlemen.

Hannah McCarthy: [00:02:25] Yeah. And the middlemen opened an office in New York City, the very seat of the commodities trading business in the US. And at this point, we are in the 1860s.

Nick Capodice: [00:02:34] Okay, good. I'm glad you got to this. That civil war is going to come around pretty soon and change things. But also, didn't Abraham Lincoln pretty explicitly banned Southern cotton from being sold to the north?

Hannah McCarthy: [00:02:46] Yes. And therein lay a potential hiccup for a business. Right. But not for these brothers, at least one of whom, by the way, was himself an enslaver. They simply acquired their cotton in the southern US, shipped it to England and then shipped [00:03:00] it back to New York. Problem solved.

Nick Capodice: [00:03:02] Well, that is a big old loophole that they're just exploiting there.

Hannah McCarthy: [00:03:06] A loophole that worked wonders for their business. They made it through the war. They helped start the Cotton Exchange in New York, and then they started to get into other commodities coffee, sugar, petroleum.

Nick Capodice: [00:03:19] You know, I definitely own this board game.

Hannah McCarthy: [00:03:21] Later comes real estate, railways, mining, textiles, even Nick, even municipal financing.

Nick Capodice: [00:03:30] You did it again there with those words.

Hannah McCarthy: [00:03:31] It's okay. Basically, all that it means is they helped Alabama do money stuff, right via bond.

Nick Capodice: [00:03:37] Keep keep that word out of your mouth. Keep that word away from me.

Hannah McCarthy: [00:03:40] All right, All right. You're nearly there. I'm going to speed up here. The next generation starts working in the family business and they become an investment bank.

Nick Capodice: [00:03:47] You know, this started out fun with farmers in Germany Securities.

Hannah McCarthy: [00:03:51] We're talking stocks. They get in on the ground floor of aviation and the movie business. At some point they get out of cotton and at some point they [00:04:00] get into oil.

Nick Capodice: [00:04:01] I mean, it sounds like these brothers were pretty good at seeing what is going to be worth lots of money in the future.

Hannah McCarthy: [00:04:07] So good, in fact, that people started to turn to them for advice and not just investment advice, but advice on mergers and acquiring companies and setting up foundations on pension funds. By the late 1970s, I told you we were speeding up. They are the fourth largest investment bank in the country. This company survived the Great Depression. It survived the 1970s oil crisis and later on it survived September 11th despite its threats to the global financial market.

Nick Capodice: [00:04:40] Wait, who exactly are these brothers?

Archival: [00:04:45] Lehman Brothers is going bankrupt and financial markets from Asia to Europe are doing their utmost to prevent Monday from turning from dark to black. Employees of America's fourth largest investment bank saw the writing on the wall late Sunday after. Talks [00:05:00] to pull them back from the abyss collapsed.

Hannah McCarthy: [00:05:02] By 2008, Nick Lehman Brothers was a 158 year old behemoth. It started out as a small household goods business in Alabama and ended up with $639 billion in assets, 25,000 employees worldwide, and a portfolio that would knock your socks off. And then it collapsed.

Archival: [00:05:27] Shares in Lehman Brothers have plummeted more than 80% in 2008 alone. Meanwhile, as markets everywhere react, the bottom to America's financial woes appear nowhere in sight. Monday will be a difficult day to face for Lehman's thousands of shareholders and more than 25,000 employees. Many had hoped this day would never come.

Nick Capodice: [00:05:59] I [00:06:00] knew this rapid rise entrepreneur story was a little bit too good to be true. This is about finance, isn't it, Hannah?

Hannah McCarthy: [00:06:06] But don't you want to know what happened?

Nick Capodice: [00:06:07] I was tricked into this. Hannah. I thought it was an immigrant tale.

Hannah McCarthy: [00:06:11] It was an immigrant tale. It just became something else. It became a part of one of the grandest catastrophes in American financial history, which means one of the grandest in the world. So don't you want to know what happened?

Nick Capodice: [00:06:28] Okay.

Hannah McCarthy: [00:06:28] Okay. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:06:31] I'm Nick Capodice.

Hannah McCarthy: [00:06:32] And this is the 2008 financial crisis and what we did about it. So, Nick, Lehman Brothers isn't just an interesting entrepreneur story, obviously. It's also an interesting story because they did, in fact, collapse. They were allowed to go under. But the story of the 2008 financial crisis is largely one about preventing collapse at an enormous cost, specifically an [00:07:00] enormous cost to the federal government.

Nick Capodice: [00:07:03] Now you're talking about how the federal government bailed out a bunch of corporations.

Hannah McCarthy: [00:07:06] Save the companies, save the world. That was the legitimate calculation being made here.

Nick Capodice: [00:07:11] And this is where we get the phrase too big to fail, right?

Hannah McCarthy: [00:07:14] That's where we get it. And we're going to get to all of that. But before we go any further, I am bringing in someone who actually knows what she's talking about, someone who was.

Amy Friend: [00:07:23] There. Let's see. I had worked in the House for both individual members, including then-Congressman Schumer, who is now the majority leader in the Senate. And then I had also worked on what was then House Banking Committee, which is now House Financial Services Committee. And so I developed an expertise in the areas of banking and financial services.

Hannah McCarthy: [00:07:50] This is Amy Friend. Amy is going to help us understand. Amy has experience in both government work and banking work and then later in the Treasury Department. [00:08:00]

Nick Capodice: [00:08:00] So she understands banking really well.

Amy Friend: [00:08:03] So 2008 rolls around and then a former.

Amy Friend: [00:08:07] Colleague of mine had asked me to interview for a position as chief counsel.

Hannah McCarthy: [00:08:11] Chief counsel. What that means is that Amy is the lawyer who knows a lot of stuff, and she's helping out the Banking Committee.

Amy Friend: [00:08:20] But what I didn't know was that one month later, Bear Stearns, which was a big investment bank, would collapse. And that was sort of an early sign of things to come in the collapse of the housing market.

Nick Capodice: [00:08:42] So I was joking about it in the beginning. Hannah But I am going to be up front and honest and tell you I do not understand how or why an investment bank would collapse, and I do not know why it even matters that they do. And I also do not know what it means for a market of any kind, be it a housing market [00:09:00] or a fish market to collapse.

Hannah McCarthy: [00:09:02] Okay, let's lay the backdrop.

Amy Friend: [00:09:04] What happened in the early 2000s was there was a proliferation of subprime loans, which were loans that were made to people who have lower credit scores.

Nick Capodice: [00:09:15] All right. Break this down for me.

Hannah McCarthy: [00:09:18] Borrowing money, you get that part, right?

Nick Capodice: [00:09:19] Yes. Do I ever.

Hannah McCarthy: [00:09:21] You can borrow money from a bank in the form of, for example, a credit card or a student loan. But in this episode, we are talking mostly about loans that let you buy a house.

Nick Capodice: [00:09:32] Like a mortgage.

Hannah McCarthy: [00:09:33] Exactly. Which is typically a lot easier to get when you have a higher credit score.

Nick Capodice: [00:09:39] And a credit score being basically your grade for how well you pay off loans.

Hannah McCarthy: [00:09:44] Very good. Exactly. So if you're really reliable when it comes to paying your credit card bill, you might have a high credit score. If you're not reliable, you might have a low credit score. And by the way, the credit score system is considered discriminatory by many [00:10:00] and deeply based in a history of structural racism. That is a subject for another day. But it has got to be said here. So when it comes to houses, it is usually harder to get a mortgage when you have a low credit score or heaven forbid, no credit score, which happens if, for example, you have never borrowed money or taken out a credit card.

Amy Friend: [00:10:21] So there are subprime borrowers that have these lower scores or may not have any credit file at all because they may be renters and they may not be they may not own a home or they may not have credit cards. And so we call those sort of thin files or no files subprime.

Hannah McCarthy: [00:10:40] That word just think risky. A subprime borrower is someone who a financial institution believes is not responsible with loans. A subprime mortgage is what you call a mortgage that is given to a risky A.K. Low or no credit score borrower. A prime borrower, [00:11:00] by contrast, is someone the financial world has decided is good at borrowing money and paying it back. There are a lot of things that can make you a sub prime borrower. Sometimes it is not paying loans on time, sometimes it's borrowing a lot of money. That would take you a long time to pay back. Sometimes it is circumstances that have nothing to do with how quote unquote responsible you are, but instead have to do with the kind of financial resources you have access to or high medical bills or periods of unemployment, things like that.

Amy Friend: [00:11:30] What was happening in this subprime crisis in the early 2000s was that there was a lot of money in the system.

Nick Capodice: [00:11:36] What does she mean by a lot of money in the system?

Hannah McCarthy: [00:11:39] Okay. What we're talking about here is that there was a recession in 2001. So what happens is the Federal Reserve lowers interest rates way, way down to stimulate the economy. Interest rates are the fee that you pay to a lender who gave you a loan. When interest rates are low, people typically have more money because their loan bills [00:12:00] are not as high. They don't have these high fees on top. And lenders wanted.

Amy Friend: [00:12:05] To expand the envelope of who could.

[00:12:08] Get credit, but they didn't do it in a responsible way. They made loans that had.

Amy Friend: [00:12:15] Terms that many borrowers could not meet. So, for instance, they might have done something called an adjustable rate mortgage. Nothing wrong with that. And when an adjustable rate mortgage is, the borrower gets a mortgage at a certain rate for a period of time, and then it adjusts based on the interest rate. So it will go up, you know, chances are over a couple of years, then it could go up again and up again. So the lender might have said, well, you can.

[00:12:45] Repay at the first rate of interest. It might be.

Amy Friend: [00:12:49] Difficult for you to repay when this interest rate goes up. But don't worry, because traditionally, historically, all the models show [00:13:00] housing prices always go up.

[00:13:01] So you can refinance and you'll get you know, you'll have more equity because you will put money down.

Amy Friend: [00:13:08] You build up equity in the house as you pay off the loan, so you'll have more equity or you can sell your house and housing prices go up.

Nick Capodice: [00:13:15] You'll be able to pay your loan. Okay. All right. Let me try.

Hannah McCarthy: [00:13:18] This. Go for it.

Nick Capodice: [00:13:19] A person could get a loan even if they weren't really the best candidate, even if they were a risky candidate. And the lenders are telling these candidates that their monthly bill would be pretty doable, too. Right, Because interest rates were low. And by the time those interest rates went up and that monthly bill went up, their house would be worth more. Money, then it cost them to buy. So they could either just sell that house to pay off their mortgage or they could borrow even more money and use that money to pay their monthly mortgage bill.

Hannah McCarthy: [00:13:48] And that second thing you described has a couple of options -  refinancing your mortgage, taking out a new one that takes your home's higher value into account, OR a home equity loan. So [00:14:00] back to the subprime, A.K.A. Risky Loan, right? A lot of the people who got one did not actually have enough money to even make a down payment on their house. By the way, this falls into the predatory lending category. It is at the heart of what would turn into a very bad situation.

Nick Capodice: [00:14:22] And when you say down payment, you mean a big chunk of change that you pay. That kind of proves, hey, I will definitely be able to afford this whole house eventually.

Hannah McCarthy: [00:14:32] But in the early 2000s, lenders essentially eliminated the typical requirements for some borrowers. They would also say maybe.

Amy Friend: [00:14:41] You don't need a down payment. You don't need a down payment. Just sign on the dotted line. What's your income? Well, you need X amount of income to qualify for this mortgage. Just put it down and we're not going to verify it. So they didn't verify income. These were called liar's loans [00:15:00] or they were interest only. You never get to pay the principal of the loan, so you don't actually pay it down.

Hannah McCarthy: [00:15:06] You're just paying the interest. By the way, these are called liar's loans because the lender is ostensibly just taking the borrower at their word, as in you say you can do it, great. We won't ask you for any documentation. But really, what's going on here, Nick, is that these financial institutions are telling the borrower that this is okay. That's the predatory part.

Nick Capodice: [00:15:28] This sounds like a really bad idea. Hannah It sounds like those storefronts that have giant signs saying get a loan today, no proof of income needed, no money down. Why on earth would any mortgage lender agree to do that?

Amy Friend: [00:15:42] So you would say, why would a lender that's going to keep these loans on their books make loans with such faulty terms and essentially not underwrite? So when you underwrite, you look at the debt that the consumer [00:16:00] has compared to the level of income and whether they can take on this new loan based on all of that. And that was not being done. And the reason that lenders could do this is because they sold those loans to Wall Street companies, to these investment banks.

Nick Capodice: [00:16:18] Wait, you can buy a loan. How can you buy a loan? How can you buy something that is like the opposite of something? How can you buy something that is like negative money?

Hannah McCarthy: [00:16:27] I'm going to try it like this. Okay. And just tell me if this makes sense, okay? Bob Bank gives Suzy Homebuyer a loan to pay for her house.

Nick Capodice: [00:16:36] All right, I'm with you.

Hannah McCarthy: [00:16:39] And Bob tells Susie she has 30 years to pay them back. And because the loan comes with a fee, aka an interest rate, Bob Bank will make a profit. But Bob Bank does the math and decides they don't want to wait 30 years to make a profit. That's forever. Also, what if Susie Homebuyer gets to a point where she can't pay [00:17:00] Bob anymore? How is Bob going to get all that money back with interest right away? And also not worry about Susie Homebuyer maybe not paying her mortgage?

Nick Capodice: [00:17:11] I didn't even know this was an option for Bob Bank. Is this the selling the loan part?

Hannah McCarthy: [00:17:16] It is Bob Bank talks to Janet Wall Street and Janet is like, yeah, okay, I'm interested. I'll buy that loan from you because I have a plan for this loan. I am also going to sell it. And by the way, can I get 99 more of these?

Nick Capodice: [00:17:34] So Susie Homebuyer's loan gets sold.

Hannah McCarthy: [00:17:37] Twice, essentially, and the second time it is sold, or we should say part of it is sold. It's in a big bundle with a bunch of other loans it's invested in. So Bob Bank gets money from Janet Wall Street and Janet Wall Street gets money from Alistair Investor.

Nick Capodice: [00:17:53] Alistair. Alistair, how fancy. So does that mean that ultimately it's some investor [00:18:00] in this case Alistair who is getting Susie Homebuyers payments.

Hannah McCarthy: [00:18:06] And profiting on the fees a.k.a. the interest and often Nick Alistair Investor That's actually a company or a municipality like a town or city or pension fund and Alistair Investor is not going to make a risky investment. Alistair wants to make a profit and is not going to make a real gamble.

Amy Friend: [00:18:29] They can only purchase the safe securities, right? So there are credit rating agencies that actually rate these bonds and they could be triple-A for the best. They could be B for not so good, be negative. You know, they sort of there's a range, right? And so these rating agencies that were paid by the issuers of these securities would rate these bonds. They give them triple-A ratings. Well, the market you [00:19:00] know, housing prices always go up if we're going to keep paying. This is great.

Nick Capodice: [00:19:04] Oh, okay. Okay. I'm getting this. So a triple A bond is a bond full of mortgages, like a bag of mortgages that are very likely to be paid back versus triple B's, which are probably a little more risky. Like all the borrowers in the Triple A bond have great credit scores and they're almost guaranteed to pay their mortgage. So companies and municipalities and pension funds want to buy those because they're not even a gamble. They're like a sure bet.

Hannah McCarthy: [00:19:31] They're so safe. Right. Such a safe investment. And this is where something, just to my mind, ridiculous happens. We're in the early 2000s, Right? Remember that these bonds, as we've said, this bag of mortgages, it's a bunch of mortgages and they're all bundled up together.

Nick Capodice: [00:19:56] And investors buy that bundle of mortgages and they [00:20:00] want the packages. They get to have good credit scores to be Triple A's.

Hannah McCarthy: [00:20:04] Yes. But at this point, again, in the early 2000s, the investment banks are doing something else. They are also buying a bunch of, quote unquote, risky mortgages, risky like we talked about, both for the lender and the borrower, because the mortgage lenders have been handing them out like hotcakes. So the investment banks are like, okay, how are we going to make a bunch of money on these not so stellar mortgages that we've acquired? I know. Let's just.

Amy Friend: [00:20:33] Throw.

Hannah McCarthy: [00:20:34] Them into the mix with less risky mortgages.

Nick Capodice: [00:20:38] Well, it's like using a bad cut of meat to make a stew. But all these packages get grades, though, right? So wouldn't that lower the grade of the bond if there's a bunch of risky mortgages bundled in it?

Hannah McCarthy: [00:20:49] It should, but it doesn't. The ratings companies started rating these mixed bag bonds as triple A's, even if they had a bunch [00:21:00] of risky mortgages in them. Like even if you've got some Triple A's and then a bunch of triple B's.

Nick Capodice: [00:21:06] But that's a lie, isn't it? He's building houses on sand. Literal houses.

Hannah McCarthy: [00:21:11] Yeah. You're not the only one who had second thoughts about this approach.

Amy Friend: [00:21:14] So then these investment banks said, Well, just in case something blows up, we need insurance, right? So that if they blow up, we get paid. So that was something called a credit default swap.

Nick Capodice: [00:21:29] Okay. That is a weedy swamp of words right there.

Hannah McCarthy: [00:21:32] Yeah. And it's also words that the average American shouldn't really have to think about. Right. But I'm trying to explain this. It's just insurance. All right? The investment bank said, you know, just in case this whole thing doesn't work out. Cough, cough, let's get insurance. You know, And a company called AIG, American International Group is the one who issued most of that insurance. Meaning if people stopped paying their mortgages, AIG would make insurance payments so that the investors and [00:22:00] the Wall Street firms would be just fine. And then AIG would also be just fine because it could just take Suzy Homebuyer's house back and sell it. And because home values are always on the rise, everyone wins. Aside from Susie Homebuyer, but who cares about her?

Amy Friend: [00:22:17] So what happens? How did the bubble burst? Right? Because there was so much money and prices went up and up and up and up, particularly in certain regions in the country.

Hannah McCarthy: [00:22:26] And when housing prices skyrocket. Right. And they keep rising, people are like, oh, we better get a house right now. And it's easy to do it for everybody because anybody can get a mortgage. And, you know, everyone is being encouraged to get a mortgage. Also, housing stock was rising because there was so much demand. Contractors were building and building. And all of this, Nick, all of these little factors, the predatory lending, the quote unquote, liar's loans, the triple-A ratings on risky mortgage bonds, the housing [00:23:00] prices, it was all too much.

Amy Friend: [00:23:03] It was unsustainable. The value was not there and the borrowers simply couldn't pay off.

Hannah McCarthy: [00:23:10] Right. So the loans reset. A loan. Resetting, by the way, means a new interest rate kicks in, typically a higher one.

Amy Friend: [00:23:19] So that first interest rate, well, maybe they were okay for a couple of years and then it went up and they couldn't pay. And you know what? The bubble burst and then they were left with something called an underwater mortgage, which is where the house value no.

[00:23:37] Longer supported the value of the mortgage. So the mortgage was higher priced than the underlying house that was supposed to support that.

Amy Friend: [00:23:47] So people couldn't sell and they couldn't refinance to get better terms. And so a lot of people people walked away. People struggled. So so when they stop paying [00:24:00] what happened to these bonds, they went bust. So the investors weren't getting paid. And then what happened? What why did the rating agencies give them these high ratings? And then when they went to AIG to get paid on their credit default swap, all of a sudden AIG finds that it's tremendously exposed on the other side of this deal to a lot of these big companies. And they didn't have the money to pay out. So this whole financial engineering, which was a way to pass off the risk to somebody else and diffuse it like insurance. So it spread around. It ended up concentrating the risk and all of these. Companies became interconnected and they just. It was a house of cards and it all fell apart.

Hannah McCarthy: [00:25:02] So [00:25:00] what happens when homeowners can't pay their mortgages? Which means that these bonds that were sold as very good. Prove themselves to be very bad. And the investors who bought these bonds learn their investment is worthless. And the insurance company who promised to take care of the fallout if the bonds did prove to be worthless doesn't actually have the money to do it. And the houses that would have provided that value don't actually have the value. Everyone was pretending they had a catastrophe. And who do we at least try to look to in times of catastrophe? The federal government. That's after the break here on Civics one on one.

Nick Capodice: [00:26:01] And [00:26:00] I started out confused. Now I am madly in love with the housing crisis. But before the break, I just want to tell listeners if you like us or if you've got issues with us. Leave us a review on Apple Podcasts or wherever you listen to your podcast. We read every single one. We take each one to heart and it helps us understand how to make the show better. Just do it. All right. All right.

Hannah McCarthy: [00:26:27] We're back. You're listening to Civics one on one. And on this episode, I have endeavored to explain the financial crisis that sent homeowners, mortgage lenders, investment banks, investors and insurers into a tailspin.

Amy Friend: [00:26:38] That is what happened in 2008.

Hannah McCarthy: [00:26:41] Again, this is Amy Friend, an expert in banking and consumer protection law, who in 2008 had recently taken a job as the chief counsel for the Senate Banking Committee. And what happened is that due to a series of really poor decisions by some of the biggest financial institutions in the country, the bottom fell [00:27:00] out of the economy. Housing prices plummeted. People could not pay their mortgages. And these giant institutions found that many of their holdings, as in billions of dollars worth of subprime mortgages, were pretty much worthless. You had Fannie Mae.

Amy Friend: [00:27:18] And Freddie Mac, right. Which are basically keep the housing market going. They buy a lot of these. They buy a lot of loans from banks.

[00:27:27] From other lenders to keep liquidity so that the lenders can keep making.

Nick Capodice: [00:27:32] Loans. Okay. I've watched so many presidential debates and I nod vigorously whenever somebody yells about Fannie Mae or Freddie Mac, I don't know who they are. Also, what is liquidity?

Hannah McCarthy: [00:27:41] Let's do liquidity first, because I think that's like fairly straightforward. Think liquid, literally something's ability to flow. That's what liquidity means. Now just apply it to cash. Fannie Mae is a company that was started by Congress to help ensure that mortgage money could flow after the Great Depression.

Nick Capodice: [00:27:58] I've heard those names Fannie [00:28:00] Mae and Freddie Mac so many times. But like, who are they? Why are they called that?

Hannah McCarthy: [00:28:04] It comes from the initialism federal National Mortgage Association.

Nick Capodice: [00:28:09] No, that's not possible.

Hannah McCarthy: [00:28:11] Oh yeah. Fma.

Nick Capodice: [00:28:13] I can't believe I didn't know that.

Hannah McCarthy: [00:28:15] Fannie Mae and then Freddie Mac, a.k.a. Federal Home Loan Mortgage Corporation. Fme CC It came around in the 1970s, also started by Congress so that Fannie Mae would not have a monopoly.

Nick Capodice: [00:28:30] A monopoly on keeping mortgage money liquid.

Hannah McCarthy: [00:28:33] Yeah, pretty much. They acted very similarly to the way that Janet Wall Street acted. They buy mortgages from lenders, they package them and they sell them to investors, and that allows lenders to hold on to their cash and keep making loans.

Nick Capodice: [00:28:49] Which I assume is part of.

Hannah McCarthy: [00:28:50] Liquidity. It is. And the big difference with Fannie Mae and Freddie Mac is that because the government started, although did not own them, investors [00:29:00] thought of the mortgage bonds they were buying from Fannie Mae and Freddie Mac as being guaranteed by the government. Right. So no matter what happens, this is safe because the federal government is behind this investment.

Nick Capodice: [00:29:12] So if Susie Homeowner doesn't make his mortgage payment, the federal government is going to step in and ensure that I still get my money.

Hannah McCarthy: [00:29:20] Yeah, this was never actually written down anywhere. It was just like the perception of any massive.

Nick Capodice: [00:29:25] Agreement they're going to they're going to cover.

Hannah McCarthy: [00:29:27] Yeah, Yeah. And the issue is that Fannie Mae and Freddie Mac, they also got in on the subprime mortgage by, oh.

Nick Capodice: [00:29:36] This is a disaster.

Hannah McCarthy: [00:29:37] They bought a lot, Nick. They bought a lot. The problem is they did not have the money to back it up. So the federal government does do something.

Amy Friend: [00:29:47] Their regulator put them into conservatorship and basically said you're going to be under government control right now because you don't have adequate capital to to function. This was around Labor Day of 2008. [00:30:00]

Nick Capodice: [00:30:00] A conservatorship like, you.

Hannah McCarthy: [00:30:03] Know, yeah, a conservatorship, which means managing the financial affairs of these companies. But yes, as in what happened to Britney Spears. Okay. But also, what does that really mean? It means the federal government decided, you know what, we cannot let Fannie Mae and Freddie Mac go under. They are behind way too many mortgages, way too many investments, Too much money is involved here. If they fail, it could mess up the whole economy.

Nick Capodice: [00:30:32] As in they are too big to fail.

Hannah McCarthy: [00:30:34] Yeah, too big to fail. To the tune of $191 billion in taxpayer money. But somebody who we met earlier was not too big to fail.

[00:30:46] Lehman Brothers, which was a huge investment bank that turned out to be.

Amy Friend: [00:30:51] Overexposed with these bonds and basically couldn't go to.

[00:30:56] The market and get anybody to fund them. On the other side, there was a lack of [00:31:00] trust. They were allowed to fail. And then AIG was bailed out.

Nick Capodice: [00:31:05] Why Lehman Brothers and not AIG?

Hannah McCarthy: [00:31:07] That is a question that still rages today. The Federal Reserve says Lehman could not get their hands on enough collateral to justify a loan from the government. Right. Like a house is a piece of collateral for the home buyer. They can always say, I've got all this value behind me. Lehman Brothers couldn't prove that they had enough collateral. Nobody wanted to invest in Lehman Brothers because everything was falling apart. And some say that not bailing out Lehman Brothers was actually a big mistake.

Amy Friend: [00:31:34] So it just looked like chaos, like somebody put under government control than another company is allowed to fail. Then another company is bailed out. And then the chairman of the Federal Reserve Board and the treasury secretary came to Congress and said, you have to help out because we cannot deal with this anymore and you need to provide $700 billion to prop up the financial system [00:32:00] or the financial system in the United States will collapse and will bring the global economy down with it. And you've got a week to put this together.

Nick Capodice: [00:32:16] A week. Since when does Congress agree on a number like that? In a week.

Hannah McCarthy: [00:32:22] Okay. Something that we need to keep in mind here is that all of these US investment banks are tied to the global economy. It's not just the US. I mean, the pressure was on Nick. This was really bad. I just I want you to understand like this was devastatingly bad. This is Great Depression too, but worse.

Nick Capodice: [00:32:46] Wow.

Amy Friend: [00:32:48] It was shocking. Shocking. It's like the most, you know, respected financial system in the world with with all of the you know, [00:33:00] it was well regulated. And, you know, people flock to the United States as a safe place to put their money. And the dollar is the reserve currency for the world. And here we are. It was our crisis that was exported to other parts of the world, and the financial crisis was contagious. And it started in the United States. And it was just it was truly shocking that it fell apart as quickly as it did. And to hear, you know, Senator Dodd come back from this. There was a meeting in Speaker Pelosi's office.

