How Can The Government Ban TikTok?

TikTok - an app with around 170 Million American users - is under intense scrutiny by the U.S. government, including a bill passed by the House of Representatives which issues a threat: "sell or be banned." But how and why can the government do that? 

What does this kind of business restriction look like? We talked to Steven Balla of George Washington University to get the low down on regulations and bans in the United States. TLDR: 

This episode goes beyond the current legislation, but it's updated from an earlier version which dropped in April, 2023.

Listen:

---

TranscripT:

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

Hannah McCarthy: Nick, we've been hearing the word ban an awful lot lately. We sure have, because the government is threatening to ban a wildly popular social media app.

Nick Capodice: You know, I've never been on it myself, Hannah. I don't know.

Hannah McCarthy: If we should advertise that. Well, it could.

Archive: Be the beginning of the end for TikTok. Today, the House of Representatives passed a bill that could ban the popular app. Members of Congress, on both sides of the aisle worry that TikTok poses a national security threat because it's owned by a company based in China.

Archive: But TikTok this is not an attempt to ban TikTok. It's an attempt to make TikTok better. Tic tac toe.

Archive: A winner, a winner to silence this large, massive voice is, frankly, un-American.

Hannah McCarthy: And every time I hear that word ban, I think to myself, what would that even look like? How does something like that happen? Is the government even allowed to do it, and what are the different ways they could get it done?

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

Nick Capodice: All right. So in other words, you can ban stuff.

Hannah McCarthy: This is Civics 101 I'm Hannah McCarthy, I'm Nick Capodice. And today we are talking about how and why the government can ban something. And in this episode, because everyone's thinking it. I'm just saying it. We're going to be looking at TikTok. Oh, and that person who knows what he's talking about, that's Steve.

Steven Balla: I'm Steve Balla, professor of political science and co-director of the Regulatory Studies Center at George Washington University in Washington, DC.

Hannah McCarthy: We talked to Steve for an earlier version of this episode back in April of 2023 when, just like right now, lawmakers were accusing without evidence the Chinese government of collecting data via TikTok for some nefarious purpose because TikTok is owned by a Chinese company. Now, last week, the House of Representatives passed a bill that aims to force TikTok to get sold from that Chinese company, ostensibly in the name of privacy and national security. And if they don't, the app could get banned in the US.

Nick Capodice: Okay, so now that we've established that bans can in fact occur, what does it actually mean? Like with TikTok? What I just like try to open the app and it wouldn't be there.

Hannah McCarthy: Well, Steve brought up China as an example actually, because many other apps that we use all the time are banned over there.

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

Hannah McCarthy: Up. A VPN, by the way, is a virtual private network. It encrypts your internet use and basically disguises you online, including your location. So in the event of a ban, people could try to use one to access things banned in their location. So there are a few things the US could do. And what congressional lawmakers are trying to do right now is force a sale of TikTok to a US company. That is what the version of the TikTok ban bill that just passed in the House of Representatives demands. And if that doesn't happen, TikTok would be banned. This could mean it would be removed from app stores. No more downloads, no more updates. Eventually the app just becomes really difficult to use and access. Also, they cannot force all Americans to delete TikTok from their phones, but the government can criminalize its usage.

Nick Capodice: But even though it's criminalized, people could still use it, albeit sneakily.

Hannah McCarthy: Life, uh, finds a way, in this case via VPN.

Nick Capodice: And can we establish why this ban is hanging over TikTok's head right now?

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

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

Hannah McCarthy: Congress has pretty much insisted that TikTok is sharing user data with China. Tiktok says it is not that it has protocols in place to protect user data.

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

Hannah McCarthy: Well, a ban is a business restriction, right? But it can't be arbitrary. It has to relate to regulation and regulation. Sounds like a catch all terms. But actually Steve says it is highly specific.

Steven Balla: A regulation is something that's actually defined in a statute called the Administrative Procedure Act of 1946 that defines what a regulation is. In government speak. There's like a specific definition of what a regulation is that separates it from any other instrument of policymaking. Regulations tend to have general impact. So that is a regulation would generally limit a company's discretion to pollute in this way or to sell a product in that way. But a regulation generally has a it's a general future applicability okay.

Nick Capodice: General future applicability. So like don't pollute but we won't get too specific here.

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

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

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

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

Hannah McCarthy: Of course, that's not the only place rules, regulations and even bans can come from. We'll have that after the break.

Outside/In promo: If someone told you to jump off a cliff, would you do it? No. But there is something to be said about leaping into the unknown. That's what our podcast Outside In is all about. It's a safer way to explore all the weird, wonderful and uncomfortable questions you have about the natural world. Like what's it like to decompose. All of the germs and bacteria is an okay, baby, we got to get rid of this person. Or why the hell do we have lawns? Who the hell needs five acres of ornamental grass?

Outside/In promo: I'm Nate Hegyi, host of Outside/In, a podcast where curiosity and the natural world collide. Sometimes it's serious, sometimes it's ridiculous. But it's always a wild journey. Oh. That's outside slash in from New Hampshire Public Radio.

Hannah McCarthy: You're listening to Civics 101, and we're talking about how something like a ban, say, on your favorite social media app, can happen in the United States.

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

Hannah McCarthy: If a bill doesn't pass in Congress? Technically, yes, he could, but that doesn't mean an executive order won't need justification.

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

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

Hannah McCarthy: Bingo. Or by the courts. Former President Donald Trump actually signed an executive order in 2020 that would have banned TikTok if it weren't purchased by an American company. That order was challenged in a federal court and never took effect. Now Trump, by the way, reversed his position on TikTok in mid-March 2024. This year, this could be an appeal to TikTok users in an election year. It could be related to Trump having just met with a billionaire conservative donor who is part owner of the app's parent company. Or it could be some other reason. And by the way, it's not just an executive order regulation that could be challenged.

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

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

Hannah McCarthy: And when you've got about 170 million users in the US, many of whom are young people who consume their news on the platform, create content as a business and whom advertisers want to target through social media. The potential for being affected is high. Which brings me to one giant consideration in all of this. The government does care what people think, and it really cares about the economy. So while we're hearing all of this posturing as these bills about forcing TikTok to sell itself to an American tech company or even a straight-up ban are debated in the Capitol, some of it is, you know, just posturing, putting on a show because those lawmakers have other stakeholders, too.

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

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

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

Hannah McCarthy: Speaking of politics, just one last thought here. Tiktok is many things to many people, but importantly, the app has functioned as a tool for organizing around social justice and as a venue to talk about things that might be hard to talk about at home, especially among younger people. So when we talk about banning it, there's certainly something at stake here beyond viral dances. Oh, and by the way, this episode has been all about the federal government. But I would be remiss if I didn't tell you that states can do and are doing their own thing with social media. Say it with me. People. State and local government is where it happens. Pay attention. All right, that's it. Thanks for listening.

Hannah McCarthy: This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer. Music in this episode by rhymed clang. Soundtracks. Dirk Delor Kirk, Osimo, Anna moya, modern Monster and Simon Matthewson. If you've got a question about civics government just generally want to know what on earth is going on around here, do not hesitate to reach out. You can submit your questions at civics101podcast.org. Either we'll try to find the answer, or we'll find somebody who knows way better than us to answer it for you. Civics 101 is a production of NHPR, New Hampshire Public Radio.

Can the Supreme Court save us from ourselves?

When the Supreme Court says something is or isn't constitutional, what does that really mean? What are the effects, or lack thereof, of their decisions? And what do we do if we don't agree with what they say?

Today Linda Monk, author of The Bill of Rights: A User's Guide, walks us through four times in US History that the Supreme Court was not the be-all-end-all decision maker.

Here are some links to shows we reference in the episode:

Dred Scott v Sandford

Brown vs. Board of Education of Topeka

---

Transcript

Nick Capodice: All right, here we go. Check check check check check.

Hannah McCarthy: All right, let's do it.

Archival: The Supreme Court has reached a decision on the landmark Roe v Wade case. The ruling is on a case called Dobbs v Jackson Womens Health Organization.

Archival: Supreme court decision legalizing same sex marriage across the court's.

Archival: Conservative majority ruled today that a public high school football coach in Washington state [00:00:30] has the right to pray on the 50 yard line.

Archival: The nine Supreme Court justices ruled racial segregation in publicly supported schools to be unconstitutional, declaring that it denied equal opportunity.

Nick Capodice: Hannah let me ask you this. In our six years of making this show, how many episodes do you think we have done that center on the Supreme Court?

Hannah McCarthy: Wow, uh, a lot. A whole lot [00:01:00] of episodes. At least two dozen on landmark Supreme Court cases. And we've done some on precedent, several on the court's interpretation of laws and amendments. Uh, we did the shadow docket, right. And not to mention a whole bunch of shows on just how stuff works on the court. .

Nick Capodice: Yeah we give them a lot of airtime. And of course we do. Right?

Hannah McCarthy: Of course we do. They are the ones who interpret the Constitution.

Nick Capodice: And we care deeply about what they say. We track their calendar, we refresh [00:01:30] websites on days. They hand down decisions. As an example, right now, this first week of March 2020, for the whole nation was waiting to hear how the court would rule in Trump v Anderson. This is the case that decided whether the state of Colorado could determine Donald Trump's eligibility to be on the ballot in Colorado in light of potential disqualification under the 14th amendment.

Hannah McCarthy: And to catch anyone up who missed the verdict. On March 4th, the court ruled in a per curiam opinion that's an [00:02:00] unsigned opinion by the court as a whole, not one justice that states did not have the power to declare a candidate ineligible, that only Congress has that power. But, Nick, what does this have to do with this episode? What are we talking about?

Nick Capodice: Well, um, we're talking about this. So the whole nation was waiting to hear how this decision was going to come down. And when it came down, some people were overjoyed and some people were furious. But here's the question what [00:02:30] really happens when the Supreme Court rules on something? What are the limits of their power, of their decisions? And why is it that Americans who have strong opinions on how a court should rule, just give up if it doesn't go their way?

Linda Monk: When we have these intense issues of disagreement among Americans at large, a lot of times it's easier to let the court take the, um, the [00:03:00] hit. You know, it's like, well, you know, of course we disagree about the Supreme Court has ruled. And so we must obey sometimes. Yes. Sometimes no.

Hannah McCarthy: I know that voice.

Nick Capodice: You do indeed. That is the Constitution lady, constitutional scholar, JD, author of many books, including the required Reading for Civics 101 listeners, the Bill of rights, A User's Guide. This is Linda Monk. And unlike most episodes, where we email scholars [00:03:30] to ask if they'll talk about a certain topic, she wrote us with a question.

Linda Monk: The idea that I submitted to you for this show was that throughout American history, particularly in the areas where we had the most fundamental disagreement, it's never been a Supreme Court ruling that actually made the change.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are answering Linda Monk's question. In [00:04:00] short, can the Supreme Court save us from ourselves?

Hannah McCarthy: All right. How are we going to do this?

Nick Capodice: We're going to do this in four acts, hannah. Linda told me about four moments in history where bad laws were on the books. And I mean unequivocally bad laws. There aren't, like, two sides to consider in any of these cases. But we're talking about four problems today. And in each one, we're going to see how the Supreme Court was or was not involved in fixing them.

Hannah McCarthy: And [00:04:30] how far back are we starting here?

Nick Capodice: we're going to start in 1798 with the Alien and Sedition Acts. You know about these?

Hannah McCarthy: I do a little bit. These were passed during the John Adams administration, right?

Nick Capodice: Yes, they were indeed. And they were a set of four acts.

Linda Monk: The alien part or the alien act gave more power to regulate immigration. That's a debate we're still having today. The more controversial part of it, the Sedition Act, basically made it a crime to criticize the government. [00:05:00]

Nick Capodice: The fourth act, the Sedition Act, said, quote, writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, end quote, could be punishable by a $2,000 fine and two years in jail.

Hannah McCarthy: Did anyone actually go to jail for this?

Nick Capodice: They did. Some did go to jail. More people were fined than went to jail. Uh, lots of newspaper owners in particular. President John Adams was a Federalist and his veep was Thomas Jefferson, [00:05:30] who was not a Federalist. He was a Democratic-Republican. And this new sedition law was designed to punish pro Jefferson newspapers that criticized the Adams administration.

Hannah McCarthy: The Federalists also had their own newspapers, right?

Nick Capodice: Yeah, they did. And funnily enough, the Sedition Act extended to criticism of the president or either Chamber of Congress, but not the vice president. You are allowed to scandalize and say bad stuff about T-Jeff all the livelong day, but you say something about [00:06:00] Adams, you are gonna get it. One guy in particular got fined. He was drunk at a parade in Newark, new Jersey, and a cannon went off and he shouted, and I'm going to paraphrase here, I hope it hits Adams in his backside.

Hannah McCarthy: How much was he fined?

Nick Capodice: He was fined 100 bucks.

Hannah McCarthy: All right, that's a funny story and all. But this is I mean, to me, it's a blatant violation of the First Amendment, is it not?

Nick Capodice: Yeah. You'll get no disagreement from me on that one Hannah. And the American people [00:06:30] thought the same thing.

Linda Monk: And it was a sitting member of Congress who was jailed under the Sedition Act as a newspaper editor. When you think of anything that goes contrary to what we think of as the First Amendment today to jail a newspaper editor for criticizing the president, and while he's a sitting member of Congress, he's in jail. Um, that's that's pretty extreme. And yet that was what, uh, the law was passed seven years after the First Amendment had been ratified. So if [00:07:00] we want to think about, well, what did the Founding Fathers think about free speech and free press? Well, we don't as long as you agree with us, you're fine.

Hannah McCarthy: That sounds like a tough pill for originalists to swallow.

Nick Capodice: Yeah, like they were there when it was written in the first place. And I'd like to think that if Congress passed an act like that today, it would be deemed unconstitutional in a heartbeat.

Hannah McCarthy: Is that what happened back then? How did the Supreme Court rule on it?

Linda Monk: Actually, [00:07:30] the court didn't rule at all that that's what was so controversial about it. That's why it was such a test, because you had one political party, even though George Washington had said, beware of the baneful effects of the spirit of party, uh, he pretty clearly lined up with what became the Federalists. Jefferson and Madison, with what became the Democratic Republicans. And when you had the presidency, the Congress and the Supreme Court, all [00:08:00] dominated by one party, the Federalist Party. And then the Congress passed the Alien and Sedition Acts with the express purpose of curtailing dissent and power amongst the opposition party. Who are you going to call?

Hannah McCarthy: Who are you going to call? Who can you turn to when something is not fair and the Supreme Court is entirely dominated by your political enemies?

Nick Capodice: Well, [00:08:30] you can go local instead of federal. Virginia and Kentucky passed state resolutions criticizing the acts. These resolutions, by the way, were secretly written by Jefferson and Madison. But that is not what kills this unconstitutional law.

Linda Monk: But the ultimate remedy, again, was the election, the election of 1800. What many people say the second American Revolution, um, where the people voted clearly for um, [00:09:00] Jefferson and therefore Madison's point of view.

Nick Capodice: This was the campaign issue of 1800. And because of it, Adams ends up being a one time president.

Hannah McCarthy: Okay. One down. This is a point for the people since the court did not get involved. What's number two?

Nick Capodice: Number two does involve the Supreme Court, and it involves the Cherokee people in 1830. Now, these are people who had been here for thousands of years, [00:09:30] and at this time they were an independent nation in the US.

Hannah McCarthy: Okay. This is the concept of tribal sovereignty. Indigenous nations govern themselves.

Nick Capodice: Yes. And as we see over and over and over and over and over again in US history, that does not stop the government from taking their lands.

Linda Monk: And that's been done by treaty, by conquest, often unfairly and in total disrespect of human rights. Under the legal system that we have today, though, [00:10:00] Congress is the only one that can regulate relations with the Indian nations. And in 1830, um, you had Georgia, which really was just this little bitty speck of land, uh, along the Atlantic, but it claimed everything to the Mississippi River, and that included Cherokee land and Chickasaw land and Choctaw land. And, um, and so Georgia is saying, hey, you know, Massachusetts got to run out all the Native Americans who live there, [00:10:30] who talks about the Delaware anymore. They were once the greatest tribe. Um, so now it's our turn. You know, we're just doing what Massachusetts did.

Nick Capodice: Georgia tries to force the Cherokee to move. And the Cherokee people, under the leadership of Chief John Ross, get a case to the Supreme Court. And their argument is, Georgia, you cannot tell us to move. You're a state.

Linda Monk: You're not the federal government. The Constitution protects us, makes it to the Supreme Court twice. Ultimately, the [00:11:00] Supreme Court rules that no, Georgia does not have the authority to try and regulate the Cherokee possession of the land. But who does? Congress? That doesn't mean Congress can't act. Congress passes the Indian Removal Act that says, okay, we're going to make all these provisions for removing the, uh, Native American tribes that will agree by treaty to do it. How does that affect Cherokees? Well, they have [00:11:30] a there's a fraudulent treaty and the Treaty of New Echota. And under that fraudulent treaty, which Congress quickly or the Senate quickly ratifies. It's okay. Well, we've got our treaty. See this little piece of paper? And even though John Ross, the chief of the Cherokees, has a petition, you can see it at the Native American Museum. 15,000 signatures from cheer. This almost the entire Cherokee Nation that [00:12:00] have signed saying no, no, no, no, no, these were unlawful people that claimed to be representing the Cherokee Nation, but they're not.

Hannah McCarthy: Just to clarify, this treaty, which was fraudulent, was Congress's legal justification for the forced removal of Native Americans for the Trail of Tears. Yeah.

Nick Capodice: And Linda wanted to make it clear this was controversial. A lot of people in Congress were opposed to this.

Linda Monk: Just so people know, we tend to look at these things as like fait accompli, like, [00:12:30] oh, you know, well, everybody was so racist way back when as opposed to today. And of course, we would have done it differently. Well, I hope so. But even at the time in the debate over that fraudulent treaty, there were senators who were saying, this is fraudulent. It didn't. It passed, but just barely. So it wasn't this uniform. Oh, well, white supremacy, although that certainly was part of it. But there were definitely [00:13:00] senators on the other side saying this is a fraudulent treaty. We can't do this.

Hannah McCarthy: In this case. The Supreme Court ruled the right way. They said that the Cherokee people were sovereign and Georgia could not force them to move. Yeah.

Nick Capodice: And then President Andrew Jackson and Congress said, well. Actually, no.

Nick Capodice: We are [00:13:30] going to take a quick break before our last two explorations of Supreme Court powers and limitations. But just a quick note if you're a fan of Civics 101, we are made at a public radio station, and that means we rely on the public to exist and the public is You. Please consider donation and whatever amount you wish at our website civics101podcast.org.

Hannah McCarthy: We're back. You're [00:14:00] listening to Civics 101, and today we are talking with Linda monk about the ramifications, or lack thereof, of Supreme Court decisions.

Nick Capodice: We are indeed Hannah. And this third example certainly does have ramifications. Uh, quite possibly the most dire ramifications in US history. This is viewed by many as the worst decision the Supreme Court ever made.

Hannah McCarthy: If this is the case, I think it is.

Nick Capodice: it is, it's Dred Scott v Sandford.

Hannah McCarthy: We have a whole episode on this case link in the show notes. For anyone who wants a [00:14:30] deep dive, I really recommend you check it out.

Nick Capodice: And the thing Linda wanted to point out when it comes to this case is that there was an actual person who was begging, beseeching the Supreme Court to save us all from ourselves, and that person was President James Buchanan.

Linda Monk: I really credit the book, 1857, here for, for, um, doing the historical research and the primary source documents to show that the sitting president of the United States [00:15:00] was writing letters to Supreme Court justices saying, fix this for us. You know, fix this for us. Slavery is going to divide the country. He knew we were on the verge of a civil war. Just fix it for us. Eventually they do fix it. And boy, do they fix it. They fix it so bad that they declare the compromise of 1820 totally unconstitutional.

Nick Capodice: The 1820 compromise. It's also called the Missouri Compromise. [00:15:30] That was the legislation that determined whether new states added to the Union were going to allow the practice of slavery or not, and that compromise was completely nullified in the wake of the Dred Scott decision.

Linda Monk: What the holding is there is that slaveholders have property wherever they go, wherever they want to go. And there's nothing Congress can do to take that away, ever, uh, which totally upsets the political applecart then, because [00:16:00] then there is essentially no such thing as a slave or free state if it's come beyond the 13 original.

Nick Capodice: The justice who wrote the opinion, Roger Taney, ended it by saying that no human being of African descent was or could ever be a citizen of the United States.

Linda Monk: Never, ever. So not only did they not solve the Civil War, avert a civil war, they created a civil war because there was no political compromise left.

Nick Capodice: Dred [00:16:30] Scott, one of the worst Supreme Court decisions in US history. I would like to wrap up our exploration today with one of the most lauded good decisions in US history, and it's another one we've done an episode on Brown v Board of Education, 1954. This is the decision that ended racial segregation in schools.

Linda Monk: You know, the Supreme Court did a unanimous decision. Um, [00:17:00] we tend to celebrate that. There's also evidence that the reason it was done at that time was because of the Cold War, and we didn't want to look bad compared to Russia. And so it's, you know, it's like, well, how did this magically happen? Did the did suddenly nine white men suddenly had a revelation? Well, kind of, um, maybe not. Um, so it's important that, that we see those decisions for [00:17:30] what they are, but not more than what they are. Remember the the response to Brown versus Board of Education in the state of Virginia was massive resistance, announced massive resistance. And it took and still takes. I mean, that's that's my point is it doesn't stop, um, doesn't stop those values, um, still have to be reinforced. And frankly, white parents have abandoned public schools. The public schools today are [00:18:00] more segregated than they were at the time of Brown v board.

Hannah McCarthy: I remember hearing that a school district in Mississippi finally received orders to desegregate in 2016.

Nick Capodice: Yeah, the decision in Brown v Board was to desegregate, "with all deliberate speed". And each school district did indeed get there on its own schedule.

Linda Monk: I'm a child of the desegregation decisions, and as a white [00:18:30] child, it was the best thing that ever happened to me, because I wouldn't have been allowed in any other way to get to know my African American neighbors and fellow students, and it changed me. It changed what I had taught, been taught. It changed what I believed. And I'm a better person because of. But it didn't come because of the Supreme Court. You know, it started because of the Supreme Court, but it came because people like Representative [00:19:00] John Lewis, who put himself physically. I mean, when you talk about a warrior who physically puts himself in the way of a police baton as given multiple concussions, that kind of moral integrity.

Hannah McCarthy: So Nick, Linda wrote in and asked to explore whether the Supreme Court can save us from ourselves. [00:19:30] So what does she think cannot? No.

Linda Monk: No, a resounding no. It never has saved us from ourselves. It may have pushed us along a certain trajectory. Uh, in some cases, we would support other cases. I mean, there's there's no question that Dred Scott directly caused the Civil War. Not that we wouldn't have gotten there anyway, but that decision [00:20:00] by itself made the Civil War inevitable, made it despite a president lobbying for Congress to just fix it for us.

Nick Capodice: And to be clear here, Linda is not saying, let's get rid of the Supreme Court. She's a doctor of law. But what she is saying, to the best of my understanding, is that nine people deciding whether something is or is not constitutional has no bearing on what is actually in our hearts, right or wrong. And [00:20:30] a Supreme Court decision is not this perfect adamantine thing that can never be changed in the future.

Linda Monk: Let's go back to Chief Justice John Roberts. He likes to refer to the Supreme Court and the justices as umpires. All right, well, let's take that metaphor of an umpire. The umpire makes a ruling that's good for that game, but doesn't mean you never come back and play another game. It doesn't mean, uh, that you think they were right or [00:21:00] that they were wrong. It just that was the ruling.

Hannah McCarthy: Does Linda suggest anything for people who disagree with a ruling? Like if we don't go to the court for a remedy, where do we go?

Linda Monk: You know, my point is that the Constitution itself solves that problem through the amendment process. If the people disagree with what the court has ruled, they can. If it's a question of constitutional power, they can pass an amendment to the Constitution, which has happened [00:21:30] several times specifically to overturn Supreme Court decisions. All right.

Hannah McCarthy: But people don't really propose amendments. Congress does.

Nick Capodice: I asked Linda about that, and she reminded me of something I think that I sometimes take for granted. Hannah, she wrote to me, quote, the people are presumed to act through their elected leaders, which is how we got the current 27 amendments. But who persuades the legislators, if not we the people?

Hannah McCarthy: I [00:22:00] mean, I do suppose that is the hope, right? That's the ostensible role. They are our representatives. It's in their name. They represent us.

Nick Capodice: Yeah. They do. Maybe that's one of the lessons for today, right? Don't wait for the courts to decide something. Contact your local representative. Tell them what you want. Last thing I want to add in today. It's been about five years, Hannah, since you and I first interviewed Linda monk about the Constitution. And when she finished talking with me this week, she [00:22:30] ended by saying a refrain of the exact same thing she said all those years earlier. And I'm going to end with that today.

Linda Monk: My fundamental belief is the same as Judge Learned Hand, that we place our hopes too much in laws and courts and constitutions. These are false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women. And when it dies, there no constitution, no law, no court can save [00:23:00] it. And I think that's fundamentally the the lesson of our history. And frankly, that gives me hope because it means that we ultimately can change things.

Nick Capodice: Well, that is enough for today. I guess that's enough. I guess that's enough. Thank you, Linda, for, [00:23:30] amongst other things, always being our friend. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. As always, our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Blue Dot Sessions, Ikimashu Aoi, HoliznaCCO, Konrad Oldmoney, Baegel, Christina Anderson, Lennon Hutton, Fabian Tell, The New Fools, Spring Gang, and the Brooklyn Composer who has saved me from myself, Chris Zabriskie. Civics [00:24:00] 101 is and of right ought to be a production of NHPR, New Hampshire Public Radio. Josiah Bartlett, New Hampshire, says yay!

---

Made possible in part by the Corporation for Public Broadcasting.

Amending the Constitution

The process is pretty straightforward. Plenty of people want to make some change. And yet? We've only done it 27 times. So what does it take to amend the U.S. Constitution and why does it barely ever happen?

Robinson Woodward Burns, Associate Professor of Political Science at Howard University, is our guide.

---

Transcript

Archival: [00:00:01] Mr. president remains my sincere hope that the Senate will have the opportunity to consider the flag amendment today. June 14th National Flag Day.

Archival: [00:00:09] An amendment to be as an amendment to be. And I'm hoping that they'll ratify me.

Archival: [00:00:16] Amendment imposing term limits on Capitol Hill.

Archival: [00:00:20] Constitutional amendment to try to reverse Citizens United.

Archival: [00:00:23] A constitutional amendment that mandates a balanced budget and forces the federal government to live within its means. [00:00:30] Oh, yeah.

Nick Capodice: [00:00:33] You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:35] I'm Hannah McCarthy.

Nick Capodice: [00:00:36] And today we are talking about amendments. Not any amendment in particular, but how they happen. The process for amending the Constitution.

Hannah McCarthy: [00:00:46] I'm really glad that we're talking about this, Nick, because we talk so much about our supreme law of the land, what it says and what it means. But this is another thing entirely. This is how we [00:01:00] change the Constitution and not to bury the lead, as we say in the journalism business. But this is pretty hard to do, isn't it, by the way?

Nick Capodice: [00:01:08] Hannah, do you know why lead as in like the introductory section of a story, uh, is spelled led e in journalism?

Hannah McCarthy: [00:01:17] I don't think I do know. I figured it was for the same nonsense reason we spell Graf Graf.

Nick Capodice: [00:01:24] Well, apparently it's so. It wouldn't be confused with the word lead, which meant a strip of metal that would [00:01:30] separate different lines of type.

Hannah McCarthy: [00:01:31] That's that's fascinating. And speaking of burying the lead, Nick, you're doing it right now.

Nick Capodice: [00:01:38] I sure am. Where were we? The Constitution is very difficult to amend.

Robinson Woodward Burns: [00:01:43] The US Constitution is the hardest constitution to amend, not only out of any national constitution in the world that's operative, but out of any that's ever been ratified or promulgated. So it's really, really hard to amend the national constitution.

Nick Capodice: [00:01:57] This is Robinson Woodward Burns.

Robinson Woodward Burns: [00:01:59] My [00:02:00] name is Robinson Woodward Burns, and I'm an associate professor of political science at Howard University.

Nick Capodice: [00:02:05] Robinson has talked with us a few times. He's the author of Hidden Laws How State Constitutions Stabilize American Politics Now, he said the framers were kind of in the dark when it came to altering the Constitution, uh, as they were in the dark about a lot of things. It was all pretty darn new.

Robinson Woodward Burns: [00:02:24] The process to amend the US Constitution was a novel process. The US Constitution [00:02:30] is the world's oldest national constitution to inhere in a single document. And so the framers of the Constitution didn't have any other national constitutions as models from which to work. There were a handful of state constitutions, uh, the oldest of them, though, was only 11 years old. And because there was relatively little model for how Constitution should be amended, either from other national constitutions or from state constitutions, the framers of the US Constitution came up with fairly arbitrary cutoff points.

Nick Capodice: [00:02:59] And I'll get to those [00:03:00] arbitrary cutoff points in a second. But I just want to throw in one line from James Madison's Federalist 43, where he talks about the need for an amendment process. He wrote, quote, the useful alterations will be suggested by experience could not, but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided.

Hannah McCarthy: [00:03:21] As in even we who shall come to be known as brilliant, perfect people who came up with this Constitution cannot predict everything. [00:03:30]

Nick Capodice: [00:03:30] Pobody's nerfect. Hannah.

Hannah McCarthy: [00:03:33] Okay, Nick, I understand that it's hard to amend the Constitution. It has only happened 27 times so far. But can we just talk about how it happens? Can we talk about where in the Constitution the amendment process is laid out?

Nick Capodice: [00:03:47] It is in article five. Hannah, I was trying to come up with a mnemonic device for this, and I like pictured James Madison saying, and if any of this doesn't work out, we'll just amend it later. And giving Alexander Hamilton a high five. [00:04:00]

Hannah McCarthy: [00:04:00] Like the freeze frame at the end of some 80s after school special.

Nick Capodice: [00:04:04] Yeah. And like fades out and music comes up and the credits roll. Alexander's like nice work Jimmy. I think a lot about that summer that we wrote the Constitution and then later those 85 essays we wrote supporting its ratification. I didn't know until years later those would be the most important days in my life. Anyways. Article five.

Robinson Woodward Burns: [00:04:27] So article five of the US Constitution [00:04:30] establishes the amendment process, and what it says is there's a two step path to amending the US Constitution. First, an amendment has to pass either two thirds of both houses of Congress or a convention called by two thirds of the states on a petition to Congress. The second stage was the ratification stage. Either three quarters of the states in their legislatures or in special conventions have to ratify or approve an amendment, [00:05:00] and then the amendment is enrolled as part of the Constitution. So it's.

Hannah McCarthy: [00:05:04] A two step process.

Nick Capodice: [00:05:05] Right? But there has been a new step. I'll actually call it a norm instead of a step, which is that the amendment then has to be certified.

Robinson Woodward Burns: [00:05:14] Specifically, it's the national archivist who's responsible for for certifying the amendment. That's a relatively new step. Now, there are other parts that aren't part of article five, like the Supreme Court has affirmed for about 100 years that Congress can specify an amendment has to pass within a certain period of time, usually [00:05:30] seven years. But the actual text of article five only includes those two steps the proposal step and the ratification step.

Hannah McCarthy: [00:05:37] Just to recap, the proposal step requires two thirds of both the Senate and the House of Representatives to agree and say we should have this amendment, and then if they do agree, it goes to the states for ratification, where three quarters of the states need to do the same thing.

Nick Capodice: [00:05:54] Exactly.

Hannah McCarthy: [00:05:56] Uh, real quick, what is three quarters of 50?

Nick Capodice: [00:05:59] It's [00:06:00] 37.5.

Hannah McCarthy: [00:06:01] Do they round it down or up? Well, they.

Nick Capodice: [00:06:03] Round it up. It needs to be at least three quarters of the states. So it is 38 okay.

Hannah McCarthy: [00:06:08] Got it. Now, Robinson said there was another way to do the proposal step that instead of Congress doing it, two thirds of the states can get together and propose an amendment.

Nick Capodice: [00:06:21] They can. And I'm way ahead of you here. Mccarthy two thirds of 50 is 33.33. So we round it up to 34.

Hannah McCarthy: [00:06:29] Now, I [00:06:30] know that a lot like a lot of amendments have been proposed over the years.

Nick Capodice: [00:06:35] I'm going to get to that.

Hannah McCarthy: [00:06:37] But how many have actually technically been proposed as in sent to the states for ratification?

Nick Capodice: [00:06:44] Yeah. It's like this tough linguistic thing like you hear all the time, Senator. So and so has proposed an amendment to do something or other, but for an amendment to really be quote unquote proposed, it needs that two thirds majority in both houses or the states. So here is the final [00:07:00] tally so far of amendments that made it past that first step that went to the states for ratification, first, by the method of two thirds of both houses, 33 times, okay.

Hannah McCarthy: [00:07:13] And by two thirds of the states.

Nick Capodice: [00:07:15] The grand total of state proposed federal amendments. Is that dangerous idea, Hanna?

Hannah McCarthy: [00:07:20] Zero zero.

Nick Capodice: [00:07:23] Zilch. It has never happened.

Robinson Woodward Burns: [00:07:25] There's never been a convention of the states organized to propose [00:07:30] amendments. And there have been attempts to do this over time. The most recent attempts, one in the 1960s when the Supreme Court made the states reapportion or rewrite their state legislative and congressional legislative districts, there was real backlash from the states, in part because a lot of legislators would have lost their jobs at the state level. And so they started petitioning Congress to call a convention to overrule the Supreme Court. Now, ultimately, they fall short of that two thirds supermajority. [00:08:00] You need 34 states to do that.

Nick Capodice: [00:08:02] Another attempt happened in the 1980s during the height of fiscal conservatism. Some states got together to push for a balanced budget amendment. There were a lot of big budgets at this time in history, especially for military and defense spending.

Robinson Woodward Burns: [00:08:16] What was actually happening is they were asking for a statute. And so people will say, we actually came close to a balanced budget amendment to that 34 state threshold. But according to historian who surveyed those records, David Kyvig dancers, probably not. We actually probably didn't [00:08:30] get that close. So at no point in history have we actually successfully called a convention to amend the US Constitution.

Hannah McCarthy: [00:08:40] All right. If 33 amendments went to the states for ratification and we only have 27, what were the six that didn't make the cut?

Nick Capodice: [00:08:49] I will talk about one of the six after a quick break, but the rest will go into extra credit.

Hannah McCarthy: [00:08:53] And what is extra credit, you ask?

Nick Capodice: [00:08:56] I can just hear him asking Hannah.

Hannah McCarthy: [00:08:58] Why it is our free, [00:09:00] silly, trivia filled newsletter that we put out every other week. You can and you should sign up at our website civics101podcast.org. We're back. We're talking about how we amend the US Constitution. And, Nick, you were on the verge of telling me about one of the six amendments that [00:09:30] made it to the ratification step, but did not cross the finish line.

Nick Capodice: [00:09:33] I was indeed, this is an amendment that has been argued about for over a hundred years, the Equal Rights Amendment.

Hannah McCarthy: [00:09:40] As a quick aside, Nick and I did an episode on the Equal Rights Amendment many, many years ago.

Nick Capodice: [00:09:46] Six years ago. Can you believe it?

Hannah McCarthy: [00:09:48] Six, six years? Uh, be that as it may, there is a link to it in the show notes.

Nick Capodice: [00:09:53] Yeah, and it needs updating. Uh, thank you, Hannah. And here to tell us about the long journey of the era again is Robinson. [00:10:00] Woodward. Burns.

Robinson Woodward Burns: [00:10:01] There have been patterns in kind of amendment proposal around the Equal Rights Amendment going back to 1923. That was when the first Equal Rights Amendment was proposed, on the heels of the 19th amendment, which guaranteed female suffrage, the Equal Rights Amendment, just as the female suffrage amendment forbade, uh, disenfranchisement on the basis of sex, the Equal Rights Amendment forbade denial of equal treatment under the law on the basis of sex.

Nick Capodice: [00:10:25] The phrasing of this amendment varied over the years. It was reintroduced in [00:10:30] every single Congress, but it just never made it out. Labor unions opposed it initially. Working women supported it, and we don't see a shift until 50 years later.

Robinson Woodward Burns: [00:10:41] By the 1970s, the feminist movement and the labor movement had coalesced around the era. And in 1973, you actually see a movement on the heels of the Rowe case, in which Congress passes the amendment and sends it to the states, and it comes really close. It actually comes only three states short. So you need three quarters of the states [00:11:00] to ratify an amendment. And it got to 35.

Nick Capodice: [00:11:04] But the ERA hit its deadline in 1979. And then there were hearings in Congress to extend the deadline. And those came up against fierce opposition.

Robinson Woodward Burns: [00:11:12] There was actually a lot of backlash from some conservative feminists, like Phyllis Schlafly, who thought that it would force women into gender neutral bathrooms, for example, or that it might allow same sex marriage or access to abortion.

Phyllis Schlafly: [00:11:26] And I think it's a very interesting that these women who who try to tell the world [00:11:30] that they're self-reliant and independent and as capable as men, uh, look to the federal government to solve all the problem.

Robinson Woodward Burns: [00:11:37] And so the backlash to it, it almost killed the amendment.

Nick Capodice: [00:11:42] However, in the 20 tens, there was a revival of interest in the Equal Rights Amendment, in part due to the growing MeToo movement. And some new scholarship came to light that the amendment never actually had a deadline in its literal text.

Robinson Woodward Burns: [00:11:57] So the amendment was, according to these scholars, still live. [00:12:00] The remaining three states actually ratified it. Virginia was the last. But what was tricky is that it happened during the Trump administration. And so the amendment then went to the national archivist, who kind of had this tricky choice of whether to figure out whether these final three ratifications were valid. And the Trump administration, the Department of Justice sent a memo to the archivist, uh, Quigley, saying that, no, you can't ratify the amendment. Now, I argued in a piece in The Atlantic that because the archivist actually answers to Congress, the Trump administration couldn't [00:12:30] do this. But politically, at that point, the issue was dead. Now, maybe had Virginia waited a year until the Biden administration, we'd have had a different outcome. But ultimately, it looks like politically, the Equal Rights Amendment is dead.

Hannah McCarthy: [00:12:43] Okay, last thing here, Nick. What about the other ones, the other amendments that were proposed but never made it out of Congress? How many have there been?

Robinson Woodward Burns: [00:12:53] There have been, as of 2021, 11,970 amendments proposed to the Constitution, and only 27 [00:13:00] of those have been ratified. That's a 0.002% success rate.

Hannah McCarthy: [00:13:04] 11,970.

Nick Capodice: [00:13:08] Yep.

Hannah McCarthy: [00:13:10] We what have these been about? I mean, there's a lot. But like what do people try to get amended everything.

Nick Capodice: [00:13:17] Hannah. Uh, to establish every American's right to a home, to ban flag burning, to make the president's terme eight years and the representatives for to prohibit abortion, to allow abortion, to prohibit school prayer, to mandate [00:13:30] school prayer. 700 of these are about prayer, uh, to prohibit public drunkenness, to ban dueling. To put God in the preamble, I downloaded a spreadsheet of all of them, and I spent entirely too long reading it.

Robinson Woodward Burns: [00:13:43] There was an amendment, for example, 100 years ago, to rename the United States of America, the United States of the world, speaking to the colonial ambitions of the United States at the time.

Hannah McCarthy: [00:13:53] Who who.

Hannah McCarthy: [00:13:55] Proposed that?

Nick Capodice: [00:13:56] I'm glad you asked Lucas Miller of Wisconsin, who [00:14:00] proposed it in his first terms in 1893, and he said, quote, it is possible for this republic to grow through the admission of new states until every nation on earth has become part of it. Miller did not get elected to a second time.

Hannah McCarthy: [00:14:14] Well, this brings me to a really big question, and I guess I could guess. The answer based on the proposal of a lot of bills that never get passed. But why do members of Congress propose these amendments, knowing that there is pretty much no chance whatsoever that they will pass? [00:14:30]

Robinson Woodward Burns: [00:14:30] It's a timely question. After Ron DeSantis dropped out of the Republican primary, the first thing he did was propose four amendments to the Constitution. Now, Ron DeSantis didn't seriously think these amendments were going to pass, right? Every amendment that's proposed is almost certainly doomed, especially in today's really polarized Congress, where we have very narrow majorities of only 1 or 2 seats in any given chamber, far short of the two thirds super majorities necessary to propose an amendment. Why do members of Congress, or why did Ron DeSantis propose [00:15:00] amendments? Um, it's what we call in political science position taking. If a legislator or a lawmaker wants to put themselves out in front of the public, they can do that through amendments by proposing amendments. Because amendments are low risk, there's actually pretty low chance it will pass. And so they can just put out throwaway amendments, and an amendment might actually look like it's a pretty serious or significant measure to the public. And after all, it's a proposal to change the basic law of the country. So if you want [00:15:30] to seem like you're doing something serious or important with pretty low risk or low cost, one way to do that is to propose an amendment. It's a way to stay in the public's eye. If you feel like you may be less and less relevant. And that's exactly why Ron DeSantis threw out these kind of four throwaway amendments to the Constitution.

Hannah McCarthy: [00:15:58] What's interesting to me [00:16:00] is that right now, in February of 2024, we're in a record setting moment of government inaction, if you will, right? The current Congress, the 118th, passed 27 bills total in 2023, the fewest in modern history. So if you're not legislating and you don't want to get into trouble by proposing a controversial bill, this amendment signaling, what is it? Maybe all you have. Yeah.

Nick Capodice: [00:16:27] And to further that point, actual amendments [00:16:30] that make it through the process, they haven't happened for a long, long time. Our most recent one, the 27th amendment, which is about the rather humdrum notion of not changing Congress's salary mid-session. Yeah, it was ratified in 1992, but it was written in 1789. It was one of the 12 to be included in the Bill of rights, and it was just recently revisited. It's not new.

Robinson Woodward Burns: [00:16:54] No amendment proposed by Congress has actually cleared ratification since the early 1970s. And so we're in this period of [00:17:00] of real decline of national amendment. And what I remind my students is that, again, there's a live tradition of amendment at the state level. There are almost two dozen states that allow voters to propose revision of their their laws, either through statutes or in either 18 or 19 cases, depending on whether you count Mississippi, uh, revision of laws through constitutional amendment. And so, you know, because we see so much stasis and gridlock at the national level, I encourage, you know, my students or people interested in reform [00:17:30] to look at their state constitutions and local laws and statutes.

Nick Capodice: [00:17:35] We say it so much, Hannah, you have to think at some point people will start to do it.

Hannah McCarthy: [00:17:41] Yeah, it's just not as fun. If you want change, you got to think local. This episode was produced by Nick Capodice and Me, Hannah McCarthy. Music in this episode by Bomull, A P O L L O, baegel, Kevin [00:18:00] MacLeod and Dusty Decks. If you like us, please, please, please let us know. Deep down, we are still those theater kids eagerly awaiting notes at the end of tech. Leave us a rating on Apple Podcasts, Spotify, or wherever you get your podcasts. We're here for you. As long as we are all trying to keep this Republic. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

What's Going On With Civics Education?

Listen to our full, two-part series from 2023 on the history of civics education, and the current legal and ideological debates around social studies happening in across the country today. 

Walking us through the past, present, and future of social studies and civic education are Danielle Allen, James Bryant Conant University Professor at Harvard University, and Adam Laats, Historian and Professor of Teaching, Learning and Educational Leadership at Binghamton University.  We also hear from Louise Dube, Executive Director of iCivics and member of the Implementation Consortium at Educating for American Democracy, Justin Reich, Director at MIT Teaching Systems Lab and host of the TeachLab podcast, and CherylAnne Amendola,  Department Chair and teacher at Montclair Kimberly Academy and host of the podcast Teaching History Her Way.

Click here to subscribe to our newsletter!

Click here to make a donation to Civics 101.

---

Extra Credit: How to Argue Against Disinformation; Trump Trials Update

When the cats are away...well...you know. 

In this special episode, Executive Producer Rebecca Lavoie and Senior Producer Christina Phillips follow up on some recent discussions sparked by our newsletter Extra Credit. How do you have a legitimate discussion with someone who has the facts wrong? And what's going on with all of these different trials involving former President Donald Trump?

Click here to read Nick's essay on responding to someone who's wrong.

Click here to subscribe to our newsletter!

Click here to make a donation to Civics 101.

---

Extra Credit: How to argue against disinformation; Trump trials update

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

Rebecca Lavoie: Christina Phillips.

Christina Phillips: Rebecca Lavoie.

Rebecca Lavoie: You know the expression, when the cat's away, the mice will play.

Christina Phillips: Of course I do.I have two cats.

Rebecca Lavoie: I guess you can say this podcast kind of has cats, too, and they're named Nick and Hannah.

Christina Phillips: I think Nick would resent being called a cat, probably.

Rebecca Lavoie: I mean, he's more like a puppy, but Nick and Hannah, they are not here this week. So I'm Rebecca Lavoie

Christina Phillips: And I'm Christina Phillips.

Rebecca Lavoie: And this is a special edition of Civics 101 where we, the executive and senior producers of the show, normally behind the scenes, are taking over the mics. Christina, what exactly are we doing here today?

Christina Phillips: Well, this is a little bit of a format breaker. As you know, we have a newsletter extra credit.

Rebecca Lavoie: It comes out every other week.

Christina Phillips: Yes. And that newsletter is usually a follow up or a supplement to an episode we released. But this edition of Civics 101, we've decided to flip that.

Rebecca Lavoie: That's right. We're making an episode of the podcast to follow up on some newsletter business, so I'm not going to call this a bonus episode per se, but an extra credit episode. Later in the show, we'll be following up on a newsletter you wrote as a sort of follow up to a recent episode we dropped on presidential pardons. That's sort of what your newsletter was about, because it was about Donald Trump's current trial. So we're going to be talking about all of that, right?

Christina Phillips: And, uh, Trump is involved in a lot of court cases, and they're all pretty confusing. So I'm going to walk you through some of them, not all of them, but some of them where they stand, whether or not they could lead to potential self pardons if that reelection happens and what could happen next?

Rebecca Lavoie: You know, I think I'm one of those people who thinks they understand what's going on with all of this, but probably need someone to explain it to me. So I'm really looking forward to that. But first, there's something I was hoping to do on this show today, if that's okay with you.

Christina Phillips: Yes.

Rebecca Lavoie: So I want to talk about a couple of listener responses. We got to an extra credit newsletter. Our regular host, Nick Capodice sent out a couple of weeks ago.

Christina Phillips: And by the way, this is a good time to remind everyone that they can and should sign up for extra credit. Again, that's our free newsletter at Civics101podcast.org.

Rebecca Lavoie: Yes, and we'll also link to that in our show notes on this very episode. Anyway, a couple of weeks ago, we released an episode of the podcast hosted and produced by Nick about Federalist ten. Now that's the Federalist paper written by James Madison. That raises this big concern that Madison had that factions could pose a severe threat to our democracy, which is pretty timely, right? I mean, you could say that.

Christina Phillips: Yeah.

Rebecca Lavoie: So we got a listener email in response to that episode and particular to this bit of it, where Nick and his guest, Jeffrey Rosen, they talk about whether Madison's fears are bearing out right now.

Nick Capodice: So Jeff opened his conversation with me talking about Shays Rebellion. So I had to end it by asking about the modern political climate. Maybe Madison wouldn't call our two parties factions, but what about the far edges of a party? Like, what about the recent example of an armed insurrection on the nation's capitol?

News archive: We had a breach of the Capitol, breach of the Capitol, requesting additional resources on the East side as they've broken into that window and they're trying to kick it in, will not.

News archive: Be kept out of this chamber by thugs, mobs or threats.

Jeff Rosen: Whatever a faction is armed mobs representing a minority of the population that are threatening the rule of law and trying to subvert the Constitution, are it? That's exactly what the Constitution is designed to avoid. By any measure, an armed insurrection against the processes of government is a faction, and Madison would have tried to resist it at all costs.

Christina Phillips: Oh, I remember this is that listener email we talked about on slack all morning. They were angry that we'd said that what happened on January 6th was an armed insurrection, specifically that we'd use that word armed in particular.

Rebecca Lavoie: Right. So this listener asserted that that was just inaccurate. And it is a fact that it was an armed insurrection. There are court documents, photos, there are confessions of people, statements who were charged and convicted, who say that they were armed. There's plenty to back up the fact that there were, in fact, weapons present at the Capitol on January 6th.

Christina Phillips: Sure. And there's lots of misinformation about that out there, too, claiming that there weren't guns or weapons there and that it was simply a very peaceful protest. Again, this is an opportunity to remind listeners, you should check out our episode on misinformation and disinformation to find out how all that works, how these things even sort of gain traction in the first place.

Rebecca Lavoie: Yeah, honestly, that's one of, I think our best civics 101 episodes, one of my all time favorites. So anyway, back to Nick. I think it's fair to be transparent and say that Nick is a thoughtful guy. He is a sensitive guy, and he cares about his job hosting this podcast a lot. Yes, and he could not stop thinking about this email and how to respond to this listener. And I should say, we do respond to just about every email we get here at the podcast. The exceptions are rare. Those are the spam emails, the truly insulting emails that just say things about, like our voices or Nick's music choices or whatever. But really, we respond to just about all of them. And it was super important to Nick to respond to this one. He wanted to do it, but he wanted to do it right.

Christina Phillips: Yeah, I remember him talking through how to approach his response with all of us. He was asking, how about this? How about that? And he sent you a couple of drafts to edit, right?

Rebecca Lavoie: He did. And then he wrote about that whole process of thinking about it in a kind of essay for the extra credit newsletter. So I'll link to that edition of the newsletter in our show notes so that everyone can read it. And this essay, I'll just call it that, because that's what it was, an essay. It was called how should we Respond to Someone Who's Wrong?

Christina Phillips: I love that bold title.

Rebecca Lavoie: Yeah, it was an accurate title. And again, full transparency. I edited it and I approved that title because it was accurate. So anyway, I'm going to read you a couple of excerpts of what Nick wrote in that essay. Today's newsletter is not to drag someone for being wrong. It's about me telling you how I struggled with what to say in response to this listener, which I do every time I'm confronted with someone who's sharing misinformation. My first instinct was to find as many articles as I could, from as many sources as possible, and send them to the writer inner. I then put those news sources into media bias fact check to see where they stood in terms of bias as well as accuracy. So I could assure the writer in her that I was sending them a range of journalism that they could review, maybe even trust. My second instinct, and I'm not proud of this, was just to ignore the complaint altogether. So finally, Nick continues, our EP simply suggested that I respond with proof of the facts. What I didn't do, Nick writes, was what I too often do give in to temptation to become Errol Morris and write a ten page long email with a hundred links, like my dad used to send me when I was in college. I didn't get snarky, and I didn't talk about watching the insurrection happen in real time on my friend's couch.

Christina Phillips: I so like, understand deeply this instinct that Nick has. And yeah. And I can't even tell you how many Google docs I have that are just like very long responses that I've written out and them being like, I can't send that.

Rebecca Lavoie: Email, you have to.

Christina Phillips: Send this. Yeah. And then in typical Nick fashion, he included some advice from the late Carl Sagan. Right?

Rebecca Lavoie: He did. And I don't want to spoil that. I'll just say it has to do with fire breathing dragons. And again, make sure to click the link in the show notes for this episode and read Nick's essay for yourself, because it's it's pretty great.

Christina Phillips: So then what happened?

Rebecca Lavoie: Well, Nick did email the listener back, and while they weren't fully swayed by Nick's response, ultimately they did come to some sort of middle ground, and it was incredibly respectful and civil. And I think, Christina, that we should agree that in 2024, respectful and civil is kind of its own big deal in terms of these kind of conversations.

Christina Phillips: Yeah, I would agree. And I think it's something that we're so hungry for. And when we get it, it's like, yes, okay, this is what we want. Yeah.

Rebecca Lavoie: You know what happened then I.

Christina Phillips: Do, but tell me anyway.

Rebecca Lavoie: So we started to hear from other listeners, a whole bunch of them. We probably got more emails about this newsletter than any newsletter we've ever sent out. And even most podcast episodes we've put out. I want to share a couple of those responses with you because they're pretty awesome. Do you want to hear them?

Christina Phillips: Of course I do.

Rebecca Lavoie: Okay. This one was from Charles Cook. He's a retired US Army command sergeant major and was an armor soldier with 32 years of active duty. He told me he was on tanks and in tanks the entire time he was in the service, which is pretty amazing. And by the way, he wrote some amazing details about what a command sergeant major is and does, and I really encourage everyone to look that up. So Charles talked about his job in the military and then wrote, yes, I have had the opportunity to tell people that they are wrong when they were unaware of the fact it can be consuming or fun, depending on how much personality that person has.

Christina Phillips: I too enjoy telling people when they are wrong. I relate to this.

Rebecca Lavoie: You relate to it being fun?

Christina Phillips: Yeah. Sometimes. Yes. Wow.

Rebecca Lavoie: Okay, well, wait for it because Charles continues. Did you understand that it was your mission to be at location X at time Y to perform task Z? A yes or no question, Charles says the person invariably responds with an excuse that does not contain either the word yes or no. I think Charles is equating that to not containing the facts. Right? So I then restate the question. The person probably figures it out by then, but if not, I will restate the question a second time, indicating that this is the second restating of the question. If I get the excuse, i.e. the things that aren't facts, the third time I stop the person and tell them clearly that I will give them ample opportunity to describe their lack of understanding after the yes or no question receives an answer of yes or no. Sometimes Charles says, this goes on far too long. Those are the interesting ones. When a soldier answers correctly on the first time, I ask for any reasons for the lack of performance. And then seriously, it is learning time. But the ones who cannot answer a yes or no question with a yes or a no, those are the fun ones. I think what Charles is saying here is that when you're talking to somebody who either doesn't know the facts or won't state the facts, or can't admit that they aren't speaking about facts, that the inability to just say yes or no is an indicator of that. And, you know, he kind of enjoys having that conversation because it's just binary for him. Right. And so I just think that's a very interesting way of thinking about this kind of conversation. I'm not sure I would think it's as fun as he does. And you do. But anyway, it's one way to handle it. So I do think we should introduce Charles to Nick. I think they would probably have a very interesting conversation.

Christina Phillips: Yeah for sure. And you said we got a lot of emails, so can I hear another one?

Rebecca Lavoie: Yes, I'll read one more. And I love this one because this is from another amazing listener, Kim Barben. She teaches AP, US Government and Politics and honors an academic, a government and civics at Great Valley High School in Malvern, Pennsylvania. And yes, she uses our show in her classroom.

Christina Phillips: I love that.

Rebecca Lavoie: So Kim's email also included some of her experience and some practical advice for dealing with misinformation and how to argue. She wrote in AP government in my introduction unit, I do three key lessons to set the tone for the year one dissent as an American value and how to respond to dissent. Two media literacy I co-teach this with our school librarian over the course of five days. We cover misinformation and disinformation. What are the types of media biases and how to recognize them? How to check the reputation and accuracy of sources using media bias. Org which we love and all sides, as well as Wikipedia and the impact of extremism polarization due to the echo chambers and biased media. Three civil dialog constitutional conversations using materials from the National Constitution Center and Bill of Rights Institute, I teach my students to focus on constitutional questions and not political questions. The students create their own class norms for how to have discussions in the class and how to dissent respectfully. And then Kim ends with these lessons need to be taught to adults too. So, Christina, what do you think of Kim's advice? Would it work on adults?