Hannah McCarthy: [00:33:37] Senator Christopher Dodd, chairman of the Senate Banking Committee, which Amy works for.

Amy Friend: [00:33:42] Chairman Bernanke, had been a sort of he studied the Great Depression and taught it at at Princeton. And he said this will be worse if you don't jump on this. This will be worse because the world is so much more interconnected than it was in 1929. And I know that we have [00:34:00] to have an overwhelming, aggressive action here in order to stem the hemorrhaging.

Nick Capodice: [00:34:09] Okay. So it really is, like you said earlier, save the companies, save the world.

Hannah McCarthy: [00:34:14] That was the calculation.

Amy Friend: [00:34:15] Well, very short period of time to put together the immediate reaction to the crisis, which was this $700 billion called the Emergency Economic Stabilization Act, or TARP, which was the Troubled Asset Relief Program, which is what Treasury came to the Congress and asked for. But it ended up morphing into something quite different.

[00:34:39] But it was very successful program and stood side by side with a number of other actions that the regulators took.

Hannah McCarthy: [00:34:48] All right. I'm going to give you the barest of glancing blows of TARP here, just so you understand what they could possibly need. That $700 Billion for 250 billion for making sure giant investment banks didn't go under 27 [00:35:00] billion to get credit markets going again.

Nick Capodice: [00:35:02] Credit markets.

Hannah McCarthy: [00:35:03] Okay. When you own a house, you own collateral. We've been over that, right? When the price of your house drops, your personal wealth drops, and it is harder to get a line of credit, It's harder to get a loan based on the value of your house. That's part of the credit market. And it froze up. Then $82 billion goes to the auto industry to get that going again.

Nick Capodice: [00:35:23] How does the auto industry figure into this at all?

Hannah McCarthy: [00:35:25] Did I not mention that oil prices went up 50% and then the oil market crash? And also nobody was buying cars because their main source of wealth and credit, a.k.a. their homes, had lost value? Nick, I keep telling you, everything was horrible. Everything was falling apart. Aig gets 70 billion. That is a part of their eventual $191 Billion to get them stabilized and then 46 billion for the little guys, families facing foreclosure, which due to a long, awful history of credits and loans that we mentioned earlier, of course, disproportionately affected communities of color.

Nick Capodice: [00:35:59] And also [00:36:00] notably, the least money was going to the millions of affected Americans.

Speaker5: [00:36:05] It seems there's no good news when it comes to the housing market. Sales of existing homes plunged 8.6% in November as compared to October. It's estimated that 45% of sales of existing homes are foreclosed properties.

Nick Capodice: [00:36:17] So you've had a lot of your neighbors foreclosed on already.

Speaker6: [00:36:21] If you are watching us from the last home you'll ever own tonight, consider yourself lucky. Same goes for anyone ready to buy a slice of the American dream. But if you're among the millions trying to sell, this was a very bad day. So if there's somebody whose financial planning is based on their house price coming up in value soon, you're saying maybe they should come up with another plan? Exactly. I mean, there's absolutely no reason to expect that prices are going to go back to the levels they were at three or four years ago.

Amy Friend: [00:36:50] One interesting lesson from the Great Depression was that government needed to act speedily. And the Federal Reserve Board, [00:37:00] which was created in 1913 to address panics. Right. Did not step up in the Depression, but this time stepped up in a huge way.

Hannah McCarthy: [00:37:11] Basically, the government knew that the whole financial system would freeze up if they didn't do something, because that is what happens in a situation like this. So the Fed said, All right, we will buy these assets from these companies that nobody wants right now in order to keep the system functioning. And if you're hearing this and thinking, wait, so this is very much a massively capitalist based issue, you are correct and welcome to America.

Nick Capodice: [00:37:38] So we talk about bailouts. What's actually happening here is that the Fed is buying these worthless assets from these investment banks because they can't get anybody else to buy them.

Hannah McCarthy: [00:37:49] Yes. All right. So, okay, that is the emergency response, right? That is what came first. That's what Congress pulled off in a week. But that was not enough. The [00:38:00] answer to the financial crisis was not simply throw money on the fire.

Amy Friend: [00:38:04] Dodd-frank was the longer term. How do we fix the system now that we were forced to bail it out? How do we.

Nick Capodice: [00:38:14] Make sure that doesn't happen again? I have heard of Dodd-Frank, and I assume this is partially named after Senator Christopher Dodd. He mentioned earlier.

Hannah McCarthy: [00:38:21] Sure is. And Amy is in the room for all of it.

Amy Friend: [00:38:24] The Senate Banking Committee staff started working on ideas in October, November 2008 and talking to a lot of experts and putting experts before the members of the committee to start to think about how do you create a system of reforms going forward to ensure as best possible that we don't face the same failings and that make the system resilient enough so that they can withstand something [00:39:00] unanticipated? So we were working on that in the fall of 2008.

Hannah McCarthy: [00:39:07] So then Barack Obama gets. Elected and his administration is like, we really want to show the world that we have a good plan because we messed up big.

Speaker6: [00:39:17] And many, many Americans are both anxious and uncertain of what the future will hold. Now, I don't believe it's too late to change course, but it will be if we don't take dramatic action as soon as possible. If nothing is done, this recession could linger for years.

Hannah McCarthy: [00:39:36] So what's the plan? Give us the plan. We've got this big global meeting coming up and we have got to show them that we know what we're doing. We're going to fix this.

Amy Friend: [00:39:44] So they were pressing Congress to try to do something by April of 2009, which no, there was no way this was such a huge undertaking. But I remember that the chairman of the House Financial Services Committee, Barney Frank, and the chairman [00:40:00] of Senate Banking, Senator Dodd, put together a letter to President Obama saying that we are working in earnest and we will pass something so that they could go to this international meeting and say, you know, we're going to clean this up, because, again, it was the US that was responsible for something that was then in basically.

[00:40:19] Bleeding out into into the other parts of the world.

Hannah McCarthy: [00:40:26] And this is what it ended up looking like a gigantic bill, the Dodd-Frank Wall Street Reform and Consumer Protection Act. Here is what it basically said. First thing, we're going to have consumer protection.

Amy Friend: [00:40:41] It creates a new Consumer Financial Protection Bureau to look at financial services through the eyes of the consumer, through the eyes of the borrower. Right. So through the eyes of the consumer that is getting [00:41:00] a financial product or service in a way that hadn't been done during the crisis. Right? I think the bank regulators were largely looking at it from the perspective of the bank, and it looked like these things were safe and sound because they were profitable. But if you stopped and looked at it from the consumer's perspective, which is they're getting these loans that they can't afford, it's like a canary in the coal mine.

Hannah McCarthy: [00:41:27] Next, regulators.

Amy Friend: [00:41:29] It created a council of regulators. It's called the Financial Stability Oversight Council to look across the whole financial system because we have a lot of financial regulators that focus on different parts of the system.

Hannah McCarthy: [00:41:46] A major question that some people me I am the some people may have about this whole thing is why didn't anybody see that this was happening? And the answer is that we did not have a robust system of regulators [00:42:00] who were watching for systemic breakdown due to bad behavior on the part of financial institutions. So now this Council of Regulators meets with Congress annually to report on risks they see in the system. Dodd-frank also came up with a plan for companies who obviously need some oversight. Basically, the Federal Reserve is now allowed to take a company under its wing for a while. The long, slow bankruptcy process for Lehman Brothers proved to the government that the system, as in the bankruptcy system, is not designed to handle the disintegration of a giant, multibillion dollar multinational company. Also, when something that giant and interconnected fails, as we've seen, it has the potential to take the whole system down with it. So now the government says, you know what, you actually can fail, but you have to have a plan for how to do [00:43:00] it without ruining everyone's lives.

Amy Friend: [00:43:02] In fact, these companies all have to submit on a regular basis plans for how they could be unwound so that if the FDIC, the Federal Deposit Insurance Corporation, which would be the entity that resolves them, has to ever step in, they at least have a roadmap.

Nick Capodice: [00:43:19] Wow. So it's like these companies all have to write a last will and testament in the event of my death. Here is how things will go. Also, what does Amy mean by moral hazard?

Hannah McCarthy: [00:43:30] She said that if the market sees that Congress is just going to bail out companies when they make mistakes, those companies are just going to keep making those mistakes.

Amy Friend: [00:43:38] And that's the argument that we're going on, on different sides of just the foreclosure relief. And that's what the arguments that were going on in propping up the failed system in the Emergency Economic Stabilization Act that was preceded than the Dodd-Frank Act. So these were common themes that were playing [00:44:00] out. And I would say it was largely the Democrats that were in favor of more aggressive foreclosure relief and the Republicans who were arguing for market discipline.

Hannah McCarthy: [00:44:10] Okay. And then Dodd-Frank also said, look, giant financial institutions, you cannot end up in a spot like this again. You cannot leave yourself so exposed to possible failure, giant company. You have to make sure you have a ton of capital, as in total wealth and assets before you can mess around with loans and investments. And this, Amy says, is a super important part of Dodd-Frank.

Amy Friend: [00:44:33] And so there's more capital in the system, there's more liquidity. So if you have some kind of event like a stress, like the pandemic where companies were failing, right, the financial system was strong and that was a result of all of these reforms that were put into place, though the financial system was a source of strength for the economy as opposed to a drain on the economy. In the financial crisis. [00:45:00]

[00:45:00] In 2008, the financial system was a drain on the economy during the.

Amy Friend: [00:45:04] Pandemic, when small businesses were closing and people were going out right, there were layoffs and we saw it. Everything. Unemployment go up, the financial system stood strong. So so there's more liquidity, there's better risk management, there's more capital in the system.

Hannah McCarthy: [00:45:20] Amy actually says that the COVID 19 pandemic, which happened only ten years after Dodd. Frank was passed was the ultimate test of whether or not the system really had been strengthened.

Nick Capodice: [00:45:37] Okay. But I do remember that this whole effort on Congress's part was not exactly popular. Right. The public was openly furious with Congress for bailing out the banks, for propping everything up while the homeowners suffered.

Hannah McCarthy: [00:45:53] It's our duty as Americans to fight for our country and to keep it, you know, true to serving its people. And when it doesn't [00:46:00] do that, it's immoral not to stand up and say something.

Nick Capodice: [00:46:04] I'm here myself as a free individual to humanize the markets and to have true participatory democracy, bottom up democracy, and to make.

Amy Friend: [00:46:15] I think there is not a whole lot of understanding amongst the general public about what Dodd-Frank does. A lot of the provisions are complicated, esoteric. People don't talk about credit default swaps. Nor necessarily should they. Where the public emotion ran very high was in the emergency response in TARP, which was a perception that Congress was bailing out Wall Street and and forgoing assistance to Main Street.

Nick Capodice: [00:46:55] Can I can I just break in here for a second and say that I have no idea what the whole Wall [00:47:00] Street versus Main Street thing means? Am I Main Street or we Main Street?

Hannah McCarthy: [00:47:04] I think the best way to think of it is Main Street means all of us Americans who are not a part of this wildly money filled, gigantic financial institution world, people who stand to lose their smaller businesses, their jobs, their homes, their ability to feed and clothe themselves and their families, I mean, their whole life savings, etc.. If Wall Street screws up. Amy says that in Congress, the idea was if we bail out the banks, then they'll be able to support Main Street. They'll be able to get lines of credit going again. Homeowners and business owners will be able to survive. And let's be clear here. This could alternatively be labeled as a trickle down economics theory. And a lot of voters did not agree with it because that's what it appeared to be. And Congress did not do a great job of explaining it.

Amy Friend: [00:47:56] Had there been some more focus [00:48:00] and more sort of conversation about this is foreclosure relief for homebuyers, as well as we're keeping the banks going so they can support Main Street. But it was never popular. Members of Congress, senators, congressmen lost their seats for voting for TARP. But I know the firm belief was if this went down, the system could go down. And we can't we can't afford that. Even if the public sentiment is not supporting this, we have to step up because it's the right thing to do. And I believe it was the right thing to do. But people still debate that.

[00:48:39] So Dodd-Frank, which was more of the long term, how do you make the system sound? It definitely.

Amy Friend: [00:48:46] Has its detractors.

[00:48:47] But I would say most members of the public don't understand or would take the time to really understand the different aspects of it. I think they.

Amy Friend: [00:48:57] Just want the government to [00:49:00] have to stand behind a system.

[00:49:03] That is sound and that's fair. And that is what Dodd-Frank.

Amy Friend: [00:49:08] Is meant to do, which is to create this system that is resilient, that will treat customers, consumers, borrowers, investors fairly, and that will hold financial firms to high standards. That's what.

Hannah McCarthy: [00:49:22] Dodd-frank does. So one thing I have to make very clear, and it probably already is, is that Dodd-Frank and TARP and everything about the response to the 2008 financial crisis is, of course, political. And Amy is obviously a fan of Dodd-Frank. Not everybody is. But to her point, and this was certainly true of me before I made this episode, not many people understand what Dodd-Frank is. And when I tried to read its nearly 850 pages. I tried. I couldn't. I couldn't do it. And that could in itself be a problem. But I also suppose that's [00:50:00] laws for you. I do appreciate, however, this point that she made about the whole quote unquote market, because the story of the financial crisis still has me thinking, wait, but how did this happen? And the how this happened is what Dodd-Frank attempts to fix. You know, there is this sentiment.

Amy Friend: [00:50:20] That the market should largely policed itself, but the market blew up. I mean, the market was so focused on making money and had believed that they so engineered this disbursement of risk that nobody would be left holding the the, you know, the bag.

Nick Capodice: [00:50:41] And it just blew up. Hold on. What is the actual answer to the question? How did this happen? We have a lack of regulation, and I get that. But what was underneath the unregulated surface before 2008? I mean, is the answer just everybody wanted to get rich.

Hannah McCarthy: [00:50:59] Yeah.

Nick Capodice: [00:51:00] That's [00:51:00] it. And we can maybe get away with it.

[00:51:04] So there was just an incredible drive to make money. And, you know, and the question was, well, where were the regulators? And like, what were they doing? And so some of these activities were outside of the regulated space. And then when they went into the banks, I think the.

Amy Friend: [00:51:22] Regulators also miscalculated and thought, well, the banks are all making money, so this must be safe and sound. Never really looking from the consumer's perspective of, well, these don't have sound terms, so banks should not be anywhere close to them.

[00:51:37] They shouldn't be buying them, packaging them, funding them. They shouldn't be involved in this. And that never happened.

Hannah McCarthy: [00:51:50] When I was a kid and learning about the Great Depression, my mom told me, Don't worry about a kid. That could never happen again because the government has ways of preventing that now. But [00:52:00] the truth is it did not. And there was a massive panic and the government had to devote billions and billions of taxpayer money and pass a massive piece of legislation to deal with that panic. So now here's the question. Could it happen again? Again? You know, the idea behind.

Amy Friend: [00:52:19] Dodd-frank was not just to address the problems of the past because you don't know the ones that are coming up. Right. So, for instance, nobody saw a global pandemic. That would be a stress on the economic system. So the idea was to also create this 21st century financial system and set of regulations and regulatory actors that could take on new challenges. So one of the things that I think we see emerging is that climate change is actually a risk to the financial system because financial actors are quite exposed when it comes to climate change. So they're making [00:53:00] loans in areas that are subject to constant droughts or floods or fires. Right. And then there's something called transition risk, where as the economy moves away from fossil fuels to more renewable energy, what about investments and loans to all of these fossil fuel companies when we're heading towards net zero? So, you know, it's managing these risks. Cryptocurrency, right? So is that systemic? So I think what's important is that Dodd-Frank did not just address like the ills of the past, but it also gives the regulators the tools to deal with emerging issues. I think ultimately, the success of Dodd-Frank, you know, in the long run is did it make the system more resilient and provide the tools that regulators need to deal with emerging issues? And so far, I would say the answer is yes.

Hannah McCarthy: [00:53:59] So [00:54:00] obviously, Nick, Dodd-Frank did not arise out of one of these unpredictable situations. It arose out of the purposeful and incredibly risky and ultimately completely disastrous behavior of financial institutions who were not being watched closely enough. But Amy's point is that with Dodd-Frank in place now, the system is ultimately at less risk in any number of potential disastrous situations.

Nick Capodice: [00:54:25] It would have been nice if we could have had all that without attending the school of hard knocks.

Hannah McCarthy: [00:54:29] Wouldn't it, though? In this episode of Civics 101 was produced by me, Hannah McCarthy, with help from Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. Music [00:55:00] In this episode by Roof, Charles Valentin Alkin, ISO Indies and Ketsa. You can find this whole episode and all of our others on our website, civics101podcast.org. And if you enjoyed this episode or if you did not leave us a review, your feedback makes us better and we take it very seriously. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Why Do We Have an Income Tax?

Most Americans need help to file our tax return each year - about 90% of people use technology like Turbo Tax, or hire a human tax preparer.  Why does it feel like it takes degree in accounting, or the money to pay someone with a degree, or computer software, just to comply with the law? 

The income tax system is full of complexity, and extremely personal. It's a system where things like who you work for, what kind of resources you have, and how you spend your money, determine how much you owe the government, and what the government provides in return. So how did we get here? 

Helping us untangle this history is Eric Toder, Institute fellow in the Urban-Brookings Tax Policy Center at the Urban Institute; Beverly Moran, Professor of Law at Vanderbilt University, where she focuses on federal income taxation, including individuals, partnerships, tax-exempt organizations and corporate; and Joe Thorndike, Director of the Tax History Project at Tax Analysts.  

Stay tuned for our follow up episode on how to do your taxes successfully, and correctly - we'll talk about the IRS, enforcement and compliance, and the rise of tax preparation software. 

Support our show and our mission with a gift to Civics 101 today, it means the world to us.

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Transcript:

Fed Income Taxes 1

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

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

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

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

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

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

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

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

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

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

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

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

Beverly Moran: [00:02:12] I mean, what people talk about being able to have a tax return on a postcard, that was basically the amount of information you had to put out a return for most people. But the problem is, as the tax started to filter to the whole country, there was another sort of movement going on which caused the return to become much more frightening. And what that was was that we started to put a lot of things into the tax system. That really weren't about taxes.

Beverly Moran: [00:02:51] In preparation for talking to you. I reached out to several friends of mine who had, like, you know, decades of experience. You know, we're tax preparers, right? They know the taxpayer side and they know the government side. They wrote while saying to me, like, how can you say any of it is good? How could you come up with a story like and I'm saying, well, I want to say this and that. They were like, well, good for you that you can come up with this story because it's not good. It's horrible.

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

Nick Capodice: [00:03:53] Just to clarify, you said federal income taxes, so we're leaving states out of it. We're not talking about state local sales tax or anything like that.

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

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

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

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

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

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

Hannah McCarthy: [00:05:35] A flat rate tax is one that applies to everyone in the same amount, regardless of how much money they make. Like Social Security, if you made anywhere from $0 to $160000, you pay 6.2% of your income to Social Security, and your employer also pays 6.2%. If you're self-employed, you pay the full 12.4%. What makes our income tax progressive is that the more income you earn, the higher the tax rate is on that income for 2022. The lowest rate is 10% and the highest rate is 37%.

Eric Toder: [00:06:13] The third biggest source, which is significantly smaller, is the corporate income tax. But that's an important part of our tax system because without a tax on corporate income, people could avoid the income tax by accumulating income within corporations. So the corporation income tax, even though it raises only about 10% of federal revenues, is an important part of our our tax system. There are other taxes excise taxes, estate taxes, customs duties. There are smaller.

Nick Capodice: [00:06:43] Where does that revenue go? What kind of things does it pay for?

Hannah McCarthy: [00:06:47] It pays for the cost of running the government. It pays for all kinds of government programs, with social services being the biggest chunk, followed by defense and things like education, scientific research, infrastructure and natural resources.

Nick Capodice: [00:07:02] So I want to go back to how we got to this place. Did the framers mention this at all in the Constitution? Have we always had an income tax?

Hannah McCarthy: [00:07:10] We have not. The Constitution says that Congress can set taxes to, quote, "pay for the debts and provide for the common defense and general welfare of the United States." But the framers favored indirect taxes like sales taxes and tariffs more than direct taxes on income.

Nick Capodice: [00:07:30] So indirect meaning like a tax on something that you're paying for and theoretically could choose to pay for rather than tax, that automatically comes out of your paycheck?

Hannah McCarthy: [00:07:40]  Correct.

Nick Capodice: [00:07:40] All right. So what changed?

Hannah McCarthy: [00:07:42] Well, that whole "provide for the common defense" thing became really important during the Civil War.

Nick Capodice: [00:07:48] Ah.

Joe Thorndike: [00:07:51] Yeah. It was really intended as a war measure. We'd never had an income tax in the U.S., although the British had had one for 60 years at that point. But in the U.S. we hadn't. And they saw this as an emergency tax.

Hannah McCarthy: [00:08:04] This is Joe Thorndike. He's the director of the Tax History Project. Civics 101 talked to him back in 2017.

Joe Thorndike: [00:08:11] It was a way to balance more regressive taxes. So most of the taxes were on consumption, excise taxes on things like, you know, alcohol, tobacco and actually almost everything during the Civil War. But they wanted something that was more progressive and that was the income tax. That's why they created it as a balance.

Hannah McCarthy: [00:08:28] Like Joe says, it was supposed to be an emergency tax, but it didn't go exactly as planned.

Joe Thorndike: [00:08:34] The first income tax was actually imposed in 1861, and the tax came due at the end of June, back then in 1862, but there was no agency to collect it yet. So I always say that's the most unusual thing about it, is that the first income tax was never collected because there was no one to take the checks.

Nick Capodice: [00:08:53] So they're basically sending people a tax bill, but just not giving them a way to pay it.

Hannah McCarthy: [00:08:58] Yeah, like, I don't know, setting a New Year's resolution to make coffee at home instead of buying it. But you don't have a coffee maker and you don't own mugs.

Joe Thorndike: [00:09:07] But the next year, they kind of got their act together. They passed a new income tax and they created an agency, the Bureau of Internal Revenue, to collect it. That was 1862.

Hannah McCarthy: [00:09:16] The Bureau of Internal Revenue was the first iteration of what we know now as the IRS, the Internal Revenue Service. It's part of the Treasury Department and it's in charge of collecting taxes and enforcing tax law.

Nick Capodice: [00:09:29] So what did that first income tax look like?

Hannah McCarthy: [00:09:32] It started as a 3% tax on all income over a certain amount, but that income tax did not stick around.

Joe Thorndike: [00:09:39] But then after the war was over, they let it expire again. You know, emergency tax. Now the emergency is over. Let's let it go. There were people asking for one after that. Progressives, we would call them liberals today, but progressives and populists and people like that. But and eventually they got another one enacted and the Supreme Court struck it down as unconstitutional. And the grounds for that decision were fairly technical, and it was really only a stopping point on the way to actually having a permanent income tax. So when did we finally get a permanent income tax?

Hannah McCarthy: [00:10:11] That happened in 1913 when we ratified the 16th Amendment. This amendment says the federal government has the right to impose income taxes and more importantly, that the federal government does not have to distribute or apportion that revenue to states based on population size.

Joe Thorndike: [00:10:29] Now, in the beginning, the tax is really narrow, only applies to a relative handful of Americans. And that's true, you know, up till the World War One. And then it gets broader and bigger and then but it's still it's pretty minor tax. It's a rich man's burden, basically, right now originally.

Beverly Moran: [00:10:44] And even now to some extent, it's a fantasy.

Hannah McCarthy: [00:10:47] Again, this is Beverly Moran.

Beverly Moran: [00:10:49] And the fantasy that it was selling between 1913 and the 1940s was that this was a way of having some sort of income redistribution.

Hannah McCarthy: [00:11:02] But the income tax wasn't just added to the already existing taxes. The government also lowered tariffs, which are taxes on imported and exported goods. Tariffs had been a main source of revenue after the Civil War and the rise of industrialization. But with that industrialization came business owners and investors who accumulated vast sums of wealth. People who used that wealth to exploit workers, monopolize industries, raise prices and manipulate the markets for their own gain. So in an effort to lower tariffs and redistribute wealth without making big cuts to the government's budget, Congress shifted more of the tax burden directly onto the wealthiest Americans.

Beverly Moran: [00:11:47] The taps that were only like 3% of the population even had to file. Only about 1% of the population had to pay.

Hannah McCarthy: [00:11:56] But even so, the stock market crashed in 1929.

Nick Capodice: [00:12:00] Which led to the Great Depression.

Hannah McCarthy: [00:12:01] It did indeed.

Audio Clip: [00:12:02] Prosperity is just around the corner, say the hopeful headlines. But around the corner is wind. The lengthening breadlines and a whole new class of citizens appears in a. Society, the new poor.

Hannah McCarthy: [00:12:18] Businesses, failed, industries crashed. And when President Franklin Roosevelt was elected in 1933, he wasn't shy about using income tax to pay for economic recovery.

President Franklin Roosevelt: [00:12:29] My friends, I still believe in ideals. I am not for a return to that definition of liberty under which for many years a free people were being gradually regimented into the service of the privileged few.

Hannah McCarthy: [00:12:50] For example, Roosevelt introduced the Revenue Act of 1935, which was targeted specifically at the wealthiest Americans with tax rates that were as high as 75%. Wow. This helped fund the relatively new Social Security Administration, one of the New Deal welfare programs Roosevelt created after the Great Depression.

Nick Capodice: [00:13:10] And I am just trying to imagine something like a 75% income tax happening today. And I just cannot.

Hannah McCarthy: [00:13:16] By the way, at one point the highest tax bracket only had one person, John D. Rockefeller. But at the same time that the federal government was heavily taxing the wealthy, it was also creating exceptions, asterisks, things that allowed people to get out of paying taxes on their entire income. Here's Joe Thorndike.

Joe Thorndike: [00:13:39] There was one moment where where FDR says to his Treasury secretary, I'd like a list of the top 50 tax payers in, you know, 1942. I can remember which year it was, but roughly around then. No names, of course. And then they give him a they give him a memo which includes all the names. Roosevelt was famous for a lot of sort of anti loophole anti-tax avoidance crackdowns. And in 1937, I mean, he had the Treasury write him this memo. Again, there were two versions, one that had the names and one that didn't. But they made sure that those names made their way into the public sphere and that these guys were called out for using, you know, special little loopholes to try to avoid their taxes.

Eric Toder: [00:14:21] Well, we've always had certain exceptions in the income tax system.

Hannah McCarthy: [00:14:25] This is Eric Toder again.

Eric Toder: [00:14:26] Modern federal income tax started in 1913. We had a capital gains preference in introduced in 1921. We had mortgage interest deduction from the beginning. That wasn't very important because not very many people paid income tax and not very many people owned homes. The federal income tax started, but it became important later.

Hannah McCarthy: [00:14:50] It became more important when our income taxes went from something that only affected a small group of people to something that applied to nearly everyone.

Nick Capodice: [00:14:59] I'm going to go with the episode trend so far. Hannah, And guess that a war had something to do with this.

Hannah McCarthy: [00:15:05] It did indeed. Once again, war.