Christina Phillips: I mean, I have to hope so. This to me, sounds like a better way to have a discussion than what I learned in school. And teachers, I feel they really make you believe that anything could be possible. They really are the best.

Rebecca Lavoie: They really are. And I think that teenagers sometimes make you feel that way too.

Christina Phillips: Oh yeah. All the time.

Rebecca Lavoie: Christina, we're going to take a quick break. And when we come back, you're going to help me clear up some of my confusion about a particular topic, something you addressed in a recent newsletter. What is up with these court cases around former President Donald Trump? That's when our extra credit episode returns, after a couple of words from our sponsors. But first, I just want to remind you that while this show does have a couple of ads in our break, they don't come close to covering the cost of the work that Nick and Hannah and Christina and our whole team does each and every day to bring you this podcast week after week. Please consider supporting the show. If you value that work, we will put a link in the show notes. If you want to make a donation to support Civics 101, either a one time gift or a monthly gift, it all matters so, so much and we are so grateful for your help. We'll be right back.

BREAK

Rebecca Lavoie: We're back. And this is a special takeover edition of Civics 101 Extra Credit Edition. I'm executive producer Rebecca LaVoy.

Christina Phillips: And I'm senior producer Christina Phillips.

Rebecca Lavoie: And now we're going to take a bit of a turn. Christina, before the break, we talked about an edition of our extra credit newsletter that our esteemed host Nick Capodice recently sent out, but you also pinned an extra credit. Last week, as a follow-up to the episode, we dropped on pardons and I thought, yeah, so we need to talk more about that. So again, Christina, why are we here? 

Christina Phillips: Well we're here because there's so much noise around these cases involving former President Donald Trump that I know I'm starting to lose track of how we ended up here in the first place. And with every new update, it feels like, wait, which one is this again? Why should I care?

Rebecca Lavoie: Yeah, I think at this point, you know, with all these like, news alerts coming in on our phones and headlines going across the TV screens, many people feel this case fatigue or this case confusion around this. And this is a really, really good question.

Christina Phillips: And when I was working on this episode on presidential pardons, the big question for that episode and many episodes that we've done recently, has been, what can a president do with their power and what should they do and who holds them accountable? I think specifically for that episode, it was can a president pardon themselves? Like, do they have the power? Should they use that power? It feels like it's sort of underlining everything that we've talked about recently on the show. Yeah.

Rebecca Lavoie: And after your pardons episode dropped, we got some emails from listeners who were just like, I don't understand why how why what? Yeah, yeah. And it just it's a question that everybody seems to have, like it seems like it should be a simple answer, but it's not necessarily a simple answer. So yeah, it's certainly something that's on everyone's minds.

Christina Phillips: Yeah. So here's what I want to try to do. I want to go through the legal cases that have to do specifically with presidential power and privilege. I want to remind us what laws Trump is accused of violating while in office and where these cases are now. And we're not talking about the defamation, fraud or hush money cases in New York, because those don't directly deal with Trump's time as president. And there's enough there. I think already with the three cases I do want to talk about, and I should say we're taping this on Friday, February 16th. So things may have changed by the time this comes out. I'm taking a line from the NPR politics podcast.

Rebecca Lavoie: That's right. Maybe we should say we're taping this on Friday, February 16th at 3:06 p.m.. Yes.

Christina Phillips: And things may have changed since then.

Rebecca Lavoie: Okay. So we are talking about cases again that could intersect with future pardons or Donald Trump pardoning himself. That's why we've picked these ones, right? Yeah.

Christina Phillips: Or they could have to do with Trump and the election. And if Trump is reelected, it's all about this presidential powers thing and him as president potentially.

Rebecca Lavoie: So can you give me the elevator pitch kind of a summary for, for lack of a better word, dummies for each one of these cases?

Christina Phillips: Yeah. I'm approaching this with the friends episode naming scheme.

Friends clip: Hey, how are you doing?

Christina Phillips: We've got the one with the fake electors. The one with the phone call where Trump asks the Georgia Secretary of State to, quote, find 11,780 votes and the one with the classified documents allegedly stored in a bathroom. All right.

Rebecca Lavoie: Let's start with the one with the fake electors.

Christina Phillips: Okay. This is United States versus Donald J. Trump, aka the election interference case. There is another election interference case, the one in Georgia, which we'll talk about in a minute. This one is specifically centered on that time between November 2020, the election, and January 6th, 2021.

Rebecca Lavoie: What are the charges in this case?

Christina Phillips: So there are four charges conspiracy to defraud the United States, conspiracy to obstruct an official government proceeding, conspiracy to deprive people of civil rights, and attempting to obstruct an official proceeding. That would be the certification of the election results in Congress that was interrupted by the January 6th riots. So, in other words, Trump is charged with allegedly pressuring state election officials to change their electoral votes, creating a scheme of fake electors in several states, spreading election conspiracy theories and pressuring his vice president to delay the certification of the election. And this is all against the warnings and advice of his own staff and the Justice Department. There were people who were telling him, you shouldn't do this. This doesn't make sense throughout the whole thing, and that is a really important part of the case.

Rebecca Lavoie: So this is the case that's most closely related to January 6th. Those proceedings were the certification of the electoral votes in Congress on January 6th. And so this is what people think of as like the big one.

Christina Phillips: Yeah. And what stands out to me about this case is that there's a limited window between Election Day and the inauguration, where an outgoing president is supposed to be wrapping things up, preparing for the new administration, etc.. And the indictment lays out pages and pages. Ages of alleged behavior, including phone calls, meetings, emails that are devoted exclusively to the outcome of the election. I can't guess how much time Trump would spend planning for the peaceful transition of power, or on his other remaining duties as president, but this indictment paints a picture of the amount of resources he allegedly used in disputing or altering election results.

Rebecca Lavoie: So what are the potential consequences of all of this?

Christina Phillips: Prison time is on the table, potentially. But also, if Trump becomes a convicted felon, he could be restricted from voting, but he could still run for and be elected president.

Rebecca Lavoie: Where does this case stand now as of this taping?

Christina Phillips: Well, the trial hasn't started yet because Trump has filed a motion to dismiss the case on the grounds that he had presidential immunity during this time. And therefore, even if he did all of this stuff, he could because he was president.

Rebecca Lavoie: So that's the case, that immunity issue that's in front of the Supreme Court right now, right?

Christina Phillips: Yeah. So Trump filed a motion to dismiss this case on those presidential immunity grounds, basically saying this shouldn't even happen. Let's throw it out. The judge said no. He appealed. The higher court said no. He appealed to the Supreme Court. And what he did is he asked them to delay the trial while this appeals process is continuing. And so now we're waiting to see if the Supreme Court will take up this question of presidential immunity, or if they're going to let the decision in the lower court stand. And then if the grounds of presidential immunity are dismissed, he could go to trial. As of right now, the judge in that case canceled the original March 4th start date and has not rescheduled it. So it's essentially on pause.

Rebecca Lavoie: So what's.next?

Christina Phillips: Okay, so next we've got the one where Trump allegedly asked the Georgia secretary of state to, quote, find 11,780 votes.

Rebecca Lavoie: All right. This one I know a little bit about this is a state case rather than a federal case.

Christina Phillips: Yes. And Trump is charged in Fulton County, Georgia, with racketeering under the Rico act. Shout out to our episode on that right with 18 other people for conspiracy to steal the 2020 election. And this is a sprawling case. There's a lot of allegations in here against many different people, including attempts to gain access to secure voting equipment, threatening and coercing state election officials, soliciting election officials to violate their oaths, and impersonating a public officer. And Trump is accused in both overseeing and participating in these alleged schemes. And this case also includes those allegations of fake electors that we saw in the federal case. But I sort of see this as the bigger, more sweeping and comprehensive version of that case.

Rebecca Lavoie: Right. So while I say that people view the other case as the big one, this is the one that I think pundits and people who've really been watching things actually have been saying is the one to watch, the one with potentially the most consequences for the most people.

Christina Phillips: Yeah, the federal case feels like it's it's very specific and targeted towards federal violations. And this one has so much in it.

Rebecca Lavoie: All right. So where does this one stand right now.

Christina Phillips: Well this one is delayed. And if you've been watching the.news. For the past couple of. days, it's because Trump's legal team accused the Fulton County District attorney, Fani Willis, who is leading the prosecution, of having an improper relationship with a special prosecutor who worked on the case. So there have been hearings over the last few days, and a judge could decide to potentially remove her and her office from this case if the judge agrees, which would mean that Fulton County and the state of Georgia would need to appoint another prosecutorial team if they even want to move this thing forward.

Rebecca Lavoie: Yeah, this case was very much born in Fani Willis's office, and I have been watching coverage of those hearings, and it's really been something to see. So if Willis is removed from this case, is it possible this case could just end up going away?

Christina Phillips: Yeah for sure. I mean, the state of Georgia could appoint this new prosecutorial team. They could also decide not to. And that team, even if a new team is put in place, could totally change the course of the the charges, how they investigate. And so I do think it's interesting. This is kind of a pattern with Trump's team throughout many of these cases, including the ones we haven't talked about before, things even go to trial. There have been a number of appeals and motions filed by Trump's team to delay or dismiss, on the grounds that the investigation or the charges have no merit, or there's some problem with the prosecution. And that's sort of similar to what we're seeing with the presidential immunity case we just talked about.

Rebecca Lavoie: Okay, so tell me about the one with the classified documents. Those documents in the bathroom that we've seen those photos of?

Christina Phillips: Yeah. Okay, so this is a federal case charging Trump with 40 criminal counts, including conspiracy to obstruct justice, corruptly concealing a document or record, and concealing a document in a federal investigation, among other things. And all this is related to classified documents and sensitive national security information belonging to the government that Trump allegedly took from the white House to his home at Mar a Lago, where he allegedly stored them in hallways, in the bathroom, on an empty stage. And then the.

Rebecca Lavoie: National Archives tried to get them back, and he allegedly hid some of them and didn't tell the truth about having them, and asked staffers to move them around and lie about having them and all of that. Right?

Christina Phillips: Yeah. And at one point, he also claimed that he had the power to declassify them in his head with his mind. But even so, it remains that even if he had declassified these documents, they still are the property of the United States. They are not his private property. So he, as an individual, a private citizen, could not take them from the office when he left. And many presidents have had classified information turn up in their private homes after they leave office. When they dig into their old file cabinets, they're talking to biographers or ghostwriters. But the allegations here are that Trump went to enormous efforts to hide those documents, to lie, and to stop the federal government from getting them back.

Rebecca Lavoie: I do think that people don't understand that, like even your, you know, your notes from phone calls belong to the American people. When you're the president of the United States, your phone messages do your anything you write down, anything you type, your emails, your. It's really incredible. So what is the potential punishment for this one?

Christina Phillips: Well, some of the charges fall under the Espionage Act and are punishable with prison time. He could still run for president if he's elected. He could potentially try to pardon himself. I think the location is a little confusing. So I do want to clarify that that's a federal case. But the trial would happen in the federal district in Florida, where Mar-A-Lago is located, because that's where the alleged crimes happen.

Rebecca Lavoie: All right. So I have to ask you a question, because I know that some listeners will be wondering it. And it's also been in the news. What about President Joe Biden and his connection to classified documents after he left his office, serving under Obama as vice president? Yeah.

Christina Phillips: So Biden was accused of mishandling classified documents during his vice presidency. There was an investigation, and there was a report released earlier this week from the Justice Department, and that was written by special counsel Robert Hur. And ultimately, he said that there wasn't enough evidence to warrant criminal charges. But it did say some things about Biden's mental capacities and age, and that's been getting a lot of news. It sure.

Rebecca Lavoie: Has. But, you know, these cases aren't exactly the same. 

Christina Phillips: Yeah And, um, Robert Hur actually spoke directly to this. I think the big difference here is the obstruction of justice thing. When he was contrasting the two cases, Herr said that Trump, quote, not only refused to return the documents for many months, but he also obstructed justice by enlisting others to destroy evidence and then lie about it. And then Herr says that Biden, quote, turned in classified documents and that he, quote, cooperated with the investigation.

Rebecca Lavoie: All right. So where does this documents case stand?

Christina Phillips: Well, originally it was scheduled to start May of 2024, but the judge in charge, Judge Cannon, recently set a hearing for March 1st to see if it should be pushed out. So it hasn't started yet. It might start in the spring, but it might also get delayed.

Rebecca Lavoie: I see a pattern here, so all three of these cases have not reached the trial stage yet, right?

Christina Phillips: We are still in the pretrial stage, and if Trump is reelected in the fall, there is the possibility that he will try to pardon himself in the two federal cases if he were already convicted. But if the cases are still ongoing, which is probably more likely, and he was elected, he could just have a newly appointed attorney general withdraw the charges and end the cases right then and there. And so I think this is where I kind of want to get on a soapbox for a minute, if you don't mind.

Rebecca Lavoie: Oh, absolutely. Christina, I mean, that's why we're here.

Christina Phillips: Okay. So these cases and the other ones we didn't even talk about have sucked up a lot of oxygen right now, which, as someone who has been watching the hearings and reading the legal documents, I am one of those heavy consumers of this news. And I feel a little torn because it's fascinating. The stakes are high, but we're talking about what a president does in office, and this could have repercussions in the short and the long term for what that office is, what the role of the president is. But it's so abstract when it comes to, like you and me, our lives, what we expect our government to do to serve us. So I would like to encourage people to be a little selfish right now when you're thinking about the election, when you're thinking about voting, I think that we should think more about what we. Need from our president. And if you're not sure, think about what you need from those elected officials that are closer to you, both physically and logistically. What government policies directly affect you and who is responsible for them? What can you do as a voter, as a participant in our democracy, to make the government work for you? I don't want that to get lost in all this coverage with these trials, which oftentimes you read the coverage and you need to read for a few paragraphs before you even sort of understand, you know, what are we doing here? Again, what is the point of this case? So so that's sort of my message to people.

Rebecca Lavoie: Are you saying, Christina, that we can also search for accountability much closer to home when it comes to our democracy?

Christina Phillips: Yes, that is exactly what I'm saying.

Rebecca Lavoie: This episode of Civics 101 was produced by me, Rebecca Lavoie, and senior producer Christina Phillips, and a special nod to host Nick Capodice and Hannah McCarthy for the incredible work they do on this show every week. You might not know this fair listener, but Nick and Hannah. They're not just hosts. They are interviewers, script writers, sound designers, editors, audio mixers. They literally do it all, and they so deserve the vacation that they took. And we are so glad that we had the opportunity to take over because they got some rest.

Christina Phillips: Yes, I'm so happy that they took a vacation.

Rebecca Lavoie: Music in this episode includes tracks by Blue Dot sessions, Chris Zabriskie, Ketsa, and Shaolin Dub. Civics 101 is a production of NHPR - New Hampshire Public Radio.

What are Presidential Pardons?

The president has the power to release someone from prison, restore their voting rights, or stop a federal criminal investigation with little more than the wave of a hand. How did the president get this power, and are there any limitations? What would it mean for a president to pardon themselves? 

Brian Kalt, constitutional law professor at Michigan State University, helps answer these questions.

---

Nick Capodice: [00:00:02] So Hannah. We always like to end our episodes with kind of a so what? You know, like an idea to chew on based on everything we've learned over the course of the episode. And I'd like to do things a little differently this time. I want to start this episode with a big existential thought.

Hannah McCarthy: [00:00:25] Any particular reason?

Nick Capodice: [00:00:27] Well, uh, we're talking about presidential pardons this week. What they are, how they work, and whether a president can pardon themselves because as of right now, Donald Trump, who has 44 federal felony charges against him between two federal cases, is running for reelection. So pardons aren't just a legal question. They are a campaign issue. Would I vote for a candidate who, if elected, could potentially shut down a criminal investigation of himself or any of his friends who could use his presidency to supersede his own Justice Department?

Hannah McCarthy: [00:01:05] Or they might not really be wondering that at all, because selecting a candidate at the polls these days is a nuanced thing. But, I mean, I personally am on the edge of my seat in this era of testing the system. So go on.

Nick Capodice: [00:01:21] Okay, so yes, this is a topic that is extremely relevant to one particular presidential candidate right now at a very divisive time in our history. But, Hannah, I'd argue we would be doing our listeners a disservice if we limited our conversation to just that one person, because it has consequences well beyond one party or one election.

Brian Kalt: [00:01:44] I think it's important to distinguish between what presidents can do and what presidents should do. It's the same constitution, whether you like the president or not. The president's powers are supposed to be the same.

Nick Capodice: [00:01:58] This is Brian Kalt, constitutional law professor at Michigan State University College of Law. He studies the presidency and has written numerous legal papers on pardons and impeachment.

Brian Kalt: [00:02:07] If you really think that the president can do this, would you be okay with a president you don't like doing this? Would you still think that the president can do this? And if you think that the president can't do this because you don't like the president, well, what if it was a president you did like?

Nick Capodice: [00:02:26] So with that, this is Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:02:30] I'm Hannah McCarthy.

Nick Capodice: [00:02:31] Today we are talking about the power a president has to reduce or even eliminate punishment for federal crimes.

Archival - Trump: [00:02:38] I said the last thing I'd ever do is give myself a pardon. I could have given myself a pardon. Don't ask me about what I would do. I could have the last day I could have.

Hannah McCarthy: [00:02:47] Does the Constitution mention pardons? Specifically?

Brian Kalt: [00:02:52] The president, in Article 2 of the Constitution, is given the power to grant pardons and reprieves for offenses against the United States. So basically what that means is if someone is facing or might face some sort of consequences under federal criminal law, the president can make those go away.

Hannah McCarthy: [00:03:13] What does Brian mean when he says that the president could make consequences go away?

Nick Capodice: [00:03:19] Well, there's a terme for this: clemency, which means leniency, basically reducing or eliminating the legal consequences of a crime. Now, if the president grants a full pardon, they wipe away all legal punishment for a federal crime, like prison time, fines, or restrictions on civil rights. A president could also reduce the punishment, you know, allow someone convicted of a felony the right to vote, shorten the length of their prison sentence, things like that. And I should add, pardons cannot be granted for civil liability.

Hannah McCarthy: [00:03:53] Civil liability? Like if someone sued for damages.

Nick Capodice: [00:03:56] Yeah, exactly.

Hannah McCarthy: [00:03:58] Is accepting a pardon admitting guilt?

Nick Capodice: [00:04:01] Brian says that this is a common misconception.

Brian Kalt: [00:04:07] The classic version of a pardon is that it is forgiving something, taking something that someone has done and saying, well, you know, you don't deserve all that much punishment for it. Let's reduce or eliminate that. But it can also be used and has also been used not to declare people guilty of things, but worthy of forgiveness, but instead to exonerate them and to say that they never should have been convicted in the first place. There's a common notion that a pardon is a declaration of guilt, that accepting a pardon is an admission of guilt 99% of the time. Pardons are for forgiving guilty people, but there is that other 1%, and there is no automatic legal requirement that when you pardon someone, you're declaring them guilty, or when you accept a pardon that you're admitting that you're guilty.

Hannah McCarthy: [00:04:58] All right. Can the president pardon anyone at all for any kind of crime?

Nick Capodice: [00:05:03] Uh, we'll get to the anyone part in just a bit, because that has been an open question for many, many years. But in terms of the types of crimes, no, there are definitely restrictions. First, the president can only pardon someone for a federal crime, not charges or convictions in state or county courts. So you'll note that earlier when we referenced the two federal cases against Donald Trump, we did not mention his other criminal cases in New York and Georgia because those are state crimes. Now, it varies from state to state, but usually pardons for state crimes can only be made by the governor of a state or a pardoning board. And the second thing.

Brian Kalt: [00:05:44] Second, they're only for crimes. So that excludes civil liability. But it also excludes impeachment. And the Constitution makes this clear. It says, except in cases of impeachment. And that that doesn't mean that, as some people took it during the Trump impeachment, that if you're being impeached for something, then you can't be pardoned for the underlying criminal charges. It just means that the impeachment process is separate from the criminal process, and pardons only apply to the criminal process. So president can't stop or undo the impeachment process.

Hannah McCarthy: [00:06:21] Okay, I've been assuming that a pardon is something that only happens after a conviction, but Brian just said that a pardon cannot stop an impeachment. So just wondering, could a pardon stop a criminal trial before it has finished?

Nick Capodice: [00:06:40] Oh, it certainly could. And it could do more than that.

Brian Kalt: [00:06:43] The president doesn't need to wait until someone has been convicted to issue a pardon. He doesn't even have to wait until they've been charged. Most famously, President Ford pardoned President Nixon for anything he might have done while he was in office. And Nixon hadn't been charged with anything, let alone convicted.

Archival - Ford: [00:07:03] Have granted, and by these presents do grant a full, free and absolute pardon onto Richard Nixon for all offenses against the United States, which he, Richard Nixon, has committed or may have committed or taken part in during the period from July 20th, 1969 through August 9th. 1970.

Hannah McCarthy: [00:07:37] So in that instance, President Nixon was going to be impeached. He then resigned when it was made apparent that the Senate had the votes to potentially remove him. But the Justice Department could still have charged him with federal crimes. And then President Ford came in and granted Nixon a pardon for any crimes he may or may not have committed during the Watergate scandal.

Nick Capodice: [00:08:01] Yeah, and that ended any momentum for a Justice Department investigation. But even though this pardon ended any future convictions, it was for crimes that had theoretically already been committed. A president cannot pardon someone for something that they haven't done yet, like a crime that someone might commit tomorrow or next year.

Brian Kalt: [00:08:23] A pardon has to be for something that you've already done. You can't pardon someone in advance that's not specified in the Constitution, but it's sort of inherent in the definition of what a pardon is. That wouldn't be a pardon. It would be a suspension of the law right in advance.

Hannah McCarthy: [00:08:41] Right. Makes sense. You can't pardon someone for something they haven't done yet. Just like you can't convict someone for something they haven't done yet because we don't live in the Minority Report universe. Listen to our episode on the algorithm for more on that. But what does that have to do with whether or not a president can pardon themselves?

Nick Capodice: [00:09:00] Well, think about other circumstances where you can't hold yourself legally accountable.

Brian Kalt: [00:09:06] You can't be, uh, the judge in your own case. You can't be on your own jury. You can't be your own prosecutor.

Nick Capodice: [00:09:12] So following that logic, people have made the argument that a president cannot be their own partner.

Hannah McCarthy: [00:09:20] Yeah, okay, I get that.

Brian Kalt: [00:09:21] But even looking at the Constitution itself, looking at the text of it, you could say it's inherent in the definition of a pardon, that it's a bilateral thing. It's something you give to someone else. You can't pardon yourself. It doesn't make sense. Uh, you know, just to take a silly example, right? You, uh, burp. Uh, there's no one else around. You say. Pardon me, you don't pardon yourself for lack of anyone else to do it. Uh, you're asking someone else to do it. That's what a pardon is. You can't condone your own actions. It doesn't make sense. So the argument would go. You can't pardon yourself. It doesn't make sense.

Nick Capodice: [00:09:55] But on the other hand, there is what's not written in the Constitution.

Brian Kalt: [00:10:02] The argument that he can pardon himself is that, well, it doesn't say that he can't.

Hannah McCarthy: [00:10:07] So the Constitution does say that a president cannot use a pardon for an impeachment and can only pardon for federal crimes.

Nick Capodice: [00:10:16] Yeah, it actually says this. I'll read the quote. He shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment, end quote. And this is where the line is. There is not a clear restriction that says a president cannot pardon themselves. But if we look at this specific power as a matter of justice, based on what every other person can't do when they're charged with a crime, like be their own judge and jury, a self pardon just doesn't make a ton of sense. However, I will add, the president can do things in office that nobody else in the country can when it comes to policy.

Brian Kalt: [00:10:55] There's a long standing debate about whether a pardon is just an act of mercy, or whether it's a policy decision, because if it's an act of mercy, uh, then that has very different implications for, um, things. Well, things like self pardons, uh, if you want mercy, you need to get it from someone else. Uh, if it's a policy decision. Okay. Well, maybe the president can do that because it's like so many other things. It's up to him. He makes policy decisions. This is one of them.

Nick Capodice: [00:11:27] By the way, Brian wrote a whole paper about this all the way back in the 1990s.

Hannah McCarthy: [00:11:32] So he was thinking about this long before Donald Trump became President Trump.

Nick Capodice: [00:11:37] Way before.

Brian Kalt: [00:11:39] I was in my criminal procedure class, and we were talking about presidential pardons, which are not a big part of criminal procedure at all. I would venture to guess that my professor was unusual for even talking about them at all. Other stuff that I wrote about around the same time was, can you impeach someone after they've left office? Right. I wrote about that. That ended up happening. Can you prosecute a sitting president? And, you know, it's just sort of testing the margins. And I think what's interesting to me about these things is not just the thing itself, like, oh, if a president pardoned himself, that would be kind of interesting. Well, yeah, it would be. But by examining this, it forces us to come up with a deeper understanding of what the whole pardon power is all about.

Hannah McCarthy: [00:12:21] All right. Pause. So Brian was testing the margins in the 90s, as he says, but those margins are now very much becoming a reality. I'm just curious. Let's just get to the fundamental question here. How did this all come to be, this presidential pardon thing? Why does it exist? And honestly, Nick, will understanding that get us any closer to figuring out what it means if a president chooses to absolve themselves of criminal responsibility?

Nick Capodice: [00:12:51] Well, I'll tell you about that right after this quick break.

Hannah McCarthy: [00:12:57] But before the break, just a reminder that we are public radio. Public radio is sustained by and the property of the public. That's you. What keeps us going is contributions from our listeners. If you believe in us, if you like what we do, if you want us to keep the lights on, consider making a contribution at Civics101podcast.org. It's quick, it's easy, and there is civics swag to be had. All right, that's it.

Nick Capodice: [00:13:27] We're back. And, Hannah, you just asked me why we have a presidential pardon in the first place.  All right, here is Brian Kalt again.

Brian Kalt: [00:13:36] There's two questions there. One is why give anyone that power? And then if we're giving anyone that power, why the president. So the idea of giving someone that power is based on the idea that the criminal justice system doesn't always get it right. If we're going to administer it effectively, efficiently, we need to have some clear, easy to apply rules. The problem with clear, easy to apply rules is they don't give you that nuance. They over punish people. And so we need a safety valve. We need to temper the efficiency of the system with some sort of case by case sensitivity to justice.

Hannah McCarthy: [00:14:15] And to do that we give that ability to the most powerful person in the country...

Brian Kalt: [00:14:21] Why give it to the president? Well, um, the president is politically accountable. He's the only nationally politically accountable official there is, and he's one person. So one thing that they talked about during the ratification process was, what if there is a big rebellion, and the way to shut down the rebellion is to say, look, we know that you're unhappy about these things, but we want you to put down your arms. If you do, we'll pardon you. So it gives the president the ability to use that as a as a negotiating tool. They thought about shutting down rebellions as an important thing. And in fact, the very first pardons issued were by George Washington pardoning the participants in the Whiskey Rebellion.

Hannah McCarthy: [00:15:11] Oh, I know the Whiskey Rebellion. This was a massive, violent protest in the 1790s where a bunch of distillers refused to pay a new tax on alcohol and in one instance, attacked the home of a tax inspector. Yeah.

Nick Capodice: [00:15:24] And President Washington was praised for how he handled it without causing too much bloodshed. So he called in the federal troops to quell the rebellion. But then he also ended up giving a blanket pardon to a bunch of the people involved. And after the two leaders were convicted of treason, he pardoned them, too.

Hannah McCarthy: [00:15:43] So the president can use their pardoning power as leverage. And in the case of George Washington, it was for the sake of protecting this, you know, brand new democracy the framers had created.

Nick Capodice: [00:15:54] Theoretically. Yeah. That's like a really nice, clear, simple example that you might find in your history textbook. Rebellion threatens our country. Stop the rebellion and minimize the repercussions of that rebellion. But the vast majority of pardons throughout presidential history have not been as consequential.

Brian Kalt: [00:16:13] The pardon power for most of the history of the presidency was not overly controversial. Uh, not used all that much. It was run of the mill, you know, people just approaching the president saying, well, I'd love to have a pardon. He's the one who can do it. Uh, at a certain point, it became annoying for presidents to have all these people coming in and asking for them. So they farmed it out to the Department of Justice, which now has the office of the Pardon Attorney.

Nick Capodice: [00:16:41] Real quick, the Pardon Attorney is an office in the Justice Department that basically reads through all the pardon requests and makes recommendations for the president, but the president is the only one who can make the final decisions and do the actual pardoning.

Brian Kalt: [00:16:56] And so most pardons, 99% of the time, it's someone that no one's ever heard of. They go through the office of the pardon attorney. They have a set of criteria that are pretty strict. It's for people who have already served their sentence. They show remorse. They're deserving in some way. That is 99%. But the ones that get 99% of the publicity are the ones that don't go through that process, because that's just for the president's convenience. He can still pardon whoever he wants, and he doesn't have to follow those criteria, those limitations. So some of the more important ones were after the Civil War, there was a lot of clemency granted to former Confederates. We had the Vietnam era draft evader, amnesty presidents Ford and Carter did a lot with that.

Archival - Ford: [00:17:47] I announced my intention to give these young people a chance to earn their return to the mainstream of American society so that they can, if they choose, contribute, even though belatedly.

Brian Kalt: [00:18:02] More recently, we've had the controversial ones with George H.W. Bush pardoning the Iran-Contra defendants. We had Bill Clinton pardoning Marc Rich, his own brother.

Archival Congressional Hearing: [00:18:14] A few weeks ago, on his last day in office, President Clinton pardoned 140 people. Some of these pardons were probably meritorious. Others.

Nick Capodice: [00:18:25] We think we're not. President Obama granted clemency to over 1900 people, which was more than triple his predecessors, going all the way back to the 1980s.

Brian Kalt: [00:18:36] He did use it pretty aggressively to reduce the sentences for people convicted of drug crimes, for which, going forward, we had said, oh, these sentences are too high, let's reduce them. And so he sort of went back and did that retroactively.

Archival - Obama: [00:18:50] But I believe that at its heart, America is a nation of second chances, and I believe these folks deserve their second chance.

Nick Capodice: [00:19:02] And then there is Donald Trump. He granted clemency 237 times while in office. And he went about it a bit differently.

Brian Kalt: [00:19:10] There's a long tradition of questionable cronyism and the pardon process, but President Trump definitely used his power to go outside the office of the pardon attorney process to just sort of grant it at his own whim.

Archival - News Coverage: [00:19:28] President Trump is hardly the first to make a controversial pardon, but the number of high profile names who have ties to the president's inner circle, and who have made some pretty big donations to his campaign, is raising eyebrows here this morning.

Nick Capodice: [00:19:40] The president doesn't need to consult the pardon attorney, but most people who apply for pardons submit an application through that office. Trump was unique because he often pardoned people who appealed directly to him, and the majority of those people were his friends and political allies, including some folks who were convicted of crimes that had to do directly with their work for him.

Archival - News Coverage: [00:20:02] Let's tick through these Paul Manafort and Roger Stone, they were indicted by special counsel Robert Mueller, went to trial, convicted by juries of multiple crimes. Investigators say Manafort broke the cooperation agreement by lying to them. Roger Stone never cooperated after lying to Congress to protect the president and has never shown remorse. So now both men are being rewarded by the president for their loyalty.

Brian Kalt: [00:20:26] The president I think in a way, the president is not supposed to be like a king under our system, but the pardon power is the lowest kingly of the president's powers. Kings had the power to pardon. Presidents are limited in other ways, but when they're exercising the pardon power, it's really the most monarchical. So think about all the things that presidents try to do. They want legislation passed. Well, Congress has to pass it. They can only sign off on that. They can propose things, but they can't pass it on their own. They can nominate people to office, but the Senate has to sign off on that. They can negotiate treaties. The Senate has to sign off on that, too. Even things that they can do through purely executive action, they require members of the executive branch to implement those for them. So you can declare that you're going to build a wall using your just executive authority, but you can't just snap your fingers and make that happen. The pardon power is an exception to that. The pardon power doesn't go through. Congress doesn't require Senate confirmation. There's no judicial review, really. So someone's not going to be able to sue the president, say, oh, well, you you shouldn't have granted this pardon. No, he he gets the last word. Basically he does just snap his fingers and then that person walks out of prison.

Hannah McCarthy: [00:21:53] Don't a lot of these pardons happen right before a president leaves office?

Nick Capodice: [00:21:57] They do. Indeed. Some of the most controversial pardons in history came during the lame duck period, which is that sort of awkward period of time after a successor has been chosen. But the president hasn't left office yet. For example, when George H.W. Bush pardoned the Reagan administration officials who were charged in the Iran-Contra affair, and when Bill Clinton pardoned heiress turned bank robber Patty Hearst, and then when Bill Clinton pardoned his own brother, Roger Clinton, for drug charges, he'd already served a sentence for a decade earlier.

Hannah McCarthy: [00:22:28] And they're doing this during the lame duck period, basically because they're not worried about reelection.

Nick Capodice: [00:22:33] Yeah. Which is interesting because elections are a check on the pardoning power. But when a president is set to leave office, that check doesn't really exist.

Brian Kalt: [00:22:43] So the voters are the ones who, at the end of the day, are holding the president accountable, even if the president himself is not up for reelection, there's the possibility of punishing his chosen successor or his party president. Ford, when he pardoned President Nixon, probably lost the election in 1976 because of it. And that's the way it's supposed to be. That's the voters holding the president accountable. They didn't think he should have pardoned Nixon, so they threw him out of office.

Archival - Ford: [00:23:16] Finally, I feel that Richard Nixon and his loved ones have suffered enough and will continue to suffer no matter what I do, no matter what we, as a great and good nation can do together to make his goal of peace come true.

Hannah McCarthy: [00:23:41] Are there other layers of accountability like impeachment?

Nick Capodice: [00:23:45] Yeah, and a president cannot pardon an impeachment. However.

Brian Kalt: [00:23:51] The main check on it impeachment as we've seen, isn't really realistic. It's hard to get 67 votes when we're in a political situation where the parties are so polarized and they don't agree on anything, and anything that unites, one party is going to unite the other party on the other side.

Nick Capodice: [00:24:11] Of course, there is also the option of a constitutional amendment which, given that it requires two thirds of either Congress or the states to even propose an amendment and then ratification by three quarters of the states is pretty darn unlikely.

Hannah McCarthy: [00:24:24] What about the courts? Could the Supreme Court rule that a pardon is a violation of the Constitution?

Nick Capodice: [00:24:30] Honestly, there isn't any real precedent for that. The Supreme Court has also said that someone pardoned for a federal crime could also be charged in state court, and that a person has the right to refuse a pardon. But so far, Scotus has not commented on whether a president can pardon themselves.

Hannah McCarthy: [00:24:49] Does that mean that we're just back to the voters.

Brian Kalt: [00:24:52] In an odd sort of way, President Trump campaigning on the idea that he will pardon the January 6th convicts and defendants, that he would pardon himself if he wins the election. That is basically the voters saying, yeah, you know, we're okay with that. So you can argue about the wisdom or the legitimacy or the deservingness of these folks. For parties, you can say maybe doesn't have the power to pardon himself, but he definitely could pardon all those other people. And if the voters approve it, that is legitimizing it in a way that pardons on your last day on your way out of office aren't. So it's it's kind of in a weird way more appropriate.

Hannah McCarthy: [00:25:39] It seems like Brian is kind of saying that when it comes to pardoning power, it really is up to voters to decide whether they think a president has the right to pardon someone. It's a political question rather than a legal one, at least as of right now.

Nick Capodice: [00:25:59] Yeah. And Brian is a constitutional scholar. He deals in legal interpretation. And he made a point to separate the legal interpretation from the political one, even when it comes to his own opinions.

Brian Kalt: [00:26:13] So thinking about presidents pardoning criminals who were convicted of basically supporting them too aggressively as a policy matter, I have a problem with that. I don't personally support pardoning duly convicted January 6th defendants, but I don't deny that the president has the power to do that. I wouldn't say that the pardons are invalid. I would say that it's a political question and people should respond politically to that.

Nick Capodice: [00:26:47] And on that note, I do want to take a second to talk about precedent. Whatever future presidents decide to do with their pardoning power will inform what subsequent future presidents do. Which brings us back to the first thing Brian said at the beginning of the show. Do you think the president should be able to pardon themselves, if you like that precedent? And is the answer the same if you don't?

Hannah McCarthy: [00:27:26] This episode was produced by Christina Phillips with help from me, Hannah McCarthy. Nick Capodice is my co-host and Rebecca Lavoie is our executive producer. Music in this episode by Chris Zabriskie. El Flaco Collective Ooh-ah. Ceza, Danial. Fadel, Matt large, rambutan, Zoro, Spring Gang, Volante, Mind Me, Hara, Noda and Apollo. You can get more at Civics 101. Yes it's true, we've got a website civics101podcast.org. And there you can find all of the rest of our episodes, transcripts, links to stuff, a means to contact us, and the place to sign up for our truly delightful newsletter. That's Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

How Should We Govern the Algorithm?

Machine learning is being used in police precincts, schools, courts and elsewhere across the country to help us make decisions. Using data about us, algorithms can do almost instantly what it would take human beings both time and money to do.  Cheaper, faster, more efficient and potentially more accurate -- but should we be doing it? How should we be using it? And what about our privacy and our rights?

Aziz Huq,  Frank and Bernice J. Greenberg Professor of Law at the University of Chicago Law School, is our guide to the new world order.

---

Transcript

Hannah McCarthy: [00:00:02] Civics 101. It's Hannah here.

Nick Capodice: [00:00:04] It's Nick here.

Hannah McCarthy: [00:00:05] And for now at least, you are listening to our actual human voices and not the machine that learned how to sound like us. For now.

Nick Capodice: [00:00:15] Hannah, that's too scary.

Hannah McCarthy: [00:00:18] Nick. We are one predictive algorithm from being out of a job, my friend.

Nick Capodice: [00:00:23] Well, I'd like to see a machine engage in the kind of chaos I'm capable of. Mccarthy. You think a machine could [00:00:30] sing the score of The Music Man in a Scottish accent?

Hannah McCarthy: [00:00:34] You might just see the day.

Nick Capodice: [00:00:36] Oh, my friends, how can any pool table ever hope to compete with a gold trombone?

Hannah McCarthy: [00:00:40] All right, so today we are asking what the machines are up to and why that matters in America.

[00:00:48]

News Archival: [00:00:52] Artificial intelligence is now everywhere from schools to work. But now the highest court in the land is suggesting it could play a role [00:01:00] even in our criminal justice system.

News Archival: [00:01:01] Board of Police Commissioners is weighing in on the controversial facial recognition software at the center of a recent lawsuit.

News Archival: [00:01:07] A number of software programs used in hospitals across the country are powered by algorithms with racial biases.

News Archival: [00:01:14] England, Wales and Northern Ireland have all announced that A level and GCSE results will now be based on teacher assessments, rather than grades generated by computer modeling.

News Archival: [00:01:24] Employers are then using AI software to analyze candidates facial expressions in their. In their recorded [00:01:30] answers. A candidate who looks off up into the distance might have a propensity to lie, or somebody who smiles a lot during an interview might be somebody who'd be good in a customer facing.

[00:01:40] Role and computer.

Aziz Huq: [00:01:49] My interest in AI was sparked by my work as a lawyer pro bono for the ACLU of Illinois.

Hannah McCarthy: [00:01:58] This is a Zies Hucke professor [00:02:00] of law at the University of Chicago School of Law. We have had him on the show before. He knows a lot. Aziz was working on a case about stop and frisk in Chicago, and.

Nick Capodice: [00:02:12] It's a turn most people know, I think. But just in case, stop and frisk is when a cop stops you for questioning and pats you down. It's super controversial for a lot of reasons.

Hannah McCarthy: [00:02:22] Primarily because it tends to disproportionately target Black and Latino people. And in Chicago, the city was using a machine learning [00:02:30] tool, which, by the way, is a distinction that Aziz makes. It's basically a subset of AI. And this tool was a strategic subjects list that a computer came up with based on data about welfare and criminal behavior. The list essentially predicted who should be stopped.

Aziz Huq: [00:02:49] And digging into that tool, what roughly can be called AI. And it's important to note that that terms [00:03:00] pretty vague and different people mean different things by it. But what roughly could be called I was starting to be used in criminal justice, and that led me to thinking about how it gets used by government and how it's regulated.

Nick Capodice: [00:03:16] Okay, it's my understanding, Hannah, that the answer is it's not not really regulated at all, at least not a lot. So how is the law meeting the digital road?

Aziz Huq: [00:03:27] I think that it's useful to answer your question in two parts. [00:03:30] What is it that we're seeing being adopted in terms of technologies? And then second to ask, well, how is the technology that's being adopted putting strain on the ways that people, including lawyers and judges, have traditionally understood individual rights?

Hannah McCarthy: [00:03:50] Worth noting, Nick, that when we talk about AI, we are not talking about some supercomputer that is eerily person like and about to become the secret shadow [00:04:00] governor of the United States of AI.

Nick Capodice: [00:04:03] So I know this comes up more than it maybe should. And I know the Precogs aren't machines.

Hannah McCarthy: [00:04:09] Okay, now I'm gonna stop you right there. The answer is that we are not talking about Minority Report. As of right now. The future is not. Three mega psychics lying in goop shouting premonitions at the government.

Minority Report: [00:04:20] I'm sure you all understand the legalistic drawback to Pre-crime methodology. Here we go again. Look, I'm not with the ACLU on this, Jeff, but let's not kid ourselves. We arresting individuals who have broken no [00:04:30] law. But they will. The commission of the crime.

Minority Report: [00:04:32] Itself is absolute metaphysics. The precogs see the future, and they're never wrong.

Minority Report: [00:04:35] But it's not the future if you stop it. Isn't that a fundamental paradox? Yes it is. You're talking about predetermination, which happens all the time.

Nick Capodice: [00:04:44] Has anybody else seen that movie or is it just us?

Hannah McCarthy: [00:04:47] I mean, it's it's a Spielberg movie, so.

Nick Capodice: [00:04:50] Okay. Fair point. Uh, based on a Philip K Dick novel, by the way, did you know that he's the sci fi guy who was always warning [00:05:00] us about authoritarian government and its threat to autonomy?

Hannah McCarthy: [00:05:03] Talk about a precog.

Aziz Huq: [00:05:14] Um, the technology that's being adopted is not, uh, what's sometimes called general AI. It's not, uh, some multi-purpose, very, very capable program that responds in human type ways. More broadly, [00:05:30] what we're seeing adopt being adopted are machine learning tools. These are, to be sure, very, very complex algorithms trained upon big pools of data that essentially solve prediction problems. They essentially take one set of data and say, given what we know about the world and triangulating that with what we know about this person, we think X or Y is likely to be the case. So these are these are prediction tools.

Nick Capodice: [00:05:58] Prediction tools sound kind of out of [00:06:00] place in the context of government and law enforcement because, I mean, predicting how people are going to act and making decisions on that instead of making decisions based on how they are actually acting or have been acting okay.

Hannah McCarthy: [00:06:14] In machine learning's defense, though, this is a huge part of what the government already does. It says based on current and past events, this is what we think the future will be. And so here are the laws that we're going to pass and the policies we're going to engage in, and [00:06:30] the things we're going to provide or deny in anticipation of that. Also, Nick, most of us already interact with prediction algorithms all the time.

Aziz Huq: [00:06:41] They're encountered by everybody on a day to day basis who interacts with online retailers, who offer recommendations, who interacts with platforms online, where there are recommendations of things to read or friends to contact, etc..

Nick Capodice: [00:06:57] Like Instagram, which someone [00:07:00] in this room maybe seems to open a lot.

Hannah McCarthy: [00:07:04] Too bad we can't predict whom. Um, too.

Nick Capodice: [00:07:07] Bad, so sad.

Hannah McCarthy: [00:07:09] But yeah, like Instagram and the images, content creators and most importantly ads. It feeds you based on all of the data it collects on you, which is a lot of data.

Nick Capodice: [00:07:21] Yeah, but it's also like how Netflix knows what movies or shows to recommend.

Hannah McCarthy: [00:07:26] Yes. And it's also like Facebook. And it's also [00:07:30] like TikTok. They know where we are, they know what we like and they are selling us something. And by the way, they are also selling us, as in our data, to other people. But anyway, the point is, predictive algorithms are already a part of our lives. It's just different when it's used by the government.

Aziz Huq: [00:07:51] The reason that these tools, when they're used by the state in particular, pose challenges, [00:08:00] is that many important rights that I think most Americans would take for granted have at their bottom a model of human behavior on the side of the state. And when you move from the frontline actor being a human to a frontline actor being a machine that can introduce a whole cluster of [00:08:30] difficulties in. Figuring out whether the right has been violated and figuring out what kind of interests are really being protected or not protected by the right.

Hannah McCarthy: [00:08:46] In other words, our rights are about, enforced by, violated by, etc. human behavior. So what happens when you take the quote unquote frontline human and replace it with a frontline machine? [00:09:00]

Aziz Huq: [00:09:00] The adoption of these tools scrambles the ordinary logic of constitutional law. So the first is, uh, in the context of deciding whether to grant or deny people bail, it is increasingly common for state courts to use a prediction tool.

Hannah McCarthy: [00:09:22] This tool predicts whether or not someone is likely to commit an act of violence while they are awaiting trial, based on a set of data [00:09:30] about people who have or have not committed violence while awaiting trial.

Aziz Huq: [00:09:39] The tool is offering a prediction in the sense that the thing itself hasn't happened. That data has many characteristics about each of those people, and the art of the algorithm is building a mathematical model that links traits to outcomes in the historic data. [00:10:00] Once that model, linking traits to outcomes using historical data is built, it is ported over and applied to a new criminal defendant.

Nick Capodice: [00:10:10] I just want to make sure I understand this. Data points that apply to people who have committed violence are applied to people to decide whether they will commit violence in the future, and then the state makes a decision based on that.

Hannah McCarthy: [00:10:24] Yeah, it's done around the country and was scrutinized in Wisconsin in particular. The claim [00:10:30] against the state was a due process. One, essentially, if a judge relies on this tool first that is inconsistent with due process.

News Archival: [00:10:39] Is this minority report?

News Archival: [00:10:41] That's a great question.

News Archival: [00:10:42] Lynette McNeely is a member of the Elmhurst Chaney Advocacy Board, which worries the state relies on a software program it doesn't fully understand.

News Archival: [00:10:50] We don't know what it's considering.

News Archival: [00:10:52] It's called Compas, and it's owned by a private company. So its calculations to assess risk are secret. But the questionnaire it uses [00:11:00] as the basis of that calculus includes questions like, did a parent ever have a drug or alcohol problem? How often do you have trouble paying bills? How often have you moved in the last 12 months? The questionnaire never asks a defendant's race, but McNeely worries it has a racial impact.

News Archival: [00:11:16] Where they live or other people who've lived in that area and what they've done. I mean, is that being considered as part of my risk assessment?

Aziz Huq: [00:11:24] And the Wisconsin Supreme Court said it's fine for the judge to rely on this tool, [00:11:30] provided that the tool, the interface has a warning that says, no, this is just a recommendation. You've got to use your own judgment.

Hannah McCarthy: [00:11:38] The Wisconsin Supreme Court says this tool is fine as long as you then apply your human judgment. But if you have already seen what the computer has to say, what does that do to your human judgment?

Nick Capodice: [00:11:54] Does the algorithm suggestion shift what a judge might decide?

Aziz Huq: [00:11:58] There's a debate about whether [00:12:00] if you give a warning like that, the judge is actually going to reflect and make a decision based upon their impressions as well as the data before them, or whether there is what social scientists call automation bias, where the judge is so heavily prompted by the machine that, in effect, what's happening is defendants are being detained or not detained based upon the machine prediction.

Hannah McCarthy: [00:12:29] Now, there [00:12:30] are a whole bunch of implications when it comes to the fairness of this kind of algorithm as well, especially when it comes to the balance between white and black defendants and how they're classified. The people who created it assure everyone that it is mathematically fair. But ProPublica looked into it and realized that black defendants were treated more harshly by the courts. And that has to do with how many black versus white defendants are predicted to be a risk by the algorithm. [00:13:00]

Nick Capodice: [00:13:00] So I might be making a leap here, but does this mean that AI has the potential to lead to equal protection violations?

Hannah McCarthy: [00:13:08] That's a pretty reasonable concern. The issue there is that equal protections claims are notoriously difficult to prove in court. Humans have been violating that clause for as long as it has existed. An AI is made by humans. It has been shown to have both a race and gender issue, in part because it tends to be made fed data by [00:13:30] and tested on white men, and in part because. Asking people based on data alone will result in racial bias, because the world itself is racially biased in terms of access to wealth and health and so many other measures of life. But let me give you another example.

Aziz Huq: [00:13:48] The second example is is a lot simpler, but it nicely brings up both a different sense of the word prediction and a different way in which these dynamics unfold in terms [00:14:00] of institutions. One of the things that has happened since the overruling of Roe v Wade is that there is increased activity on the part of states that want to restrict abortion, are attempting to regulate childbearing, and in some instances, impose criminal penalties on the people who are pregnant and who may be seeking to end the pregnancy. And one way [00:14:30] in which that has played out impinges upon what's generally understood as a right to privacy, which is I have certain information. I'm it's up to me to decide whether to give that information up or not. I have a certain sphere that involves my body and my house that the state can't set right. Ordinarily, those words shield a person who is pregnant from revealing that fact to the state.

Nick Capodice: [00:14:58] Wait, is pregnancy not [00:15:00] private information?

Hannah McCarthy: [00:15:02] Well, okay. Your employer, for example, cannot ask if you are pregnant and it would definitely be a legal issue if someone without a search warrant went through your trash, or hacked into your medical records or your email to try and determine if you were pregnant. But the thing is, machines don't need to do that in order to figure out who is probably pregnant.

Aziz Huq: [00:15:29] About [00:15:30] 10 or 15 years ago, the retailer target got into trouble because they were using a predictive algorithm on their consumer data, their customer data that identified people who they predicted, customers who they predicted were pregnant, and sending them coupons for prenatal vitamins and the like. And they sent this with respect to a person who is the father of a teenager. The father protests loudly that there's nobody pregnant in our family. [00:16:00] Predictably, the next day the daughter turns around and says, well, actually, I'm pregnant.

Nick Capodice: [00:16:05] So the machine got it right somehow, and it had real world repercussions.

Hannah McCarthy: [00:16:10] Yeah, the New York Times looked into it, and it turns out that this dad marched into target and was like, you're sending my daughter ads and coupons for maternity clothing and nursery furniture and things like that. Are you trying to encourage her to get pregnant? And the manager was like, no, sorry. So sorry about that. And then the manager [00:16:30] called to apologize again, and that dad picks up the phone and goes, actually, my daughter's due in August. I owe you an apology.

Nick Capodice: [00:16:39] Wait, wait. Hang on. Does he owe target an apology? Though they were predicting that his daughter was pregnant using an algorithm and marketing based on that likelihood, even though she never actually asked for it. And isn't it a violation of privacy to tip someone's family off, [00:17:00] inadvertently or not, when they might not have been planning on revealing that information?

Hannah McCarthy: [00:17:05] Isn't that an interesting question? Because, see, the thing is that target says they were not breaking any privacy laws, but they do acknowledge they were making people uncomfortable to fix it. They started advertising wineglasses, you know, like next to cribs. So it didn't necessarily mean like they were targeting a pregnant person, but they were still sending the mailer [00:17:30] to people who were predicted to be pregnant. It turns out those women would use the coupons, as long as it didn't seem like they were being spied on.

Nick Capodice: [00:17:40] But they were essentially being spied on. And that's legal.

Hannah McCarthy: [00:17:47] All right. So I mentioned that your employer cannot ask you if you're pregnant. They also cannot discriminate against you because of a pregnancy. Now that is because of protections in title seven of the Civil Rights Act and other [00:18:00] more specific federal and state laws. These privacy related laws also apply to other protected demographics.

Nick Capodice: [00:18:08] Such as race, sexual orientation, gender identity, religious affiliation, stuff like that. Yeah.

Hannah McCarthy: [00:18:15] Personal data about you, right? There are lots of federal laws that pertain to those data points. Hipaa, the Health Insurance Portability and Accountability Act, for example, is the thing that allows doctors to say and mean that you can tell them [00:18:30] anything about your physical and mental health, and they are not allowed to tell anyone else, and you're not allowed to be discriminated against because of that data. But major, major. But, Nick, these federal laws mostly do not cover consumer data.

Nick Capodice: [00:18:48] Like if I am buying prenatal vitamins, for example.

Hannah McCarthy: [00:18:52] Or even trickier, whether you're buying unscented lotion and big purses that could potentially double as a diaper bag which, by the way, were [00:19:00] two of the metrics that target checked when it came to predicting who was pregnant. And to be clear, algorithms are used to market certain brands or products all the time. It just becomes a clearer issue when that marketing reveals something private about you. Only 12 states in the US have comprehensive data protection laws, and even within those laws, companies are still allowed to collect and sell your data. Now they can sell that data to other companies. Sure, that's one thing. [00:19:30] It's more ads, basically, right? But they can also sell that data to someone else.

Aziz Huq: [00:19:36] Exactly. That same tool is available to states, but it's available not directly, but through third party firms called data brokers. Indeed, in the wake of the Dobbs opinion, there was a spate of data brokers that started offering lists of people who had [00:20:00] engaged in behavior that made it likely that they were both pregnant and seeking to terminate a pregnancy in states where that was now unlawful.

Nick Capodice: [00:20:10] So I guess the potential here is that those states could use that data to track people who may be attempting to obtain an abortion in a state where that abortion is not legal.

Hannah McCarthy: [00:20:21] Which is something states are already doing. In a way, this would just make it a lot easier to know whom to target. So why does [00:20:30] this example matter when it comes to AI and states generally?

Aziz Huq: [00:20:34] And now that's a useful example for for our purposes for I think three reasons. The first is that here we have a right of privacy over information that's being end run through what we might call AI. That's the first thing I think that's interesting.

Hannah McCarthy: [00:20:52] The most recent Pew Research poll on Americans and data privacy, this is from 2019, tells us that nearly two [00:21:00] thirds of Americans polled understand little to nothing about the privacy laws protecting their data. And even though a lot of us agree to privacy notices on apps and websites, not all of us actually read it. And even if we do read it, do we understand it?

Nick Capodice: [00:21:19] Speaking purely anecdotally and just for myself, I'm going to go with no same.

Hannah McCarthy: [00:21:25] And by the way, these notices that we agree to, they're basically [00:21:30] us giving permission for companies to share our data. They are not informing us of our rights or anything like that. So the reason I point this out is that our rights extend only as far as they are enforced, and not knowing what your rights are. Now, that is a really good way for them to be violated without repercussion.

Aziz Huq: [00:21:52] The second thing that's interesting is, is notice that it's a different kind of prediction. It's not a prediction about what's happening in [00:22:00] the future. It's what a social scientist would call an out-of-sample prediction. I know X and Y about this person. I don't know Z, but given that I know x and y, I can make a pretty good guess at Z, right? Z is true now. It's not something that happens in the future. That's a kind of prediction, and it might be a really important kind of prediction as the abortion criminalization context suggests.