President Franklin Roosevelt: [00:15:08] No matter how long it may take us to overcome this premeditated invasion. The American people in their righteous might will win through to absolute victory.

Hannah McCarthy: [00:15:26] Specifically World War Two and the need to pay for it led to a major shift in our tax policy.

Eric Toder: [00:15:34] Big government really dates from the Second World War. And that was when we introduced a mass income tax that applied to the majority of Americans.

Beverly Moran: [00:15:45] And again, the income tax becomes a way of communicating certain ideas like this is like a victory guard or this is like not wearing nylons. You know, we're all in it for the war effort.

Audio Clip: [00:15:59] I paid my income tax Today. I'm only one of millions more whose income never was taxed before, a tax I'm very glad to pay.

Nick Capodice: [00:16:12] Victory gardens like that's where the government encouraged people to grow their own food to help reduce the demand needed to feed soldiers.

Hannah McCarthy: [00:16:19] Yeah, taxes were pitched in the same way the propaganda around income taxes, like the song by Irving Berlin that you're hearing right now, were all about showing your support for the war effort by paying taxes.

Nick Capodice: [00:16:32] I got to say, it's a pretty jaunty little tune.

Audio Clip: [00:16:34] They won.

Joe Thorndike: [00:16:35] When the number of tax payers increases like seven fold in a few years, millions of new people start paying the tax. They the thing is that it went from being a class tax to a mass tax, and that's when the Bureau of Internal Revenue became a fact of life for regular Americans, for middle class Americans in particular.

Hannah McCarthy: [00:16:57] Like the previous income tax. The expanded mass income tax was a progressive graduated tax. The higher your income, the higher your income tax rate.

Nick Capodice: [00:17:08] All right. So how did the Bureau handle this huge new tax base?

Hannah McCarthy: [00:17:12] Well, it got help from the Social Security Administration, which introduced Social Security numbers. So the Bureau of Internal Revenue could keep track of people's identities and income. And Congress also made it possible for the Bureau of Internal Revenue to collect those taxes from someone's check before payday.

Eric Toder: [00:17:31] Also, during the Second World War, we introduced withholding on wages, which was really important to facilitate the income tax because without withholding, people would have a big tax bill at the end of the year and would be unable to afford to pay. So withholding was a way to take the money out of people's paychecks and frequent little bunches.

Beverly Moran: [00:17:53] I think every kid has this experience, right? You get a job, you're told you're going to get paid $100. You get the check. The check is $80. Where did that $20 go? But it's withholding. So when you think about it, when all this is going on, there are no computers. There's there's no Internet right there. Barely like telephones. So withholding serves a lot of purposes, one of which, from the government point of view, is fewer people to deal with. If I can deal with Smith's grocery that represents 20 people, that's much easier for me than dealing with all the 20 people who work in Smith's grocery. And so the whole thing was pretty easy to do.

Nick Capodice: [00:18:41] All right. So this sounds pretty basic. Most people paid an income tax, but a lot of times it just came right out of their paycheck. So how do we go from that to what we have now, where a tax return has all of these components in it?

Audio Clip: [00:18:55] The total amount of income is not taxed, however, as each person is allowed certain deductions. You can deduct portions of medical and dental expenses.

Eric Toder: [00:19:04] One reason it's complicated and isn't as complicated in some other other countries is we've tried to use the tax system for many different things other than raising revenue.

Audio Clip: [00:19:13] Charitable contributions, interest payments, certain taxes and so on.

Eric Toder: [00:19:18] The federal government has decided it wants to encourage certain activities, wants to help people save for retirement. It wants to encourage them to give money to charities. Some of these programs could have been done by appropriations. And instead they're done through forgiving tax.

Nick Capodice: [00:19:36] What does he mean by that? Can you give me like an example?

Hannah McCarthy: [00:19:38] Let's start with World War Two. In 1942, Congress gave President Roosevelt the power to freeze wages, and he introduced a maximum wage of $25,000.

President Franklin Roosevelt: [00:19:51] Taxation is the only practical way of preventing the incomes and profits of individuals and corporations from getting too high.

Hannah McCarthy: [00:19:59] Essentially, any income you made over 25,000 was taxed at nearly 100%.

President Franklin Roosevelt: [00:20:07] The nation must have more money to run the war. People must stop spending for luxuries. Our country needs a far greater share of our income.

Hannah McCarthy: [00:20:21] But, and here's where things get interesting, that wage cap applied to salary, commissions, bonuses, but it did not apply to other kinds of compensation like insurance and pension benefits.

Eric Toder: [00:20:38] When wages were capped, employers in order to compensate their employees, started introducing health benefits, retirement benefits. The federal government wanted to encourage these things, so the amount of income you get in the form of employer contributions to health insurance is exempt from federal income tax.

Hannah McCarthy: [00:21:01] Especially because the employer also did not have to pay taxes on any income they spent on those kinds of programs.

Eric Toder: [00:21:10] Which encourages employers to provide health insurance to their employees.

Nick Capodice: [00:21:16] Is this unique to the United States? I mean, employer provided health care is one of those things that's now kind of the norm and the backbone of our health care system. And saving for retirement through work is, for most people the only way they're able to retire. But I know that's not the case elsewhere. So what's different about our tax policy than other countries?

Eric Toder: [00:21:38] Okay, so there are some very big differences. One is we don't have a national sales tax at the federal level. And we generally, even including states, we rely a lot less on consumption taxes than other countries. That means our tax system probably overall is a little bit more progressive than the tax systems in Europe.

Hannah McCarthy: [00:22:02] One way to think of this as more progressive is if there is a high sales tax on something, no matter how much money you earn, you pay that sales tax. Whereas theoretically the burden of the income tax is higher if you make more money.

Eric Toder: [00:22:18] But oddly enough, our fiscal system is less progressive. The reason I say this is they have these value added taxes, but they have much more generous social benefits, health benefits and so forth. So in a sense, we rely more on taxes for redistribution. They rely more on spending programs.

Hannah McCarthy: [00:22:39] So even though other countries may charge greater taxes on consumption, they also often spend more on programs that save people money or reduce their expenses. For example, the cost of health care.

Eric Toder: [00:22:52] All the systems use some tax expenditures. I think, you know, our exemption of employer premiums is probably unique to our system because in other other systems they have more public funding of health care. So you don't need to have this encouragement of the employer system.

Hannah McCarthy: [00:23:13] So it's hard to compare income taxes across countries, but people in Denmark pay almost half of their income in taxes. And Denmark also has some of the highest consumption taxes, taxes that you pay when you buy something or go out to eat, which the United States has kept relatively low. High consumption taxes are also the norm in countries like Germany, Finland, Sweden, Norway.

Beverly Moran: [00:23:36] So how can it be that you have people who aren't making very much money, are paying a very high tax rate and are paying taxes that in the United States we say are taxes that hurt the poor? Well, the reason is that they are actually providing tremendous benefits to their people outside of the tax system. Anybody who's a resident in Germany can go to college for free. In Scandinavia. You can get your health care for free. You're able to have maternity leave. You I mean, all sorts of things that in the United States, it's all like it's on you, right? Your retirement is on you. Are you saving for it or are you not saving for it? You know, your maternity leave is between you and your employer. It's all fragmented. And in those countries, they can do their taxes in less than 2 hours. Some of them don't do it at all, right? They just get like a letter from the government. This is what you owe. This is what you paid. Here's a check for the difference. Thank you very much. The reason why it's so complicated in the United States is because certain people are advantaged by the fact that it's complicated.

Hannah McCarthy: [00:25:05] We'll be right back after this break.

Nick Capodice: [00:25:08] But real quick, if you like our show or even if you don't do Hannah and I a favor and leave us a review on Apple Podcasts or wherever you listen to your podcast, it helps make our show better. It helps other people see our show and see what it's about. And we read every single one, truly every single one. So do it. It means a lot to us. And thank you. So we've been talking about why our income taxes here in the U.S. are so complicated. And so far we have heard about how the government started using the tax code to shift behavior without passing laws like incentivizing employers to provide health insurance and retirement plans. So what are some of the other carrots that the federal government has added to the tax code?

Hannah McCarthy: [00:25:52] Hanna There are two main kinds of incentives, deductions and credits. We're going to talk about deductions. First, here's Eric Toder.

Eric Toder: [00:26:02] Deductions reduce the amount of income on which you pay tax. So if I have 50,000 of income and then I get 10,000 of deductions, that reduces the amount of income I have to report to 40,000. So there are certain items that, for example, home mortgage interest or state and local income taxes or charitable contributions, which are the biggest which you can claim as a deduction or subtract that from the income which is subject to tax.

Nick Capodice: [00:26:34] So every year you have to figure out which deductions you might qualify for and then find out how much of a deduction it would be and send all of that information to the IRS.

Hannah McCarthy: [00:26:46] If you go the itemized deduction route, yes, but there is another option.

Eric Toder: [00:26:51] However, you can also claim a standard deduction. So depending on your marital status, you can deduct a certain amount in lieu of taking itemized deductions. So what you want to do is figure out whether your itemized deductions total up to more than the standard deduction. And if they do, you itemize. And if you don't, you take the standard deduction.

Hannah McCarthy: [00:27:14] Sometimes that itemized deduction is going to be more than a standard deduction, especially if you say own multiple properties or give to multiple charities, or if you have set up a charitable foundation in your name.

Eric Toder: [00:27:29] Most people take the standard deduction. Most high income people use itemized deductions.

Hannah McCarthy: [00:27:36] Unlike deductions which lower your taxable income. Credits lower your tax bill. That's the amount you have to pay after deductions are factored in.

Eric Toder: [00:27:44] If I were paying $500 of tax and I got a tax credit of $150, that would reduce my taxes. 350. So just comes right off of the tax.

Hannah McCarthy: [00:27:56] And many times that credit ends up showing up as a refund after you file your taxes. Basically, the government says you overpaid this year. Here's the money back.

Nick Capodice: [00:28:05] Is it possible to earn more in tax credits than you paid in taxes?

Hannah McCarthy: [00:28:10] Okay. This is where tax credits get a little sticky. The answer is sometimes. Some credits are refundable, meaning that if the value of the tax credit is more than you owe in taxes, you have a negative tax bill.

Nick Capodice: [00:28:23] In other words, you get money instead of paying money.

Hannah McCarthy: [00:28:25] That's it. So if your tax bill was $500 and you had $600 in refundable tax credits, you would not owe any taxes and you would get $100. One of the main tax credits that is refundable is the earned income tax credit, which is specifically for people with lower incomes. But you have to have actually earned an income to qualify.

Nick Capodice: [00:28:46] But not all credits are refundable, right?

Hannah McCarthy: [00:28:48] Many of them are not. For example, the tax credit for buying an electric vehicle. If you bought certain new electric cars in 2022, you could qualify for a $7500 tax credit. But if your tax bill is only five grand, you only get five grand credited toward your tax bill.

Nick Capodice: [00:29:06] So the government is trying to encourage me to buy an electric car, but I'm not really getting a $7,500 discount on that electric car unless I owe $7,500 or more in taxes. I think I've got it. So how do these tax credits even end up in our tax policy? They seem complicated. Like with that earned income tax credit. Why not just lower the tax rate for people who make under a certain amount?

Hannah McCarthy: [00:29:35] The answer is simple: politics.

Eric Toder: [00:29:38] So we all have different views of what public benefits the government should supply. We all have different views of how big the government should be. Your purchase of public goods through taxes is mandatory. So this is the one place where the government is taking something from you as well as supplying you with something. So naturally the question is who should it take from? How should that burden be shared upon those? Those are basically political questions.

Hannah McCarthy: [00:30:09] And with that Earned income tax credit and other tax credits designed to help people with lower incomes in particular, the politics have shifted a lot in the last couple of decades.

Nick Capodice: [00:30:20] How so?

Hannah McCarthy: [00:30:22] Well, remember how we talked about the New Deal ushering in all of these government programs to help support people while the country recovered from the Great Depression?

Beverly Moran: [00:30:30] Yeah.

Audio Clip: [00:30:31] The remaining costs of government may be considered under general welfare. Social Security programs provide retirement income for the elderly, financial support for widows, children and others who've lost their means of support, as well as aid to the disabled and unemployed.

Hannah McCarthy: [00:30:47] In the last 30 years or so, a lot of these programs have transitioned from government expenditures to tax incentives instead. The 1980s were the era of Reaganomics, when the Reagan administration proposed streamlining the tax system by removing a lot of incentives while also cutting taxes across the board.

President Ronald Reagan: [00:31:09] When I signed this bill into law, America will have the lowest marginal tax rates and the most modern tax code among major industrialized nations.

Hannah McCarthy: [00:31:19] But especially for businesses and the wealthiest Americans.

President Ronald Reagan: [00:31:23] One that encourages risk taking, innovation, and that old American spirit of enterprise.

Nick Capodice: [00:31:29] All right. So this is the so called trickle down economics.

Hannah McCarthy: [00:31:32] Yup. This was also called supply side economics. And the theory was that if you cut taxes for businesses and for people with wealth to invest, they would invest that money back into the US economy rather than pocketing it. And after a lot of this reform and these massive tax cuts, as we're coming out of the eighties, the political debate about how big the government should be and what it should pay for was centered on the value and logistics of welfare programs.

President Ronald Reagan: [00:32:01] More must be done to reduce poverty and dependency. And believe me, nothing is more important than welfare reform.

President Bill Clinton: [00:32:10] And more broadly, how we help people to lift themselves out of poverty and dependence. It's time to make welfare what it should be a second chance, not a way of life.

Hannah McCarthy: [00:32:19] President Bill Clinton ran on a policy of welfare reform when he was elected in 1992.

Eric Toder: [00:32:25] The incentives for retirement saving were greatly expanded. The Earned Income Credit was introduced and. Greatly expanded child credit was introduced. That was at the same time where aid for Families with Dependent Children was repealed, then welfare reform in 1996. So our system really moved more toward using the tax system for spending like programs.

Hannah McCarthy: [00:32:50] And Eric worked in the Clinton administration on some of the new policies that focused on taxes.

Eric Toder: [00:32:56] When I was in the Clinton administration and we decided for political reasons, we had to have a middle class tax cut. Well, I think the main view was essentially government spending has a bad name and politicians wanted to keep what the public perceived to be the size of the government low. And to provide more tax cuts, middle class tax cuts, other kinds of tax cuts. And so the way you could do this. While still providing government social benefits was to provide credits and so forth through the tax system. So if we lowered rates a little bit, it just costs too much money. You couldn't you couldn't lower rates across the board. So that said, we had to give some kind of credits or some benefits for people that talked about a child credit. And the number that Republicans said race was $500. So we said, well, we have to have $500. Can't be less than $500.

Hannah McCarthy: [00:34:02] He's talking about the Balanced Budget Act of 1993. The way that worked is that families could get a $500 tax credit for every child they had under the age of 17. So when you filled out your taxes, if you had a kid under age 17, you'd have 500 bucks taken off your tax bill.

Eric Toder: [00:34:19] Well, how do we save money if it's $500? Well, we have to phase it out if people's income is above a certain amount and maybe we want to limit it instead of with personal exemptions, which was 18, maybe we ought to limit it to people under 17. And you get the picture. You go through one contortion after another to hit these various targets for how you're changing the system. And those things just stay in their.

Nick Capodice: [00:34:54] I'm beginning to see how we ended up with such a complicated system, Hannah.

Hannah McCarthy: [00:34:58] And this changed the experience of people who used these programs, in part because for both deductions and tax credits, there's a responsibility on you, the taxpayer, to make sure you fill out the right paperwork and get those incentives.

Beverly Moran: [00:35:12] When the Clinton administration decided that it was going to kill welfare as we know it, right, that was one of the phrases to get rid of welfare as we know it.

President Bill Clinton: [00:35:23] I have a plan to end welfare as we know it to break the cycle of welfare dependency.

Beverly Moran: [00:35:28] So you don't really have welfare offices anymore. People don't really use the word welfare. That all seems to disappear, but the money is still flowing to people, but now it's flowing to people through the tax system. If you hide it in the tax system, what you're doing is you're replacing social workers with H&R BLOCK.

Hannah McCarthy: [00:35:54] Like Eric said before, many of the things treated as apportionment, that is, the government sets up programs and funds them directly, were now offered as relief from your tax bill instead. And all of these things just keep being added to the tax code to make it work.

Eric Toder: [00:36:11] The system is much more complicated than it needs to be and could use an overhaul. I mean, there are you know, when you look at something like retirement plans, there are multiple different ways you can contribute. And for the average person to figure out how to navigate through these systems, even the the programs for low income people like the education credits, many people just don't use them because they can't figure out how to navigate them in order to find some things. We've made things way more complicated than it needs to.

Beverly Moran: [00:36:44] For a lot of people. It's terrifying. You know, they they don't have the time. They don't have access to the things that they would need. Even if they have access to the things that they would need, the things that they would need are crazy complicated. The IRS produces all these instruction booklets, right. That could take  - they're like War and Peace. They use all sorts of language that makes sense to tax insiders, but doesn't necessarily make sense to anyone else. And so either you're going to like, engage in that system and get the money that the government wants you to have buy or you're going to like not engage with that system and maybe end up in prison.

Nick Capodice: [00:37:45] Well, that's enough death and taxes today. This episode was written and produced by Christina Phillips with me, Nick Capodice and Hannah McCarthy. Our staff includes Jacqui Fulton, and Rebecca Lavoie is our executive producer. Music in this episode. by the guy who wrote God Bless America, Irving Berlin, Jesse Gallagher, Raymond Grouse, Gridded, Blue Dot Sessions, Ketsa, Lee Rosevere, Lobo Loco. Nick Tum. Pictures of a Floating World, ProleteR, Scott McCloud, Cooper Canal, Bala and the Tax free musical Stylings of Chris Zabriskie. Civics 101 is produced by that station, who I hope is kicking in their 6.2% NHPR. New Hampshire Public Radio. I'm just kidding. Of course they are.

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Made possible in part by the Corporation for Public Broadcasting.

What's Up With The U.S. Space Force?

Many Americans were taken by surprise when a whole new branch of the military - the U.S. Space Force - was launched during the Trump administration. But this branch of the military wasn't created on a whim, and its mission is more complicated than you might expect. 

On this episode, we unpack the history of the militarization of space, the creation of the Space Force, and ask the question: is it here to stay? 

Our guest is Dr. Wendy Whitman Cobb, Associate Professor of Strategy and Security Studies at US Air Force School of Advanced Air and Space Studies.

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Transcript

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

Nick Capodice: Hannah, did you know that each branch of the military has its own theme song?

Hannah McCarthy: Yeah. They also have their own marching bands.

Nick Capodice: Six marching bands here. And I'm going to do a little quiz, Hannah; guess which branch this song belongs to?

Hannah McCarthy: Okay. Yeah, That one's the Marines. It's very recognizable.

Nick Capodice: Yeah, it's the United States Marine Corps hymn. How about this one?

Hannah McCarthy: Believe it or not, I used to sing this a lot with my friends.

Nick Capodice: It was very popular in chorus.

Hannah McCarthy: It's very- that's the Navy.

Nick Capodice: Yeah, you got it. The name of it is Anchors Aweigh. And here's the last one.

Archive: (Music).

Hannah McCarthy: Ohhh. Well, it sounds like it's the Coast Guard?

Nick Capodice: No.

Hannah McCarthy: Is that the Army?

Nick Capodice:  Wrong. I'm going to give you a hint. The name of the song is Semper Supra, which is Latin for "always above".

Hannah McCarthy: Ok, the Air Force.

Nick Capodice: Nope. So close. This is the song for the newest branch of the U.S. military. The Space Force.

Archive: Music

Hannah McCarthy: I guess it does feel kind of John Williams-y, right? Like Star Wars-y.

Nick Capodice: Yeah. You are not the first person to make that observation.

Dr. Wendy Whitman Cobb: This is unconfirmed, but I did hear a rumor that John Williams, the composer behind Star Wars and a lot of other movies, had offered to do the theme for them, and they turned them down because they, you know, obviously, they wanted their own people to do it. But that's an unconfirmed rumor.

Nick Capodice:  That is Dr. Wendy Whitman Cobb.

Dr. Wendy Whitman Cobb: I am an associate professor of strategy and security studies at the School of Advanced Air and Space Studies, otherwise known as SASS.

Nick Capodice: Wendy is a self-proclaimed space geek and went to school near the Space Coast in Florida.

Archive: 5,4,3,2,1, ignition.

Hannah McCarthy: I love that it's called the Space Coast.

Dr. Wendy Whitman Cobb: I grew up watching space shuttles launch my whole life.

Nick Capodice: Wendy was teaching a course on space policy at the United States Air Force Academy when that Space Force theme song dropped.

Dr. Wendy Whitman Cobb: My memory associated with it is just hearing what these young future space leaders are really excited about and being able to sort of get in on the ground floor of something new that they're building and, you know, having to come up with a song and think about it and- and what does that tell the world and our citizens about what it is that we do?

Dr. Wendy Whitman Cobb: Space is a very unseen, invisible sort of world. People don't know a lot about what actually goes on up in space. So all we have, all the references we have to go on are science fiction for the most part. So I think it's hard for the public not to see those connections, even if they were not deliberately trying to make them.

Archive: We'll call it the Space Force... Think of that Space Force.

Dr. Wendy Whitman Cobb: You know, it's hard when the public hears these things or sees something like the Space Force logo to disassociate and disconnect, you know, what you're doing in the real World Space Force from what they see on TVs and movies.

Archive: Space Force! Space Force! Look, look.As long as J.J. Abrams directs and Mark Hamill has a cameo, I'm in.

Hannah McCarthy:  I remember a lot of jokes about the Space Force on late night TV shows.

Archive:  But there's no threat in space. Who are we fighting? Satellites? A bunch of frozen monkeys? Elon Musk's convertible?

Nick Capodice: Yeah. The Space Force has been the butt of many a joke since then. But Wendy says that a lot of that has to do with what we didn't hear when the branch was unveiled. Perhaps because we were so wrapped up in how sort of sci-fi it sounded.

Dr. Wendy Whitman Cobb: A lot of the things you see on Star Trek or Star Wars or any other science fiction show- that's not really possible given the laws of physics today. So, you know, I think the public, just in general, needs to have a better understanding of what the reality is. We're not actually going up there and fighting pew pew with lightsabers and all of these things. But it is really important to our everyday lives, especially here in the United States. It's going to get more important as the years go on. We all need to have a better appreciation for it and understand the realities and what can and can't be done there. So again, you know, we're not going to be fighting. We're not going to send the Space Force to plant the flag on- the Space Force flag on the moon and take over the moon. That's not happening.

Nick Capodice: This is civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're going to take a look at the United States Space Force, our newest branch of the military. We're going to clear up what the Space Force is actually doing, why it was formed, and who is being recruited for it. And I have to admit, Hannah, like a lot of people, I didn't really get it when the Space Force was created. Like, is this whole other branch of the military even necessary when we already have the Army, Navy, Air Force, Marines, Coast Guard. And not to mention, isn't space covered by NASA exclusively?

Hannah McCarthy: So is the Space Force doing brand new things, or is it taking on responsibilities that other branches and departments were doing? Because creating a new military branch, that is a big deal. I mean, it's got to be expensive.

Nick Capodice: We are going to get into all of that. But first, Hannah, I want you to think about our military branches. So when you think about the Navy, you think about its role in fighting and protecting territory in the sea. And the Army, you think about land forces. And here's where Wendy says the Space Force fits in.

Dr. Wendy Whitman Cobb: They do have a really important purpose to serve in protecting what we do have there and making sure that the United States is able to access an area that has become vitally important to each and every one of us.

Hannah McCarthy: Wendy mentions protecting what we have out in space. What exactly needs protecting?

Nick Capodice: Have you ever thought, Hannah, about space as a militarized zone?

Hannah McCarthy: Only in the context of like Star Trek.

Archive: We're venting plasma.

Archive: Reroute power to aft shields and return fire.

Archive: You're just prolonging the inevitable.

Archive: We've defeated the Borg before. We'll do it again.

Archive:  Not this time.

Nick Capodice: Well, in the real world, it didn't really used to be considered a militarized zone until human technology reached it. And the technology that is there now, a lot of it relies on and relates to the military.

Archive: At Cape Canaveral, Florida, the Army's Jupiter-C rocket is ready for America's second attempt to launch a space satellite. No relation to the IRBM-Jupiter.

Dr. Wendy Whitman Cobb: We say that space is militarized because we use space for military purposes.

Nick Capodice: The United States Space Forces stated mission is to, quote, "conduct global space operations that enhance the way our joint and coalition forces fight, while also offering decision-makers military options to achieve national objectives. So in practical terms, Hannah, the Space Force's job is to protect our access to space and to operate and defend military satellites and their ground operations.

Dr. Wendy Whitman Cobb: Since the very beginning, since the Soviet Union launched its first satellite, Sputnik, in 1957- the Soviet Union and the United States have known that space is important for military purposes.

Nick Capodice: Military purposes being things like intelligence gathering, surveillance and communications.

Archive: The Soviet Sputnik beep beeped its way across the sky. The reaction was one of astonishment and concern. For it was now known that a potential enemy was at least temporarily ahead in developing means for space travel.

Nick Capodice: After the Soviet Union's successful launch of Sputnik, the first satellite launch in human history, America was in shock. Right?

Hannah McCarthy: Right. Because it wasn't just that Russia was our rival. Right? It's also that the occasionally self-proclaimed "greatest nation on earth" could not understand how Russia could have beat us into space.

Nick Capodice: Exactly. Many of Russia's claims of military and technological superiority had been sort of ignored up to that point.

Archive: Russia has in recent months been threatening nations who grant bases to America. Those threats have not been taken very seriously. But now the world knows that it took a far more powerful projectile than America possesses to push that satellite into its orbit in space.

Nick Capodice: But Americans could no longer ignore it when another superpower had the capability to launch rockets into orbit around the Earth. So the United States ramped up its space program and engaged the Soviet Union in a space race. With each side trying to one-up each other and tech and military hardware.

Archive: Today, a new moon is in the sky, a 23-inch metal sphere placed in orbit by a Russian rocket. Here, an artist's conception of how the feat was accomplished. A three stage rocket-

Hannah McCarthy: Wait a minute. They called Sputnik a moon?

Nick Capodice: Yeah. Very quickly Hannah let me define the word satellite. Satellite is really just an object that circles a larger object, like a moon circling a planet. So a moon is a natural satellite.

Hannah McCarthy: Oh, yeah. And, of course, there are artificial satellites, machines made by humans and launched into space.

Nick Capodice: Yes. And just like that Sputnik launch, we still use rockets to launch satellites into orbit. Some satellites are the size of a school bus or a hippo like the GOES 15, which is a weather satellite launched by the National Oceanic and Atmospheric Administration. But some satellites are the size of a lunchbox. They can hitch rides into orbit on rockets whose main objectives are other missions. For instance, delivering supplies to the ISS, the International Space Station. And the cost of manufacturing. A satellite has dropped dramatically. So, more and more of them are being launched, both by global government agencies and private corporations. And these satellites serve a variety of purposes. As Wendy mentioned, a lot of them are military in nature. But even if you aren't taking spy photographs of Russia, you are benefiting from satellites.