Nick Capodice: [00:22:25] So basically, there's a difference between predicting what is true right now and predicting what [00:22:30] might be true in the future. Yeah.

Hannah McCarthy: [00:22:31] So let's say that your state has a law that says if you own a yellow hat, you must wear that yellow hat at all times. You're not allowed to take it off. And let's say your state has access. To an algorithm that can basically predict for the state who has a yellow hat right now. Now, you could see possibly that the state could use the information about who has a yellow hat to make sure that they are always wearing their yellow [00:23:00] hats and punish them if they take those hats off. An algorithm that simply predicted who might acquire a yellow hat that's less efficient, that isn't as useful. It's not telling the state what is going on right now. So there are certain applications for algorithms that predict what's going on right now, and certain applications for algorithms that predict what might happen in the future, like in those bail hearings.

Aziz Huq: [00:23:25] The third way in which I think this is telling what we see here, is the state [00:23:30] relying or intertwining itself with firms, with actors in the private sector to achieve a goal that we think of as being distinctively something the state does punish people. So one of the things that I think we're seeing, and I think that's not fully appreciated, is the advent of AI in its sheer usefulness, is leading to [00:24:00] new ways of braiding together public and private behavior.

Nick Capodice: [00:24:05] Which I guess we already do a bit right. Like we contract third parties for military and defense stuff all the time.

Hannah McCarthy: [00:24:13] That's true.

Nick Capodice: [00:24:13] We do. So looking to outside tech and services. That's typical for our government. It's just that this AI is more likely to interact with us. You know, you and me and other quote unquote normal people on a daily basis. [00:24:30]

Hannah McCarthy: [00:24:30] I mean, normal is a stretch. But yeah, basic people like we folk.

Nick Capodice: [00:24:34] So how sure are we that this is something we actually need to worry about? Hannah. Is it really imminent?

Aziz Huq: [00:24:42] The first thing is that I is is being adopted in narrow but important sectors of the private economy and is widely understood to have scale related efficiencies in those areas. Second, either [00:25:00] the companies that are creating I or subsidiaries or competitors are serial contractors with the government and are aggressively selling, uh, I tools. This is particularly true in the policing and in the military context. And then I think the third factor is there's a couple of my examples have pointed to one of the reasons that I [00:25:30] is useful from the perspective of the governmental actor is that it dramatically lowers the cost.

Hannah McCarthy: [00:25:42] For example, if you can get a week's worth of someone's location data from their cell phone provider, that is way cheaper than physically trailing them for a week, the state can do way more with way less. Also, last thing is, he's mentioned other countries [00:26:00] are doing it.

Aziz Huq: [00:26:01] The other thing that I would just flag is our geopolitical moment, which is a moment in which there is perceived and some actual conflict with China in particular, and where the relative military power of the United States and China in part depends upon technologies. So in that world where I is dual use, where its adoption is going to be driven [00:26:30] first in the military sector, then we'll see spillovers in other sectors. Again, it's a reason for thinking that it's really unlikely that AI is going to linger on the sidelines.

Nick Capodice: [00:26:42] Okay, so the private sector's already doing it. They're selling it to the government aggressively. It's cheaper and faster and other countries are doing it. And we've got to keep up with the Joneses. So if it's happening, Hannah, how are we dealing with the legal implications? [00:27:00] Has the Supreme Court said, whoa there. We need to adjust our rules here.

Hannah McCarthy: [00:27:05] We're going to talk about that after the break.

Nick Capodice: [00:27:08] But before we do the break, how's this for data collection? In exchange for your email, we'll send you a newsletter every other week so that you can learn that much more about American democracy. Or sometimes it's just Hannah ranting about a movie or a TV show or a long buried but albeit interesting moment from her childhood. And that's okay too. I kind of like that better, to be honest. We promise [00:27:30] to never, ever sell your data. We'll just send you the fun newsletter. And yes, the occasional fundraising plea, because that is how we keep the lights on. Okay. That's it.

Hannah McCarthy: [00:27:55] We're back. You're listening to Civics 101 and Hannah.

Nick Capodice: [00:27:58] Just before the break, you promised we'd [00:28:00] talk about what courts are doing when it comes to Westworld getting a little closer to being reality. So how are the courts dealing with all this new tech?

Hannah McCarthy: [00:28:09] Here's Aziz Huq again, professor at the University of Chicago School of Law.

Aziz Huq: [00:28:13] In the United States. We have federal courts, at least, that are historically minded and are generally, but not always, resistant to recognize and account for new technologies. I think it would not be accurate to say that courts [00:28:30] don't ever account for new technologies in the context of privacy. Under the Fourth Amendment, the court has, in piecemeal and small but not inconsequential ways, expanded the notion of what counts as an interference by the state in line with changing technologies.

Hannah McCarthy: [00:28:52] So basically, technologies have been drastically changing the legal landscape in the United States for two centuries. [00:29:00] But the courts themselves have not always, shall we say, kept up with the times. On occasion, however, they'll look at some development and say to themselves, okay, whoa, this actually changes how things work and we need to make a decision about it.

Aziz Huq: [00:29:18] And so I think the best example of this is a case from I think it was 2012 called Carpenter, in which the court said, well, a person is searched by the government [00:29:30] when the government asks a cell phone provider for a week long record of their locational data, now under the traditional long standing Fourth Amendment doctrine that would not have counted as a search regulated by the Fourth Amendment and the court, it really interestingly for a court that generally styles itself as being small c conservative and originalist, says, well, but in practice this [00:30:00] is the same as as following the person for a week.

Nick Capodice: [00:30:03] Should just jump in here quickly and affirm that, yes, over the course of its long history, the US court system has been predominantly conservative. But anyway, okay, the government says give us the location data of this person's cell phone for the past week. And the court says, well, otherwise in the before times, you could really only get that data by following that person. Yeah.

Hannah McCarthy: [00:30:29] And in this case, [00:30:30] Carpenter v United States, the Supreme Court ruled that police must obtain a search warrant to access these records. Following someone, by the way, does not require that warrant, so long as that person is in plain view, like walking or driving in public.

Aziz Huq: [00:30:46] And we should be more worried about this because it's so much cheaper. To acquire the locational data than it is to set a team of agents on a person and to follow them for a week. The fact [00:31:00] you can get efficiencies is marvelous if you're McKinsey. It's arguably deeply worrying if you're a right holder, confronted by a state that's able to leverage the scale effects of AI.

Nick Capodice: [00:31:14] Mckinsey, one.

Hannah McCarthy: [00:31:15] Of the three largest management consultancies in the.

Nick Capodice: [00:31:18] World. What does it mean when they say they're a management consultancy?

Hannah McCarthy: [00:31:22] Yeah, they take a good look at their clients. And by clients I mean giant corporations and whole countries. And they tell them how to spend their [00:31:30] money and how to operate. So like using AI to look at huge amounts of data about consumers or maybe the population of a country that is potentially very useful to McKinsey. But we are not McKinsey, right? We are not trying to figure out how to better help the authoritarian regime get its stuff done.

Nick Capodice: [00:31:52] Wait. Like for real?

Hannah McCarthy: [00:31:53] Oh yeah. For real. That thing we are worried about here is our rights.

Nick Capodice: [00:31:57] And are people saying to the courts, hey, [00:32:00] this AI over here violated my rights.

Hannah McCarthy: [00:32:03] Well, they're trying, but so far it's been pretty piecemeal.

Aziz Huq: [00:32:07] There was a state in which disability benefits were being allocated on the basis of predictions of fraud or not, and that was challenged in Michigan. There was a lawsuit challenging their unemployment insurance allocation system called Midas, which turned out to have an extraordinarily high rate of errors. There was a challenge in Houston [00:32:30] to the use of a machine learning prediction tool for evaluating teachers on the basis of the likelihood of the prospect that teachers were improving students standardized test performance. There's a series of cases that are before the Supreme Court now, which are not quite on point, but are in different ways about whether and how the state can regulate the recommender and content moderation tools used by social media platforms. So that's [00:33:00] not a suit challenging what the state can do. It suits challenging the state's power here in Florida and Texas's power in particular, to regulate how private actors use machine learning tools in constructing a public sphere.

Hannah McCarthy: [00:33:17] And of course, we already heard about the case with the bail question. Was that algorithm ordered to be better regulated? No. The court said the algorithm was fine as long as the people [00:33:30] using it apply their own judgment.

Nick Capodice: [00:33:32] Yeah, but a person's judgment isn't exactly a slam dunk all the time.

Hannah McCarthy: [00:33:36] Yeah. That brings me to this very interesting example.

Aziz Huq: [00:33:41] There's a well-known case in which police officers in, I think it was New York City, had a piece of footage from a store camera, looked at the footage, said, hey, we think this guy looks like an actor. And they said, the person looks like ex.

Hannah McCarthy: [00:33:57] Woody Harrelson, to be exact.

Aziz Huq: [00:33:59] They call incorrect [00:34:00] matches.

News Archival: [00:34:01] Cops say a suspect stole beer from a CVS in New York City, and when they ran his face through their database, nobody popped up as a match. But a detective noticed the guy kind of looked like actor Woody Harrelson. So they tried running Harrelson's picture through their facial recognition system, and they got a few matches, and it even led to an arrest. Now, while the Georgetown University report shows that facial recognition has helped the NYPD crack about 2900 cases in more than five years, it also points to the possibility for [00:34:30] mistakes, saying using wrong data increases room for error. The NYPD also uses a technique which involves replacing facial Woody Harrelson.

Hannah McCarthy: [00:34:38] The cops were using facial recognition software to track someone down who stole some beer. The image in the security footage was too pixelated. No problem, the cop said. We think that this guy looks like Woody Harrelson, so instead of using this hard to see image, we will just run the software to [00:35:00] match people to Woody Harrelson.

Nick Capodice: [00:35:04] Was Woody really stealing that beer? Hannah.

Hannah McCarthy: [00:35:06] No. And in fact, the cops did make an arrest using one of the matches they got out of this machine, but they also received other incorrect matches of people who looked like Woody Harrelson.

Aziz Huq: [00:35:19] That is not a problem about facial recognition technologies, technical capacity or its specification. [00:35:30] It's a problem about how it's used. And we could multiply the flawed ways in which a technology was used, or catalog of flawed ways is probably limited only by our imagination about how stupid people can be.

Nick Capodice: [00:35:46] So I take it we need really good broad rules for people. Using this technology because people are going to do foolish things, and we need to anticipate that as best we can.

Hannah McCarthy: [00:35:58] Yeah, we're not just not [00:36:00] angels, Nick. We're also really not geniuses.

Nick Capodice: [00:36:04] Hey, Hannah.

Hannah McCarthy: [00:36:05] Yannick.

Nick Capodice: [00:36:07] Is anything sacred?

Hannah McCarthy: [00:36:10] Tell me about.

Nick Capodice: [00:36:10] It. I know, but but I do mean that in this case, like, is anything, any decision, something that should not come across machine eyes or whatever. Machine analysis.

Hannah McCarthy: [00:36:23] Well, Aziz did make the point that machine decision making is less variable than human judgment [00:36:30] and probably going to be more accurate. But that doesn't mean that we are going to always want a machine's help.

Aziz Huq: [00:36:37] You can imagine a world in which humans are good at making some subset of judgments, and those subset of judgments are really important. I don't know whether this is true in the world, but you can imagine. Um, you have a violence prediction tool. The violence prediction tool works really well for 90% of the population, but it turns out to work really badly, let's say for women [00:37:00] who are in situations of domestic violence. Right. And you might say, well, look, you know, because that tool has this blind spot and the blind spot is really important and we can't section off the blind spot because we don't know in advance who those people are going to be. We don't use the tool at all. So there might be there might be kind of practical reasons why you wouldn't use a tool because of something about the nature or the distribution of the errors it makes.

Nick Capodice: [00:37:26] Can I just ask one more human version of this question? [00:37:30]

Hannah McCarthy: [00:37:30] Yeah, go for it.

Nick Capodice: [00:37:32] Are there any decisions, regardless of how much more accurately they might be assessed by machines that should only be left up to human minds?

Aziz Huq: [00:37:45] The other thing is, is that maybe there are some decisions that you just never want to be made by a machine. Judges will often say, well, there are just decisions about what counts as the law and what doesn't count as the law, and that those are necessarily human decisions. [00:38:00]

Nick Capodice: [00:38:00] The Supreme Court would most definitely assert that claim.

Hannah McCarthy: [00:38:03] Yeah, but Aziz actually pushed this question a little. He basically said, you know, that he understands what they mean there when they say that deciding what is law is necessarily human.

Aziz Huq: [00:38:17] However, I recognize the force of those arguments, but I have a really hard time figuring out what I think of them, and here's why. One of the early conversations I had about [00:38:30] when do you have a right to have a human making decisions was with a colleague who's a woman who's from a non-Western background. And the colleague said to me, you know, while 30 years ago the person I would have married would have been selected by my parents and through through matchmakers. And today matchmaking happens through an algorithm, it happens through Bumble or whatever. Uh oh my gosh, I'm [00:39:00] so glad that we've moved from a world of human matchmakers to machine matchmakers, because that gives me a kind of agency that I didn't have before. I can see that. And I understand that there are arguments against not Bumble in particular, but online dating.

Hannah McCarthy: [00:39:18] Aziz makes the point that picking a life partner is one of the most profoundly intimate decisions that you can make. And the first couple of steps finding, connecting with, and interacting [00:39:30] with that person is often left up to a machine. Now, the whole process, but the screening process.

Aziz Huq: [00:39:40] And if you're willing to trust the question of who will be your intimate life partner to a predictive machine, what exactly is the core of decision making that you cannot trust to a machine? I give the example because I think it illustrates to me how hard the question is, but I genuinely [00:40:00] do not know the answer. And it's not a question that you kind of it's a moral question. It's not an empirical question. It's a question where I think I continue to think I have some of the resources necessary to think it through, but I don't have all of it, and I don't really know what the answer is.

Nick Capodice: [00:40:20] A moral question about what? We're going to let machines decide who. All right, one [00:40:30] last question, Hannah. There are the one off court cases, the cops and Woody Harrelson's the administrators who want to do more with less. But is anybody actually taking in the bigger picture? Is the Constitution being interpreted anew for this new world order?

Aziz Huq: [00:40:50] I think we're seeing most of the important legal action occurring, not at the level of constitutions, but at the level of new statutes or similar [00:41:00] regulatory frameworks. The most crisp examples of those are in Europe, which has a pending what's called AI act. China actually has a really dense and interesting set of regulations that at once aims to shore up Communist Party control, but at the same time is genuinely focused and genuinely makes strides on issues such as the use of deepfakes, which I think is a [00:41:30] serious and gravely harmful phenomenon, and does so better than probably anything that you'll see in the United States in the near tum. So you have two regulatory models of regulation, neither of which are constitutional in Europe and in China. I think those are going to be more and more influential around the world. They'll kind of indirectly shape what Americans experience because many products are made for global markets.

Nick Capodice: [00:41:53] This comes back to the like the whole world doing it thing, right. Like like the whole world will be [00:42:00] trying to access similar or the same technologies. And so the companies making it will probably, I guess, make tech that works with Chinese restrictions or European restrictions, and we'll buy it too, though I will say the US sure does have a track record of having its own special version of stuff.

Hannah McCarthy: [00:42:21] Yeah, but it also has a track record of states stepping in where the federal government does not.

Aziz Huq: [00:42:27] Maybe states will start to fill in the [00:42:30] gap. Maybe in particular California. California has been very aggressive on data privacy. Interestingly, since you'd imagine that the presence of big data hungry firms in California would lead the state to air in the other direction. But California seems to be pretty aggressive as a regulatory state. But I expect we'll see more state level responses to these problems. I expect we'll see, for example, more efforts to push bans on [00:43:00] facial recognition technology. I think that we'll see efforts to introduce due process rights, rights to a human decision in certain contexts. I think that we'll see more and more efforts to allow people to control their own data, particularly biometric data. But we'll see a patchwork in the US, and we'll see these spillovers from Europe and from China, leading to a very complicated and uneven [00:43:30] pattern of legal protections.

Hannah McCarthy: [00:43:35] All right, one last thing I do want to add, because of course, we know here at Civics 101 that there is one super quick route to rule making that evades Congress entirely. In October 2023, President Joe Biden signed the executive order on the safe, secure and trustworthy development and use of artificial Intelligence. He established eight guiding principles for AI policy one. [00:44:00] It must be safe and secure. And this provision, by the way, promises to essentially label things as AI generated so the public knows when they're consuming AI. Two the government will promote responsible innovation, competition and collaboration because, hello, capitalism, it's not going anywhere. Three workers will be supported.

Nick Capodice: [00:44:23] Uhhuh. Okay.

Hannah McCarthy: [00:44:23] But even Biden wrote the words collective bargaining in that section, aka unions, which seems [00:44:30] pretty serious. He also says that I should not undermine rights, worsen job quality, encourage undue worker surveillance.

Nick Capodice: [00:44:40] Oh, man, that's that's kind of spooky.

Hannah McCarthy: [00:44:42] Uh, it should not lessen market competition, introduce new health and safety risks, or cause harmful labor force disruptions. Countries are still full of people, Nick, and people are constituents, and constituents are political power. So yeah, we got to think about people. All right. Four [00:45:00] AI policies have to be consistent with the Biden administration's dedication to equity and civil rights. Basically, I cannot be used to further denial of equal opportunity and justice. Five consumers who use and interact with AI need to be protected against fraud, bias, discrimination, and privacy violations.

Nick Capodice: [00:45:19] Yeah, honestly, that one seems like the one that could be the most pervasive. Hannah.

Hannah McCarthy: [00:45:23] Um uh six Biden doubles down despite AI, we need to protect privacy and [00:45:30] civil liberties. The government, this order says, will make sure that data gathering is legal essentially. Seven this one is so interesting as the government uses AI, which it will. It will hire and train people the right way to make sure that AI is safe and understood. And eight USA number one, go on. Biden said, quote, the federal government should lead the way to global societal, economic and technological progress as [00:46:00] the United States has in previous eras of disruptive innovation and change, unquote. To him, this means being ahead of the curve and promoting AI's regulation around the world.

Nick Capodice: [00:46:12] Just keep on spreading that democratic promise, I suppose.

Hannah McCarthy: [00:46:17] So yep. That's it. Of course, that's an executive order. And what's that thing about executive orders, Nick?

Nick Capodice: [00:46:26] They just go away when a new president doesn't want them.

Hannah McCarthy: [00:46:30] Bingo. [00:46:30] So stick around. We'll be here watching and waiting and telling you what the machines are doing and whether we are doing anything about it. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Wave Saver, Christoffer Moe Ditlevsen, Yi Natiro, Christian Nanzell, William Benckert, Rolla [00:47:00] Coasta, Oomiee, Lexica, HiP CoLouR, Eight Bits and Quarter Roll. You can find everything. We are at our website civics101podcast.org. That's transcripts, all of our episodes, how to connect with us, everything. Civics 101 is a production of NHPR New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

What is Federalist 10?

Federalist 10 was one of the Federalist Papers, a collection of 85 essays that were published in New York to encourage ratification of the newly drafted Constitution. This essay is taught in classrooms across the country and often referred to as the most important. So what's it about?

Taking us through the ideas of faction, republicanism, and Madison's inability to predict Facebook are Jeffrey Rosen, President of the National Constitution Center,  Alison LaCroix, Professor of Law at the University of Chicago Law School, and our dear friend Ryan Werenka, AP Government and Politics teacher at Troy High School in Michigan. 

Click here to listen to our episode on the Federalist and Antifederalist Papers.

---

Transcript

Nick Capodice: I just wanted to tell you I was talking to my sister and she asked, you know, hey, what episode are you working on? And I was like, I'm kind of working on this one about Federalist ten, you know? You know what that is? And she was like, um, I imagine it continues the thoughts espoused in Federalist nine.

Hannah McCarthy: I mean, that's not the worst guess.

Nick Capodice: Everyone in New York was like, man, I thought nine was going to be the last one. How many more of these are they going to do? 76 [00:00:30]? You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today, yes, we are talking about Federalist ten, the essay that is considered by many, not all, to be the most significant of the Federalist Papers.

Hannah McCarthy: Okay, so we've done an episode on the Federalist Papers and the Anti-Federalist papers. There's a link in the show notes for anyone who's curious. Can we just do a super quick summary of what these are? Absolutely.

Jeffrey Rosen: The [00:01:00] Federalist Papers were written to defend the ratification of the Constitution, the constitutions proposed in Philadelphia on September 17th, 1787. And then it comes time for the people to decide whether or not to ratify it.

Alison LaCroix: They were essays, newspaper pieces written by James Madison, Alexander Hamilton, and John Jay, and their purpose was to convince New York electors, New York delegates, and sort of the New York reading public more broadly to vote for Pro-constitution [00:01:30] delegates to the New York ratification convention.

Jeffrey Rosen: I'm Jeffrey Rosen, and I'm the president and CEO of the National Constitution Center.

Alison LaCroix: I'm Alison Lacroix, and I'm a professor of law at the University of Chicago.

Nick Capodice: The Constitution was proposed. It required nine of the 13 states to ratify it, for it to become the law of the land. And New York. New York was a big state. It was an influential state, and people weren't sure which way it was going to go.

Jeffrey Rosen: New York is a swing state. It [00:02:00] wasn't obvious that it was going to ratify the Constitution. It split between the Hamiltonian Federalists and Anti-Federalists led by Governor George Clinton. Aaron Burr is among those as well. So Hamilton has a really important job, which is to persuade the New York ratifying convention actually to ratify it. And unless he succeeds, the Constitution may not go into effect. They are op eds. They're they're they're thoughtful. They're they're definitely deliberative and deep defenses of the Constitution. [00:02:30] But Hamilton and Madison are writing to persuade, and that's what makes it so exciting to read The Federalist Papers.

Hannah McCarthy: So often on this show, we're talking about the intent of the framers, why they set things up the way they did. And these are 85 essays that do just that, which is why we recommend them heartily. Right. But what is so special about Federalist ten? Even before I had read The Federalist Papers, I'm pretty sure that I had heard that fed ten [00:03:00] was like the important one for some reason.

Nick Capodice: Yeah, of all the papers, it is the one most often included in middle school and high school syllabi. Not to mention it being on the list of required docs for AP gov. But before we jump into Federalist ten specifically, which was one of the 29 essays written by James Madison, Hamilton did the rest. John Jay did five. I want to quickly bring up some stuff about how we refer to the collection as a whole.

Alison LaCroix: You really see people starting to call the whole collection The Federalist [00:03:30] Papers. Around the middle of the 20th century, um, Clinton Rossiter was one of the editors of a very influential edition that got published then. So historians tend to call them The Federalist or The Federalist essays.

Hannah McCarthy: So we call them The Federalist Papers. But that's a relatively new phenomenon. Yeah.

Nick Capodice: In 1961, Clinton Rossiter, historian, published the collection and titled it The Federalist Papers. And the name Stuck and Why The Federalist Papers? So, yeah, the Federalist [00:04:00] Party officially hadn't started yet, but this name, Federalist, implied a coalition of people who supported ratification of the Constitution and generally generally supported a stronger federal government, as opposed to the states doing everything.

Alison LaCroix: So I think you had people in the broader public in the middle of the 20th century reading these and talking about them, and kind of an invigorated sense of interest in the essays or the papers as they were called. And then I think Federalist ten really kind [00:04:30] of captured where some political thinkers and sort of social scientists were, because it seemed like it was about what we would now call interest group pluralism.

Hannah McCarthy: What does Allison mean by interest group pluralism?

Nick Capodice: Well, pluralism is the idea that people with different opinions and of different backgrounds can all participate in a society together. And interest group pluralism is basically when you've got a bunch of people in a country, they all want different things, right. [00:05:00] And what's going to happen is people are going to get together with other people who want the same thing, and they're going to work together and debate and bargain as a group, an interest group, to make that thing happen. And this grouping up is what Federalist ten is all about. It's all about one magic word.

Hannah McCarthy: What's the magic word?

Jeffrey Rosen: The central warning of Federalist ten is the danger of faction faction [00:05:30] factions. Faction factions are what the framers most fear.

Nick Capodice: And to understand what they are, let's hear the words of the man who wrote the essay.

Jeffrey Rosen: This is James Madison in Federalist ten by a faction. I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion or of interest, adverse to [00:06:00] the rights of other citizens, or to the permanent and aggregate interests of the community.

Hannah McCarthy: All right, let me see if I can say that another way. Madison believes a faction is a group of people who have a shared interest, and that interest specifically violates the rights of other people or goes against the better good of the community.

Nick Capodice: That's a pretty darn good paraphrase, Hannah.

Hannah McCarthy: Just to double check here. Factions are not the same things as parties, [00:06:30]

Nick Capodice: Alison says no.

Alison LaCroix: I mean, he meant groups in society, but I don't think he meant the way. Again, in the modern era, we tend to think like, oh, factions. So that's Republicans and Democrats or that's people who live in cities or that's women or Southerners or, you know, African Americans. I think his notion was that they are sort of any group that, in his view, was. Is kind of splitting up the citizenry. [00:07:00]

Nick Capodice: However, we didn't have any political parties when we got started, but they did happen almost immediately. And pretty soon the Federalists are saying the Jeffersonian Republicans are a faction, and the Jeffersonians are saying, I know you are, but what am I? You guys are the faction.

Jeffrey Rosen: So there's a big dispute about whether or not parties are factions or not. And each side says the other guy is a faction. And that sets in motion this series of question about whether or not parties are good ways of aggregating [00:07:30] common interests and serving the good as a whole, or whether they represent, um, forms of faction. The Federalist paper doesn't answer those question, but it does tell us that whatever factions are there, the main threat to the Union. And what's so significant about Federalist ten is that at the end of their lives, all the main framers are concerned about whether or not the Republic will survive because they fear that factions may overtake the Union.

Hannah McCarthy: So if he wasn't talking about parties initially, [00:08:00] what kinds of groups did Madison think were splitting up the citizenry? What did he think would theoretically take over the union?

Jeffrey Rosen: Well, let's ask what what did the framers have in mind when they talked about factions and they had in mind something called Shays Rebellion? So just before the Constitutional Convention meets in western Massachusetts, armed mobs of debtors who can't pay their debts because the inflation that followed the Revolutionary [00:08:30] War are mobbing the courthouses and closing down the system of justice. And this vision of armed, violent mobs who are fighting the rule of law is so threatening to the framers that they determined to call the Constitution to avoid precisely that danger.

Hannah McCarthy: All right, Shays Rebellion, I know about this one. We talked about it in our Articles of Confederation episode. Since the articles created a very small federal government and left everything up to the [00:09:00] states to decide for themselves, some states made the themselves decision to not pay taxes, so there was no money to pay soldiers who had fought in the Revolutionary War. And the whole thing was just a real mess.

Nick Capodice: It certainly was.

Hannah McCarthy: And that fits Madison's notion of factions, because it was an armed mob shutting down the government. Shays and others feel it is in their best interest, but opposes the interests of the much larger community. Yeah, so this [00:09:30] essay is about factions, and it says that they are a problem. Does Madison think we can prevent them in any way?

Nick Capodice: Um, not really. No. Madison says that factions are, quote, sown in the nature of man, end quote. So they're going to happen. People are going to get together and try to make changes that benefit them. We are humans. We want things.

Hannah McCarthy: All right. So what do we do?

Nick Capodice: Well, Madison lists two remedies to the ailment of faction. And I'll read his words here. Quote the one by destroying [00:10:00] the liberty which is essential to its existence, the other by giving every citizen the same opinions, same passions, and the same interests.

Hannah McCarthy: That's not going to fly.

Nick Capodice: No, it certainly will not. But then he goes on to say, okay, I think we're going to have him. Nothing we can do. But you know what? Maybe, just maybe, that's not a problem.