Dr. Wendy Whitman Cobb: It's very hard to think about something that we do on a daily basis that isn't affected by space. When you go to the ATM and take money out that- you're using a satellite to make that withdrawal. When you go to the gas station, you're- and you pay at the pump, you're using a satellite to make that payment. Many of the day-to-day economic transactions we make are supported by these space-based systems. And so the fear over the past couple of years is, as we have come to depend more and more on these space-based systems, other countries see that and can potentially threaten our dependence by shooting down satellites. And so that would be a very bad day.

Archive: This morning outrage from U.S. officials after Russia carried out a missile test early Monday, firing an anti-satellite missile into space.

Archive: We were recently informed of a satellite breakup and need to have you guys start reviewing the safe haven procedure. It's nine decimal two one.

Archive: Obliterating one of its own satellites and creating a vast debris field that's now orbiting Earth.

Archive: At least the occurrence is out of control to have a conversation on dragon the ground about-

Nick Capodice: But the value of our satellites goes way beyond how we pay for stuff and move money around. They are the reason, Hannah, we can reach in our pocket and see where we are and how we're going to get where we're going. Because 31 satellites make up what is called the Global Positioning System, G.P.S..

Dr. Wendy Whitman Cobb: G.p.s. is one of these things that I think we all sort of take for granted because we're using that information on our phone nearly every day.

Hannah McCarthy: I have to confess, I almost entirely depend on a map app on my phone, like, I can get around my hometown, but that's kind of it.

Archive: In two miles Hannah make a right on navigation-dependent Boulevard.

Nick Capodice: And those GPS satellites have been important to the military long before the creation of the Space Force. Quick interesting fact The network of global positioning satellites orbiting the Earth was developed by the Air Force in the late 1970s and used to be called NAVSTAR. The mapping technology was first made available for civilians in 1983, when President Reagan authorized its use by commercial airlines. The first consumer GPS devices came in the market in 1989, but the GPS satellites are still owned by the government and operated by the Space Force. But here's the thing, Hannah, there's something else those GPS satellites do that is vitally important. They provide incredibly precise timing data.

Hannah McCarthy: Timing?

Nick Capodice: Yeah. So each GPS satellite has an ultra precise atomic clock on board that continuously sends out what time it is according to that clock. This precise timing is used in financial transactions and by institutions around the world.

Dr. Wendy Whitman Cobb: You trade a stock, let's say, you want to buy it at the price it is at that very moment and not 5 minutes from now, not 5 minutes ago. So they use these ultra-precise timing signals to make these transactions and make them happen and make them match up. We also use these same signals for things like emergency services. If you think about how often we're making economic transactions on a daily basis, imagine what happens if you lose that capability. Many of us in society today don't carry a lot of cash. If GPS goes down, you're not going to get cash out of the ATM. You're not going to be able to use your credit cards or make financial transactions. In the past, where there have been errors in the timing signals of GPS satellites, emergency services have been unable to get signals and know where to go or know that they need to go somewhere.

Hannah McCarthy: So there are a bunch of extremely important and expensive pieces of equipment orbiting above us in space, and a lot of them have to do with supporting the military. But a lot of the value of these satellites is in making the modern world run. So my question is, given that collective value, is this the first time that our government has considered making a military branch to protect all this important stuff in space?

Nick Capodice: Yeah, the idea of having a military force for space came long before the creation of the Space Force. Over the years, many leaders in Congress and the military have considered consolidating space operations. There was talk of a military space service in the late 1950s. President Ronald Reagan also toyed with the idea. Former Defense Secretary Donald Rumsfeld wanted to consolidate space operations, but then those plans were sidelined by 9-11. Wendy said that over the past couple of decades, members of Congress started pushing for more proactive defense of our space based assets. And the Trump administration ran with it.

Archive: You know, I was saying it the other day- because we're doing a tremendous amount of work in space. I said, maybe we need a new force. We'll call it the Space Force. And I was not really serious. And then I said, What a great idea. Maybe we'll have to do that. That could happen.

Dr. Wendy Whitman Cobb:  The president's support for this was sort of the culmination, the final point of this movement, this push to do it, this recognition that space is really important and really fragile. And we really need to think seriously about how we protect what it is we're doing in space.

Hannah McCarthy: Who was in charge of that protection before the Space Force was created?

Nick Capodice: The responsibility was shared. Before the Space Force, The Air Force was in charge of protecting and maintaining military satellites, and NASA was in charge of its own equipment in space. And the other branches, like the Army and the Navy, have recently turned over all of their military satellite communications to the Space Force as well.

Hannah McCarthy: Now, earlier, you mentioned that it wasn't just military satellites orbiting the Earth. I know a lot of US corporations have equipment up in space, too. Does the Space Force have any interaction with those satellites? Do they protect them or monitor them? You know, kind of like how the Coast Guard has both military and civil jurisdiction when it comes to waterways and boats?

Nick Capodice: Well, that's not part of their stated mission today. But, Wendy says it's actually not clear what role the Space Force could play in the future. It's possible.

Dr. Wendy Whitman Cobb:  There are very few rules of the road when it comes to operating in space. And I think a lot of that's going to depend on whether the companies themselves want the protection of the Space Force or not. Some companies might say, "listen, it's not- you know, our satellite isn't worth a lot. We'll launch another one. Don't bother." I- because they don't want to get involved in the conflict. So you can imagine, like you might have a company like Planet, which provides remote imaging services. So they have a fleet of satellites up in space and taking pictures of the Earth, oftentimes with very good image quality. And let's say they are under threat of attack. They might not want the Space Force to step in because, you know, maybe that would just bring more threat to their satellite versus just sort of leaving it alone. I think a lot of it would also depend on the type of threat. And there's different ways to attack things in space. You can do it obviously physically by shooting it down essentially, or you can do it electromagnetically by blinding it or lasing it. So there's different types of sort of weapons in that sense. So I think a lot of it depends. A lot of it is unclear. The companies are under no requirement to tell anybody they're under attack. And even then they might not know they're under attack because it's very difficult to know what's going on up in space.

Nick Capodice: But this points to one of the reasons the Space Force was seen by a lot of people as needed in the first place. There is a lot of stuff up there military satellites, corporate satellites, space junk, a ton of space junk. That's the debris left by us in space when things break or are just abandoned. Aside from military threats, space is simply becoming more and more crowded. So it's a riskier place to operate. And that might require a dedicated branch of experts.

Dr. Wendy Whitman Cobb: Maybe we need a service that is specifically dedicated to the protection and defense of our space based systems and our access to space, and that perhaps having a group of specialists and people who are really knowledgeable about space might be the better way to do that.

Hannah McCarthy: I would assume that there was quite a bit of conversation and debate about this, right, Because you can't just go ahead and create a whole new branch of the military without some push and pull.

Archive: The committee meeting will be come to order.

Archive: I'm like the chairman. I'm genuinely undecided, although as you can tell, I'm skeptical. I don't think it's broken. I think you're doing a good job. Why are we going to fix it?

Archive: So, Senator, I think we have been doing a good job, but we've been doing a good job in an environment where space has not been contested.

Hannah McCarthy: Given that the Space Force does indeed exist today, this was obviously resolved. But how did it get done?

Nick Capodice: Like so many things are resolved in politics, negotiation. In December of 2019, Congress was working on a new defense spending bill the Republicans wanted to include in that bill the creation of the Space Force, which the Democrats opposed, and the Democrats wanted to include paid family leave for government employees, which the Republicans opposed.

Dr. Wendy Whitman Cobb: And so, the space Force ended up as this bargaining chip. The Republican Party wanted the space force, the Democrats wanted paid family leave. And so they sort of traded it at the end of the day. I don't say that to take anything away from the Space Force, because saying that might say that might sound sort of glib and that it was a trade- they got it because of a trade. But I think it's also a reflection of, you know, very real political realities that we have in the country today. Whether you- whether a policy move is going to be good for national security or not, it has very real implications. And you're going to spend more money on space. Well, then maybe the other party is going to say, "well, let's spend some more money on this area." So I think it's very much par for the course, so to speak, with- with what we see in government today. And it doesn't make the Space Force anything less than what it is. But it- I think it acknowledges the very real political reality that we face today in the United States, having the political system and the party system that we do.

Nick Capodice: The establishment of the Space Force was ultimately included in the $738 billion defense spending bill. And with the signing of the National Defense Authorization Act on December 20th, 2019, the US launched that shiny new military branch. The Space Force was born.

Archive: Today also marks another landmark achievement as we officially inaugurate the newest branch of our military. It's called the Space Force.

Hannah McCarthy: Now starting a brand new military branch, how does the government go about that? You've got a whole chain of command that has to be established, command centers. You have to build buildings, among other things, I would assume. How did it all work?

Nick Capodice: I shall tell you all about the intricacies of branch building, Hannah, right after this quick break. But first, do you know how to tell if you're wishing on a star or a GPS satellite?

Hannah McCarthy: Honestly, I have always wondered that because I take my wishes very seriously.

Nick Capodice: That's the sort of stuff we put in our civics 101 newsletter, Extra Credit. It comes out every two weeks and you're going to love it. Sign up at our website, civics101podcast.org.

Archive: According to regulations

Archive: According to regulations

Archive: And the Uniform Code of Military Justice.

Archive: The Uniform Code of Military Justice.

Archive: So help me God.

Archive: So help me God.

Archive: Congratulations and welcome to the United States Space Force.

Nick Capodice: We're back. You're listening to Civics 101 and we are talking about the Space Force and all the work that needs to be done when a brand new branch of the military is established like this one was in 2019.

Hannah McCarthy: Now, before the break, Nick, I asked you a pretty big question. How do you create a whole new arm of the military from scratch? How was the Space Force created?

Nick Capodice: Yeah, so similar to how the Marine Corps is organized under the Department of the Navy, which also oversees the United States Navy. The Space Force is organized under the Department of the Air Force as a, quote, "separate but co-equal branch along with the US Air Force."

Hannah McCarthy: How big is the force? Does co-equal mean it's the same size as the Air Force?

Nick Capodice: Absolutely not. Not at all. Of the approximately three hundred and thirty thousand active duty air force department military personnel, only about eighty four hundred are in the space force.

Dr. Wendy Whitman Cobb: It makes it the smallest service. Even aside from the Marine Corps, which had been the smallest service to date.

Nick Capodice: And that is Dr. Wendy Whitman Cobb, again.

Dr. Wendy Whitman Cobb: One of the concerns when they created the Space Force was that you would create too much bureaucracy, too much organization and too much duplication of effort. And so one of the things that they have really worked hard is to keep the organization as small, flat, fast and efficient as possible. To sort of avoid some of those concerns. So I don't think there's necessarily any political appetite to enlarge that in the near future. Of course, barring something happening, if something happens and we find out, "wow, we really need to be doing more." You can imagine a situation where we might start to enlarge what the Space Force is doing and give them more people to do that. But I think for the most part it's going to stay relatively small.

Nick Capodice: Once the newly created US Space Force had indeed achieved liftoff, there was a lot of work to do to keep that bird in the air, so to speak. There were the monumental tasks of organizing the branch, recruiting skilled active-duty Air Force personnel and civilians. And of course, branding. And branding is important. Military folks know this, every branch has its own singular identity, and the Space Force needed one too.

Hannah McCarthy: Branding like a theme song?

Nick Capodice: Exactly. And also sleek new uniforms, a memorable symbol, a motto. These are all important parts of the Space Force's identity and brand. And while these may seem like little details to civilians, they all play a pretty big role in shaping the culture and character of the Space Force as a vital part of the U.S. military Space Force.

Hannah McCarthy: All right. So here's my question.

Nick Capodice: Yeah.

Hannah McCarthy: Members who serve in different military branches are called different things. In the Army You've got soldiers. In the Navy, you've got sailors. And the Marines, You're called a marine. What do they call the personnel within the Space Force?

Dr. Wendy Whitman Cobb: Again, this was something that the Space Force had to take a new eye to. In the Air Force, we actually call members of the Air Force, "airmen" not necessarily gender inclusive. And so, you know, I think the Space Force wanted to be sensitive to being gender inclusive, but also find a name that spoke to what it is that they intend to do. They did take some suggestions from the public about what to call members of the Space Force.

Hannah McCarthy: Oh, boy. So one of these open to the public things?

Nick Capodice: Yeah

Hannah McCarthy:  Like, kind of, when we asked grade school students to design quarters. My quarter design was not accepted by the state of Massachusetts, by the way. What kinds of names did they get?

Nick Capodice: I think there was a paucity of sort of Boaty Mcboatface jokes, but there were a lot of fun submissions. My favorites were the Thunder Children and Mars Bars. But Wendy says there was a common theme in many of the public's suggestions.

Dr. Wendy Whitman Cobb: Many of them did end up being sci-fi inspired in many ways. And I think that again, was another place where the Space Force tried to sort of separate out the science fiction from the fact. Obviously, when you hear the term guardians, you might think Guardians of the Galaxy. But I think the- the choice of the name Guardian really says what it is they want to do. They don't want to get actively involved in a war unless they have to. Their job is to guard. Guard our assets, guard our way of life, guard our access to space from any potential threat. And so I think that really is descriptive of what it is the Space Force hopes to do and what they see their mission as.

Hannah McCarthy: All right. Now, you said earlier that. The Space Force brought in active service members. And you mentioned recruitment. So where are these new guardians coming from? Like, are they being wooed away from other jobs in, say, NASA or even civilian jobs that have to do with space, like working with corporate satellites?

Dr. Wendy Whitman Cobb: The core of the new Space Force has been taken from the Air Force. And a lot of the space units that the Air Force was operating, a lot of the space professionals that the Air Force already had. The other services also had some space professionals and space systems. And so over the past couple of years, the Space Force has started to sort of consolidate a lot of the military space operations under their umbrella.

Hannah McCarthy: So to recap, the Space Force was formed to pull together a bunch of things that other branches, but primarily the Air Force, were in charge of before. They are essentially maintaining and protecting military satellites and the military access to space. And this includes potential attacks, collisions with space junk, communications. Are they doing anything else?

Nick Capodice: Well, one of the most important things is the support they're providing to all the other branches of the military, not just satellite operations, but communications, intelligence, navigation capabilities and missile defense. But they're not holding a total monopoly on government operations in space. Hannah have you ever heard of the National Reconnaissance Office, the NRO?

Hannah McCarthy: I have not. What is that?

Nick Capodice: The NRO was a highly, highly classified office during the Cold War that only became declassified in the 1990s. They run a lot of space based systems for the wider intelligence community. That's going to stay its own organization separate from the Space Force. And of course, NASA is still overseeing science and technology related to space and space exploration. And private corporations with a footprint in space aren't going anywhere anytime soon.

Dr. Wendy Whitman Cobb: The civilian companies like Space X, Blue Origin will still be there. Obviously, the Space Force has looked to recruit from those companies and sort of bring in these working professionals who already have large areas of knowledge.

Nick Capodice: Wendy said that the Space Force has often sent its personnel to work with commercial companies in order to foster collaboration. There's a big focus on these private public partnerships, as well as international governmental relationships, which makes sense considering the diverse international mix of satellites orbiting our planet right now.

Hannah McCarthy: So I know that the Space Force falls under the Department of the Air Force and is this, quote, separate but co-equal branch with the Air Force. But given that the Space Force is so new, what is that relationship like?

Dr. Wendy Whitman Cobb: So there's still a relationship there between the Air Force and the Space Force. And in fact, the Air Force is still going to provide many of the support services for the Space Force. So over the past couple of years, we've renamed some Air Force bases to be Space Force bases. So Patrick Air Force Base, down near the Kennedy Space Center, used to be called Patrick Air Force Base. It's now called Patrick Space Force Base.

Nick Capodice: As of this taping, there are six main Space Force bases and seven smaller stations. There's even a base called Space Base Delta One, just a few miles from where we are taping this very podcast. It's in New Boston, New Hampshire.

Dr. Wendy Whitman Cobb: So we've broken out a lot of the space specific operations to be the purview of the Space Force. But the Air Force is still helping a lot in terms of providing some of those foundational things like base security that they're not necessarily big enough to do on their own. It's kind of, I guess, a sibling like relationship. we're at, right at the moment, between the Air Force and the Space Force.

Hannah McCarthy: What is training like for these guardians? Does the Space Force have a boot camp?

Nick Capodice: More like a space camp.

Hannah McCarthy: I always wanted to go to space camp. Looked so cool.

Nick Capodice: Space camp?

Dr. Wendy Whitman Cobb: We don't have astronauts going into space. They're not necessarily going into a war zone to fight. But we still want to make sure that they're healthy. There is a Space Force boot camp or basic training that they're running that they have broken out and they are currently the Space Force is currently working to separate their out their own system of professional military education and enlisted education to separate that out from the Air Force.

Nick Capodice: Wendy said guardians won't necessarily be going into battle like an Army soldier or Marine would, but that doesn't mean they're not doing dangerous work.

Dr. Wendy Whitman Cobb: Many of them do get deployed and sent down range to operate satellite communications links and other valuable on the ground assets. So, you know, and being a military service, they still do have standards that they need to meet. However, the Space Force has really thought long and hard about what those requirements should be. And so they are looking to change it somewhat from the traditional military physical requirements that you would think of. They've been trying to take a more holistic attitude not just to physical fitness, but to health and wellness and to really encourage their guardians to have a a lifestyle of being fit. And so they're working on standards that that talk more about how much physical activity a guardian should be getting on a regular basis. So I think the Space Force has really been trying to think about how they might do things differently, especially in an era where we have a lot of wearables and technology that can look at it, what we're doing over time. So, you know, and it's a very interesting question. We don't have astronauts going into space. They're not necessarily going into a war zone to fight, but we still want to make sure that they're healthy.

Hannah McCarthy: Okay. Got it. But I cannot help but think about the brain training. I mean, we're talking about working on the ground with equipment in space that is highly scientific, esoteric stuff. How are the Guardian recruits being trained for that?

Dr. Wendy Whitman Cobb: It's very hard to visualize sometimes. I think the the outer space environment. But you have these very large, sometimes very large satellites, and sometimes very small satellites, moving at incredible speeds in different directions, at different orbital inclinations. And orbital trajectories are just crazy. And so, you know, I think the Space Force has been really thinking hard about, well, "how do we train to operate and work in an environment that we can't necessarily be in all the time?"

Nick Capodice: Wendy says that the Space Force is looking into cutting edge technologies like virtual reality headsets with 3-D replicas of satellites, space stations and mission control rooms.

Dr. Wendy Whitman Cobb: You know, our satellites aren't necessarily set up for instant servicing. If something goes wrong with the satellite, you don't just send up a repair person. So, yeah, there's just different ways of operating in space that we have to learn and figure out and use the best tools to our advantage when you can't really get there. And we're not really anticipating sending guardians into space in the near future either.

Hannah McCarthy: I would assume that building a virtual reality space station is more affordable than sending someone into space, but I bet it doesn't come cheap.

Nick Capodice: Yeah, it's all pretty pricey. The 2023 budget bill passed for the Space Force was $26.2 billion. That's more than a 70% increase over their 2022 budget. And here's a staggering statistic that never fails to shock me. The United States comprises about 40% of the world's total military spending. That's more than the next nine countries combined. And with this highly specific branch addition, that number's going to keep going up. But these satellite and space programs already existed and already were expensive. They were just spread out under other agencies. And now with them being consolidated into one place, this funding could theoretically be harder to cut.

Dr. Wendy Whitman Cobb: And it sounds like a lot. And it is it's actually a little bit more than what NASA gets. But, you know, compared to the other services, it is rather small. And this, I think, has been a concern to people who support the Space Force, because one of the things about what the Space Force does is it supports the other services. It supports everything else the Army does, the Navy does, the Marine Corps does by providing communication, by providing missile warning services, by providing remote sensing. You know, this is one of these things that the Space force has tried to argue that, like we need to get more money to do these things for the other services. It's not the U.S. Space Force doing it for the US Space Force sake. It's the Space Force doing it for the Armys sake.For the Marines sake. The Navy sake, or the Air Forces sake.

Hannah McCarthy: Is there a chance that political winds will shift and Congress could decide, you know, "let's just dismantle the Space Force, split the responsibilities back up under different branches and programs."

Dr. Wendy Whitman Cobb: Listen, anything's possible. I'm never going to say never. But as someone who has studied bureaucracies, government bureaucracies, once one is created, it's very hard to kill it. It never really goes away. It might become morph into something else and change, but it never really goes away. But I think now that the Space Force is an organization, it's been around for three years now. It has people who support it. It has a budget line. It has facilities that they're starting to create. It makes it even harder to stop. So I think as as an agency gets older, it just gets even harder to kill. Even if a new administration came into office after the 2024 election, that means you're still going to have a space force that's been around for several years, and that's going to be even harder to kill than it would be now or two years ago.

Nick Capodice: Well, that is it for the Space Force here on Civics 101. This episode is created by our producer, Jacqui Fulton, with Rebecca Lavoie, Hannah McCarthy, and me, Nick Capodice. Christina Phillips is our senior producer. Music in this episode by Larry Poppins, Bonsai Needle Mouse Rubik's Cube, Rubio's Lupus Knocked Silver Maple Bio Unit, Anissa Orchestra, Nando and such military musical entities as the United States Navy band, the President's own US Marine Band and the United States Air Force Band. And last but never, never least, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. Blast off.

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The Government and Housing: One City's Story

Atlanta was the first city to erect public housing in the United States. It started with Techwood Homes, an all-white development that went up in 1936. Sixty years later it would be torn down, along with others of the now-neglected developments that were the promise of FDR's New Deal. Akira Drake Rodriguez leads us through the story of how residents of public housing in Atlanta worked with, against and despite housing policy in their city.

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Transcript

Hannah McCarthy: Hi there. This is part two of a two parter on federal housing in the United States. And while you can listen to it all by its lonesome, I do recommend that you hit pause. Go back and listen to part one on housing policy in the US. The federal government has not always been involved in housing, but once it got involved, the policies that it adopted shaped housing and home ownership in drastic ways. Listen to that one to help you better understand what we're about to talk about in part two, Housing and Atlanta, Georgia.

Nick Capodice: Because Atlanta had the first public housing, right.

Hannah McCarthy: The very first 1936 Techwood Homes. The federal government's answer to both houselessness and what it saw as insufficient housing, what it would call slums in the United States. And just in case you do skip part one, I'll go ahead and not bury the lead. Techwood Homes was an all white housing development. Atlanta [00:01:00] also built all black housing developments, but public housing was segregated as a matter of policy. So keep that in mind. Let's get into it. This is civics one on one. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And to talk about public housing in general is nearly impossible. There are so many stories, so many different approaches and shifts across the country. I am choosing Atlanta because of the story that public housing residents created in that city. It's a story that Akira Drake Rodriguez, who we met in part one.

Akira Drake Rodriguez: I'm assistant professor of city and regional Planning at the University of Pennsylvania's Weitzman School of Design.

Hannah McCarthy: Describes in her book Diverging Space for Deviance.

Akira Drake Rodriguez: So in terms of piloting public housing policies, administration and programs, and sort of distributing them out across the country, certainly Atlanta has a very sort of dominating role.

Hannah McCarthy: So before we can dive into the housing itself, it's important to know what Atlanta looked [00:02:00] like as public housing first went up in that city and not just housing wise, but politically.

Akira Drake Rodriguez: So after Reconstruction, Atlanta did elect some black representatives to city council, to the board. However, that was immediately repealed with the implementation of this white primary in the 1890s, where effectively the Democratic Party as a private institution was allowed to engage in race based discrimination. So this was not protected under any sort of constitutional amendment. This was simply the way of life. And this was a very sort of popular play of Southern states post reconstruction. So you see it in Texas and Louisiana and Georgia. And this way, primary existed until 1946 when it was repealed by the Georgia Supreme Court. And you start to see this like increase in black descriptive representation as a result. However, until that point, this sort of like geography [00:03:00] of black Atlanta was a very constrained.

Hannah McCarthy: Now black Atlantans made up around 32% of the population of Atlanta, but resided on only about 16% of the land.

Akira Drake Rodriguez: And so they were unable to get, you know, sidewalks, landfills, trash service, bus service, really any sort of public goods and services because they were effectively barred from voting.

Nick Capodice: Okay. I don't think I even knew about the white primary as an even if black Atlantans can technically vote in the general election, they weren't allowed to decide who they would ultimately be voting for.

Hannah McCarthy: Right. Because it isn't the government who is in charge of the primary, it's the parties. So when a whole demographic is prevented from selecting their choice candidate, when a whole group is not allowed to say we want this politician because we believe that this politician will take care of us, a couple of things happen. One, politicians are simply not courting that demographics vote. That [00:04:00] demographic is seen as less politically consequential to that means that that demographic is actually less likely to be taken care of as and have city resources like trash collection and street maintenance in the areas that they occupy. And that is exactly what happened in Atlanta with the all white primary when it came to what the black community actually received.

Nick Capodice: So you had neighborhoods that the city was not actually taking care of, full of people who did not have much political power. And of course, that lack of political power is part of the reason that the neighborhoods weren't well taken care of.

Hannah McCarthy: And at the beginning of the episode, I told you that Akira wrote a book. Its title is Diverging Space for Deviance, and I want to come back to that.

Nick Capodice: I did wonder about that title. Hana Deviant usually has sort of a negative connotation.

Hannah McCarthy: In this case. It's a term that Akira found in this political science article from the 1980s. Akira is specifically talking about political deviance [00:05:00] here, which is a term I had never heard before. By that she means people who deviate, who don't fit a certain standard of political behavior, who maybe don't vote as often, whose demographic is passed over in the political sphere, whose lives politicians don't feel like they need to represent.

Akira Drake Rodriguez: The deviant category, which was, you know, unemployed people who deal with substance abuse, people who are, you know, single mothers, for example. Those are considered deviants. Especially because they do not participate politically in the same way. So these are not the most engaged voters. These are not the targets of political ads and campaigns. And so they are both marginalized in public policy, but also severely underrepresented.

Hannah McCarthy: We're going to come back to this idea of the political deviant [00:06:00] right after a quick break. But before we do, just a reminder that civics one on one also has a newsletter, because let me tell you, we cannot fit everything into these episodes. We need somewhere else for all of the information to go. If you were a fan of trivia and ephemera, I highly recommend that you subscribe to that newsletter at civics101podcast.org. It's free, it's fun. It never has any ads, and we're not there to clog your inbox up. We're just there to talk. Again, you can subscribe at civics101podcast.org. We're back. This is civics one on one. And we're talking about public housing in Atlanta, Georgia. Right before the break, Akira was describing to us this notion of political deviance. And here's why. Atlanta is such an interesting city to look at when it comes to public housing and its segregationist roots. Because Akira noticed something about a, quote, deviant population in the all black housing developments in Atlanta.