Hannah McCarthy: Nick, why are you playing corporate inspo music under this?

Nick Capodice: Just maybe this system we're [00:10:30] making right here is kind of the only one that can handle factions. And this. This is why Federalist ten is so important. It outlines why the proposed democratic republic in which we now live just might outlast all the others. And I'm going to tell you why right after this break.

Hannah McCarthy: But before that break, I just want to remind our listeners that it is our podcast fundraiser right now, and you can support our endless quest to educate the American public. And that includes [00:11:00] us about how things work in this country. You can get a Civics 101 hat. That's right. And Nhpr.org Merino wool socks with a $10 a month donation. Check it out at our website, civics101podcast.org. And thank you, thank you thank.

Hannah McCarthy: We're back. We're talking Federalist ten. And Nick, we were just at the part where you [00:11:30] tell me why Madison thinks the Constitution is just so great.

Nick Capodice: I was, I was and to talk about that, we've got to talk about the people who did not think the Constitution was all that.

Ryan Werenka: I like to use Federalist ten as a counterpoint to Brutus number one.

Hannah McCarthy: Wait, is that Ryan?

Nick Capodice: It is indeed. This is Ryan Werenka. He's a dear friend of the show. He's an AP govt teacher at Troy High School in Michigan. He was in our episode helping students prep for the AP gov exam and he mentioned Brutus. [00:12:00] Brutus one is an Anti-Federalist essay Brutus was written by, it is believed, Robert Yates, also of New York, and his essays Against the Constitution came out before the Federalist Papers so Madison could respond to his arguments. And they all used pseudonyms. By the way, Madison, Hamilton and Jay went under the pen name Publius, and there were a host of names for the Anti-Federalists like Brutus or Cato Sentinel.

Hannah McCarthy: I think my favorite name is a [00:12:30] Maryland farmer.

Nick Capodice: A Maryland farmer.

Nick Capodice: You know, he thought the president and the Senate should serve for life.

Hannah McCarthy: Oh, okay. Well, never judge a book by its cover, I guess.

Nick Capodice: Anyways, back to Brutus one.

Ryan Werenka: Brutus has numerous objections to the Constitution that it's going to create a large centralized republic, and the states would suffer the state legislatures and the state, you know, courts are going to be powerless and meaningless. And that the, you know, large republic is just too far away from [00:13:00] the public to really, truly represent it. Madison argues that the large republic is actually better. Um, and it would start to move all the states in the same direction. And because of the size of the Republic, it's going to require openness and cooperation across state lines and regional lines.

Hannah McCarthy: So, in other words, because we are so big, if we're ever going to get anything done, we have to all work together.

Nick Capodice: Exactly. And Ryan says in his class, he equates Federalist [00:13:30] ten with the last rap battle in eight mile. Have you seen it here?

Eminem: Tell these people something they don't know about me.

Hannah McCarthy: Like where Eminem is basically saying, you know, like all that stuff you're saying about me is true and I'm proud of it.

Nick Capodice: Yeah. And Madison is the Eminem in this story. He sort of flips the script on Brutus. Brutus says the federal government will be too far from the people. Okay, maybe that's true, but we have representatives. They are going to be close to the people. And then all those representatives come together from their different states and they hash [00:14:00] everything out. And also speaking of size, our large size as a nation will take care of factions as well. Here is Jeff Rosen again.

Jeffrey Rosen: Madison says, in fact, and, um, a large republic is better in this regard because in a very large republic, it'll be hard for factions to discover each other, and by the time they do, they'll get tired and go home. So the difficulty of having factions be able to coordinate when you've got a really big territory like America is [00:14:30] actually a great way of dissipating the passions of factions and having a cooling mechanism and letting people have sober. Second thoughts. Isn't that amazing? That's, uh, these two crucial things allow for a republic in a big territory. First representation. And second, the fact that the large size just makes it hard for passionate factions to organize and discover each other, and therefore will ensure the rule of reason rather than passion. [00:15:00]

Hannah McCarthy: I mean, Madison didn't know that Facebook would happen. Nick.

Nick Capodice: I promise you I will get back to that Hannah.

Hannah McCarthy: You better. So Madison is saying will be a representative democracy, not a direct democracy, and we will be a federal republic. And that is why it will work.

Nick Capodice: And we've all got to be republicans.

Hannah McCarthy: Small r Republicans, as in the political philosophy that goes back to Athens. I mean, I imagine you're not talking about modern day GOP Republicans.

Nick Capodice: Here [00:15:30] is Alison Lacroix again.

Alison LaCroix: And so republicanism for Madison, as for lots of other people in that founding generation, smaller republicanism. And it's an idea. It's an ideology that has this content and it's content about the public good virtue that people have to be selfless. Now it's realist in that Madison and lots of others recognize that that was going to be hard, that people were would want to be off, you know, making money or doing whatever they wanted to do for their sort of private gain. But republicanism was [00:16:00] about and this is part of why they invoked so many of those classical authors and texts, was this notion that one would sort of put the public good above one's own individual good?

Hannah McCarthy: Nick.

Nick Capodice: What Hannah.

Hannah McCarthy: Um. All right. It sounds really good. Small are republicanism is great on paper. You know, civic virtue. Everybody working toward the common good, respect for the rule of law, all of those [00:16:30] lovely ideas. And don't get me wrong, the Federalist Papers were persuasive. New York ended up ratifying the Constitution, and here we are in a studio talking about it. But these ideas have a couple of gaps in them. After 250 years, the idea that a faction cannot pick up steam because people are far away has a rather large internet sized hole in it.

Nick Capodice: It does.

Jeffrey Rosen: Discord and Twitter or whatever it's called now. X [00:17:00] and Instagram represent Madison's nightmare. His entire vision for avoiding the dangers of faction is speed bumps and roadblocks that will allow reason slowly to disseminate across the land. And in particular, he has in mind a class of enlightened journalists that he calls the literati. People like himself and Hamilton, who write these long, complicated essays in the newspapers and allow people to deliberate with their [00:17:30] representatives in coffeehouses and ensure slow, thoughtful deliberation over time. Social media is the opposite of that. In fact, it's it's it's literally a dystopian vision that Madison would have hoped to avoid.

Nick Capodice: So Jeff opened his conversation with me talking about Shays Rebellion. So I had to end it by asking about the modern political climate. Maybe Madison wouldn't call our two parties factions, but what about the far [00:18:00] edges of a party? Like, what about the recent example of an armed insurrection on the nation's Capitol?

Archival: Breach of the Capitol, breach of the Capitol, requesting additional resources on the East side as they've broken into that window and they're trying to kick it in, will not be kept out of this chamber by thugs, mobs or threats.

Jeffrey Rosen: Whatever a faction is armed mobs representing a minority [00:18:30] of the population that are threatening the rule of law and trying to subvert the Constitution, are it? That's exactly what the Constitution is designed to avoid. By any measure, an armed insurrection against the processes of government is a faction, and Madison would have tried to resist it at all costs.

Nick Capodice: Jeff says the fringes of today's parties are arguably in the thralls of faction in a way that Madison feared. But Ryan told [00:19:00] me that even though a faction can be created on discord in five minutes, he still teaches. Federalists tend to his students, and he still feels it stands the test of time.

Ryan Werenka: I think in a modern context, fed ten really does still kind of hold up. Um, especially when you're looking at, you know, the, the internet being used to create factions, uh, across state lines on social media platforms and things like that. Um, but in a way, Federalists ten Madison's proving his point. These factions could be created or are being created, [00:19:30] but you're ending up seeing them out in the open and across regional lines. So really, Madison's argument in Federalist ten proved to be pretty accurate.

Hannah McCarthy: I think one of my favorite things about The Federalist Papers and the Anti-Federalist papers is that they're a debate in writing. Nobody got everything they wanted. Hamilton and Madison admitted imperfections. They acknowledged that every other [00:20:00] republic before us failed. Eventually, they were honest about their fears of what could happen to this new nation. They knew that people make mistakes.

Alison LaCroix: I mean, one could see that as an argument for again, today, we would think of it as democracy in the broadest possible sense, right, that it's not the case that what the maximum number of voters at any one time might say is right. That doesn't necessarily mean it's the public good. But, you know, if [00:20:30] we don't have true representation, we know that that's much farther from the public good. So that might be one thing to take away that he thinks, um, you know, they're always going to be these passions and interests, but that there might be structures that can mediate them. I mean, I find that. Somewhat comforting to the idea that it's not like the founders were operating in a world where everybody was this virtuous, public minded person. They weren't. They knew people weren't. So they were saying [00:21:00] things that were their sort of best educated guesses, not maxims handed down from the mountaintop. But they were also realists. And I think that's a hopeful vision.

Nick Capodice: Well, that is a gentle touch of Federalist ten, though there is a whole lot more for you to explore. I couldn't even get into the people who think that it's not such a big deal. I'll [00:21:30] do that another time if you want. This episode is made by me Nick Capodice with You Hannah McCarthy. Thank you. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. music in this episode by Blue Dot Sessions, Scott Holmes, Ikimashoo Aoi, Howard Harper Barnes, Timothy Infinite, Spring Gang, Francis Wells, Bio Unit, Asura, and that Brooklyn Farmer, Chris Zabriskie. Civics 101 is a quartet, not a faction, and it's a production of NHPR, New Hampshire Public Radio. [00:22:00]

---

Made possible in part by the Corporation for Public Broadcasting.

Election 2024: What Is Happening?

Primaries, caucuses, conventions, court cases -- oh, it's a lot. Hannah and Nick have the most important dates and some crucial context for your calendar this election year. Buckle up, 2024 is already underway.

Check out our recommended listening for more helpful info!

Primaries and Caucuses

Conventions

Stranglehold: Make Room (for context on New Hampshire and its hold on the first in the nation Primary)

By the way, it isn't too late to snag a Civics 101 baseball hat! Donate now and show the world you know what's going on.

PSA: Shortly after this episode dropped, Donald Trump won the New Hampshire primary. Though Nikki Haley is still running, many reporters, analysts and the RNC itself see this as a sign that Trump is the presumptive Republican Presidential nominee.

---

Transcript

Hannah McCarthy: [00:00:01] It's 2024, Nick.

Nick Capodice: [00:00:03] 2024 I'm still right in 1998 on my checks, Hannah.

Hannah McCarthy: [00:00:10] And you know, Nick, I have more than a little anxiety going into this year. I think my uncle put it best at my cousin's baby shower the other day when he said, "talking politics used to be fun. Now I get kicked out of bars."

Nick Capodice: [00:00:23] Sure. Yeah.

Hannah McCarthy: [00:00:25] Now the hole in my day things were obscurely better is a common [00:00:30] refrain. I find myself making it already. At some point. Millennials got old and I am one of them. And now I spend every day talking about Jordan Catalano. Uh, but I digress because I think my uncle had a point. Yeah, maybe.

Nick Capodice: [00:00:45] Not the whole kicked out of places thing.

Hannah McCarthy: [00:00:48] But the having fun talking politics thing, right? Most of this year will be politics because spoiler alert, there is a general election on November 5th. And [00:01:00] spoiler alert my birthday is the day right after that.

Nick Capodice: [00:01:03] So what could be more political than that?

Hannah McCarthy: [00:01:06] So without further ado, this is Civics 101. I'm Hannah McCarthy, I'm Nick Capodice. And as we look ahead into 2024, I'm going to give you the fun option. And that is being the person who knows when things are happening. Because actually, this is a year when knowing when things are happening, as in elections, debates, court cases [00:01:30] means that you will be someone who is truly paying attention to the potential future of the place where you live. At the very least, you won't be blindsided when what comes to pass comes to pass. If all else fails and you don't find this fun, we can, like, make birthday costumes together.

Nick Capodice: [00:01:51] Hey, what's a birthday costume, Hannah?

Hannah McCarthy: [00:01:53] Theme dependent Nick.

Nick Capodice: [00:01:54] And onto the episode.

Hannah McCarthy: [00:02:04] All [00:02:00] right, 2024. Here we go. Right now it is January. I wanted to wait a beat to release this episode so that I could at least tell you one thing that I do know for sure about 2024, and that is that former President Donald Trump won the Republican Iowa caucus. He set a record, in fact.

Nick Capodice: [00:02:23] Oh he did.

Hannah McCarthy: [00:02:23] Yeah, nearly 30 percentage points, smashing the previous record held by Bob Dole in 1988 [00:02:30] by a lot.

News Archival: [00:02:31] What are we to make of the results in Iowa? What do they tell us about the Republican Party? If only a third of the Republicans in Iowa participate in the caucuses? And what does the fact that most party members don't participate in the nominating contests tell us about the voting process to help us think about.

[00:02:45] And it kicked off our caucus and primary season, which I presume in this election is mostly of interest to Republicans and independents.

Hannah McCarthy: [00:02:53] Well, that is where the real contest lies, probably.

Nick Capodice: [00:02:57] As in, this is a reelection [00:03:00] year, meaning the Democrats are, for the most part trying to keep their president in office. The Republicans are trying to unseat him. By contrast, in years where presidents time is up like 2016, the primary is a big deal for both parties, correct?

Hannah McCarthy: [00:03:16] Okay, so Joe Biden is running against two what you might call longshot candidates. That's Marianne Williamson, a self-help author, and Dean Phillips, a US representative. Donald Trump is running against former South Carolina Governor Nikki [00:03:30] Haley. Florida Governor Ron DeSantis, who was trying to get that nomination recently, dropped out of the race. Now, depending on the state, you might call Haley less of a long shot than Biden's challengers. And then there are three independent candidates professor and activist Cornel West, doctor and activist Jill Stein, and lawyer and activist Robert F Kennedy Jr, who, by the way, had been running as a Democrat but switched to independent.

Nick Capodice: [00:03:58] Actually worth mentioning. Hanna, I [00:04:00] heard that RFK Jr is attempting to establish new political parties in some states instead of registering as an independent.

Hannah McCarthy: [00:04:08] Okay, wait. Hang on. Uh. More, please.

Nick Capodice: [00:04:11] Well, it turns out if you run unaffiliated aka independent, you need way more signatures to get on the ballot. So if he runs under a registered party, he needs fewer signatures. And of course, those states have to accept his applications for brand new parties.

Hannah McCarthy: [00:04:27] Okay, you see, this year is [00:04:30] wild. There is so much to know. But really, either way, it is the Republican caucus and primary season that is getting the most attention. So what is even happening this year? Well, for one thing, go listen to our episode on primaries and caucuses. We will put a link in the show notes for you. Those are the elections that will help parties determine their nominees and.

Nick Capodice: [00:04:52] How they help varies state to state, but basically whomever wins the most votes gets the most delegates at [00:05:00] the nomination.

Hannah McCarthy: [00:05:01] Basically, you need 1215 delegates to win that nomination. Trump currently has 20 as of the Iowa caucuses, DeSantis has nine, Haley has eight.

Nick Capodice: [00:05:14] So what's going to happen there?

Hannah McCarthy: [00:05:16] What do I look like?

Nick Capodice: [00:05:17] Allan Lichtman a little bit?

Hannah McCarthy: [00:05:19] Allan Lichtman, by the way, the guy who has accurately predicted every presidential winner since 1982, also a professor of history at American University.

News Archival: [00:05:29] You got right [00:05:30] every time except 2000. I didn't oh, I'm kidding, Florida did. That's right. It was a stolen election, right? I wrote the report for the US Commission on Civil...

Hannah McCarthy: [00:05:41] Anyway, I am not going to make any predictions because I really don't have the ability to do that.

Nick Capodice: [00:05:46] Anna, do you think that once AI reaches Minority Report levels, we're not even going to have to have an election anymore? We just say, well, the precogs say everyone is going to vote for this person, so don't bother.

Hannah McCarthy: [00:05:57] I do not think that, Nick, mostly because [00:06:00] we love spectacle more than we love maybe anything in America. So basically, what is going to happen on the Republican side is that we're all going to watch, and many of us are going to vote, and we'll see if basically life is difficult or relatively easy for the Trump campaign.

Nick Capodice: [00:06:16] Because he is the most likely nominee.

Hannah McCarthy: [00:06:18] Bingo. And that can change. It's early days yet. No, wait, real quick.

Nick Capodice: [00:06:24] Did the Democrats have an Iowa caucus this year, too?

Hannah McCarthy: [00:06:27] I'm glad you asked this, because I think what happened [00:06:30] for the Democrats in Iowa highlights that each state is very different in terms of the year to come, and each party is very different. The Dems did have a caucus, but they just used it to do business. And by the way, the good people of Iowa can mail in their nominee votes now through March 5th and March 5th is a big date. Nick, do you know why?

Nick Capodice: [00:06:52] Oh, okay, I think I know why this is.

Hannah McCarthy: [00:06:55] I think you do. Why is it?

Nick Capodice: [00:06:57] Well, the DNC, [00:07:00] the Democratic National Committee made a change that bothered. Two states in particular. And that change was sorry everybody. We're moving the first in the nation caucus primary state to South Carolina.

News Archival: [00:07:14] States with predominantly white voters just simply didn't reflect the diverse Democratic base. Now, the party's new presidential primary calendar, slated to start next February in South Carolina, followed by Nevada, New Hampshire days later, Georgia a week [00:07:30] after that, and Michigan at month's end.

Nick Capodice: [00:07:32] And I'm pretty sure Iowa complied, but I know for a fact who did not comply.

Hannah McCarthy: [00:07:38] All right, go on then, New Hampshire. Sure didn't. And depending on when you are listening to this episode, their noncompliance may have already happened. January 23rd, the New Hampshire primary.

News Archival: [00:07:50] Political junkies, buckle up. New Hampshire just picked a major fight with the Democratic National Committee just a short time ago, scheduling its primary for January 23rd, [00:08:00] 2024. It's being seen as an so...

Nick Capodice: [00:08:03] Really quick the DNC said, hey, uh, South Carolina is more diverse. It's more representative of the nation. So guess what? They get to go first now. But also the thing is, Biden lost in both Iowa and New Hampshire in 2020 before turning things around in South Carolina. And a lot of people say that is the reason the primary was moved. By the way, our colleagues made a whole podcast about New Hampshire and the primary called stranglehold. [00:08:30] And the last episode of that series covers exactly this. We highly recommend a listen.

Hannah McCarthy: [00:08:34] Speaking of listening, at least to the Democratic National Committee, in this case, New Hampshire is not the first in the nation. Primary is in their Constitution, they say, and that is that. And the DNC says, fine, but your primary will be meaningless to us. Biden isn't even registered in New Hampshire, and the DNC pledges not to seat New Hampshire delegates at the convention in the summer. [00:09:00] But it's worth mentioning this has happened in the past. In 2008, both Michigan and Florida held their primaries earlier than the rules allowed, and by the Democratic National Convention, the DNC had caved and allowed their delegation to vote anyway. Either way, New Hampshire Democrats are conducting a rioting campaign because whoever gets these still largely symbolic Democratic win in New Hampshire will still matter. In terms of optics.

Nick Capodice: [00:09:25] Are the court of public opinion.

News Archival: [00:09:27] That write in campaign will mean thousands of votes need to [00:09:30] be hand counted on primary night, but election officials say it's not going to delay the results. It would definitely be more complicated if there were a lot of...

Hannah McCarthy: [00:09:37] So the 23rd, the day this year episode appears in your feed, will be the day we find out how the Republican candidates fare in a state that still garners a ton of attention in the primary season. It is also the day we will see how this strange write in campaign goes for the Democrats. So I don't know, definitely worth national attention, which [00:10:00] keeps New Hampshire right where it wants to be.

Nick Capodice: [00:10:02] All right, so those are the especially early states in this nail biter of a 2024, one of which the DNC is pretending doesn't exist, like a kid who is continuing to misbehave and you just ignore it pre 2000 parenting style. Yeah. All right. So what happens after that?

Hannah McCarthy: [00:10:21] I'm going to get to what happens right after that and February after the break.

Nick Capodice: [00:10:25] But before that break it is our podcast fundraiser. You know these [00:10:30] fundraisers don't come along every day and we've got some really cool swag for you. We've got a hat and we have some fine merino wool socks crafted right here in New Hampshire. You can get both the hat and the socks for a $10 a month donation at our website, civics101podcast.org, or just click the link in the show notes.

Hannah McCarthy: [00:10:55] All right, we're back. And, Nick, right before the break, you asked me what happens after [00:11:00] the January 23rd New Hampshire primary. Well, after that comes February, during which South Carolina, Nevada and Michigan say hello, South Carolina.

Nick Capodice: [00:11:11] The one who the DNC says is the actual first in the nation primary.

Hannah McCarthy: [00:11:15] Correct. And then Nick comes March.

Nick Capodice: [00:11:19] Are the Ides of March. This is Super Tuesday, am I right? Yep.

Hannah McCarthy: [00:11:23] March 5th has a ton of primaries, 16 states this year, and.

Nick Capodice: [00:11:28] Super Tuesday is [00:11:30] a thing.

Hannah McCarthy: [00:11:31] Why? Uh, partially tradition. We have had some version of it since the 1970s and partially politics. Duh. Having a large block of states, especially in a region of the country, or to cast their votes on the same day, means a candidate who doesn't do so hot in an early state gets a chance to win big soon thereafter.

Nick Capodice: [00:11:52] And Super Tuesday is usually a clarifying day, right? Basically, a lot of delegates are won on this day and give a better indication [00:12:00] of who will get that final nomination, especially in a year where there is a non-incumbent running. Super Tuesday is when a lot of candidates drop out, and the delegate thing itself is really complicated.

Hannah McCarthy: [00:12:14] Oh yeah. Again, please listen to our episode on primaries and caucuses because it is complicated and some delegates are pledged or bound and some are not. And it's just like, I don't know, Nick. Like basically, I think those people who fully understand the math here and build strategies [00:12:30] on it are amazing and frightening, like people who start successful businesses or people who can paint their fingernails on their dominant hand without messing up.

Nick Capodice: [00:12:39] Just like that. Hannah. Uh, but also, I happen to know that two states, Colorado and Maine, will also be holding primaries on March 5th, and both of them have barred Trump from the ballot.

Hannah McCarthy: [00:12:52] Ah, yes. Just when we thought it was a straight shot from here to Election Day. So Trump is still on the ballot in Colorado and Maine, and we are going [00:13:00] to have to wait and see what the Supreme Court has to say about that. Massachusetts and Illinois are also moving forward with Trump ballot objections. So the.

Nick Capodice: [00:13:09] Supreme Court is ruling on this as of.

Hannah McCarthy: [00:13:11] January 5th. They agreed to take on the Colorado question. They also know that it has to be done quickly. So they're going to have arguments on February 8th.

Nick Capodice: [00:13:20] So there could, in theory, be other states that do not have a presidential hopeful on the ballot.

Hannah McCarthy: [00:13:26] Other states like New Hampshire. Right. But the difference between this and the New [00:13:30] Hampshire DNC debacle is that people can actually write in Biden's name on their ballots in New Hampshire, and the votes will be counted, even if the DNC says those delegates will not. If people write in Trump's name, in states where the court affirms that he is barred, those write ins will be thrown out.

Nick Capodice: [00:13:46] Is that the most that the Supreme Court has been involved in a presidential election since Bush v Gore? When the court, in a super narrow opinion, settled a Florida general election recount and George Bush was awarded the presidency.

Hannah McCarthy: [00:13:59] That is what folks are saying. [00:14:00]

News Archival: [00:14:00] You and I had a conversation yesterday and Bush v Gore came up and you were comparing this to that. Can you talk a little bit about that for us?

News Archival: [00:14:11] Yeah. I mean, um, not to be flip about it, but Bush v Gore was, uh, you know, nursery school compared to this. Um, that was a very narrow case.

Hannah McCarthy: [00:14:23] So anyway, Scotus has been urged to please issue an opinion by March 5th, which is so fast, [00:14:30] by the way.

Nick Capodice: [00:14:31] Wow. By Super Tuesday. And while we're here, I know there was another case the Supreme Court was asked to take up and fast track another case involving Trump.

Hannah McCarthy: [00:14:41] Yeah, this is relevant. The immunity case. In other words, does former President Trump have, as he and his lawyers claim, immunity from prosecution for charges against him, those charges being that he plotted to overturn the 2020 election.

Nick Capodice: [00:14:57] And the immunity being because he [00:15:00] was president at the time of the actions for which he's being charged. Yeah.

Hannah McCarthy: [00:15:04] Now, the Supreme Court declined to fast track this case. So it was heard by a D.C. circuit Court of appeals on January 9th. This appeal is about a couple of things. A lower court said Trump does not have absolute immunity. So the appeal is asking the circuit court to determine whether Trump is, in fact, immune. The judges seemed really skeptical of the immunity claim at this trial. This [00:15:30] is also about delaying the trial that will happen if this Circuit Court of Appeals agrees with the lower court and determines that Trump is not immune. The court could also, by the way, just say that Trump has no standing in the appeals court at this point in litigation, and the trial will just go forward anyway. But no matter what happens, this is probably eventually going to be appealed up to the Supreme Court. And. Time is a wastin. So that circuit court is probably going to issue a ruling soon. Uh, maybe it has even happened [00:16:00] by the time you're listening to this. I will add it to the show notes when it does.

Nick Capodice: [00:16:03] And this is one of several cases Trump is facing this election year. Right.

Hannah McCarthy: [00:16:08] Which and this gets to the relevant part, could definitely affect Trump's ability to campaign and debate, although only one of those trials is actually set in stone. It started on January 16th. E Jean Carroll seeking damages for defamation. Now, this case was actually just recently delayed due to a sick juror, but it will continue on. An earlier [00:16:30] case found Trump guilty of sexual abuse against Carol, and Trump lost a series of appeals following that decision. And this current case is about Carol suing over statements Trump made about her when he was no longer president. But in terms of votes, Nick, an NPR PBS NewsHour Marist poll, found that two thirds of Republican voters would still vote for Trump if he is convicted of a crime.

Nick Capodice: [00:16:54] The next two months, Hannah. My goodness.

Hannah McCarthy: [00:16:58] Yeah, we shall see. So [00:17:00] even though Super Tuesday is major, primaries will continue through March, April and May right into June 4th, that is the last major block when the District of Columbia votes along with Montana, new Jersey, New Mexico and South Dakota. The US Virgin Islands and Guam have Democratic caucuses on the 8th of June. Their Republican caucuses are earlier.

Nick Capodice: [00:17:22] And neither of those territories have electoral votes in the presidential election.

Hannah McCarthy: [00:17:26] That's right. Nor do the Northern Mariana Islands or Puerto Rico [00:17:30] who vote in March and April, respectively. But the way a candidate fares in all territories still matters prior to the nomination, because they do get to send delegates to the conventions. And by the way, people born in these territories are US citizens, and if they want to vote in a general election, they can, but they have to reside in one of the 50 US states in order to do it. And by the way, that general election happens. Drum roll please. [00:18:00]

Nick Capodice: [00:18:00] I don't have a drum. Wait, I have a melodica.

Hannah McCarthy: [00:18:03] Yeah. Yeah. Okay.

Nick Capodice: [00:18:09] How was that?

Hannah McCarthy: [00:18:11] That was so much better than I could have hoped for. Okay. Thank you so much. Uh, July 15th through 18th for the GOP and August 19th through 22nd for the Democratic Party, which will be right after one of my best friends gets married.

Nick Capodice: [00:18:26] Anna, this episode's supposed to be about the 2024 election, and I kind [00:18:30] of feel like you're really making it about yourself. No offense. No.

Hannah McCarthy: [00:18:33] None taken. So then there are the scheduled presidential debates after that.

Nick Capodice: [00:18:37] After that, as in, after we know whether it'll be Biden versus Trump or Biden versus Haley.

Hannah McCarthy: [00:18:42] Barring something very unusual. Yes. So the Commission on Presidential Debates picked September 16th for the first presidential debate. Then there will be a vice presidential debate on September 25th, then October 1st and ninth debates, and then that's it. And [00:19:00] that is also right before another one of my best friends gets married. Uh, speaking of, I've got another national committee fight for you.