Akira Drake Rodriguez: I sort of dug deeper [00:07:00] into the history of tenant organizations and the role they played in sort of taking the politically deviant public housing resident into a more sort of politically active and knowledgeable person. And so this was the idea was to kind of understand how the politics of public housing changed over the course of the 20th century. And so what I was really more interested in was the sort of political activism and organizing of tenants over time and how that changed based on public housing policy.

Nick Capodice: Tenant organizations like when tenants come together to complain to the landlord about leaky pipes or what have you.

Hannah McCarthy: That's not how it started in Atlanta, though. That is where it ended up, just not where it started. Like Akira said, tenant organizing changed as housing policy changed. So, for example, the first all black public housing in Atlanta went up around the [00:08:00] same time as the first all white public housing in Atlanta. It was called university Homes and the relationship between the tenant organizations and the people managing these homes started out like this.

Akira Drake Rodriguez: They were allies out of the managers. And so because the managers depended on the tenants and vice versa to make public housing a viable program and policy in the United States, they did a lot of work together. They did a lot of programs, a lot of classes, a lot of political education, a lot of, you know, gendered activities like, you know, ROTC and and small domestic classes for women, Girl Scouts, Boy Scouts, etc.. To me, it was really important to study this history of public housing in Atlanta, because the first black public housing development opened in 1937 before the white primary had ended. And so they weren't able [00:09:00] to get streetlights, they weren't able to get sidewalks, they were able to get like good housing. They were able to get housing that was actually managed by black people. So there was no white landlord. There were only black housing managers and staff.

Nick Capodice: So before the white primary had ended, meaning that black voters still could not select their choice candidates, they could not get proper representation. But inside of this all black public housing, there was this kind of microcosm of power.

Hannah McCarthy: But there's a limit here, and that limit is about who is actually allowed into these public housing communities.

Nick Capodice: There were rules about who was and was not allowed to live in public housing.

Akira Drake Rodriguez: Yeah. So again, in the beginning, the New Deal policies for public housing were very conservative. And so you needed a minimum income, you needed a maximum income, you needed to have your employment verified. Someone would come to your house and conduct an interview. They were checking [00:10:00] references. And so it was it was quite difficult actually, to get access in to public housing. And once you're kind of family situation changed, whether you lost your job or you were even widowed or divorced, you were evicted from the from the housing development.

Nick Capodice: I just have to ask, what is with this widowed and divorced thing? Wouldn't people who are potentially losing the income of a partner need assistance all the more?

Hannah McCarthy: All right. Here is what you've got to understand about public housing. It is not actually for all members of the public, and the qualifiers are not as straightforward as a certain level of income. Some limitations that continue to exist to this day are based on whether or not you've been arrested or if you have a criminal conviction. I should also clarify that while it is overseen and funded by the federal government, public housing is run by local housing authority. So there are variations in how things are [00:11:00] done. But when things first got started in Atlanta, there were these bi racial advisory committees for public housing made up of the city's elites, and they had certain ideas about certain populations.

Akira Drake Rodriguez: They were all sort of subscribing to the same sorts of politics, namely what we call racial uplift politics. We kind of look at the minutes of these local advisory committees. There was a lot of discussion about, you know, we should set rents lower for the black developments because even though there are two adults working, that's still less than the wages of a white male earner in the white public housing developments, they were allowing for higher maximum incomes because they realized that because of the racialization of the kind of emerging mortgage industry, there actually wasn't a lot of financing, a lot of land available [00:12:00] for black private homeownership. And so they kind of made these exceptions for black families.

Nick Capodice: So the committee recognized that because of racist and segregationist policies in the workplace and in the housing market. That it would be reasonable to have lower rents in all black public housing, both because of lower income and because even families who should be able to buy a home couldn't obtain mortgages.

Hannah McCarthy: And it wasn't just about being reasonable. It was about uplifting black families. And this, by the way, was a specific motivation on the part of some educated, prosperous, influential black Americans in this era. There was a sense of responsibility for the well-being and civil and social elevation of black Americans generally. But what will being actually looked like could be limited. So lower rents for black families. Agreed.

Akira Drake Rodriguez: But then when it came time for [00:13:00] the sort of allowances around the number of individuals in the unit.

Hannah McCarthy: Meaning how many people can live in an apartment and in what situations.

Akira Drake Rodriguez: The woman named Florence Reed kind of makes this point like, Hey, what about teachers? They're single. They have to be single. That's sort of the law at the time. They should be allowed to you know, they should be the exception. That shouldn't just be about full families. It should be about these single women. Or at least allow for a single woman to reside with the family, as is often the case with people who take on caretaking duties in order to get room and board.

Nick Capodice: And we definitely need to talk about compulsory singledom for teachers in a future episode. But back to this woman, Florence Reed. She's basically saying that we should figure out an exception for single low wage earning women as well.

Akira Drake Rodriguez: And this was struck down. This was going to be according to a lot of the black men on the advisory committee. That would be the [00:14:00] end of the black family. That would create too much disorganization and chaos in the black family. So although they were advocating for a lot of the unique sort of economic and labor and class issues, they were not always so forgiving when it came to gender or other forms of deviance.

Nick Capodice: There's that word deviance again. So single women are a politically deviant population at this time.

Akira Drake Rodriguez: Even when public housing was fully funded was really just for like people who couldn't afford to buy a house. And you had to be working. It had to be, you know, like literally you get sick and you lose your job and they evict you from public housing back in the day. So it was always just like really kind of like morality was like, was it? And it wasn't about like, caring compassion. It was about, like, judgment. Right? Like you're not deserving enough of this benefit. You're not contributing to the economy, so you're not going to get any money [00:15:00] in the end. You're not going to be able to benefit.

Nick Capodice: So this housing program, which was designed to give homes to Americans who needed them, was also designed to exclude disenfranchized and vulnerable populations, in part because of these value judgments about who was deserving of public housing, who hit the moral or ethical brief.

Hannah McCarthy: Honestly, that in a nutshell, sometimes feels like the twisted history of federal financial assistance for low and no wage people and families in America. But let's get back to how people used their situation to get what they really needed. You've got these all black public housing developments with all sorts of resources for the community and not just the tenant community, but the surrounding black community as well.

Akira Drake Rodriguez: They put in a library, they put in one of the second public auditoriums in the city. And so literally the right to assemble comes through this public housing policy at once. The primary is deemed unconstitutional in 1946. [00:16:00] They are immediately registering voters in this auditorium and in this public housing development. So it starts off immediately as this sort of hotbed of political activism.

Hannah McCarthy: This new high density physical space ended up being crucial to political power in the community, specifically Akira found among single women.

Nick Capodice: But earlier, you said that this concept of a single woman in a public housing apartment was not the advisory committees idea of the right kind of family.

Hannah McCarthy: That started to shift with the 1949 Federal Housing Act, which was passed with the goal of providing a, quote, decent home and suitable living environment for every American family. As the country entered a post-World War two housing crisis, it's basically Harry Truman's expansion of what Franklin Delano Roosevelt started. Suburban areas boomed while cities were viewed as increasingly unsightly. [00:17:00] This was, by the way, 100% tied to increasingly white suburbs and black cities and racism. And the act included money for cities across the country to demolish their, quote unquote, slums.

James Baldwin: They were tearing down his house because San Francisco is engaging, as most northern cities now are engaged in something called urban renewal, which means moving Negroes out. It means Negro removal. That is what it means. And the federal government is it is an accomplice to this fact.

Nick Capodice: This was a nationwide program to demolish neighborhoods.

Hannah McCarthy: Which is not too terribly different from how the first public housing in Atlanta came to be. Teakwood and university homes were constructed where, quote, blighted neighborhoods had stood only a year before. The difference in this project, [00:18:00] which was billed as urban renewal, was that it was more widespread. Despite the pledge for more housing, the federal government also limited spending on housing infrastructure itself.

Nick Capodice: Infrastructure like the materials for the apartments themselves, cheaper material, shoddy or construction, etc..

Hannah McCarthy: Bingo. So you have more apartments, but not particularly well built apartments. Now, by the way, the 1949 Federal Housing Act included a provision that for every dwelling that was demolished, an affordable housing unit would be built. But that 1 to 1 construction did not exactly pan out. And then, of course, with the clearance of loads of black neighborhoods across the country, public housing saw an influx of new tenants, new tenants who joined tenant associations.

Akira Drake Rodriguez: And so you start to see the public housing development and particularly the tenant association change from being [00:19:00] kind of, you know, coupled households and male leadership and the tenant association to single parent households and more women leadership in these organizations.

Hannah McCarthy: And it is with this shift that Akira started to notice something powerful, this politically deviant population, black women, often single mothers, leveraging the power of their numbers to make gains for their communities.

Akira Drake Rodriguez: Mary Sanford, he was the head of the Tenant Association and Perry Homes was very pivotal to getting subway service. And in Northwest Spur, where most of the public housing was concentrated, and Louise Whatley, who also kind of was tenant organizer at Carver Homes and other major development in the Northwest. Susie Laborde I write about her a lot. She was the organizer at Great Eight Homes, and she went to the White House and met with President [00:20:00] and started economic opportunity. Atlanta. Even Davis, who also met with Jimmy Carter and brought a lot of resources to East Lake Meadows in particular.

Nick Capodice: So you had these women who, because of housing policy, had needs that weren't being met. And so they pushed they pushed for better conditions. But it also sounds like those conditions didn't stop at the apartment gate, so to speak, because subway service, for example, is city infrastructure, like it might serve public housing, but it changes the actual landscape.

Hannah McCarthy: Exactly. They were attempting to bend their physical space to meet their needs. And then on that apartment level, there was a shift away from tenant associations being the allies of management to prove public housing a viable project. These women knew it was a viable project. They were living there. They were creating political power. What they needed was investment [00:21:00] in this viable program.

Archival: This project is 40 years old, the oldest one in the world, and it's also to the first one built and the largest one. And we have not gotten anything and it's gone down. The community building look like a shamble. What are you prepared.

Archival: To do to see that these things are taken care.

Archival: Of? Whatever action needs to be done, if we have to, whatever step we have to take farther to go, we we we are just tired. The people is really tired.

Akira Drake Rodriguez: They are like the pipes are leaking, There's vermin. You never built a sidewalks. You actually never built anything after you initially build this out. And so they started engaging in a lot of direct actions like protests and rent strikes and occupations as a way to express their disapproval, but also to show themselves as sort of independent political thinkers and actors. There was meaningful change and, you know, so they got [00:22:00] policies, they got grievance procedures, they got autonomy, they got greater sort of control.

Hannah McCarthy: These women represented what Akira calls black feminist spatial politics. They were motivated by the public housing policies that shaped their lives, and they in turn used the public housing space to create a space conducive to their lives and their needs. Or is it cure? Calls it building cities hospitable to the modern deviant. And then just as soon as these black feminist politics were truly gaining momentum.

Akira Drake Rodriguez: These sort of successes because of the timing of. Kind of correlate when when we see the federal government pulling back from funding public housing. And so again, and thinking about those earlier kind of like social constructions, a policy target as the, you know, tenants become less white and less married, [00:23:00] you start to see this sort of shift in how the government is approaching and thinking about public housing. It goes from kind of like a necessary steppingstone for the middle class to, again, this sort of housing of last resort and creating almost like a new slum.

Nick Capodice: Even though the whole point of these developments was to replace what city leaders designated as slums.

Akira Drake Rodriguez: They constantly like think of them as an eyesore. And it's actually pretty ironic or funny, or maybe both or neither, because these public housing developments were supposed to replace slums which were also maligned in the same way. So any time you have this sort of concentration of what I call deviance, but, you know, underemployed, you know, marginalized populations, vulnerable populations, a concentration of them and in substandard housing is considered a blight. Right. Is considered a scourge, not just for those who live [00:24:00] in it, but also for city leaders in particular.

Hannah McCarthy: Public housing was integrated with the 1968 Fair Housing Act. We talked about this earlier with Richard. Right. You could no longer segregate these homes into all white and all black. And while it took some time, the populations of places like Teakwood homes, the first ever and all white federal public housing development in Atlanta did eventually integrate. But this is also an era of the federal government pulling back. Five years into the Fair Housing Act, President Richard Nixon announced that this model of federally subsidized housing construction had essentially failed the new model one that he promised to be a lot less expensive for taxpayers would be to directly provide people with money to seek housing in the private market.

Akira Drake Rodriguez: Tenants were very protective of their property and really just wanting greater investment.

Archival: When you have said that it's the government [00:25:00] got down, maybe it else. But I tell you what, you got some proud folks here and I'm just as proud as I am. If I lived in Sandy Springs and I tell you what, my home, my yards are just like those in Sandy Springs.

Akira Drake Rodriguez: And so, you know, the seventies and eighties are a rough time in urban policy. So federal government doesn't have any money. Cities definitely don't have any money. And so it is very, very difficult to get any new resources.

Hannah McCarthy: No money, by the way, because of a massive recession in the seventies. So the physical conditions are deteriorating, but the community and the space shaping power it created remained for as long as it could.

Akira Drake Rodriguez: All of them were really, really fierce advocates for public housing. They wanted to keep public housing. You know, maybe they wanted to change the shape of it, change the funding, change the population. But they were very sort of adamant that public [00:26:00] housing wasn't good and did not deserve to be demolished.

Hannah McCarthy: Eventually, though, they would be between the housing voucher program, which was appealing to many public housing tenants and the disinvestment of cities. This space for black feminist politics was about to crumble.

Akira Drake Rodriguez: Literally, it was all kind of for naught. And so because of this very sort of constrained resource environment of austerity, you see these conservative politics emerge and eventually kind of contribute to the demise of public housing.

Hannah McCarthy: And then in 1990. Atlanta, Georgia, won the bid for the 1996 Olympics.

Archival: The 1996 Olympic Games to the city of Atlanta.

Akira Drake Rodriguez: So [00:27:00] the Olympics is kind of like the major catalysts, right? Investment is coming in. This is a mega event. The Atlanta Olympics was the first modern Olympics to turn a profit. They made $3 billion at the Olympics. And the goal was like, we absolutely cannot have this blight or the eyesore of public housing near our new stadium.

Hannah McCarthy: This was as straightforward as, Oh, no, If you drive toward the center of Atlanta along the freeway and glanced to the side, you'll see the sprawling eyesore. And that will not do for all of the visitors headed our way.

Akira Drake Rodriguez: And so the demolition discussions, the redevelopment discussions began in the early nineties, and they were demolishing public housing in Atlanta through the late 2010.

Archival: By this [00:28:00] time next year, all public housing projects in the city of Atlanta will be gone. The Atlanta Housing Authority says it's ahead of schedule in reaching its goal to be the first major city...

Hannah McCarthy: Check out our episode on the Olympics, by the way, for a clearer picture of what hosting the Olympics often does to cities and why it is not always positive. So there is this long, drawn out process of demolishing these developments. And I should mention, not every city demolished all of its old public housing stock. Many still exist in this country today, but Atlanta did.

Nick Capodice: But they had to replace it with something, right?

Hannah McCarthy: Well, a few years before the Olympics, the federal government launched a program called Hope six. It was designed to replace existing public housing with mixed income rentals. Smaller developments that are usually privately owned. Some of the apartments in these developments are rented at market value and others at a more affordable cost for qualifying low income renters. These low income apartments [00:29:00] can either be paid for with Section eight vouchers or are simply available because the government gives that private company a subsidy to provide affordable housing.

Akira Drake Rodriguez: When you privatize the management at lease of public housing, you're privatizing kind of like the leasing terms and leasing options, which means that you may meet the kind of like income requirement, but you have bad credit or you were arrested or, you know, you took a drug test and let's say you're disqualified or someone in your household hits these kind of strikes. And so that kind of lost a lot of population as well prior to you even demolishing them. They were doing a lot of what was called the one strike rule, which is if anyone was arrested in the household, you could be evicted. And so you see these like changes in welfare policy, changes in public housing policy, all sort of happening at the same time in the early nineties. So [00:30:00] the actual population that has to be kind of relocated or rehoused is shrinking every day.

Hannah McCarthy: So again, Nick, this is the Atlanta story, one of many public housing stories in the country. Atlanta's post Nixon housing era looks different from Boston's. Boston's looks different from San Francisco's, San Francisco's from Kansas Cities. But the Atlanta story is important because of what occurred in developments that would eventually be deemed a failure. Political power and attention achieved by a deviant group, in part because of the space they occupied. When that space was eliminated. So was their coalition.

Akira Drake Rodriguez: So I was reading a lot about these mixed income developments, and I noted how there were homeowner [00:31:00] associations to kind of advocate for the interest of the homeowners and the development. But there were no tenant organizations. And the reason for that was that a lot of the developers said that, what do you need a tenant organization for if, like you have a new apartment? Right. And so the idea was that the only reason that these tenant organizations existed was to complain about the property or complain to the landlord, and that was effectively ended.

Hannah McCarthy: I asked Akira for her one big takeaway from all of this research What should people learn from the story of what happened, if so briefly? Within Atlanta's original public housing.

Akira Drake Rodriguez: Tenant associations are for more than just complaining about your landlord. They are literal spaces of working class politics, organizing and mobilization. And so they should be standardized everywhere and not just sort of [00:32:00] like this weird, archaic thing. So that would be my my one takeaway.

Hannah McCarthy: So the Atlanta story, you know, the why of telling it is not simply that it was the first for me in the context of federal public housing policy, a policy that was explicitly designed to segregate a policy that prohibited so many black Americans from securing a path to wealth, which, by the way, is the same thing as a path to political power and civic influence. That is why the Atlanta story and this last message of a is is so significant, so important because political power and civic influence happened anyway, both in spite of and because of these policies. This [00:33:00] episode is produced by me, Hannah McCarthy, with help from Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. Music In this episode by Anemoia, Nul Tiel Records, Kesha, Xylo-Ziko, Experia and Chris Zabriskie. You can listen to part one of this two-parter on federal housing by going to our website, civics101podcast.org and clicking on episodes. It is there you will find all of the many, many other episodes that we have made, and you'll also have the opportunity to submit a question of your own. Part of our job is to answer them sometimes in an episode. Civics 101 [00:34:00] is a production of NHPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Government and Housing: Policy

"Public housing" did not exist prior to the Great Depression. So it wasn't until Franklin Delano Roosevelt's New Deal that the government had the chance to impose segregation at the highest level. The effects of segregation policy in housing continue to this day in the United States. Akira Drake Rodriguez and Richard Rothstein are our guides to how and why the government did it.

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Transcript

Hannah McCarthy: In the early 1990s, the city of Atlanta began a wide scale demolition project.

Archival: This is the day that many have dreamed of and others feared would eventually come. The first phase of.

Hannah McCarthy: Some of the first buildings to be razed were part of a federal housing development called Techwood Homes.

Archival: These apartments are very, very old and new, and they have to come in here constantly to keep them up. It's a danger to the tenants, some conditions.

Hannah McCarthy: And by the time these homes were demolished, they were considered blighted property. It's an official term. It's still used today to describe uninhabitable or dangerous places. And it wasn't just teakwood. Federal public housing, like it in Atlanta and across the country, had deteriorated. Broken elevators, broken lights, unreliable heat and hot water. Trash piling up in garbage chutes, boarded [00:01:00] up, apartment units, organized crime. This kind of public housing. Some said it had been a nice idea. It had offered hope.

Archival: Anyone that has pads in the high rise projects and looking in from the outside, it seemed like a beautiful home, a clean home and a lovely place to live in.

Hannah McCarthy: But it just hadn't worked out.

Archival: I live inside and I know there's some fear that I am living in.

Hannah McCarthy: So, Nick, I bring up Techwood in part because it wasn't just one of the first to come down. It was the first, as in the very first in the United States to go up.

Nick Capodice: This was the first ever public housing.

Akira Drake Rodriguez: So Atlanta has the first public housing in the country. Right. So Teakwood Homes in 1936, first public housing development that was federally financed. Locally administered.

Hannah McCarthy: This is Akira Rodriguez.

Akira Drake Rodriguez: An assistant professor of city and regional planning at the University of Pennsylvania's Weitzman [00:02:00] School of Design.

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

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this is part one of two on federal housing in the US. Later on, I'm going to talk about Teakwood and Atlanta because the story of what happened within that city's public housing can teach us a lot about people, space and power. But first, we need to understand what we talk about when we talk about federal public housing. That is part one housing policy.

Archival: The story of Homes How people live is the story of the foundation on which a nation is built.

Nick Capodice: Very quickly, Hannah, can we just define what public housing is?

Akira Drake Rodriguez: Yes, public housing to me is housing that is subsidized.

Akira Drake Rodriguez: By the government. And so that is a very broad definition and kind of includes all housing, which [00:03:00] is the point to me. It should be like all housing is actually public housing.

Nick Capodice: Hold on. All housing in the US.

Akira Drake Rodriguez: This is like a favorite housing policy stat that our largest housing expenditure from the government is the mortgage interest tax deduction. It is not Section eight, it is not, you know, constructed public housing units. That is actually our biggest giveaway. And so all of us receive benefit of varying degrees from the federal government in order to support our housing costs and needs. And it really is the stigma, particularly the racialized and gendered stigma of public housing, as we think of it, the tall buildings, the empty lots that it has this negative connotation. But we all live in public housing.

Hannah McCarthy: So when we say subsidized housing in America, the typical association is with very low income renters [00:04:00] who qualify for government subsidized housing units or housing assistance vouchers from the government. But what Akira is saying is that the biggest subsidy is in mortgages for private homes. Anyway, for this episode, when we talk about public housing, we're talking about that last category that Akira described constructed public housing units, apartments and homes that the US government financed, the construction and provided for the management of.

Richard Rothstein: The federal government first got involved in housing in the New Deal. It first got involved with the creation of the first public housing in this country.

Hannah McCarthy: This is Richard Rothstein, author of The Color of Law.

Richard Rothstein: The first public housing in this country was created by the Public Works Administration, the first New Deal agencies. It created projects around the country, the first civilian public housing ever created in this country.

Nick Capodice: The New Deal. This is that period during and after the Great Depression, [00:05:00] when Franklin Delano Roosevelt pushed a bunch of legislation through Congress to stop the U.S. essentially from going under. Yeah, and due to various financial and policy disasters, there were hundreds of thousands of people without jobs or homes. So FDR created a bunch of agencies and programs to help Americans survive and bring the economy back from the brink.

Archival: The legislation that has been passed is in the process of enactment, can properly be considered as part of a grounded, well rounded plan.

Hannah McCarthy: And infrastructure wise, we got the Public Works Administration. It spent billions of dollars to hire companies and administer projects across the country, and it built, among tons of other things, public housing, the very first being teakwood homes in Atlanta.

Nick Capodice: And the federal government had never been involved in housing like this before. This was the first time, right?

Hannah McCarthy: Public [00:06:00] housing was a brand new concept in the US, and when they came in, cranes blazing, the government made sure to include a crucial policy about the public homes that were being built. Here's Akira again.

Akira Drake Rodriguez: Public housing starts off as a segregated program. And so in the New Deal, which is when public housing begins in Atlanta, out of the sort of suite of programs and policies offered by Franklin Roosevelt, it is you know, we're going to build six public housing developments in Atlanta. Three of them will be for whites, three of them will be for African-Americans.

Nick Capodice: The federal government literally said that these homes are going to be segregated.

Richard Rothstein: This is public policy, administrative policy. And it began in the New Deal during the Roosevelt administration, during the Great Depression, because there was no federal involvement in housing prior to the New Deal.

Nick Capodice: Okay? This is policy, not law. Congress did not pass a law saying [00:07:00] heretofore housing shall be segregated in the United States. Nope.

Hannah McCarthy: Instead, this was the policy of the Public Works Administration or the PWA. Like an internal rule. Black neighborhoods and white neighborhoods. Black housing and white housing. But I do want to make it very clear this was a policy that was written down.

Nick Capodice: So this wasn't de facto segregation. This wasn't some sort of off the books way that people simply behaved due to bigotry and racism.

Hannah McCarthy: This was how the CWA operated. It was the federal government actively segregating people, bureaucrats deciding what housing of this kind should look like. It's just that housing of this kind hadn't existed before.

Richard Rothstein: So there was no opportunity for the federal government to impose segregation. There were many efforts at the local level and state levels to do it. And with the creation of the first [00:08:00] public housing in this country, everywhere it created it, it segregated it, creating separate projects for African-Americans, separate projects for whites, frequently segregating neighborhoods that hadn't previously been segregated.

Nick Capodice: As in the PWA wasn't just building segregated housing units. It was also segregating neighborhoods that had not been segregated before.

Hannah McCarthy: In some cases, the PWA would look at an integrated neighborhood and just designate it like this is now a black neighborhood, or this is now a white neighborhood. And then they would demolish the existing neighborhood and build in either all black or all white public housing development.

Nick Capodice: But how did the federal government justify this?

Richard Rothstein: In 1934, the Federal Housing Administration was established.

Hannah McCarthy: All right. We're going to do a quick zoom out here to figure out what happened. Are you with me?

Nick Capodice: Let's go.

Hannah McCarthy: Part of the New Deal was [00:09:00] to establish public housing. Another part of the New Deal was to help people buy homes. A big part of the financial system collapsed during the Great Depression is that people were defaulting on their mortgages left and right. The government passed the Federal Housing Act and created the Federal Housing Administration. Now, the FHA made a couple of things happen. For one thing, it changed the terms of mortgages. You could make smaller payments over a longer period of time.

Archival: And so they leave reluctantly, it seems, or they both would like to have this place for their very own. Too bad they can't afford it all. But maybe they can. Well, according to this sign, they can buy this house with monthly payments that are less than they now spend for rent.

Hannah McCarthy: For another, the FHA would insure mortgages.

Nick Capodice: Basically, even if someone did default, is it not pay their mortgage? The [00:10:00] federal government would have the mortgage lenders back, essentially protecting banks and other financial institutions. So we didn't end up in another financial mess all over again.

Hannah McCarthy: That's right. But they'd only insure mortgages in certain neighborhoods.

Richard Rothstein: It imposed a program of excluding African-Americans from neighborhoods where it was issuing mortgages or guaranteeing mortgages, rather, or insuring mortgages or where it was financing developers to build suburbs.

Hannah McCarthy: Nick, you asked for a justification for all of this, and there is one. It is on the books and everything that's coming up right after this break.

Nick Capodice: But before we go, I just want to remind everyone, it's tough to take something like public housing or an amendment or a foundational document and cram it into one digestible episode. We do our best, and it's the job of our very patient executive producer to just take out the stuff [00:11:00] that's a bit extraneous. But some people out there might like the extraneous stuff. If you are one of those people who likes ephemera and deep dives, you should definitely subscribe to our newsletter. It's called Extra Credit. It comes out every two weeks. It's fun, it's free, and you can sign up at our website, civics101podcast.org.

Hannah McCarthy: We're back. This is Civics 101. And this is part one of a two parter on federal public housing part one policy. How did the United States government approach housing once it finally got itself involved?

Nick Capodice: And before the break, Hannah, you were telling me that the government had a reason. It had a justification for excluding black Americans from the housing assistance it was providing to white Americans. And so I want to know what exactly was that justification?

Hannah McCarthy: Well, the justification here, the reasoning behind generally not granting black Americans these insured [00:12:00] mortgages and new affordable homes was that black owned homes were thought to bring down the value of homes around them and that black owned homes because of that, were not the kind of thing that the federal government was generally going to insure. This becomes glaringly clear when developers start building the suburbs.

Richard Rothstein: The Federal Housing Administration began to finance developers build subdivisions in suburban areas, which really ramped up after World War Two, when millions of returning war veterans were coming home needing housing. The only way they could do it was by going to the Federal Housing Administration and then the Veterans Administration and both of those agencies required as a condition of their issuing bank guarantees for the loans that these developers needed to build the subdivisions as a condition that they never sell a home to an African American. And they [00:13:00] went so far as to say you couldn't even guarantee the bank loan for a developer was going to build an all white project if it was going to be located near where African Americans were. The Federal Housing Administration had a manual that laid this out. This wasn't the action of rogue bureaucrats. It was a policy written policy of the federal government.

Hannah McCarthy: This manual was distributed all over the country. And how does a home being owned by a black individual or family bring down its value? According to this manual, alongside the various factors that would make a neighborhood a bad financial investment. Environmental factors like smoke, odors and fog. This was an indicator.

Richard Rothstein: Infiltration by harmonious racial groups.

Nick Capodice: That language was explicitly in the manual.

Hannah McCarthy: It was. And let me just give you an example of what this looked like. There is this infamous dividing line in Detroit, Michigan, called Eight Mile Road. [00:14:00] To the south of Eight Mile Road was an historically black community. But white families began to settle closer and closer to that area, and suddenly neither black nor white families could secure FHA insured mortgages.

Nick Capodice: Because the FHA saw the threat of in harmonious racial groups, which was on its no loans list.

Hannah McCarthy: So a white developer looks at this issue and comes up with a solution. He builds a wall between the white area and the black area.

Nick Capodice: A literal wall.

Hannah McCarthy: Yes, literally, it is still there. Anyway, the wall goes up. In 1941, the FHA reappraised the white homes and lo and behold, it approved their mortgages.

Nick Capodice: But not the homes of the black families.

Richard Rothstein: In the 1930s, although there was a federal agency called the Homeowners Loan Corporation, which created maps of almost every major [00:15:00] city in the country. And the maps were designed to guide the federal agencies like the Federal Housing Administration and the Veterans Administration to where it was safe, low risk to make loans, guaranteed loans, I should say. The federal government doesn't make the loans. It guarantees the bank loans or insures them The areas where it was too risky to insure mortgages or loans to developers were color grid. And one of the criteria that the map developers used to decide which neighborhoods would be colored red was whether there were African-Americans living in it. Now banks follow the similar policy. It wasn't because of the maps, but the term redlining comes from these maps that the Home Mortgage Loan Corporation originally drew. And the redlining refers to the fact that there are neighborhoods where [00:16:00] the government, where banks were insurance companies won't support housing, but because they are black neighborhoods.

Nick Capodice: Okay, I've certainly heard of redlining, but I don't know if I've realized that there are actual physical maps with red lines drawn around areas, drawn around the homes that this loan corporation says are undesirable. And of course, undesirable in this case means in a black community. Was all this just totally out in the open?

Richard Rothstein: It was well known at the time. This is not the secret policy that the government was following. Certainly people who were directed to separate housing projects based on their race knew what was happening. Certainly people who bought homes where their deeds said that they couldn't sell or rent to an African-American knew what was happening. So this was a well known public policy. It was not something in the South, it was a national policy, and it was the cause of much of [00:17:00] the segregation that we have today. Without these policies, we would have much more integrated society today. But this was, as I say, it was done by the officials of the Federal Housing Administration, the Veterans Administration. It wasn't the single person who was dictating this. This was a widespread federal policy across several federal agencies, all the agencies that were involved in housing.

Nick Capodice: All right, Hannah. Just pause here for a minute. It's just that all of this, at first blush, sounds massively unconstitutional. Am I wrong about that?

Richard Rothstein: Well, it is unconstitutional. You can take as many blushes as you want. It's unconstitutional. The Supreme Court annihilated the intent of the 13th, 14th and 15th Amendments to the Constitution in 1866 following the adoption of the 13th Amendment, which [00:18:00] prohibited not only slavery but the characteristics of slavery, and authorized the federal government to implement that provision. In 1866, Congress passed the law prohibiting discrimination in housing, private or public. Prohibiting discrimination in housing. That law was amended a couple of times, and the Supreme Court eventually evaluated the 1893 and said it was unconstitutional.

Nick Capodice: The court said it was unconstitutional to prohibit discrimination in housing.

Hannah McCarthy: It took a very, very narrow view of the 13th and 14th Amendments, essentially saying these amendments cannot control individuals and they also only apply to literal enslavement. And eventually segregation would be deemed unconstitutional in various cases. But there's this really important point that Richard made when it comes to that desegregation, federal segregation in housing, as [00:19:00] in where people live, has a much more lasting effect than segregation in other spheres of life. Even after the court acknowledges that it is not constitutional.

Richard Rothstein: Once we've created segregation, it's hard to undo. You know, if you we had segregated restaurants and busses prior to the 1960s. We pass a law saying you can't segregate restaurants anymore. The next day, anybody can go to any restaurant. They pass a law saying you can't segregate neighborhoods. The next day, things would look much different.

Nick Capodice: Because housing doesn't change overnight. You don't just wake up the next day and move.

Hannah McCarthy: And the reasons why are bigger than, well, it's hard to integrate. When we segregated housing and who was allowed to have certain kinds of housing, the United States profoundly affected housing access for generations. Richard talks about this place called Levittown. It was this large FHA insured, all white, affordable development built for veterans returning from World [00:20:00] War Two.

Archival: Five years ago. This was a vast checkerboard of the. Bombs on New York's Long Island today. A community of 60,000 persons living in 15,000 homes all built by one firm. This is Levittown. One of the most remarkable housing developments ever conceived.

Richard Rothstein: The white returning war veterans, as well as other whites who were living in urban areas and wanting to move to these suburban homes, bought them for eight $9,000, $100,000. I'll use current dollars from now on, $100,000 in today's money. And they gained wealth over the next couple of generations as those homes appreciated the value. So you can't buy a home. Levittown today for $100,000. You can't buy a home in any of these suburbs for $100,000. They now cost, depending on the area of the country, at 203 hundred and 400,000. In some places, $1,000,000 in the more. So the white families gain wealth [00:21:00] from the appreciation of the value of their homes. They use that wealth to send their children to college. They use it to perhaps take care of medical emergencies or temporary employment. They use that to subsidize their own retirements, and they use it to bequeath wealth to their children and grandchildren. Who thou? Who then had down payments for their own homes. African-americans are prohibited from participating in this wealth generating program.

Hannah McCarthy: Desegregation in housing specifically. Eventually came the Fair Housing Act of 1968 said, okay. Black individuals and families can live in formerly white only neighborhoods. But that doesn't take care of the generational wealth gap between white families and black families, which was created in large part by racist housing policy.

Richard Rothstein: Levittown today is, [00:22:00] oh, about 2% African-American. There are some African-American families going abroad who could afford to buy $500,000 homes. But Levittown is located in an area is probably about 13 to 14% African-American.

Nick Capodice: Because if you essentially prohibit homeownership assistance to black families, then a huge part of the population can only rent for decades. They can't buy a home.

Hannah McCarthy: And owning a home is pretty much the best way to accumulate wealth over generations. You can take out loans and you can use your house as collateral. You can sell a home for way more than you bought it for and give some of that wealth to your family. But that path to wealth was closed to a lot of Americans.

Richard Rothstein: What the Fair Housing Act itself cannot fix. So it's possible to redress this, but it requires enormous financial commitment, subsidies to African American families [00:23:00] to move to places that they were unconstitutionally prohibited from living it.

Hannah McCarthy: Okay. So, Nick, that is the big picture When we talk about federal housing policy in the United States, when we talk about who got help and what kind and how. We need to understand that the process was steeped in racist segregationist policy, and that policy made home ownership more difficult for black Americans as it made it easier for white Americans. Many of the affordable homes built for white Americans following the Great Depression still stand today. But if some of the homes specifically built for black Americans, homes like the rental apartment projects of Atlanta, Georgia, many of them have been deemed a failure and razed to the ground. So now we are going to take a very specific and close look at federal housing in one city, Atlanta, [00:24:00] Georgia. That's in part two of federal Housing One City's Story. This episode was produced by me, Hannah McCarthy, with help from Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer, and Rebecca Lavoie is our executive producer. Music In this episode by Anemoia, Xylo-Ziko, Arthur Benson and Rockett Jr. You can listen to part two on federal housing in the United States, as well as the entirety of the rest of our catalog at Civics101podcast.org, where you will also find a bunch of other resources. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Federal Courts: Muhammad Ali and the Draft

This episode is the culmination of our series on famous federal court trials in US history. 

In April of 1967, Muhammad Ali (formerly Cassius Clay) refused to step forward at a draft induction ceremony in Texas. His opposition to serving in Vietnam launched a sequence of trials and appeals that went all the way to the Supreme Court. It's a case about conscientious objection, protest, America's shifting views of the war, and how athletes have the unique role of "soldiers without a weapon."

This episode features Winston Bowman from the Federal Judicial Center, and Jeffrey Sammons from the NYU History Department. 

Support our show and our mission with a gift to Civics 101 today, it means the world to us.

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Transcript

Ali final

Archival: Friday in Houston was the champion's moment of truth. He showed up at the induction center but refused to step forward, bringing on the threat of prison and a shattered career.

Muhammad Ali: I'm not going to help nobody give something my Negroes don't have. If I die I'll die here right now,fighting you if I'm going to die, you my enemy. My enemy is the white people. Not Viet Congs or Chinese or Japanese, you my opposer, when I want freedom, you my opposer when I want justice, you my opposer when I want equality. You won't even stand [00:00:30] up for me in America for my religious beliefs. And you want me to go somewhere and fight. But you won't even stand up for me here at home.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And this is Civics 101, the podcast refresher course on the basics of how our democracy works. Today we are concluding our series on famous federal court trials with a trial that involves one of the most famous individuals in modern history. Some say one of the greatest.

Muhammad Ali: I told you all [00:01:00] that I was the greatest of all time.

Nick Capodice: Athletes in the world. The case is US V, Cassius Clay, aka Muhammad Ali.

Hannah McCarthy: Okay, We're talking about the trial with heavyweight boxing champion Muhammad Ali refusing to serve in Vietnam, correct?

Nick Capodice: Right. And this case is not just about one individual's protest. It's about conscientious objection, the draft, religion, celebrity, and most importantly, the complicated relationship between athletes [00:01:30] and politics. And to take us through it all, Hannah, I got two titans of jurisprudence, as well as lovers of the sweet science of bruising. Can I use the salad bowl for this? All right, here we go.

Nick Capodice: In the right corner. Winston Bowman.

Winston Bowman: My name is Winston Bowman. I'm an Associate.... I'm sorry. I'll start that over. My name is Winston Bowman. I am an associate historian [00:02:00] with the Federal Judicial Center.

Nick Capodice: And in the left, Jeffrey Sammons.

Jeffrey Sammons: Yes. Jeffrey Sammons, professor Emeritus, Department of History, New York University. Well, I feel like a boxer coming out of retirement, and I have a lot of ring rust.

Hannah McCarthy: Nick, I know that you are a lover of Muhammad Ali. But before we get to the circumstances of the trial, can you give us a sort of quick bio on the guy?

Nick Capodice: Sure. Cassius [00:02:30] Marcellus Clay, and I'm going to get back to his name change a little later, he first learned to box as a kid in the 1950s. Now the story is that another kid stole his bicycle and Clay learned to box to get it back.

Jeffrey Sammons: So that's how he was introduced to boxing. Of course, he would become a very good amateur boxer and actually go to the Olympics in Rome.

Archival: But the most popular U.S.A. winner was the light Hearted Cashes Marcellus Clay, the fifth in [00:03:00] white here who easily defeated Poland's Zbigniew Rakowski.

Jeffrey Sammons: And won a gold medal and became quite the celebrity as a result of that. And then there's this story that after he comes back, he realizes that he's just the same black guy that he was before in terms of how the people in Kentucky and perhaps the wider United States viewed him.

Muhammad Ali: I went and got my gold medal, went back in order to cheeseburgers, [00:03:30] and they said, I'm sorry, we we don't serve Negroes. I say, I don't eat em either, just give me two cheeseburgers. And she said, You're getting smart. She called him manager and he said, Somebody, I don't care who he is. She says, Cassius Clay, okay.

Jeffrey Sammons: And the story is that he tossed his gold medal into whatever that river is that runs through Louisville. So then he becomes a professional boxer. He's seen as the sort of Johnny Appleseed figure spreading [00:04:00] boxing, which is kind of a bit in the doldrums.

Nick Capodice: Jeffrey told me that lovers of the sport of boxing are always looking for a hero, a champion to elevate the sport. And the heavyweight champion at that time was a boxer named Sonny Liston.

Jeffrey Sammons: And Sonny Liston had these ties to organized crime. In fact, he was known as an enforcer of four of the Mafia in Saint Louis in the 1950s [00:04:30] that, you know, those who owed loans, etc., to the Mafia, they would send Liston after them. So when we see Rocky, you know, doing the same thing, they're borrowing on, I think Sonny Liston's real example.

Archival: Did I give you a job this morning or didn't I? So why don't you break his thumbs like I told you to? When you don't do what I tell you to do, you make me look bad, Rock.

Jeffrey Sammons: And when this young, brash, [00:05:00] handsome, clever Cassius Clay comes along, then Madison Avenue, the boxing establishment, say this is our savior of the sport. And of course, the sport is always looking for some kind of savior. But at the same time, revealing that he is a member of the Nation of Islam. And the boxing establishment would rather have somebody identified with [00:05:30] the mafia than with the Nation of Islam.

Hannah McCarthy: Okay. Can we talk a little bit about the Nation of Islam?

Nick Capodice: Absolutely. Very briefly, because it's a big organization with the big history, the Nation of Islam, which is not the same thing as the religion of Islam, which is the one that about 2 billion people across the world practice. The Nation of Islam is a religious, social and political organization that was founded in the 1930s. Malcolm X was their spokesperson at this time, the Nation of Islam differs significantly [00:06:00] from the central tenets of Islam and was and remains to this day, a very controversial organization.

Jeffrey Sammons: But it also condemned black people who they saw as kind of wedded to the legacy of of of slavery and also railed against whites. It also called for the separation of the races. And interestingly, Malcolm X would actually meet with members of [00:06:30] the Ku Klux Klan at some point because both agreed upon the need for the separation of the races.

Nick Capodice: Clay made a public announcement in 1964 that he had converted and he was a member of the Nation of Islam. He first changed his name to Cassius X, citing that Clay was a name passed down to him through his family's former enslavers, and soon after that he adopted the new name Muhammad Ali.

Hannah McCarthy: Wasn't there some famous fight where there was someone who kept [00:07:00] calling Ali, Clay and Ali would hit him and say, What's my name?

Nick Capodice: Yeah, that was Ernie Terrell, 1966. This was a few months before the draft induction ceremony that's going to launch this case.

Archival: Why don't you call me my name, man? Well, what's your name? You told me your name was Cassius Clay a few years ago. You? My name was Cassius Clay. My name is Muhammad Ali. And you will announce it right there in the center of that ring. After the fight, if you don't do it now.

Jeffrey Sammons: So. So with Terrell, he just. He refused to knock him out. He just kept basically hitting [00:07:30] him in ways that that would punish him but not finish him off.

Archival: Terrell is now being examined by a commission doctor. What impels a man to go out there? His pride and always the fact that he has the chance. He still has a chance.

Hannah McCarthy: All right. Let's pivot to the Vietnam War. You've got President Eisenhower bringing Americans into the conflict in Vietnam in 1955. When do people start to get drafted to fight? [00:08:00]

Nick Capodice: Now, this is tricky because the famous first draft lottery for Vietnam was in 1969, But that was a new way of doing things. Before the lottery system, everyone who had registered for the Selective Service, which is almost all males between the ages of 18 and 25, were evaluated by a draft board and either drafted or not due to their individual circumstances. Muhammad Ali was indeed registered for the Selective Service, but he was not a candidate for conscription until 1966. [00:08:30]

Hannah McCarthy: Why is that?

Nick Capodice: I'm going to bring back Winston Bowman for this one.

Winston Bowman: The reason for that is that although Ali signed up for the the draft, his test scores were initially too low to make an eligible for the military. And a lot of people are sort of incredulous about this at the time because he seems like such a bright guy, but he actually wasn't a terribly sort of dedicated student.

Nick Capodice: Ali, in fact, joked to some reporters by saying, I said I was the greatest, not the smartest.

Winston Bowman: What [00:09:00] happens is that in February of 1966, the Army gets more desperate for soldiers and lowers the test scores necessary. So that's actually what makes Ali eligible for the draft.

Nick Capodice: At this time, Ali makes public his intent to refuse to serve. He files for conscientious objector status and makes a famous statement.

Muhammad Ali: I will not go 10,000 miles from here to help murder [00:09:30] and kill a lot of poor people simply to continue the domination of white slave masters over the darker peoples of the earth.

Winston Bowman: And that triggers this sort of administrative proceeding where basically the Department of Justice and the FBI conduct a background investigation on him to ascertain whether he meets these three criteria.

Nick Capodice: So [00:10:00] let's talk about conscientious objector status. You can claim it and refuse to serve if your beliefs oppose war, but only if you indeed meet three criteria. And they've changed a little bit since then. But these were the criteria in the 1960s. Number one, your belief must be sincere. Number two, that belief must be religious in nature. And number three, that religious compunction must be against serving in all wars, not just the [00:10:30] one you were drafted for. So Ali applies for this status. A judge in Kentucky reviews it and finds he does meet the criteria and refers his findings to the Department of Justice.

Winston Bowman: The DOJ looks at that information, but ultimately they make a recommendation to the body that whose word is law, The draft board that he should be denied conscientious objector status. And they say that he actually fails all three of the criteria.

Hannah McCarthy: All [00:11:00] right. Hang on. Let me make sure that I've got this right. Ali claims conscientious objector status. All such claims are reviewed by a judge. A judge reviews Ali's claim and finds it perfectly legitimate. But the judge also sends it to the Department of Justice. And the DOJ disagrees with that finding.

Nick Capodice: Exactly.

Hannah McCarthy: Why.

Winston Bowman: They say that he's you know, this isn't a sincere belief because he's really only asserted it since he became eligible for the draft [00:11:30] and it became an imminent possibility. They say that it's not a religious belief because the Nation of Islam is not fundamentally a religious organization that is beliefs of basically racial and political, that he doesn't want to fight in a white man's war. And then as a final part, they say that his beliefs are inherently selective about the kinds of war that he does and doesn't want to fight in.

Nick Capodice: Now, the draft appeal board could hypothetically go against the [00:12:00] DOJ's opinion, but they do not. The Appeal Board rejects his claim for conscientious objector status, but they don't give the reason why. And this is important for later, I promise. So Muhammad Ali is summoned to a now famous induction ceremony in Houston, Texas, held on April 28th, 1967.

Winston Bowman: And they're lined up and they all have to take a step forward when their name is called to indicate that they are going to join the military. And when it comes to [00:12:30] Muhammad Ali's turn, at first they call out his formal legal name, Cassius Clay, and he does not respond at that point. They call out his his taken name, Muhammad Ali. And again, he he doesn't take the symbolic step forward. And at that point, then he's taken in by military authorities and later indicted for draft evasion.

Archival: Former world heavyweight champion Cassius Clay refused to take the oath of induction into the Army. The Black Muslim [00:13:00] fighter, who is also known as Muhammad Ali, was immediately stripped of his title by the World Boxing Association. Clay insisted that he is an ordained minister and should be exempt. Clay also charges race discrimination by the Houston draft board. He faces federal prosecution and a possible five year prison sentence plus $10,000 fine.

Hannah McCarthy: What happens next? Does he go to jail? Was he fined?

Nick Capodice: Well, what happens next is a political and religious battle that takes years to complete. And we're going to walk you through all of it [00:13:30] and the reverberations surrounding the clash of politics and athleticism that ring to this very day right after this break.

Hannah McCarthy: But first, if you want to know more about everything we do on the show that's on and off the mic, that sort of thing is in our newsletter, Extra Credit. And I will bet $100 the next one will include Nick telling you why When We Were Kings is the best documentary ever made.

Nick Capodice: That's easy money, Hannah.

Hannah McCarthy: You can sign up at our website, civics101podcast.org.

Hannah McCarthy: We're [00:14:00] back. This is Civics 101. We're talking about US v Clay, the court case regarding Muhammad Ali's refusal to serve in Vietnam. So Nick, Ali files for conscientious objector status. That claim is ultimately denied. He is summoned to an induction ceremony where he refuses to step forward when his name is called. So what happens next.

Nick Capodice: A lot happens to Ali and it [00:14:30] happens very quickly. Here's Jeffrey Sammons again.

Jeffrey Sammons: Immediately after he refuses induction. So even before there's a trial, they strip him of his boxing license and in some instances of his title, he's basically becomes eventually deprived of a right to make a living as as a boxer.

Nick Capodice: Muhammad Ali was approached by numerous officials and told things along the lines of, well, you don't have to fight the war necessarily. [00:15:00] You can just go over there for morale. Do some boxing, give some speeches, that sort of thing. But Ali flat out refused over and over no matter what.

Muhammad Ali: Well, shoot them for what? How am I going to shoot them? Little and poor Black people. Little babies and children and women. How can I shoot them poor people. Just take me to jail.

Jeffrey Sammons: And he said that he was actually willing to face a firing squad to die rather than to violate his principles, to fight [00:15:30] in, you know, a kind of nationalistic war and especially one against another people of color. And that's the thing that Ali also saw of himself as a member of a global nonwhite majority.

Hannah McCarthy: He said he would rather face a firing squad than go to Vietnam.

Nick Capodice: He did. He said he was prepared to go to prison or even die instead of going to Vietnam to fight in that war. [00:16:00]

Jeffrey Sammons: His famous statement was that he had no quarrel in his war with them Viet Cong. And he actually also wrote a poem about about that.

Hannah McCarthy: He wrote a poem about it?

Nick Capodice: He did.

Hannah McCarthy: Can I hear it?

Nick Capodice: Sure.

Jeffrey Sammons: Keep asking me, no matter how long on the war in Vietnam, I sing this song, I ain't got no quarrel with the Viet Cong.

Hannah McCarthy: Now, [00:16:30] how did the American public react to his refusal?

Nick Capodice: The reaction fluctuated quite a lot over the years, and it's important thing to consider when we talk about this case. Now we watch movies and documentaries and videos of protest, and it's easy to think that the Vietnam War was always deeply unpopular, which it eventually was. But initially, when Ali refuses, the war is much more popular. Here's [00:17:00] Winston Bowman again.

Winston Bowman: At the time that he first comes out against the war in 1966, he is widely criticized for it and really kind of made persona non grata. Even individuals like Jackie Robinson, a very critical of him for taking this stance, basically saying, you know, you're happy to take all the advantages from American society but not willing to sign up to fight for the country.

Archival: And the tragedy [00:17:30] to me is that Cassius has made millions of dollars off of the American public, and now he's not willing to show his appreciation to a country that is giving him, in my view, a fantastic opportunity.

Winston Bowman: I think it's also true that Ali's very kind of bombastic persona plays against him initially, that he does not fit the archetype of what most particularly white middle class Americans want from their sports [00:18:00] heroes at the time, right? He's sort of this larger than life character who will not be cowed. And a lot of people at the time talk about Ali as sort of getting above his station.

Hannah McCarthy: Which is patently racist.

Nick Capodice: Yeah, And Winston told me that racism was a huge part of what he called, towards Ali, a roiling cauldron of growing unpopularity.

Winston Bowman: And in fact, the files for the draft board are filled with hate mail from people saying, [00:18:30] Why haven't you drafted this person yet? Why hasn't he been charged, etc., etc.. Much of it is, you know, very clearly racially motivated. But certainly there's a widespread sense that he is a deeply unpopular figure at the time he comes up for trial.

Nick Capodice: June 16th, 1967. The trial of US V Clay begins, and this trial is over quickly.

Winston Bowman: The [00:19:00] trial takes two days. There's only a handful of witnesses called by each side, and the prosecution basically consists of calling a handful of military officers who saw that Ali was called at this ceremony, refused to step forward.

Nick Capodice: Ali's attorney argues that Ali should be considered a minister for the Nation of Islam. There was an exception for ministers. Ministers did not have to serve.

Winston Bowman: The judge sort of laughs this out of court and says, well, [00:19:30] I happen to know he's the world champion boxer. So clearly he has more on his hands than being a minister. As far as the Department of Justice's recommendations go, Ali's lawyers don't strenuously contest them. And this is probably a mistake. The jury only takes 20 minutes to deliberate and returns a guilty verdict.

Nick Capodice: The jury, six men, six women, all white, gives their verdict to the judge, who in turn gives Ali the maximum [00:20:00] possible sentence. Five years in prison and a fine of $10,000. Ali's lawyers ask the judge, Judge Ingraham, for a lighter sentence, like probation or 18 months, as other people had gotten. But the judge flat out refused. Interestingly, there were about 500,000 men accused of draft violations during the Vietnam War, but only 8700 were convicted.

Hannah McCarthy: It's so interesting. This is probably one of the few instances that [00:20:30] the entire American public came to understand what happens when you don't give in to the draft.

Nick Capodice: Yeah, it's like here's the repercussion.

Hannah McCarthy: So did he go to jail?

Nick Capodice: He did not. Ali's legal team immediately started the appeal process and he was allowed out on bail, but he had to pay the fine as well as the significantly greater legal expense fees. But he was not allowed to box anymore. He couldn't box in the US and he wasn't allowed to fly out of the country to fight in other countries. Here's Jeffrey Sammons again.

Jeffrey Sammons: He [00:21:00] had to go on speaking tours to to support himself. And actually, I was a student at Rutgers when he came to Rutgers and gave a speech which I attended because I had been this enormous Ali fan. And, you know, it was amazing to to to see and hear him in in person.

Hannah McCarthy: So there's something specific to athletes that I really want to talk about here, [00:21:30] especially when it comes to being told they cannot compete due to legal issues or even injury. How old was Ali at this point? Was he in his twenties?

Nick Capodice: Yeah, he was 25.

Hannah McCarthy: Okay. So those are his prime boxing years, right? Every year that he cannot fight is a year that he can't get back.

Nick Capodice: Yeah. And this takes a few years. He appeals to the Fifth Circuit of Appeals and he loses. And you know where you go next if you lose a circuit court appeal, right.

Hannah McCarthy: I sure do, the very top.

Winston Bowman: So they initially appealed to [00:22:00] the Supreme Court in 1968. And I think most people, although it's impossible to know with 100% certainty, would say that the court would have been unlikely to take the case in 1968. But what happens is that three days after they file for a writ of certiorari with the Supreme Court, there's a scandal in the FBI.