Nick Capodice: [00:19:08] You're speaking of the other wedding or the.

Hannah McCarthy: [00:19:10] Rnc has beef with the Commission on Presidential Debates. You can learn all about them in our episode on presidential debates. Yet another link down there in the show notes for you. The RNC claims that this organization is biased, even though they're nonpartisan, and has said that they might make Republican candidates sign a pledge not to participate in their events.

Nick Capodice: [00:19:28] Wow. Is [00:19:30] it just me, Hannah? Or is there more political fighting than there was, you know, a decade ago? Are you.

Hannah McCarthy: [00:19:35] Just, um, noticing this.

Nick Capodice: [00:19:36] Now? I was making a joke.

Hannah McCarthy: [00:19:38] Okay. Very good. I'll tell my uncle. Uh, either way, Trump promises to debate Biden if given the chance, which he certainly believes he will have.

Nick Capodice: [00:19:47] And then Hannah then comes November.

Hannah McCarthy: [00:19:51] Righto. The general election, the first Tuesday in November. That is when we pick a president.

Nick Capodice: [00:20:00] You [00:20:00] know, it feels both very far away and desperately imminent.

Hannah McCarthy: [00:20:06] Indeed. I think it's both.

Nick Capodice: [00:20:07] So okay. I guess we can just say this is going to be quite a year.

Hannah McCarthy: [00:20:16] But at least now listeners have the option of pulling out their phone or datebook or Palm Pilot or whatever, and merely listing off the dates of major political events in case of a contentious bar conversation.

Nick Capodice: [00:20:28] Well, nothing allows cooler heads to prevail [00:20:30] better than cold, hard dates.

Hannah McCarthy: [00:20:33] You never know. It could be true. You can throw niche podcast hosts birthday in there if you want to have some real fun. I mean, Nick, it is not nothing that I was born on an election day.

Nick Capodice: [00:20:46] Here we go.

Hannah McCarthy: [00:20:46] Doesn't that seem like fate to you? I think it's fate.

Nick Capodice: [00:20:49] Well, you know what the man says, Hannah, right?

Hannah McCarthy: [00:20:52] What's that?

Nick Capodice: [00:20:52] If it be now, tis not to come. If it be not to come, it will be now. If it be not now, [00:21:00] yet it will come. The readiness is all. You know what's funny? It's that in Hamlet. It's the readiness. And in King Lear it's the ripeness, you know, which means maybe King Lear is like a little more. He's, you know, had a little time to think about it. He's had a lot of time to think about. Well, he's older. Yeah. He's older.

Hannah McCarthy: [00:21:17] He's a lot older.

Nick Capodice: [00:21:18] Yeah. And his uh. Oh yeah. And his and his daughter's like okay, that's she says a whole lot of nothing. That's what she says.

Hannah McCarthy: [00:21:27] That's good.

Nick Capodice: [00:21:28] Did you ever hear so much talk [00:21:30] about nothing. Yeah. That's enough chatter right okay.

Hannah McCarthy: [00:21:50] That does it for this episode. And do keep in mind that whenever you listen to this, some of the things that we're talking about may have changed like a lot. [00:22:00] Know your dates. Pay attention this year, people. So much is happening. And I don't just mean my dear friends' nuptials. Oh, but also one of my best buds just had a baby like three days before the Iowa caucus. What a year. You know, what a year for me, but also for you. This this is an important year for you. Okay. This episode was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by [00:22:30] Duke Herrington, spring gang, OTE, Andreas Dahlback and El Flaco Collective. You can get the transcript for this episode, as well as listen to all of our other episodes at our website, civics101podcast.org. And while you're there, you can ask us any question you please, especially in such a year as this. I mean, come on again, that's Civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

How much do government employees get paid?

Government salaries vary an awful lot; from $100 a year to $11.5 million. So who makes what? 

Today we divide the issue of taxpayer-funded salaries in two. How much officials make, and then how much they really make. Why do so many politicians make money once they leave office? How much can you get from speaking at events? And how do lobbyists affect not only policy, but their career trajectory? 

Our guest is Anna Massoglia from Open Secrets, the "nation's premier research group tracking money in U.S. politics."

---

Transcript

Nick Capodice: Hannah you've ever played the game Life

Hannah McCarthy: Oh, yeah. That game makes me kind of nervous for some reason.

Nick Capodice: If anyone out there hasn't played Life, it is kind of a game where you spin a little wheel and you move your car around. You go to college, make money, inherit your aunt's skunk farm and have babies.

Hannah McCarthy: Yeah, that's I would say that's a pretty decent summary. Uh, you know, it's kind of a bleak game when you think about it. It's basically [00:00:30] make as much money as you can and you win at life.

Nick Capodice: Do you remember what the best paying jobs were in life?

Hannah McCarthy: I think so I actually played a few years ago, so I know that they have updated the game. I'm pretty sure it was doctor and lawyer.

Nick Capodice: Yep those were the top earners for me too. And I bring it up, Hannah, because you'll notice that president, member of Congress, Chief justice, those weren't options in the game of Life.

Hannah McCarthy: They sure weren't, Nick.

Nick Capodice: They weren't.

Hannah McCarthy: I [00:01:00] know it changes every few years, but how much money do those people make in the real world?

Nick Capodice: Well, this is a big old hairy Gordian knot, Hannah. So I'm gonna cut it in two. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah Mccarthy.

Nick Capodice: And today we're talking about how much money government employees make. And, yeah, I'm going to do a part A and a part B. Part A is going to be me pretty much rattling off salaries of various government officials. And part B [00:01:30] is where we'll talk about how much they really make, as in money outside of their law determined salary.

Hannah McCarthy: Okay, let's do it. All right. So let's just get right down to it. Who is the highest paid government employee?

Nick Capodice: State or federal.

Hannah McCarthy: Let's do federal. Is it the president? Because it kind of feels like it maybe should be the president.

Nick Capodice: It's not the president, but we will start there. Article two, section one says that Congress determines the salary of the president and that it cannot be increased [00:02:00] or decreased during their terms. And right now, that salary is where it's been since 2001, $400,000 a year.

Hannah McCarthy: I mean, that's pretty good. Like, I, I would love that, frankly. Um, how much were our earlier presidents paid?

Nick Capodice: Interestingly, George Washington tried to refuse payment for serving as president, but Congress was like, let's pull out the old contract, George. I think that's our decision. And they made him take 25,000 bucks. And [00:02:30] I know there's no accurate way to say what that means in today's dollars. It's like a pet bugaboo of historians. But I will say, if you just punch it into an inflation calculator, it comes out to $729,000. Whew. But you should also know Washington didn't need it. He was a very wealthy landowner and slaver, distiller. That salary was a drop in the bucket. By the way, Hannah, do you know the story about Babe Ruth and Herbert Hoover?

Hannah McCarthy: Actually, I don't.

Nick Capodice: In [00:03:00] 1929, Babe Ruth made $80,000, and a reporter asked him why he made more than President Hoover, who made 75,000. And the Babe said, well, I had a better year than he did.

Hannah McCarthy: In 1929 was not a great year for Hoover. That is true. Yeah.

Nick Capodice: Stock market crash and the Great Depression, all that stuff.

Hannah McCarthy: Uh, but back to my question. Who does have the highest salary in the federal government?

Nick Capodice: Well, as these jobs change over the years, the salary changes. So I'm going to tell you, the record holder, [00:03:30] the record holder for federal government salary is none other than former head of the National Institutes of Health, doctor Anthony Fauci.

Hannah McCarthy: Really? How much?

Nick Capodice: Before he left his position, he was paid $434,000 a year, and he now receives a yearly pension of $350,000. And he's not alone. If you look at the top 100 paid federal employees right now, the NIH holds the first four slots and then the other 96 are medical officers in [00:04:00] the Veterans Health Administration.

Hannah McCarthy: Well, that makes sense. They're doctors. I mean, they're called medical officers, but they did go to medical school.

Nick Capodice: Yeah. And doctors in the private sector have a massive range of salaries, depending on their specialties and myriad other factors. But government employee doctors might have to give up on those jobs in the private sector, which are far more lucrative, and their salaries are not a matter of public record. But back to the list. Once we get past all the medical government positions, we [00:04:30] get to members of Congress.

Hannah McCarthy: And members of Congress decide how much they will make right. And I know they can't raise or lower their own salaries until an election of representatives has happened, because that's what it says in the 27th amendment.

Nick Capodice: Very good, Hannah. So let's jump into a breakdown of modern day congressional pay. All members of Congress, I'm talking senators and representatives make $174,000 a year. Now, there are a few notable bonuses. The vice president, who, [00:05:00] lest we forget, is the president of the Senate, makes $255,800. President pro tempore of the Senate, which is the longest serving member of the Senate of the party in power. They make $193,400, as do the Senate majority and minority leaders and the House majority and minority leaders. The last exception is the speaker of the House, the People's Chamber. They make $223,500 a year.

Hannah McCarthy: All right. And last federal employee that we really should cover, [00:05:30] Nick and I ask because it was in the news recently Supreme court justices.

Archival: A new ProPublica report says Supreme Court Justice Clarence Thomas privately pushed for a higher salary and to let justices take speaking fees.

Nick Capodice: The New York Times and ProPublica reported a memo from 2000 where Justice Clarence Thomas threatened to resign if the Scotus salary was not increased, and it has increased quite a bit since then. Thomas was making 173,000. [00:06:00] The year in 2000, and now he and all the other associate justices make $285,400 a year. And don't forget the chief. Chief Justice Roberts makes a little more 298,500.

Hannah McCarthy: And I'm going to imagine our listeners have had just about enough of the numbers by now. But I do want to touch on the States.

Nick Capodice: All right. Pop quiz hotshot. Who are the highest paid state employees?

Hannah McCarthy: I actually [00:06:30] know this. Public university football coaches.

Nick Capodice: Mccarthy makes the point.

Nick Capodice: Is that what they say, like the point is good.

Hannah McCarthy: You..you've never seen football, have you?

Nick Capodice: I did play a lot of Madden at one strange point in my life.

Nick as John Madden: He was looking to go over there and he ran right into those coverage guys.

Hannah McCarthy: Okay, let's have those numbers.

Nick Capodice: In 40 out of the 50 states. Yes. Public university football coaches are far and away the highest paid government [00:07:00] employees. Now, the reason they are government employees is because public universities receive state funds, which can contribute to the coach's salary. But the reason they're so high is that there are many other sources for their salaries outside of the government, and as a result, they make a lot more than the president, many, many times more. The highest paid Hanna is William Dabo Swinney. He's the coach at Clemson in South Carolina. His current salary is $11.5 million [00:07:30] a year. Yep. And you're not going to see a salary anywhere near that in any state for non-sporting related jobs. You know, you've got some medical officials and state college presidents and professors who make around 500 K, but that is pretty rare.

Hannah McCarthy: And what about state legislatures? I know that those salaries vary a lot.

Nick Capodice: They sure do. California's state reps make the most at $110,000 a year. And I don't need to tell you, Hannah, which state's representatives make the least, now do [00:08:00] I?

Hannah McCarthy: No, you do not. That would be New Hampshire, the Granite State. Live free or die. Here in New Hampshire, we pay our state reps 100 bucks a year. But to be fair, there are 400 of them. All right, Nick, I think we got most of it, right.

Nick Capodice: Yeah, we got most of the utterly irrelevant stuff out of the way. Because when it comes to politicians, the salary is just the tip of the iceberg. And I've got someone from the most informed organization on this topic in the country. But first we got to take a quick [00:08:30] break.

Hannah McCarthy: But before the break, we are in the midst of our podcast fundraiser and we have a hat and we have socks. Very, very fine. NHPR Merino wool socks made in New Hampshire. Warm toes might not be a right protected by an amendment, but maybe it should be. Nick wrote this. You can get the hat and the socks by making a $10 a month gift right now at civics101podcast.org.

Hannah McCarthy: We're [00:09:00] back. We're talking about money and politics. How and how much. And, Nick, we were about to get into the real money.

Nick Capodice: The real money indeed. Hannah. And here is someone who knows where all that money comes from.

Anna Massoglia: My name is Anna Massoglia, I'm the editorial and investigations manager at Open Secrets.

Hannah McCarthy: Oh, Open secrets. We use them all the time when we research episodes, so we should probably tell everyone what they do.

Anna Massoglia: So Open secrets is a nonpartisan nonprofit that tracks money in politics in the United States. We look at things like lobbying, campaign [00:09:30] finances at the state, as well as the federal level. We have both a research and journalism arm, so we do some of our own reporting, but primarily we exist to provide research to provide nonpartisan, completely unbiased data to journalists, to academics, to students, to the average person who wants to contact us and better understand who their representative is, who's funding them, or anything else about money in politics.

Nick Capodice: So any money somebody makes while they're in office has to be reported. You're not allowed to make what's called outside earned income [00:10:00] over 15% of your salary. So that's about $27,000.

Hannah McCarthy: Earned income.

Nick Capodice: Earned income. You heard the magic word.

Hannah McCarthy: So is there an income that counts as unearned?

Nick Capodice: There is; bonds, investments, stocks, rent. And if you're married, lots of that income can be generated from your spouse.

Hannah McCarthy: I mean, politicians cannot take money directly into their bank account from lobbyists, but they can receive contributions to their campaigns, right?

Nick Capodice: They can. And the cap is $6,600 [00:10:30] per individual, and then sometimes another 6600 for that individual and their family. And that may sound like small potatoes, but all those individual gifts add up. Uh, former speaker of the House Kevin McCarthy. His 2024 campaign made $886,000 from lobbyists and their families alone.

Hannah McCarthy: We should also mention here it does take a lot of money to run for the House of Representatives, and it's never over. The second [00:11:00] you start the job, you're campaigning for the next election.

Nick Capodice: Constantly, constantly campaigning. But Anna told me it's not just how much people make while they're in office or towards their campaign, it's what they make after.

Anna Massoglia: There's a number of different avenues for members of Congress to make money, both while they are in office, and those opportunities multiply after they are able to leave that service as well. So during that time in office, oftentimes you'll see things like book deals show up in their personal financial disclosures, [00:11:30] which are legally required to be disclosed every year. Um, once members of Congress may leave after that, they're much more open to not just these things like book deals, but also speaking fees.

Nick Capodice: Speaking fees are huge, and these happen before or after your time in office. You can't do it while you're in office. Uh, just to use some people who are currently running for President Joe Biden, uh, Joe Biden, when he was out of office, made about $200,000 for speaking at events, Nikki Haley, also [00:12:00] $200,000 per event. And Mike Pence, who, yes, is no longer running, 100,000.

Hannah McCarthy: So you're saying the day you leave office, you can start to rake in the big bucks?

Nick Capodice: Not like that day. You have to wait a little bit.

Anna Massoglia: After what's called a cooling off period. So the period right after they leave the government where they are subject to additional restrictions on things like lobbying, uh, after that period is open, there are even more opportunities to make money as a revolving door lobbyist, being able to go back and even push and advocate for policies with their old colleagues. [00:12:30]

Hannah McCarthy: What does Anna mean by revolving door lobbyist.

Anna Massoglia: The revolving door is when a government official, such as a member of Congress, a congressional staffer, or someone working in a different government agency, or even the president can leave office and go into a private sector position. This could be a variety of things, whether it's a consultancy for a business or explicitly registering as a lobbyist. And in that position in particular as a lobbyist. This former government official now has gone through a revolving [00:13:00] door. The revolving door government official will then be able to go back to former colleagues to, uh, in some cases, even their subordinates, and lobby them down the road and sometimes on the same issues they may have worked on while they were in government positions.

Hannah McCarthy: So the quote unquote, revolving door is a metaphor for returning to government and using their influence as a former elected official and their understanding of how the system works for personal gain. Right. Um, okay. So I want to know how much money [00:13:30] a former member of Congress can make working as a lobbyist versus how much they made as a congressperson.

Anna Massoglia: So after members leave Congress, they don't really have to file the same personal financial disclosures. So we don't necessarily know how much they're making down the road. Uh, but just looking at average salaries for firms, looking at average, even for non-former members of Congress, you're seeing jumps to hundreds of thousands of dollars a month in some cases.

Hannah McCarthy: Hundreds of thousands of dollars a [00:14:00] month.

Nick Capodice: Yep. We're in state football coach territory.

Anna Massoglia: And the thing about the revolving door is, of course, it can spin. Many times you may see them after going to that private sector position, going back to a government position and kind of bouncing back and forth. And the more you see them bouncing back and forth, you kind of start to see these trends of, oh, these are the issues that matter to them both in and out of government, which really builds this portfolio, which makes them all the more marketable to different special interests that are trying to [00:14:30] influence government changes.

Hannah McCarthy: So there's this cooling off period between being an elected official and becoming a lobbyist. But a former elected official who eventually becomes a lobbyist can just jump into the race and run for office again with no cooling off period.

Nick Capodice: They can. And there is indeed no secondary cooling off period for that. You can just go round and round.

Hannah McCarthy: There is something that we have talked about before when it comes to lobbying. You know, we touched on it in our episode on who writes bills [00:15:00] and that is that it's not as though the gun lobby or the milk lobby is giving a politician money. The lobbies are talking to them. They're getting to know them, helping them out with information.

Nick Capodice: Yeah. Anna said that congressional staffers work really hard and they get paid very little. So if they're tasked with helping to write a piece of milk centric legislation, say the milk lobby might come along and say, oh, that's really complicated. Let me just help you out with that.

Anna Massoglia: I think that's a [00:15:30] common misconception among Americans, that lobbyists are just going in with bags of cash and giving them to politicians in order to pass a different types of resolutions or legislation. And in reality, it's much more complicated than that. You'll oftentimes see things like nice dinners, events on taking politicians out to different sporting events, games, whatever. There are restrictions on that as well. There is a limit on gifts given to members of Congress. So I think it's like something like $50 where you can't really go over this very low amount for giving [00:16:00] them a dinner like a one on one type of thing. However, there's so many different loopholes to this where you can have publicly accessible events and have these amazing feasts for staffers and members of Congress and putting them in the same room as lobbyists and other advocates who are trying to push these policies. You also, of course, have longer time relationships built between these lobbyists and members of Congress as well as with their staff.

Hannah McCarthy: So lobbyists spend a lot, like a lot of money.

Nick Capodice: Yeah they do. [00:16:30] Some lobbies spend hundreds of millions of dollars each year.

Hannah McCarthy: Did Anna say what they get in return for that?

Nick Capodice: She did. Uh, one reason that companies will lobby Congress is to try to get contracts, to say we're the right people for the job. We're the right people to build this building or missile or hydroelectric dam.

Anna Massoglia: And so when, for example, government contractors, defense contractors in particular, were able to track how much they're spending on lobbying every year and then how much they get in terms of government contracts [00:17:00] and the amount that they're spending in lobbying is, of course, huge millions of dollars. It's nothing that I mean, the average person can really even comprehend having at their fingertips. And then you look at how much they got back and it's even it's substantially more, in the billions at that point.

Hannah McCarthy: There's an infographic we've talked about before, Nick, from the website Represent.us, which said a savings account that a regular ol anybody like you and me can get at a bank has a 1% return. [00:17:30] A stock market investment has about a 7% return. But the most powerful lobbies get corporations a 76,000% return.

Nick Capodice: Yep. Though I will add, I told that stat once to an actual lobbyist, and he gave me a very incredulous "Well, I don't know about that." So I am going to keep looking.

Hannah McCarthy: And it's not as though one party does this more than another party does, right? It's both [00:18:00] parties doing this all the time.

Nick Capodice: Yeah right down the middle, Republicans and Democrats. And it is not just on the federal level.

Anna Massoglia: We're also seeing this at state houses as well, where we're seeing lobbyists going and pushing for different state legislation. And so if you have, for example, lobbyists for big business, they might be pushing the same thing in different states across the country, effectively copy pasting legislation and and pushing. That's why you see a lot of very similar laws in different states. For companies, that's very desirable because they don't have to figure out and navigate the different regulatory [00:18:30] systems.

Nick Capodice: Last thing, Hannah, Anna said that there is an issue that has come up more and more recently, which is members of Congress making a lot of money in the stock market. Oh, which.

Hannah McCarthy: They're allowed to do because that is unearned income.

Nick Capodice: Right

Anna Massoglia: Members of Congress are limited with what information they can use. They can't engage in insider trading. But because they are in these meetings oftentimes where they get information before the American public, it puts them in a position where they may be better [00:19:00] situated to know what stocks to trade ahead of the average American, which can in some cases veer into insider trading territory. And so there started to be pushes to ban stock trading by members of Congress entirely or to increase disclosure. And that's something else. That has been another interesting trend of looking at ways different politicians and government officials are able to make money.

Archival: And some of our elected representatives in Congress appear quite skilled at making these predictions, a few even outperforming [00:19:30] Wall Street's most seasoned traders. Abc's Jay O'Brien introduces us..

Nick Capodice: The thing is, it's hard to demonstrate a member of Congress's net worth after they leave office versus before they got the job. Because once they leave office, it's no longer public information. But we do have data estimates on presidents. So, for example, when George W Bush entered office, his net worth was 20 million and now 50 million. When Bill [00:20:00] and Hillary Clinton entered the white House, their net worth was 1.3 million. And now 120 million. People tend to make money when they leave office.

Hannah McCarthy: So now we know all this, but what are we supposed to do about it? Is there anything to do at all? Money and politics have gone hand in hand since the invention of money and politics. Is there anything we should do?

Nick Capodice: Yeah. Um, [00:20:30] first off, everyone out there should look up their reps and their senators and see how much money they've received and from whom. Uh, see what committees they've worked on. You can even look up the terms. Members of Congress, stock trades. And you can see in real time what stocks your elected officials are buying and selling right now. And most importantly of all, sure, you can protest and you can petition and hold up cardboard signs at the statehouse and call your senator day in and [00:21:00] day out. Please, please do not stop doing that. But if you want to make a change and you got the dough, you should consider hiring yourself a lobbyist.

Hannah McCarthy: Well, now, how much does a lobbyist go for these days?

Nick Capodice: Well it varies. Uh, you're looking at 5000 to $25,000 a month with a one year minimum contract.

Hannah McCarthy: So for now at least, we are stuck with markers and cardboard.

Nick Capodice: You said it McCarthy. And I don't think I'd have it any other way.

Nick Capodice: Well, [00:21:30] that is the single greatest number of numbers I've ever said in an episode. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. Music. In this episode by Blue Dot Sessions, DivKid, ProletR, HoliznaCCO Fabian Tell Mary Riddle, Dajana, Martin Klem, Nico Rengifo, Tigran Viken, Bio Unit, and you think I'm going to get through an episode without Chris Zabriskie? You've [00:22:00] got another think coming. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

Rumors and Lies, the American Version

The truth is out there.

In this double feature of two of our favorite episodes we cover misinformation, disinformation and propaganda - three tricky truth-benders that come at you from every angle in American life. Our guides include Samantha Lai of the Brookings Institute, Peter Adams of the News Literacy Project, John Maxwell Hamilton (professor and author of Manipulating the Masses: Woodrow Wilson and the Birth of American Propaganda and Jennifer Mercieca, professor and author of Demagogue for President: The Rhetorical Genius of Donald Trump.

If you want more episodes about voting and the electoral process, check out our 2024 Election Toolkit.

---

---

Made possible in part by the Corporation for Public Broadcasting.

Expulsion from Congress

Expulsion from Congress is extremely rare. Nevertheless, NY Congressman George Santos was expelled on December 1, 2023. So how did that happen?

Today on Civics 101 we are guided by Carlos Algara, who lays out the history of expulsion in both chambers, the process, the Ethics Committee, censure, and how Congress fills an empty seat after somebody is expelled.

---

Transcript

Hannah McCarthy: Nick, what are you doing?

Nick Capodice: Uh. Square breathing.

Hannah McCarthy: Square breathing.

Nick Capodice: Square breathing. It's a it's a technique I heard the Navy Seals do sort of calm down a little. Keep their head straight. You breathe in four seconds, hold four, out for, hold four, etc., okay?

Hannah McCarthy: Like. Like a square. [00:00:30]

Nick Capodice: Like a square? Yeah, like a square.

Hannah McCarthy: Now, why are we talking about square breathing?

Nick Capodice: Uh, so usually, Hannah, when I start an episode, I find some, like, relative news clips, and I put some bompin music underneath it, and then we say, I'm Nick Capodice, I'm Hannah McCarthy. But the sheer firehose amount of soundbites for this one...

Archival: , this Burberry.Scarf, Botox treatment..At Hermes and Ferragamo.

And what's in those soundbites? It's pretty bonkers.

Archival: Organized a [00:01:00] fundraiser for his dying service dog back in 2016, only to pocket the money himself. I actually went to school on, uh, on a volleyball scholarship.

Nick Capodice: Like, kind of all over the place. Like maybe it's performance art level. Bonkers.

Archival: When asked if the baby was his, Jorge Santos responded, not yet. The next time he tries to accost me with the child in my.Hand, I want him out of here.

Nick Capodice: Honky tonk bazonker zonk, Hannah

Archival: what could we do to get you to go away? Stop inviting me [00:01:30] to your gigs.

Nick Capodice: Okay. We're cool. We're going to keep it about systems and procedures because that's what we do on this show. You are listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about expulsion from Congress. We're also going to talk about the Ethics committee, censure and how a congressional seat is filled when somebody is expelled.

Hannah McCarthy: And, Nick, I imagine the reason we are doing this episode right now [00:02:00] is because we have just had an expulsion. And to fill anyone in who may have missed it. On December 1st, 2023, the House voted 311 to 114 to expel Congressman Jorge Santos for, um. Wait, did the House say which of the charges against him merited expulsion?

Nick Capodice: Yeah, it was kind of like an amalgamation of all of the charges. House resolution 878, which everybody out there should read. By the way, [00:02:30] just look up H.R. 878 on Congress.gov. It lists several pages of charges, including campaign finance violations, identity theft, sexual harassment, and Santos enriching himself through a fraudulent contribution scheme. I might have missed a few.

Hannah McCarthy: Okay. Uh, so to start, like, how often does an expulsion happen?

Carlos Algara: Um, long story short, not that often. And there's a couple reasons why.

Nick Capodice: This is Carlos Algara, professor [00:03:00] of political science at Claremont Graduate University and formerly in the employ of the US Senate.

Hannah McCarthy: Oh, wow. So he worked on Capitol Hill.

Nick Capodice: He did. He worked in the office of Senator Jeff Merkley. He has been inside the machines we talk about every day from afar. Um, but yes, Carlos is right. Expulsion from Congress is as rare as to use a favorite expression of my father hen's teeth and horse's toes.

Carlos Algara: Most cases of expulsion, if you look at the historical record, occurred during the Civil War, [00:03:30] right. In both chambers. Um, so we've had members of Congress expelled during the Civil War under a clause called disloyalty to the Union. And that's where the bulk of the cases come from.

Hannah McCarthy: How many House representatives were expelled during the Civil War?

Nick Capodice: Three.

Hannah McCarthy: Wow. And after that.

Carlos Algara: There have been two expulsions during the postwar period. The first is James Traficant. Um, in 2002, he was expelled due to, um, I believe it was some sort of, uh, bribery scandal. [00:04:00] Uh, and then there was another congressman, uh, Michael Myers from Pennsylvania, who was also expelled. He was part of the Abscam scandal. And so those are the two most recent members, um, since the Civil War, actually the House of Representatives.

Hannah McCarthy: Wow. So George Santos is the sixth in US history?

Nick Capodice: Yep. Lucky number six.

Hannah McCarthy: How about the Senate? Is it more or less common?