Hannah McCarthy: A scandal?

Nick Capodice: Yeah, an illegal wiretapping scandal.

Winston Bowman: And it turns out that the FBI has been running a series [00:22:30] of programs where they're legally surveilling domestic political groups, including the Nation of Islam.

Jeffrey Sammons: Some of the information that is used in the case is gained by wiretaps on Martin Luther King Junior's phone authorized by Bobby Kennedy. So it shows people that we would come to believe as liberal and progressive, are determined to support [00:23:00] and protect and defend the war effort.

Winston Bowman: And it turns out that Ali had five illegal wiretaps during the pendency of of his case. So what happens is that the Supreme Court remands Ali's case and a series of other appeals back to the trial courts to see if that illegally obtained information had what they call tainted the trial in any way.

Nick Capodice: Remand, by the way, means it's not ruled [00:23:30] upon, but it's sent back to the lower court with new information. So the case goes back to that first judge in Houston to determine if the prosecution's case had been tainted by these illegal wiretaps. And this is a long hearing. The judge listens to the wiretaps in his chambers, and he eventually rules that while these taps were indeed illegal, they did not taint the prosecution's case and his previous ruling stood.

Hannah McCarthy: So Ali is still found guilty after all of this.

Nick Capodice: After all this. Absolutely. But contrary [00:24:00] to how it affects someone's boxing career in this instance, time is on his side. This wiretap issue delayed the whole process. And Ali appeals to the Supreme Court yet again. But now it's 1971.

Archival: Some 175,000 people from all walks of life with differing ideologies and purposes marched from the White House to the Capitol. Washington has grown accustomed to [00:24:30] this method of voicing dissent, though larger than most. This was an organized demonstration with parade permits...Marshals and responsible leadership...

Winston Bowman: And by that time, the whole draft process itself has come under much greater scrutiny. There's a widespread sense that the draft is unfair, that it disproportionately affects particularly [00:25:00] African-American, but also other minority groups and poor whites, because they're unable to claim college exemptions and things like this. There are reforms made to the draft machinery, but the Supreme Court, I think it's fair to say, is more concerned to show that it is also ensuring the fairness of that process.

Nick Capodice: The court decides to take the case and the arguments are heard. In April 1971, four years after Ali had [00:25:30] refused to take that step forward at the induction ceremony in Texas.

Archival: Number 783 Clay against the United States. Mr. Eskridge. You may proceed whenever you're ready...Mr. Chief Justice. And may it please the court.

Nick Capodice: Ali's advocate argues to the 8 justices that the denial of his conscientious objector status was invalid.

Hannah McCarthy: Hang on. You said eight justices. You mean nine justices?

Nick Capodice: No, [00:26:00] there was one missing.

Winston Bowman: What the reason that there's eight justices is that Thurgood Marshall, who's a relatively recent appointee, was solicitor general at the time that all these prosecution was taking place. And so he recuses himself.

Hannah McCarthy: You're telling me that the one Black justice on the court could not weigh in on a case in which race is a major factor?

Nick Capodice: He could not. And initially the justices were set to vote 5 to 3 against Ali, upholding that initial conviction in Texas. [00:26:30] But something happens before the opinions are written.

Jeffrey Sammons: One of the justices, John Marshall Harlan, is introduced by a clerk to The Autobiography of Malcolm X and comes to believe that Ali is truly a conscientious objector on the basis of religion, that his beliefs are sincere.

Hannah McCarthy: John Marshall Harlan In the Seventies,

Nick Capodice: Yeah,

Hannah McCarthy: Because there was a John Marshall Harlan before that too.

Nick Capodice: Yeah, so this one is sometimes called [00:27:00] John Marshall Harlan 2. He is the grandson of the other Supreme Court John Marshall Harlan, That is the justice who was the lone dissenter in the Plessy v Ferguson case.

Jeffrey Sammons: So he changes his his vote and makes the count four four. If it's at four four, then the lower court rulings would be upheld. There would be no opinion. Ali would never know what happened.

Nick Capodice: And some on the court believed that no opinion [00:27:30] would cause an absolute maelstrom of protests in opposition.

Jeffrey Sammons: And I forgot to mention, remember, you know, we had the assassination of Martin Luther King in 68 and the assassination of Bobby Kennedy in the same year, riots across the country. So the court is really fearful of contributing to social unrest. There was a fear that if Ali were acquitted on the basis of [00:28:00] being a conscientious objector because of his membership in the Nation of Islam or even his ministerial role, that the Nation of Islam would grow enormously because Blacks would join in droves. Right. So and its strength would also grow because of that. And it was a feared organization. On the other hand, if it votes to [00:28:30] uphold the conviction of Ali, this is going to make Ali into this incredible living martyr and is going to release potential new hell on the streets of of the United States.

Hannah McCarthy: So the court does not want to leave it to a 4 to 4, because in a 4 to 4, there's no opinion issued. Right. Which means like no transparency, this whole Supreme Court case about Muhammad Ali and we never get to hear about what actually happened. And there would be protests in the street. [00:29:00] They don't want to endorse the Nation of Islam by acquitting Ali, and they don't want to imprison him because he would then be seen as a martyr. So how do they actually rule?

Nick Capodice: Now, it might be silly to call it a TKO, but Justice Potter Stewart, you'll know when you see him, found a technicality. He found a way to frame the question so none of those things happened. Hannah, you remember like 20 minutes ago when I told you that Ali filed for [00:29:30] conscientious objector status, it was approved, the DOJ reviewed it, and they disagreed and advised the draft appeal Board to deny his claim. And they did?

Hannah McCarthy: I do.

Nick Capodice: Well, while the DOJ explained their reasons why they felt it should be denied, the draft board who made the actual decision never explained their reasoning. They just denied his claim. And Justice Potter Stewart tries to convince the other seven justices to go along with him to make that the reason the denial should be invalid.

Hannah McCarthy: So they can say that that tiny [00:30:00] step in this whole saga was flawed and therefore Ali is not guilty.

Nick Capodice: Exactly. And none of their feared repercussions happened. It's just a dry technical misstep and it works. The decision is unanimous. 8 to 0 in favor of Ali. So after learning about the circuitous path this case took over the course of four years, I asked [00:30:30] Winston, Why does he teach this case? Why is it important? What does U.S. V Clay tell us about the judiciary?

Winston Bowman: For me, this case illustrates nicely the difficulty the government can sometimes have in distilling people's beliefs down into something that's sort of legible to the bureaucracy, right? The government is very good at things that fit a check box and very bad [00:31:00] at sort of messiness. And when you're talking about religious ideas and beliefs fitting into particular categories, that could be very difficult for legal organizations to deal with.

Hannah McCarthy: There's another reason why this case is so important, and it's something that you brought up earlier that still is going on today. It's this unique relationship of celebrities, specifically athletes to political discourse.

Archival: Wouldn't you [00:31:30] love to see one of these NFL owners...When somebody disrespects our flag to say, get that ______ off the field right now, Out. He's fired. Fired.

Nick Capodice: When I spoke to Jeff before the interview, he said something to me on the phone I could not get out of my head. He said, An athlete is a soldier without a weapon. They are representatives of the might of a nation. [00:32:00]

Jeffrey Sammons: And that athletes were always supposed to be loyal and patriotic and supportive of the government and and especially because they had benefited so much from an American meritocracy as as as as it were. So they were upheld as the symbols that if you apply yourself, you have discipline, determination that you can make it [00:32:30] anywhere. You know, this is happening in sport, and sport is such a crucial element to upholding sort of the American system that this notion of hegemony, of that, that's not control from the top, but it springs up from all these institutions in which people believe and in the values of the nation. And sport is an important bolsterer of that system.

Nick Capodice: To put it plainly, when [00:33:00] we look at the long history in America of athletes being chastised or punished for acts of protest, it is almost without exception, Black athletes. Jackie Robinson wrote in his memoir that he never could sing or stand for the national anthem. And over 70 years later, Colin Kaepernick didn't have his contract renewed to the 49 ERs for doing exactly that, refusing to stand, and later kneeling during the national anthem to protest police brutality.

Jeffrey Sammons: Kaepernick [00:33:30]. He'll never play professional football again, and it shows the influence that Ali had, but also how the reaction to the engagement of athletes and politics hasn't changed, that they're still punishing. Kaepernick is not the first one. There was the player for the Chicago [00:34:00] Bulls who wore a dashiki to an event at the White House. He also presented Bush some list of grievances, and he was never seen in the NBA again. Or the gentleman who played for the Denver Rockets who refused to stand for the national anthem. Kaepernick saw the example of Ali and John Carlos and Tommie Smith [00:34:30] and decided to use his standing as a star athlete and the platform of football to take a stand and and paid a very heavy price for. So that is a sort of cautionary tale. And that's the other thing I want to say about Ali, that that that he took on America in ways that no one else did, that that he opposed basic, so [00:35:00] called ideals and values, or at least that failure to live up to them. But he was acting sort of truly on Black terms and not willing to go along with the system. That brings up one other thing, too, that Ali had more of a support system, as it were, although he was out there all alone in some respects and paid a heavy personal price. I think the society was very [00:35:30] different than in terms of of activism.

Nick Capodice: Jeff mentioned that in the 1960s it wasn't just the Nation of Islam that backed Ali. They were part of the Black Power movement, along with SNIC, the Student Nonviolent Coordinating Committee and the Black Panthers.

Jeffrey Sammons: He wasn't out of step with those people, that's for sure. You know, they had his back in a kind of, you know, you're our man. We're really behind you. You are now the people's [00:36:00] champ. He lost, you know, money and his prime as a result. But he he became a transcendent figure because of his of his, you know, principled stand.

Archival: He's exercising his constitutional right to make a statement. I think there's a long history of sports figures doing so.

Archival: The United States leads the Olympics in medal awards [00:36:30] and is just about supreme in the Sprint races. Thanks to men like Tommie Smith and John Carlos, it started with the news that the Black Power Disciples, Tommie Smith and John Carlos, the Olympic 200 meters gold and bronze medalists had been suspended by the United States Olympic Committee and given 48 hours to leave Mexico. I had said that if there were any demonstrations at the Olympic Games, by anyone, the participants would be sent home. President Trump tweeted the Kaepernick had sent a terrible message. The NFL had this to say. The social [00:37:00] justice issues that Colin and other professional athletes have raised deserve our attention and action. Two very different points of view.

Nick Capodice: That’s US v Cassius Clay, and hey! Before we say who we are and whose music we used in this episode, Massive, massive thanks to our friends at the Federal Judicial Center for the idea of making a series on federal court cases. It was a delight from stem to stern. So special thanks to Catherine Hawke at the American bar Association, Christine Lamberson from the FJC, and the GOAT of the ABA as far as civics 101 is concerned, the infinitely supportive Frank Valadez. [00:38:00]

Nick Capodice: This episode was made by me Nick Capodice with you Hannah McCarthy. Jacqui Fulton is our producer, Christina Phillips our Senior Producer and Rebecca Lavoie our Executive Producer. Music in this episode by a lot of the old greats, Bio Unit, Cycle Hiccups, The New Fools, AGST, Dreem, Peter Sandberg, Autohacker, Fabien Tell, Peerless, From Now On, Carlton Lees, Ikmashoo Aoi, Jesse Gallagher, Scanglobe, Needledrop Sessions, and the reigning Civics 101 middleweight champion of being used in our episodes, Chris Zabriskie. Civics 101 is a production of NHPR, NHPR. Here's George Carlin.

Archival: Big fight coming up, Ali [00:38:30] and Frazier. Muhammad Ali. I call him Muhammad Ali because that's what he wants. Of course, he had a strange job, beating people up. Government wanted him to change jobs. Government wanted him to kill people. He thought it over and he said, No, that's where I draw the line. [00:39:00] I'll beat him up but I don't want to kill em. And the government told them, Well, if you won't kill em, we won't let you beat them up!

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Made possible in part by the Corporation for Public Broadcasting.

The Last State To Hold Out Against Martin Luther King Jr. Day

Today Dr. Martin Luther King Jr. is publicly revered across the nation, a symbol of civil and human rights worthy of a memorial holiday. Federal and state legislatures have agreed to honor this man. But that agreement took awhile. The final state to acquiesce, New Hampshire, resisted the holiday until 1999. The story of that resistance reveals a public sentiment about King and the Black Freedom Struggle that is far from the reverence of today. This is the story of how a man becomes a national symbol, and the fight to make that so.

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Transcript

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy, and today we are doing something a little different. There is a reporter and producer here at New Hampshire Public Radio where we make Civics 101 named Jack Rodolico And for the past little while, Jack has been reporting out what I consider a really interesting, good story specifically. And I'm not going to bury the lead here. This is the story of how Martin Luther King Jr Day came to be a holiday at the federal level and in every state across the country. And the thing about this particular holiday is that it did not happen overnight, nor did it happen without a fight. And the most epic of those fights, the longest resistance to the holiday honoring Dr. King. It happened right here where we make this podcast. Jack got the details. Hello,

Hannah McCarthy: Jack Rodolico.

Jack Rodolico: Hello. It's good to be here with you.

Hannah McCarthy: It's good to have you here.

Jack Rodolico: I'm an honored I am honored to be a guest.

Hannah McCarthy: I'm an honor.

Jack Rodolico: I can't call myself an honor. That's not how that works. But I am honored to be here.

Hannah McCarthy: We are honored to have [00:01:00] you. And you have a story for us today.

Jack Rodolico: Yeah. Okay. So this is a story of MLK Day. Yep. How it became a thing. So there's this fact about New Hampshire that I have known for a long time, and it's honestly something that I found unsettling about this place where I have chosen to live. And I finally got to the point where I just needed to understand it. There's a story there, and I wanted to know what it was behind this fact. The fact is New Hampshire was the 50th state to recognize Martin Luther King Jr Day, the last state to do it.

Hannah McCarthy: When you say the last state, like, how long did this take?

Jack Rodolico: Well, New Hampshire, how long did it take? It was not a close race. It was not a close race. I mean, something like a decade and a half after the federal government, something like more than a decade after most states recognized MLK Day, that's [00:02:00] when New Hampshire got on board.

Hannah McCarthy: Why did it go down that way?

Jack Rodolico: I thought I wanted to know. And I think the most natural place to start is with a guy named Harvey Key. Introduce yourself.

Harvey Keye: My name is Harvey Kaye. I am a human rights activist. Period.

Jack Rodolico: Now, you were born.

Harvey Keye: In Birmingham, right? Yeah, 1932.

Jack Rodolico: So Harvey Key is 90 years old. He is like an extremely active 90 year old gentleman, still involved in the community, still involved in politics in different ways. He's the head of the New Hampshire Human Rights Commission, among other things.

Hannah McCarthy: So he was born in Birmingham. Now he's living in New Hampshire. Yeah. When did he come up here?

Jack Rodolico: Yeah, Harvey came up here with this family in the seventies. He raised his kids here. But Birmingham is what made Harvey Key who he is. The MLK story that you're about to hear. Harvey has told this before. In [00:03:00] fact, he once told it before the New Hampshire state legislature back in 1999. Harvey was a state rep at that time. As a little.

Harvey Keye: Boy, I could not walk the streets and look white people in the eye because that was a threat to white people. I could be arrested for disorderly conduct. I could not shine shoes on the street. I could not deliver paper on the streets.

Jack Rodolico: Harvey goes up deep in the Jim Crow South.

Hannah McCarthy: Okay, so this is this era following the end of reconstruction, right where there are all of these laws in a lot of former Confederate states and some border states that basically codified a racial caste system, they were anti Black, anti enfranchisement laws that dictated a whole swath of behaviors for how Black people in America would have to act.

Jack Rodolico: Yes. And enforced with state violence and vigilante violence.

Harvey Keye: As a young man, I saw many shootings [00:04:00] of colored men who supposedly had stolen something from a store and shot in the back by white policemen. For a long time. I found it difficult to look people in the eye. Sometimes I find it difficult now. At age 14. I had no self esteem. I didn't have much hope for being anybody. So I became a game gang leader. I was put in jail at age 15 for assault and battery with attempted murder.

Jack Rodolico: So Harvey is on this very precarious course as a young man. He's dejected, he's angry, and he's surrounded by violence against Black men like him. So he starts to respond with a bit of violence himself. That's how he describes it. At the same time, he wasn't entirely without hope and positive examples of what his life could become. He has Black role models. [00:05:00] He has Black teachers at school, people who give him some hope that he can have a future.

Harvey Keye: My mother had a fourth grade education and she said to me one time, If they can, you can. Well, I don't know what that meant at that time. I know now.

Jack Rodolico: Despite setbacks, despite being jailed at 15, Harvey gets out of jail and starts to do really well in school. He is very smart, very studious. He goes on to college and to grad school. He develops a stronger sense of self. But as an adult in Birmingham, he still has this hot coal of anger in his chest because whenever he tries to assert his rights or even just dream about his future, he cannot do it. He can't vote.

Harvey Keye: Told me if I wanted to vote, I had to count the number of beads in a jar.

Jack Rodolico: He can't get a job.

Harvey Keye: And I had a degree in pre-med. He said I had too much education. It didn't have enough. I don't know whatever they said, but I couldn't [00:06:00] get a job.

Jack Rodolico: He even joined the army and fought in Korea. But there he got no relief from the racism all around him. He tells this story about waiting in line at the mess hall.

Harvey Keye: One of the soldiers says, Why don't you get back there where you belong? Uniform on. Same troop. And he had the nerve to say, get in the back where you belong.

Jack Rodolico: And so after the Korean War, Harvey comes back to Birmingham and he's just getting fed up. You know, he has a lower tolerance and he's not easily intimidated. He starts carrying a gun and he says that he was ready to use it if he had to. And just as Harvey has taken all that he can. Martin Luther King Jr is about to advance the front line of the Black freedom struggle to Harvey's hometown of Birmingham. So in the spring of 1963, King and [00:07:00] other leaders of the Black Freedom struggle descend on Birmingham.

Archival: It was against this background That Dr. King was asked what he meant when he said that achievement of a breakthrough in Birmingham.

Could crack the whole South.

Dr. Martin Luther King Jr.: Well, Birmingham is a symbol of hardcore resistance to integration. It is probably the most thoroughly segregated city in the United States. And they just had more unsolved bombings of Negro homes and churches.

Dr. Martin Luther King Jr.: And in a city in The United States.

Jack Rodolico: There is this campaign to desegregate the city. And King and others at the time said, you know, so goes Birmingham, so goes the country potentially. Right? That was the idea. And it's this 63 is this whiplash window of time in Birmingham. A lot of things that we might know about from history books happened in this like six month period. There were hundreds of arrests.

Archival: Arrests were made in mass lots. Everyone charged with the same offense parading without a permit. [00:08:00] The Negroes had asked for permits and had been denied them.

Jack Rodolico: King's letter from a Birmingham jail he wrote that year. There was a children's march where kids were blasted with fire hoses. These are images of the civil rights movement that many people have seen attacked by police dogs. There was even that church bombing where four little girls were murdered at a church.

Archival: And they died in Birmingham at the 16th Street Baptist Church, rallying point of the Negro drive in the nation's most segregated big city. Dynamite exploded on a Sunday morning, killed four little girls in Sunday school, injured 20 other Negro.

Jack Rodolico: So through all this, there is this one place in the city that serves as a hub for all of this civil rights activity for King and other activists. It's called the AG Gaston Motel.

Harvey Keye: It's the only motel in the city of Birmingham [00:09:00] that allowed colored folks Negroes to spend the night.

Jack Rodolico: Now, Harvey didn't ever spend a night there, but there was a hotel bar, which was one of the only places he and his friends could drink.

Harvey Keye: We used to have a few cool ones, I think. You know what I mean? On this one day we were having a cool one and Martin Luther King was having a conference with some of his SLC leaders or members. And shortly after, a big bomb blew a hole in the wall.

Jack Rodolico: The day in 1963 after the city and protesters announce a truce. Someone detonates a bomb at the A.G. Gaston Motel. It's an explosion. It tears through the building, actually just below the room where King and others were organizing.

Harvey Keye: And me and my boys were ready to go after them because we were tough and young and not too smart. But we were ready to pick up [00:10:00] anything. We had to go and get the guys and kill them.

Jack Rodolico: Now, before Harvey acts on this impulse, which could very likely get him killed for whatever reason, before he does, he decides to do something else. He's heard about this man, Dr. King.

Harvey Keye: You know, he was just a preacher, you know.

Jack Rodolico: And he goes to this press conference to hear King speak, and he says he was electrified. That was his word, electrified. And after the speech, he talks to.

Harvey Keye: King and he could see the anger on our face. He said, hey, where are you going? What are you doing? And we said, we're going to go and get him. He said, No, that's not the way we do it. And he gave us some other kind of a soap story that would mean a soft soap. In other words, you you That's not the way we're going to fight this battle.

Jack Rodolico: However, you cannot quote what [00:11:00] Dr. King said to him in that moment. Harvey does remember exactly how it made him feel.

Harvey Keye: And he didn't say it, that I can't remember exactly what he said, but whatever he said changed. It was impressive enough that I didn't carry a gun anymore.

Jack Rodolico: But something like that. Did it change?

Harvey Keye: It changed.

Jack Rodolico: But you didn't even know who he was.

Harvey Keye: Didn't know he was.

Jack Rodolico: He was just that charismatic.

Harvey Keye: Yes.

Jack Rodolico: In this moment, Harvey was sort of looking off into the distance. And I swear it felt like for a moment he was back in 1963, this young man on the verge of vengeance with all of these emotions standing in front of Dr. King and changing. And he just froze up while we were talking. It feels like you're there. Yeah. Excuse me.

Harvey Keye: Yeah. It's [00:12:00] tough. It's hard to think. That other human beings treated us so poorly. But I was changed from feeling the hate about how I was treated as a youngster in Birmingham, but I was changed instantly a better off because I carry I want to say it this way. He never said this. A pocket full of happiness. Wherever I go now, I didn't have that before.

Jack Rodolico: This is the story of what it took for America, for all of America to set aside a single day to honor a single Black life. It is a life that profoundly [00:13:00] changed those of others. But it's not actually a story about milk. It's a story about the politics of transforming a person into an official national symbol. Harvey Quay is going to play a role in the final stage of that transformation, as will the state of New Hampshire, and will return there soon. But I want to stay in the sixties for just a moment here, because, of course, that is where this all starts. The story actually starts right after Martin Luther King was assassinated. So he is murdered. Memphis, Tennessee, April 4th, 1968. And immediately there is this massive outpouring of grief across the country, particularly in Black communities.

Archival: This is [00:14:00] how Washington looked from the air tonight. At one point early in the evening, more than 100 fires were burning, some of them in an area just 20 blocks from the White House.

Jack Rodolico: In the immediate days after King's assassination, there are riots, particularly in northern cities across the United States.

Archival: And as darkness fell, arrests increased. To this hour, More than 700 people have been arrested. Some of them picked up in spot checks by police enforcing the curfew.

Jack Rodolico: You know, and this is this expression of frustration with, you know, living conditions, with job opportunities, everything that King stood for and fought for in the Black freedom struggle. You know, it's not like everything had been fixed by 1968. And so it was just this overflowing outpouring of anger and grief.

John Conyers: And so I said, what what is the greatest honor that I could pay this man? What do I do now?

Jack Rodolico: Okay, so this is John [00:15:00] Conyers. He's dead now. This tape is from 2008. And Conyers was a Democratic congressman from Michigan. He actually served in the House for 52 years, and he was one of the founding members of the Congressional Black Caucus. Influential guy for a long time. Back in 1968. He was only in his second term in the House. And after King was assassinated, Conyers wants to do something. And he has an idea that would become the seed of this huge social movement.

John Conyers: And I called Coretta Scott King, and I asked her permission and agreement. And we introduced the bill four days after his assassination.

Hannah McCarthy: All right. What bill is he talking about here?

Jack Rodolico: Conyers bill would set aside the third Monday of January as a federal holiday. The federal government [00:16:00] would shut down every year specifically to honor King's life and sacrifice. Now, today, we live in a world where King is pretty much universally recognized as a hero. That was not the case when he was alive. I mean, he was very popular among Black Americans, but among whites, he was divisive. He was unpopular. I mean, there was actually a national poll that found 31% of respondents said that King brought his death upon himself.

Hannah McCarthy: Wow.

Jack Rodolico: So in 1968, Conyers bill went nowhere in the House. But while the federal government sat on its hands, the idea of an m.k day starts to grow in popularity at the local level. All throughout the seventies.

John Conyers: It happened from the ground up because the theory was, well, there's a lot of emotion [00:17:00] around losing Dr. King. But as the years would pass, the enthusiasm would diminish. But just the opposite happened.

Jack Rodolico: Activists and local governments start to say, okay, if Congress won't declare a King holiday, then we'll declare a local king holiday. Cities like D.C., St Louis, Atlanta celebrate MLK Day. Those were the first MLK Day celebrations. Often, they were just activists without government sanction, celebrating on their own. But cities very quickly got on board.

John Conyers: In local areas in schools. States passed resolution.

Jack Rodolico: So you could see this momentum start to grow. State legislatures declare state holidays. The first one was Illinois, Connecticut, Massachusetts, New Jersey. Follow. And it actually starts to become a bit of a red line in politics. Are you for the holiday or are you against it? That becomes a symbol for other things that you believe in.

Hannah McCarthy: I don't know if you'll actually know the answer to this question, but let's give it [00:18:00] a shot. So, you know, you're saying that it's happening at the school level, happening at the city level, at the state level. Was there a shift among the sort of whole body politic when it came to sentiment about Martin Luther King?

Jack Rodolico: Yes, there was actually, because there is polling on King's popularity before he died and after he died, actually for years going up into recent years. And every single poll through the decades finds that he has more, particularly among white Americans, more and more. Virtually recognized as a hero in the seventies, the picture was still very muddled. But you did have cities and you did have local places that were fully on board. Before everybody else.

John Conyers: Unions started, including as a collective bargaining day in their negotiations. And more people began joining on the bill in the Congress. [00:19:00]

Jack Rodolico: So then the local pressure boomerangs back to Congress.

Archival: I support the Democratic platform, call for making his birthday a national holiday, and I will work for it.

Jack Rodolico: So in 1979, President Jimmy Carter gives a speech at the Ebenezer Baptist Church in Atlanta. This was the church where King was a pastor. He is there with Coretta Scott King behind him. All of these civil rights activists. And he publicly throws his support behind the bill. It's a big deal.

Archival: And I particularly hope that in this 50th anniversary year that I will be able to sign a bill proclaiming January the 15th as a national holiday in honor of Dr. King's principles.

Jack Rodolico: The momentum is moving. The bill does go to the House floor. It loses by five votes that year. So Jimmy Carter does not get that opportunity, but it sort of enters the public consciousness [00:20:00] in a way that it had not before, particularly because this is one of the most interesting things I feel like I learned. Okay. Stevie Wonder.

Hannah McCarthy: Yeah.

Jack Rodolico: The Stevie Wonder. Happy Birthday song.

Hannah McCarthy: I know it well.

Jack Rodolico: I know it well. Okay, So if you ask me, this is the best birthday song. It's better than the birthday song, right? It's just a it's a birthday anthem. I have heard it all my life. And Stevie Wonder wrote this song for Martin Luther King Day. He released it in 1980, specifically calling out the whole country. Why won't we honor this man? Why not create a holiday? The hook is happy birthday to you. Happy birthday to you. But the rest of the song, all of the lyrics are about Dr. Martin Luther King Jr.

Hannah McCarthy: I cannot believe I didn't realize that.

Jack Rodolico: I did not either.

Archival: And like for all of you to please join me urging the US Senate and your Senators [00:21:00] in particular to vote yes on s400 a bill to make. Dr. Martin Luther King Jr's birthday A national holiday.

Jack Rodolico: So in 1982, Stevie Wonder and Coretta Scott King deliver 6 million signatures to the speaker of the House supporting this holiday and the next year. In 1983, 15 years after John Conyers first introduced the bill, it passes in the House by a wide margin, 338 to 90. So makes it out of the House, and then it goes to the Senate, where it passes by another wide margin, 78 to 22, but only after some very anti MLK filibustering on the part of Jesse Helms. He was a North Carolina senator who made campaign commercials along the lines of this.

Archival: You needed that job.

And you were the best qualified. But they had [00:22:00] to give it to a minority because of a racial quota. Is that really fair?

Jack Rodolico: The commercial shows just a pair of white hands.

Hannah McCarthy: Wow.

Jack Rodolico: It was actually called White Hands. That's what the commercial was known as.

Hannah McCarthy: Unbelievable.

Jack Rodolico: So the Senate shuts Helms' filibuster down as quickly as it can, but not before he gets across some pretty forceful messaging about MLK being a communist.

Hannah McCarthy: Which I feel we should say he was not.

Jack Rodolico: He was not. Mlk was not a communist. But it's worth bringing up because plenty of people across the country, predominantly white people, agreed with Helms assessment of milk, which would be a part of King's legacy for a long time. Anyway, the bill passes. Reagan signs it into law.

Archival: The White House staged an impressive ceremony today. The president and Dr. King's widow walking into the Rose Garden together in an effort to spruce up Mr. [00:23:00] Reagan's tattered civil rights image. The president signed the bill, which he had so strongly opposed, making Martin Luther King Jr's birthday a national holiday.

Archival: Then we will see the day when Dr. King's dream comes true and in his words, all of God's children will be able to sing with new meaning. Land where my fathers died. Land of the pilgrim's pride. From every mountainside, let freedom ring. Thank you. God bless you. And I extend.

Hannah McCarthy: We're going to take a quick break. But before we do, a reminder that Civics 101, all of the work that we do here, [00:24:00] this story that Jack brought us, it's all made possible because our listeners support us both in spirit and when possible, with donations. This is public radio. That's how we work. If you're in a position to make a contribution to the show, please consider doing so. It's quick, it's easy, and it's a way for you to show your belief in free, accessible civics education and good stories. Click the donate button on our home page at civics101podcast.org. You're listening to Civics one on one. I'm Hannah McCarthy. And today we are talking to reporter and producer Jack RODOLICO about the creation of Martin Luther King Junior Day. This holiday did not come about without a fight. Many fights, in fact. But in 1983, Ronald Reagan finally did sign a bill making MLK Day a federal holiday, which means that it was recognized by the federal government, [00:25:00] but not that it had to be recognized by the states. All right. So we've got this federal holiday. Jack, you have established that there are states across the nation celebrating Martin Luther King's birthday as a holiday in that state or in a city or even in a school district. But as I know, a federal holiday does not mean that everyone in the country has to do it right. It's still up to the states as to whether or not they want to make it a holiday. So how many states are left who are not doing this?

Jack Rodolico: Well, Reagan signs the bill in 83. The first federal holiday is three years later in 86. And by 1986, 44 states officially recognize MLK Day. So by the time the first federal holiday comes around, there are only a handful of states that are refusing to create the Martin Luther King Junior holiday. [00:26:00] And Hanna, I will tell you, you and I are sitting in one of those states. And so yeah.

Jack Rodolico: For this handful of recalcitrant state legislatures, this starts to become a pretty potent issue. So, for example, in 1987, Governor Evan Mecham, basically as soon as he is inaugurated, rescinds Arizona's MLK Day.

Hannah McCarthy: So Arizona had signed it into state law.

Jack Rodolico: It had been by executive order, his predecessor.

Jack Rodolico: He ran campaigning that he would remove that executive order. And he does.

Hannah McCarthy: Okay.

Jack Rodolico: For what it's worth, he was later impeached for other issues. Wow. In Idaho, one lawmaker claims MLK Day is a, quote, Black holiday. [00:27:00] And another state lawmaker in Idaho says forget milk. Let's name a holiday after a real Black hero. I'm paraphrasing here, Bill Cosby. Okay.

Hannah McCarthy: Can you imagine?

Jack Rodolico: I cannot. I mean, obviously, these positions don't age very well. Now, New Hampshire is on that list, too. And kind of like Congress had for a very long time. The New Hampshire legislature mostly ignored the King holiday debate until they couldn't. The King State holiday bill first came up in New Hampshire in 1979, but it took a decade for the pressure to build up. And I want to give you a sense of the lawmakers who were at the state house when this discussion came to a head.

Linda Diane Long: It was hard to hide at that time. You could not just blend in. You can stand in the sea of 400 white people and still hold your own. You're not doing too bad.

Jack Rodolico: This is Democrat Linda Diane Long. She's now a Baptist minister in Georgia. [00:28:00] And in the late eighties, she was one of a small handful of Black lawmakers in New Hampshire's 400 member House of Representatives. Next up.

Wayne Burton: You have to understand, I was a full time assistant dean that year. H Right. And a full time legislator and a full time doctoral student with three kids. And I coached hockey and soccer and baseball.

Jack Rodolico: That's Wayne Burton, a Democrat and retired college administrator. And finally, Jackie Domaingue, a Republican. She splits her time now between New Hampshire and Florida, which is where I found her.

Jackie Domaingue: Her when I entered the legislature in 1987. I was 37 years old. The average age is 63.

Jack Rodolico: So the MLK Day pressure is coming from both outside the state of New Hampshire.

Linda Diane Long: We were seeing nationally how the national push for the holiday had picked up steam when Stevie Wonder wrote, you know, the song. And Jesse [00:29:00] Jackson, of course, was running for president.

Jack Rodolico: And from inside the state, from the state's biggest city.

Jackie Domaingue: The Manchester school board determined, wanting to recognize Martin Luther King Day in the hopes that it would help get it passed at the state level.

Jack Rodolico: So 1989 is a big year for the bill in New Hampshire. It is the first time that the public really turns out in force to tell the legislature to pass this bill.

Linda Diane Long: And the hearing itself started off very emotional, you know, with prayer. It was packed. We had children. We had white people, we had Black people, we had Native Americans, a variety of people speaking that day. So it wasn't a Black issue.

Jack Rodolico: A few members of the public spoke against the King holiday. Most spoke in favor. So break this down a little bit for me. You're asked to orchestrate the theater of a floor fight. Five monologues.

Wayne Burton: I would speak last because I had the story [00:30:00] of meeting Dr. King.

Jack Rodolico: One of the reasons Wayne Burton cared so much about a King holiday bill is that he met Martin Luther King back in 1964. Ml K came to Wayne's College in Maine for a lecture, and he met him in person. And, you know, as Harvey said earlier, it was just a life altering experience for him.

Wayne Burton: So he sat down on a couch and we were talking quite a while. And after a while I said to him, This is all wonderful stuff, but what's it got to do with me, a white kid or a white school in an all white state? And that's when he said, If your conscience stops at the border of Maine, you're less of a person than you should be, and yours is responsible for what happens in Birmingham as you are in Brunswick, Maine. And I was really taken aback. I'd never been challenged like that. We have a borderless conscience.

Jack Rodolico: Okay. [00:31:00] So now, for her part, Jacky Domaingue had been asked to speak to, but for the opposing side.

Jackie Domaingue: I was not a fan of Martin Luther King. I understood what he did. But unfortunately for me, I'm the daughter of an Army corporal who served on Iwo Jima, and I lost several classmates from elementary school to high school to the Vietnam War and comments that Dr. King had made.

Dr. Martin Luther King Jr.: But they asked, and rightly so. What about Vietnam? They asked if our own nation wasn't using massive doses of violence to solve its problem, bring about the changes it wanted.

My questions hit home and I knew that I could never again.

Dr. Martin Luther King Jr.: Raise my voice against the violence of the oppressed and the ghetto without having first spoken [00:32:00] clearly to the greatest purveyor of violence in the world today. My own government.

Jack Rodolico: It's a little hard to hear there, but that is King calling the United States the greatest purveyor of violence in the world. He compares state violence against Black Americans to America's violence against the Vietnamese. And many Americans, particularly white Americans, considered his words an insult.

Jackie Domaingue: They didn't volunteer for that war. They were drafted and lost their lives. I felt it was unkind what he had said. And so I got on the floor and opposed the bill.

Jack Rodolico: Now, there were lawmakers at the time who were much more cutting. One called King, quote, an evil man. And this did come down to partizan politics. I mean, New Hampshire was controlled top down by Republicans. It basically had been for about 100 years. This is a state at the time where the most powerful media outlet [00:33:00] was a newspaper, the Union Leader, And that paper's editorial board was vehemently against MLK Day. Lawmakers are picking this paper up every day and reading it. And between 1988 and 1991. The Union Leader published an even 100 editorials and editorial cartoons about MLCs Day, relentlessly attacking King and his legacy and his supporters. They called him treasonous. They called him a demagogue. So what was it like to sit there and listen to people propagate these? You know.

Linda Diane Long: Just that they had a blood pressure about 300 or 2000 during that time.

Wayne Burton: They tried to demonize Dr. King by saying he was a communist because he had gone to North Vietnam during the war.

Jack Rodolico: How did you take that communism line as a Vietnam veteran yourself?

Wayne Burton: I took it quite badly [00:34:00] because I had spent I had almost been killed several times killing communists. And then to be accused of being a communist myself got me angry, quite honestly.

Jack Rodolico: So after the hearing, Wayne Burton was in the press a lot. He became sort of a de facto spokesman for the holiday bill. And because of that. T had a target on his back.

Wayne Burton: And I started getting anonymous letters without return addresses. King is a crime. He get out of our country and the cut out little letters out of Time magazine and so hate sentences. And there was some death threats to me and my kids that people would call on the phone, my house phone.

Jack Rodolico: Address how you're pointing to your phone and the next.

Wayne Burton: yeah.

Jack Rodolico: Same house. Yeah.

Wayne Burton: And I it's I was just astounded that someone would would do that.

Jack Rodolico: Were you scared for your life? I mean, how did you contextualize those threats?

Wayne Burton: Yes, [00:35:00] I was it was not dissimilar to some of the feelings I had in Vietnam. It is a terrible feeling to think that the price of doing the right thing may be your life.

Hannah McCarthy: And I just want to pause here and reflect on this. We are talking about a man who was trying to pass a state holiday, right?

Jack Rodolico: Mm hmm.

Jack Rodolico: In 1989, the holiday bill died in New Hampshire House by a wide margin. Like legislators voted almost 3 to 1 against it.

Hannah McCarthy: Wow.

Linda Diane Long: I wasn't that hopeful. I had hoped that it would change some minds from the hearing. I really hope the hearings would have opened some eyes, but it didn't. [00:36:00]

Jack Rodolico: So, again, it wasn't terribly surprising that the bill failed. What is surprising, at least to me, is Jackie Domain's response. Now, remember, she was opposed to this bill. Did that feel like a victory?

Jackie Domaingue: No. Evans No. It was very sad, I confess. Really? Yes. Yeah. It was very sad. It stayed with me for a long time. Yes, we won. But what did we want?

Hannah McCarthy: Wait. Okay. So Jackie and other Republicans, they got what they wanted, right? I mean, this is this is what they were aiming for. So why would she reflect on that and feel sad? That doesn't track for me.

Jack Rodolico: So after the vote, Jackie says someone in the antechamber of the house screamed at her and called her a racist. This person had tears in their eyes. And Jackie says that whatever [00:37:00] her personal feelings are about Martin Luther King, she also understood how important he was to so many other people. And she didn't like the feeling of obstructing progress. She says most New Hampshire voters at that time weren't ready for an MLCs day, so she wound up proposing something that she felt could pass the House.

Jackie Domaingue: The Purpose of a Civil Rights Day was to get to move the issue forward and not leave it where it had been left in 1989 in anger.

Jack Rodolico: In 1991, the state Senate was ready to create an RMC holiday. They passed a bill to do that, but the House was not, so they compromised. New Hampshire became the only state in the country that celebrated Civil Rights Day. One state rep at the time who hated this compromise said, quote, We would have been more honest to call it the anything but Martin [00:38:00] Luther King holiday.

Hannah McCarthy: We're going to take a quick break here, but when we're back, it is the final insistent push to once and for all spread the celebration of Martin Luther King Jr's life and work to every state in the nation. We're back. You're listening to Civics 101. And today, reporter and producer Jack RODOLICO is sharing the story of Martin Luther King Jr. Day and the decades long struggle to make it truly a nationwide holiday.

Jack Rodolico: Okay, so, Hannah, this final stretch of the story is the part that I was honestly most curious about because the holiday bill seemingly enters this purgatory period. In hindsight, it feels inevitable [00:39:00] that New Hampshire would do this. But it's going to take all of the nineties, like all of the nineties. So what is going on? What does it take for New Hampshire to finally honor the holiday? That's what I wanted to know. I kind of assumed the bill languished, but in fact it.

Ray Joseph: Didn't at the time. For us, it was pure racism.

Jack Rodolico: This is Ray Joseph, and this is where things get really kind of unwieldy and unpredictable. So in 1990, Ray is a student at St Paul's School. Saint Paul's is one of America's most exclusive boarding schools, a high school. Historically, boarding schools are like the epitome of WASPy exclusive institutions, but at this time they were diversifying and Ray was part of a minority of very bright Black students on the Saint Paul's campus. By the way, Saint Paul's school is two miles from the New Hampshire State House.

Ray Joseph: You've got to [00:40:00] remember, this was the late eighties. So we were listening to Public Enemy, Fight the Power, The Autobiography of Malcolm X. So it wasn't me, but one of my roommates said we should boycott, we should not go to school. And it was that seed of an idea that wound up turning into something to bigger.

Jack Rodolico: So Ray in some classmates are like, This is BS. And at first they say, let's walk out of school tomorrow. This is the night before MLCs day in 1990. But they actually start talking to school administrators like the headmaster. And he says, well, actually, I was going to give you the day off. And you see, this was actually happening all over the state. School administrators, all over New Hampshire were saying, forget what the state government says. We make our calendars. So we're going to give students the day off for MLCs Day. But Ray and his classmates weren't satisfied with that. They are sharp. They are young. A lot of them are from New York City, and they [00:41:00] are just opening their eyes to the culture in New Hampshire.

Tommieka Teixiera: Yeah. You know, in my 15 year old mind, it was just New Hampshire was just a place that was beautiful and just empty of all forms of joy and entertainment. You know, it was just you know, we had light of FM. I think it was one on 1.9 was the only radio station. I mean, they didn't even play Bon Jovi. I mean, it was, you know, no Depeche Mode, no anything.

Jack Rodolico: This is Tommieka Teixeira, another Saint Paul student in 1990.

Linda Diane Long: I didn't know that there were people who would not celebrate MLK Day. Like, what do you even talking about? That's unfathomable to me, right?

Jack Rodolico: It wasn't just that they saw an omission of Black culture in New Hampshire. Tiffany Gill, another student, says this was sometimes a hostile environment for her.

Tiffany Gill: The first and only time I've ever been called a racial epithet that I've heard was walking down Main Street in Concord, New Hampshire, as a high school student.

Jack Rodolico: So MLK Day 1990, The [00:42:00] Saint Paul's kids are like, We can't protest the school, but the school winds up sanctioning the protest and joining it.

Hannah McCarthy: That feels so rare to me.

Jack Rodolico: Doesn't it? Yeah. Yeah. The school was really on board and they made a plan together. Students and faculty and administrators walk from Saint Paul's two miles to the state house.

Ray Joseph: And so we spent the preceding night that Sunday night developing, you know, signs, wristbands, armbands. I remember filing out of chapel just as that New Hampshire snow begins to fall upon us. It was cold, as it always was in January in New Hampshire.

Tiffany Gill: It was a it was a warm feeling. It was beautiful. It was a beautiful line of us walking, you know, off the grounds together.

Tommieka Teixiera: Nothing had been plowed. And we all just came out with [00:43:00] excitement, with a little fear. I think we didn't know what we were to encounter and cars honking and showing support.

Jack Rodolico: You know, something they all kind of reflect on is that it was kind of like MLK had given them a roadmap for what to do in this situation. March Right. Go to the seat of power, make your demands known.

Tiffany Gill: You know, for us, it was like our mini civil rights movement.

Ray Joseph: We believe that it's time for change. But honoring Dr. Kent with a state.

Jack Rodolico: Holiday, is this the video with you, with the bullhorn?

Ray Joseph: You got it. That's exactly right.

Jack Rodolico: Yeah.

Ray Joseph: I declare our commitment to realizing King's dreams of eradicating racism, poverty and violence.

Jack Rodolico: So ultimately, this was inspiring for these Saint Paul's kids involved. But they had no political clout in New Hampshire. And they knew that. Right. They're not old enough to vote. They're not residents of the state. Their parents don't pay taxes here. So after the 1990 March, they [00:44:00] start to reach out.

Mike Vlasich: I was Forrest Gump in all this. So you have to understand, I was just in the right place, the right time.

Jack Rodolico: This is Mike Vlasic. He was a kid in the Concord Public High School at the time. By the way, Mike is now a Biden appointee in the Small Business Administration. And I have to tell you, like the number of youth involved in this milk fight in the 1990s in New Hampshire, to me, anyway, seemingly a big percentage of them are lifelong activists. And they will they will tell you that this was activating for them for the rest of their lives. Back then, Mike was a kid who had no contact with this exclusive school in town.

Mike Vlasich: If you're a Concord High public school student, interacting with St Paul's kids was not the norm for something so close to us, that institution. We wouldn't have thought that we were part of that.

Jack Rodolico: Saint Paul students and Concord High kids start a letter campaign and they invite kids to protest with them so that in 1991, more than 1000 [00:45:00] high schoolers descend on the state house lawn.

Arnie Alpert: So that was a cool thing again, because you had the basically the Black kids from the elite school with the white Townees.

Jack Rodolico: This is Arnie Alpert. Arnie had been advocating for Milk Day in New Hampshire since the early eighties. He was on a committee of active. It's dedicated to this cause. But, you know, they were all adults. They were all politicos, you know? For him to see a thousand kids come out for Milk Day. It felt like this thing had finally taken on its own momentum.

Arnie Alpert: Because the state was resisting the holiday. It actually made it more important. It was a holiday of celebration and resistance at the same time.

Jack Rodolico: Up until this point had it, there wasn't too much national press about New Hampshire's stance on MLK Day. But that was about to change because Arizona was about to painfully become the 49th state. So [00:46:00] this part of the story is kind of bananas to me. In 1990, the NFL, the National Football League Awards, the Super Bowl to Tempe, Arizona.

Hannah McCarthy: As in Tempe will host the Super Bowl.

Jack Rodolico: Tempe will host the Super Bowl and it will draw in the hundreds of millions of dollars that the Super Bowl brings in to that area. So the NFL says, okay, Arizona, you're in line to host the Super Bowl. But there's a caveat. We will take this game away from you if you continue to reject MLK Day. This is not a popular stance for the NFL to take at the time. The question, though, goes to a popular referendum. And Arizona voters reject MLK Day by a slim margin and the NFL follows through. It takes the Super Bowl away from Arizona with all of its profits. It's a projected $225 million would come into the state. So it's effectively a massive boycott.

Archival: Nfl Commissioner Paul Tagliabue [00:47:00] said. Arizona can continue its political debate without the Super Bowl as a factor, site selection Chairman Norman Braman said. How could anybody in his right mind go to play there?

Jack Rodolico: And I mean, Hannah, like Public Enemy, wrote a song at this time called By the Time I Get to Arizona, it is a tirade against Arizona about MLK Day. And in the song, which is really good, they namecheck New Hampshire.

Sister Souljah: Public Enemy believes that the powers.

Sister Souljah: That be in the states of New Hampshire and Arizona have found psychological discomfort in paying tribute.

To a Black man tried to teach white people the meaning of civilization. Good luck, brothers.

Hannah McCarthy: I mean, this is just so interesting, right? I understand why these songs are being written. It's not just Happy Birthday, right? It's also Public Enemy because it's like this is an unbelievably public display of pretty hard to deny racism.

Jack Rodolico: Yes. Well, and if you think about if you think about birthday song, Stevie Wonder, this is a happy go lucky song, right? Yeah. And because it's really kind [00:48:00] of calling out every way, Public Enemy, it's like you don't want to be Arizona or New Hampshire. And Public Enemy's crosshairs is very different, calling out America for racism and being in those crosshairs as one state. Yeah. So it starts to get pretty intense for these last final states. And then in 1993, Arizona voters redeem themselves. They approve MLK Day finally. And Stevie Wonder and Rosa Parks come to Arizona on MLK Day as a kind of a reward to the state, you know, And then the eyes of the nation turn to just one state. And it's like New Hampshire, whether it intended or not, sent up a racist bat signal. There is huge press coverage in 1996 of a white supremacist from Mississippi who gets a permit to demonstrate at the New Hampshire State House on MLK Day. He comes here to thank lawmakers.

Hannah McCarthy: Oh, man, that's a bad look.

Jack Rodolico: It's a bad look. [00:49:00]

Archival: Last year's celebrations were marred by white supremacists from Mississippi, but this year, only one dissenter was found in the crowd, far outnumbered by the young people seeking change.

Archival: Because it's our future, you know, even though the adults they're important to.

Archival: But You know, it's going to be us up there next. And we want our children to have a better future than, you know.

Jack Rodolico: By now. It's the mid 1990s and this is when it feels like, come on, it's got to happen. In 1996, the political landscape in New Hampshire starts shifting dramatically. The state elects a Democratic governor for the first time in a long time. A woman, Jeanne Shaheen, who's currently New Hampshire's senior senator. She campaigns on MLK Day. And Democrats make big gains in the state house with women at the helm. Jackie Weatherspoon was elected to the New Hampshire House that year. She was the third Black woman ever elected to the New Hampshire House. In 1997. She was on the House floor when the MLK [00:50:00] bill lost again. This time, the vote count was 178 to 177.

Hannah McCarthy: Oh.

Jackie Weatherspoon: I was there. Oh, my God. We lost that by one vote. And you could just hear it, see it, feel it when we lost by one vote. And then it became something like we became a laughingstock. We lost. It was the humiliation.

Hannah McCarthy: That's like an insult. That's just, ooh.

Jack Rodolico: Well, it just becomes like, what's it going to take?

Hannah McCarthy: Right, Right.

Jack Rodolico: You know, Maya Angelou spoke out. Spike Lee spoke out. Stevie Wonder, you know, Public Enemy wrote a song. I mean, so was that an element of like, you don't tell us what to do no matter what it's about, don't tell us what to do.

Mike Vlasich: I think for a certain element that was an excuse that they were using and they were not understanding that there was an increasing grassroots movement in New Hampshire that wasn't. [00:51:00] Political over the years. The further we have gotten from the civil rights movement, there has been a tendency to turn Martin Luther King into something of a Santa Claus of the movement.

Jack Rodolico: Tiffany Gill, one of the Saint Paul students, she's actually now a historian and associate professor at Rutgers University. And for her, looking back on this window of time, in a way, it's not really about New Hampshire per se. It's about the disconnect between the way MLK is viewed today, the way he was viewed when he was alive, and the slow march from one perspective to the other.

Tiffany Gill: One of the things that I always say is that I have to avoid social media on Martin Luther King Day because we are inundated from every political side with sort of shrinking Martin Luther King down into slogans and phrases. So it erases the fact that there was such [00:52:00] hatred toward King that he was not the beloved figure, that he has come to be within memory. His life was under constant surveillance by the FBI. His family was attacked and that he was ultimately assassinated.

Jack Rodolico: In 1999, the table was finally set. Or so it seemed. The MLK Day bill had failed in the New Hampshire House every time it had come up for the prior 20 years. So nothing was a sure bet. And proponents of the bill wanted a closer somebody who was really going to make a case, and they picked to give the last word to Harvey Quay.

Archival: Because the final speaker, the member from Nashua, representative key members to be taking their seats. A roll call has been requested. We're on the last speaker. [00:53:00]

Harvey Keye: Thank you, Madam Speaker. Honorable men and women of this historic House of Representatives, I rise to support the addition of Martin Luther King's name to the current House Bill 68.

Jack Rodolico: You remember Harvey? Of course.

Hannah McCarthy: Yes, of course.

Jack Rodolico: It's hard to forget from the beginning of the story, that old tape we heard of him earlier. That was from his floor speech to the New Hampshire House in 1999. He told them about meeting King and a few other things, too.

Harvey Keye: I have a granddaughter who is six years old, and she wrote me a poem and she said.

Papa, papa.

Harvey Keye: All the way from Alabama with a banjo on your knee up to New Hampshire to help keep people free. It's tough for me. Members [00:54:00] of this august board, please vote for Bill 68.

Archival: The question before the.

House is the adoption of a majority committee report has to be in order. The House will be in order.

Jack Rodolico: On May 25th, 1999, the New Hampshire House, the final stubborn block of resistance in America to honoring Martin Luther King Jr with a holiday. It voted 212 to 148 to do just that. I asked Harvey, How did that feel?

Harvey Keye: Heavenly.

Jack Rodolico: Harvey has lived for 90 years of unimaginable change, right? He was born under the thumb of Jim Crow. And now he and his wife own their home in New Hampshire. He has grown kids and [00:55:00] grandkids, and he sees history to him for what it is. You know, things move forward. Then they wrench backwards, back and forth. And all he can control is how he feels about it and how he feels is a gift. He was handed in Birmingham by Martin Luther King Jr.

Harvey Keye: I have a pocket full of joy and I hope to keep carrying a pocketful of joy everywhere I go. And that makes me 99.9% happy all of the time.

Hannah McCarthy: This [00:56:00] episode was produced by Jack Rodolico and me, Hannah McCarthy Nick Capodice is my co-host. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. You can find helpful links, resources and our entire episode archive at our website, civics101podcast.org. Special thanks to Steve Davis, Arnie Alpert, Meg Heckman, Jada Hebra, Marci Chang and Eleanor Dunphy. Music in this episode by Dilating Times, Nul Tiel Records meter ScanGlobe, Shaolin Dub, Anemoia, Kirk Osamayo and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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