Carlos Algara: The Senate's a little bit different, right? The Senate, whether it's because of norms or whether it's because of sort of the nature of the upper chamber, [00:04:30] we've noticed that senators generally resign, right? You know, I don't know if it's because, um, as a senator, you're in the spotlight more and it's harder to commit crimes while you're in office. Senate races are statewide. They're much more high profile. Um, so we have strong selection effects here, right. Um, but, you know, John Ensign, so this was a Nevada Republican senator. He ends up using official funds. It was payments to to a mistress. Um, that was not disclosed on campaign finance. Right. [00:05:00] Obviously very illegal. Something you shouldn't do. When the expulsion proceedings were beginning in 2011, he resigns, right? He puts out a statement. He says he doesn't want to put his family through this and he leaves the chamber. So on the Senate side, we see a lot less drama.

Nick Capodice: There was one expulsion from the Senate back in 1797. William Blount, who was charged with treason for inciting the Creek and Cherokee nations to invade Spain's Florida territory, a topic for another day, but the next ones [00:05:30] after that. We got a wash of 14 senators being expelled during the Civil War, but literally none after that whatsoever. Like Carlos said, they usually resigned or they were exonerated for their crimes. And that's why in this episode I'm pretty much focusing on house expulsion.

Hannah McCarthy: All right. So it's a big deal. I get how rare this is, but I want to know about the process. Our expulsions in the Constitution.

Nick Capodice: They [00:06:00] are indeed, article one, section five, clause two. "Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two thirds, expel a member."

Hannah McCarthy: Oh, it takes a two thirds majority.

Nick Capodice: Yeah it does, but Congress can in certain circumstances choose to not allow an elected representative or senator to be a member of Congress before the Terme even starts.

Carlos Algara: The Constitution gives both chambers of Congress the authority and the power [00:06:30] to decide its own members. Should. So even before getting to expulsion. Um, Congress can decide whether or not to seat a member elect. That requires a simple majority vote. So, you know, there have been course, there have been some instances in history, um, where members elect have actually committed crimes and they have not been seated. Right. And so that takes that's similar to expulsion. That takes a majority.

Hannah McCarthy: Just a simple majority. And Congress can say, yeah, you were elected, but we're not letting you in.

Nick Capodice: Yeah. And it may seem [00:07:00] that this power could be ruthlessly abused by the majority party, just, you know, refusing to seat anyone from the other party. But it is exceptionally rare. And the Supreme Court ruled in pal v McCormick in 1969 that Congress must seat someone if they were elected, unless they violate the necessary qualifications of being a member of Congress in Article one. So this has only happened a handful of times.

Hannah McCarthy: So I'm in Congress. I've done some [00:07:30] bad things. How does this ball get rolling?

Nick Capodice: Well, I will tell you how. And it involves one of the least desirable committee appointments you can get right after this break.

Hannah McCarthy: But before the break, you know what Nick and I did after making hundreds of episodes about the government?

Nick Capodice: What do we do?

Hannah McCarthy: We wrote a dang book about it. It's called A User's Guide to Democracy How America Works. It's illustrated by the brilliant and hilarious Tom Toro, and it crams as much approachable [00:08:00] civics content as possible into one handy vessel. I love it, you're gonna love it. Check it out.

Hannah McCarthy: We're back. We're talking expulsion from Congress. And Nick, you were about to get to the process.

Nick Capodice: Absolutely. Here's Carlos Algara.

Carlos Algara: Generally, how it goes is a member is confronted with an ethics complaint and that gets referred [00:08:30] just like any resolution, just like any piece of legislation that gets referred to a committee. Right. Um, and so that gets referred to the ethics committee, who then does an investigation.

Nick Capodice: The ethics committee. Now, this committee is different from all the others. Hannah, unlike the rest of the committees, which have party members proportional to their majority in the House, there are equal numbers of Democrats and Republicans on the Ethics Committee.

Hannah McCarthy: So it is a truly bipartisan committee.

Nick Capodice: As bipartisan [00:09:00] as it can get in Washington, DC, ten members, five Democrats, five Republicans. And their job is to conduct investigations into any alleged violations by members of the House or their staff.

Hannah McCarthy: Now, have we always had a House Committee on ethics?

Nick Capodice: Uh, no. There were other committees that did similar work, but the modern iteration is relatively new.

Carlos Algara: What happens is in 2008, uh, you know, Congress creates the Office of Congressional Ethics, right? So this is an outgrowth [00:09:30] of the scandals that we saw in 2005 and 2006. Right. The Tom Delay scandals, um, the Jack Abramoff scandal, which takes down a couple members of Congress, the Mark Foley scandal. Right. So those Congresses were very much scandal ridden. Um, and so Congress, under a Democratic majority, uh, makes this office right, which is nonpartisan, which is independent, and which reviews the allegations of misconduct. And so these are nonpartisan committee staff members that are actually doing the [00:10:00] work of investigating these allegations. You know, and I think to their credit, um, the ethics committee on both sides, they yield to these nonpartisan staffs. So if you look at the Ethics committee, uh, the final ethics report around Congressman Santos, clearly there was no attempt by the majority, um, to shield or to water down any of the findings.

Hannah McCarthy: I remember in your episode on committees, you intimated that being on the ethics committee is how do I put this? Not [00:10:30] the most coveted position.

Nick Capodice: I think that's a fine way to put it. Hannah.

Carlos Algara: Uh, you know, I think that's I think that's the correct perception on the hill. Right? It's a very thankless task. You're not creating policy. You're investigating your colleagues when they are accused of doing something wrong. So, you know, this is something that that is not a desirable committee assignment, like, say, the Appropriations Committee or that Ways and Means Committee, where you're actually able to influence policy. And, you know, if you're in the majority side, you're able to ram through legislation [00:11:00] over the minority. The ethics committee is very different. And you're also doing a lot of delegating to staff.

Nick Capodice: Now, if anyone out there who serves on the ethics committee thinks I'm being unfair and you're happier there than you would be on the Appropriations Committee, please email me and I will make a correction.

Hannah McCarthy: All right, so the committee investigates, the staff gathers evidence. What happens when the investigation is done?

Nick Capodice: Well, in this most recent instance, Hannah, things went a little differently than normal.

Carlos Algara: Congressman [00:11:30] Santos, there were efforts to expel him from Congress prior to the grant vote. Right. And his argument was that they needed to wait for the ethics committee to come, you know, to complete their investigation. And generally speaking, what happens is the Ethics committee will investigate and we'll put out a report. And generally speaking, they make a recommendation. Um, sometimes they'll recommend to do nothing. Sometimes they recommend expulsion, which is very rare. Uh, most of the time, [00:12:00] you know, they, they sort of put out a report that says, um, you know, we found wrongdoing. Um, but, you know, there's that doesn't rise to the level of an expulsion or even a censure. And so in this case, it was really interesting because the committee essentially found that these allegations of misuse of campaign funds was credible against Congressman Santos, but didn't make a recommendation. Right. There was no recommendation to expel.

Hannah McCarthy: Wait. So they believed these allegations against Jorge Santos were credible, an ethics violation. [00:12:30] But they didn't do the last step where they say, therefore he should be expelled.

Nick Capodice: Exactly.

Hannah McCarthy: So how did he get expelled?

Carlos Algara: What happens was in in a point of personal privilege, some Republican partizans from New York forced the issue onto the floor, um, through a procedural maneuver. And they were able to, uh, you know, to, to get the votes, ultimately to expel Congressman Santos. There are some procedural tricks that are able to be used in, in cases like this. [00:13:00] Um, generally the way that it works is, uh, you know, there's something called a point of personal privilege where a member can, can try to sort of force a vote, uh, you know, just very simply force a vote on on a resolution on the floor.

Nick Capodice: A point of personal privilege. It's a way a member of the House can get certain things to the floor for a vote, against the wishes of the party in the majority. And that's really hard to do. Uh, as we have mentioned in other episodes, if the speaker of the House doesn't [00:13:30] want a bill to pass, they can just let it die in committee, never bring it to the floor. But since this wasn't a bill, this wasn't a piece of legislation that changes the tax on wheat or whatever. The Republican chairman of the Ethics Committee, Congressman Michael Guest, was able to get it to the floor for a vote. And there you have it. They did have the votes to expel Congressman Santos, even though the speaker of the House and almost every other member of leadership voted against his expulsion on this vote. [00:14:00]

Archival: The yeas are 311, the nays are 114, with two recorded as present, two thirds voting in the affirmative. The resolution is adopted and a motion to reconsider is laid upon the table. Under clause five D of rule 20, the chair announces to the House that in light of the expulsion of the gentleman from New York, Mr. Santos, the whole number of the house is now 434.

Hannah McCarthy: Real quick. Earlier, [00:14:30] Carlos mentioned potential censure of Jorge Santos. What is the difference between censure and expulsion?

Nick Capodice: Censure is like a letter from the teacher in your backpack.

Carlos Algara: Um, center is pretty much, uh, you could think about it as I don't want people in the in in the pundit world, I think call it a slap on the wrist. You know, it's essentially a condemnation of the, uh, members actions. You know, that takes a simple majority vote. You know, it's essentially just letting the member know that as a chamber, [00:15:00] we do not agree with what you did. Right. So, Congressman Bowman, for example, um, just got censured by the House breaking news.

Archival: The House of Representatives just voted to censure New York Democrat Jamaal Bowman. The vote stemming from this incident. You see here where Bowman pulls a fire alarm while the chamber was in session discussing a bill to avoid a shutdown deadline.

Carlos Algara: Congressman Adam Schiff, um, got censured for, uh, I believe his role, um, [00:15:30] chairing the Intelligence Committee in the last Congress, right.

Archival: Laid on the table, house will be in order...And you probably heard it there in the background...You heard the Democratic lawmakers chanting the word shame.

Carlos Algara: Uh, so these censures are much more common. Um, they've gotten very much partisan. Right. So generally, they used to be these motions where, you know, you would do something and, um, you know, maybe a member's conduct doesn't rise to the level of, of expulsion, [00:16:00] but you want to signal your disapproval. Um, you would you would censure that member. So, you know, it's definitely a mechanism, um, where the Congress can let itself be known. And unlike an expulsion, there's really no way behind it, if that makes sense.

Nick Capodice: And it's not just members of Congress. 12 sitting presidents have been censured. Uh, and to my knowledge, those censures really had no tangible effect.

Hannah McCarthy: All right, so Santos has been expelled. [00:16:30] There's now an empty seat in the house. How and when will that seat get filled?

Carlos Algara: It looks like Governor Hochul from New York has called a special election, uh, which is going to be early, um, in the New year. And the part unlike, uh, the general way that it works in New York, where they have Partizan primaries, um, here the party leaders are going to choose the candidates. And so the Democrats have, um, they're going to nominate, um, Congressman Tom Suozzi, who was a congressman [00:17:00] before Congressman Santos. He retired in 2022, which allowed Congressman Santos to flip his seat. He actually defeated Jorge Santos in 2020, and he ran for governor in 2022 and lost the primary. So, um, they are nominating him, and I believe the Republicans in the district have decided to nominate a first time candidate.

Nick Capodice: Now, when there are vacancies in the Senate, the governor of the state can usually just appoint a new sitting senator until the next general election. But if we're talking the House, we're talking the People's Chamber. [00:17:30] Those people have got a vote. And that vote is scheduled for February 13th, 2024.

Hannah McCarthy: And George Santos, he he can't run in that election, can he?

Nick Capodice: Oh, he most certainly can. Hannah. Uh, interestingly, the most recent member of Congress that was expelled, James Traficant, he ran for the same seat while he was in a federal penitentiary. I mean, he did not win. No, but he got 15% [00:18:00] of the vote.

Carlos Algara: So, yeah, I mean, you know, there's nothing precluding them from running. Uh, obviously they're not going to be successful. Um, but, you know, in the in the event that they are there are other mechanisms in place to keep them from entering Congress. So Congressman Santos can run in 2024 and he might even. Well, obviously, it's not going to win. But, um, you know, if he were to win, um, there are mechanisms to keep him out of Congress.

Hannah McCarthy: Mechanisms like the one Carlos mentioned in the beginning, like Congress refusing to seat someone.

Nick Capodice: Exactly. [00:18:30] But I will add, when Santos was asked if he'd run again, he said, quote, I'm not ruling it out, end quote.

Hannah McCarthy: What is it?

Nick Capodice: I just thought of, like, the George Santos version of square breathing. You know, like in two years. Wait, two years out, ten back in again. Who knows? It's very calming. Hannah. You should try it.

Hannah McCarthy: Yeah, okay.

Nick Capodice: Well, that is expulsion [00:19:00] from Congress. This episode was written and produced by George Santos. I can't make those jokes. Can I make those jokes? Kind of low hanging fruit? Uh, but yeah, this episode was made by me. Nick Capodice with You Hannah McCarthy. Our senior producer is Christina Phillips. Our executive producer is Rebecca Lavoie. Music in this episode by Scanglobe, Dyalla, Lobo Loco, Lofive, The New Fools, Fabian Tell, Dusty Decks, Pandaraps, Nekozilla, Bio Unit, ProletR who just released a great album but it's not in the creative commons so we can't use it, and the one who is never expelled from my episodes Chris Zabriskie. Civics [00:19:30] 101 is a production of NHPR, New Hampshire Public Radio.

Speaker14: Expelliarmus.

---

Made possible in part by the Corporation for Public Broadcasting.

Can We Fix School Lunch?

Between the corporate interests, the politics, the infrastructure and the shaming, what can the grown ups in the room actually do to make the school cafeteria a safer, healthier place where kids want to be? Ross Wilson of the Shah Foundation, Jessica Terrell of the Left Overs podcast and Crystal FitzSimons of the Food Research and Action Center try to answer that.

---

Transcript

Hannah McCarthy: Nick Capodice.

Nick Capodice: Hannah McCarthy.

Hannah McCarthy: Civics 101. Everybody. We recently released an episode about school lunch in America, the social and legislative history, and a promise that there is a whole lot more to that story. So in this episode, we're continuing the story and spoiler alert, this is America. So I'm not going to tell you the ending because there isn't one. I'm just going to tell you where the [00:00:30] story stands right now.

Nick Capodice: Wait, wait. Speaking of where the story stands right now, Hannah, did you hear the milk news?

Hannah McCarthy: Oh, yeah. Uh, okay, everybody, one thing to keep in mind is that a lot of the issues with lunch in school, as in so much of the legislation and so much of the money involved in the project of feeding kids has to do with the power of lobbies and Congress. And right now, at the end of 2023, when we're taping this episode, Congress made time amidst an absolute slew of unresolved [00:01:00] major concerns, including aid to Ukraine and migration at the Mexican border, to debate whether or not to bring whole milk back into schools.

Archival: Reflecting on Christmas traditions this year begs the question if whole milk is a good option to fuel Santa's extraordinary Christmas Eve journey, then why isn't it an option for American schoolchildren in their lunchrooms?

Hannah McCarthy: Just in case you were wondering. Yeah, Big Milk, [00:01:30] aka the dairy lobby is powerful, and one day I would like to do an episode on it. But I digress onto the stuff that Congress May 1st day address. In addition to whether or not banning whole milk is akin to ruining Christmas. I kid you not, that was an argument basically made on the floor. Uh, let's keep this story rolling with someone who has worked closely on school meal problems in his city.

Ross Wilson: So I'm Ross Wilson, I'm the executive director of the Shah Family Foundation. We're a foundation in Boston, [00:02:00] and we do most of our work in and around Boston, Massachusetts, and some work nationally.

Hannah McCarthy: Okay, so the Shah Foundation was established by the people behind the mail order furniture company Wayfair. It's a charitable foundation that works a lot in Massachusetts and a little bit elsewhere. Now, why did the people behind Wayfair start a charitable nonprofit? Maybe we will do an episode on the world of philanthropy one day. I spoke to Ross specifically because of the foundation's work with meals in Schools. So Ross here [00:02:30] has been up close and personal with school meals, specifically in Boston.

Ross Wilson: Uh, I started off as a kindergarten teacher in Boston and then moved on. I was also a special education teacher, moved on to be a school principal for a number of years. And then I had the privilege of going to central office in Boston, where I led human resources for a number of years, was also the chief of staff and deputy superintendent for the school system, overseeing most of the operations and and schools.

Hannah McCarthy: It was while Ross was working [00:03:00] at Central Office, which is what they called the place in Boston where the superintendent and other administrative offices are, that the Shah Foundation got in touch with the city and said essentially that school meals in Boston weren't looking so hot.

Ross Wilson: My experience with school food was different. I was a teacher and a principal, and I just thought that if you were going to Boston Public Schools, you just eat plastic wrap food. And it was my job as like the principal and the the teacher [00:03:30] to sit alongside the kids, and I would rip open the plastic with my spork, and I would choke down the terrible food with the kids. And I kind of like, with a smile, say, oh, isn't this wonderful? And, um, and I got to say, I never really questioned it. I was just like, oh, this is how we feed kids, uh, who go to Boston and who may be getting free lunch. We just give them this plastic wrap food. It really wasn't until Jill and Nurse came and said, started questioning it that I started questioning myself. And I'm saying, geez, why? Why? Yeah. I don't know why we have why [00:04:00] we serve kids plastic wrap food. I could we do better? I have no idea.

Nick Capodice: Plastic wrapped meals. How did that work? Were they like TV dinners?

Ross Wilson: And we'd have all variations of them. Sometimes we would have plastic wrapped meals that would be heated to a relatively high temperature and then delivered to the schools like three hours early. And so by the time the kids were eating them, the temperature was just right. So you can imagine broccoli in that scenario, rather mushy. Um, we would also have scenarios where, [00:04:30] uh, we would have frozen meals delivered to schools, and schools would heat them on site and in the plastic, you know, everything would be cooked in the plastic and then you would you would eat them. And they're all unit that what we called unitized meals ready to go. Uh, and they were often shipped in from, you know, multinational companies who would create them in a regional warehouse and ship them out. And they would, you know, they would abide by the USDA standards like so they meet minimum standards.

Nick Capodice: Now, I know we talked about this a tiny bit in the first episode about school meals, [00:05:00] but these multinational companies providing meals and these USDA standards, can you just talk a little more about that?

Hannah McCarthy: Yeah. So we talked about the fact that prior to the amendments to the National School Lunch Act, private companies were forbidden from playing around in the school meal world. The basic idea there was to prevent swindlers and corner cutters from selling subpar or unhealthy meals to kids. But in the 1970s, things changed.

Nick Capodice: Things changed. As in private, for profit companies [00:05:30] were allowed to play around in the school meal world.

Hannah McCarthy: Yeah, and especially when the Reagan administration cut the federal school lunch budget by a quarter, schools were in a tough spot. Most of them did not have kitchens. They, for the most part, were not getting money for food from the school's general budget. And so big corporations were like, all right, we got a solution for you. We will provide cheapish meals, and all you got to do is heat them up. Now, these food service management companies are not known for being, you know, what [00:06:00] some of us might call the most ethical.

Nick Capodice: How so?

Hannah McCarthy: Well, it ranges from edging out local food producers by cornering the market to scoring contracts that provide more revenue in kickbacks than any one of these private food companies makes in the operation of its actual business.

Nick Capodice: I have no idea what that means.

Hannah McCarthy: That means that when a food service management company like Aramark or Compass buys food from Pepsi or Tyson or even Sysco, they get a huge rebate.

Nick Capodice: Okay, so they get a bunch of money back. [00:06:30]

Hannah McCarthy: Yeah, for signing massive purchasing contracts with huge food manufacturers and distributors. And then there have been some shady deals with school employees themselves getting money and striking deals with these big companies. Also, you know, on top of that, the anecdotal opinions of a lot of the students and teachers who are eating these meals is that they aren't always super appetizing.

Nick Capodice: Even though they meet the USDA standards.

Hannah McCarthy: And sometimes in part because they meet USDA standards. [00:07:00] Now, we talked about the low sodium thing on our earlier episode. Remember, we heard that cafeteria workers sometimes suggest that students actually bring salt packets to school to make lunch more palatable. New guidelines under the Obama administration certainly did make meals healthier, at least in terms of their guidelines. But then schools must meet those guidelines.

Jessica Terrell: These efforts to to put all these nutrition guidelines in place and to really have, you know, it so that if you're half an ounce off in a serving, [00:07:30] you can get dinged for that. If if the inspector comes on that day, um, has made it so that a lot of schools have become increasingly reluctant to try and do their own scratch cooking to try and make their own meals.

Hannah McCarthy: This is Jessica Terrell, journalist and host of Left Overs, a great podcast about the state of school lunch politics and private industry in America. Today we heard from her in our first school meal episode, and she says it's not just the cost or [00:08:00] the administrative ease that compels schools to contract with massive companies. It's also the USDA standards.

Jessica Terrell: And so the schools, especially also having all of these labor shortages that have happened during the pandemic. They've just become increasingly and increasingly reliant on these food companies that sell them, you know, these kind of prepackaged meals which are lower in sugar and lower in salt and lower in fat and whole grains compared with what you get on like a shelf. [00:08:30] But at the end of the day, it's it's not what a lot of people want their kids eating.

Nick Capodice: And it's also literally not what a lot of kids want to eat either. Right? Like if the food's gross, they're just going to throw it out.

Archival: The school lunchroom, a place for many students to, well, eat right so they can focus on class for the rest of the day.

Archival: But some local students say their cafeteria is a different place, a place where they don't even want to taste what's put on their plate.

Archival: It just looks so unappetizing. I could not even bring myself to even try it at all.

Archival: Do you want the children [00:09:00] here eating food that looked like that? Or being served food that looked like that?

Archival: Parents with students in the Clarksville-montgomery County school system are upset. Frustrated that the food on their student's lunch trays, or lack thereof. Enough is enough.

Archival: This is what my kids are eating at school.

Archival: Concerned parents say the problem here, it's not enough, it's not.

Archival: Falling, and it's definitely not appetizing.

Archival: Social media on fire over school lunches. One mom telling us on Facebook her son came home hungry because he says there wasn't anything [00:09:30] good at school.

Archival: I felt like I want to throw up. It was horrible.

Hannah McCarthy: Here's Ross again.

Ross Wilson: People would just say, well, that, you know, they meet the minimum standards, like what's wrong with that? But when, you know, very few adults would be eating those meals and actually very few kids did, you know they would take the meal, they would throw it in the garbage and then they would go hungry. It's hard, you know, as a as a school leader, there's no it's hard to mix causal statements to say that, you know, this [00:10:00] caused this. But but of course, if kids are coming to school hungry, if they're hungry during the day, like all of us, if we're hungry, if we're, um, malnutrition, we have a harder time staying focused. We have a harder time communicating. We have a harder time engaging in important work in the school day. So that's why I would sit next to the kids in the cafeteria as a teacher and a principal is I would say, we've got to get these calories down. We got to we got to choke this stuff down, uh, so that we can focus and, and be productive in our, in our school community.

Hannah McCarthy: So the bottom line here is money. [00:10:30] Should the bottom line be nutrition or school performance or child comfort? I am not here to answer that. And either way it isn't. It's money. And because of the way school meals are funded or not, funded schools have to make certain decisions about how to get something technically edible in front of their students. That comes in the form of what they buy, who they buy from, and who they're paying to actually hand those meals to kids and how much they're paying those workers.

Jessica Terrell: Yeah. So they're not very desirable [00:11:00] jobs. I mean, they're not very well respected jobs. They're not very well paid jobs. I want to.

Archival: Be part of what changes that perception of what today's lunch lady is. And there's a lot of people taking that same charge. So I say lunch lady with pride Bryce Gretna Public Schools Sharon Schaffer says there's a lot more to being a lunch lady than wearing a hairnet.

Jessica Terrell: They are incredibly understaffed right now because you can make more in most places going and working at McDonald's than you can [00:11:30] in schools, and a lot of times you'll have benefits at McDonald's and you won't, because a lot of these school positions are structured specifically so that they're right under the line for how many hours you need to qualify to qualify for benefits or something else from the district.

Nick Capodice: You know, I do feel like the school lunch worker really gets the shortest shrift here. Hannah. Like, I can hardly think of a pop cultural lunch lady who is portrayed with any respect or deference. It's [00:12:00] like a trope. They are pretty much always made fun of.

Archival: Her sweat and blood went into this cake, and you will not leave this platform until you have consumed the entire confection. Entire confection. See you at lunch. Thank you cookie. Rotten kids.

Hannah McCarthy: Also, the first line of people to blame when the food is, you know, considered gross. That's the lunch worker. Most often the lunch lady. [00:12:30]

Jessica Terrell: They're considered historically to be mom jobs. Nutrition directors are better paid and they have to have a lot more training. And so that is like a more desired position.

Hannah McCarthy: A nutrition director, by the way, is the person in charge of overseeing a school district's child nutrition program. So they plan and implement the whole food program and help with training other people in the business of feeding kids.

Jessica Terrell: But we saw during the pandemic enormous [00:13:00] amounts of turnover and people just retiring because the stress of it was too much.

Hannah McCarthy: For more on that mom job thing, please listen to Jessica's podcast because she gets into that. A lot more than I can, but basically feeding children during school hours that is by and large considered women's work. And just like providing child care, we as a nation don't think it's worth a whole lot of money.

Nick Capodice: All right, so if I can oversimplify this. Schools [00:13:30] don't have enough money to feed kids, but they have to meet certain standards. So they contract with occasionally unethical companies who provide something that a food inspector will deem acceptable. And then they pay their cafeteria workers the bare minimum. Wait, by the way, did she say they don't give them benefits?

Hannah McCarthy: Yeah, that benefits thing. Many cafeteria workers log just under the required amount of hours to qualify for benefits like health insurance or paid vacation or [00:14:00] a pension, the kinds of things that other school district employees might typically get. This is not something that they want to be doing. To clarify, it's another way that districts save money. So okay, what can be done here? Anything.

Jessica Terrell: When I started reporting this project, I really thought that the school, like school food, had undergone this massive transformation ten years ago to serving whole grain foods and all of these fresh fruits and vegetables. And there'd been all this pushback, but it had been this major transformation. [00:14:30] And in some ways it was. But it was like a transformation from like one kind of processed food to like a kind of processed food that had more whole grain in it, or, you know, whole milk fat to like 2% whole milk fat. The system itself had not changed. The system had accommodated these new regulations. And I think anything that's going to be really significant for school lunch is going to require [00:15:00] a much more systems wide kind of change, and that is what I don't see happening at a national level. Any time in the near future. It's going to be individual school districts and individual states.

Hannah McCarthy: Now I'm going to talk more about this federal level aspect, because I spoke to someone with just a little bit more hope about it. But let's look at the individual district and school level first. One small scale example, Jessica found a school that decided [00:15:30] to do it differently.

Jessica Terrell: The school district in California Pacific Elementary School District. And there are a couple of things that are kind of amazing about that. First of all, the kids cook the meals. I think sixth and seventh grade students who do this and kids sit and eat family style. It's these kind of pretty simple meals. They're not like very fancy, but they're fresh cooked. The kids are into them. I had one, I thought it could use a little more salt, but that's not their fault. You know, great great bean and cheese tostada. Wished I'd had that little [00:16:00] salt pack in my pocket. But yeah, the community, it's become like a source of community pride how good this school meal program is. And it's helped keep that little school alive, because kids come from it's like a draw for kids to come from other schools.

Nick Capodice: Kids cooking the meals.

Hannah McCarthy: Not only are kids cooking the meals supervised, of course, parents are specifically enrolling their students in this school. Because of this program, the kids also cultivate a school garden specifically for lunch ingredients and rely a lot on food from local farms. [00:16:30] And the food itself is both tastier and more culturally reflective of the student body. The kids make traditional Mexican and Brazilian dishes. They have a Kwanzaa meal and a Hanukkah meal.

Nick Capodice: All right, but how is this all paid for? I mean, clearly, if the actual labor is being partially done by kids, that's one cost factor. But the ingredients, you know, especially if they're from scratch, they've got to cost money. Okay.

Hannah McCarthy: So you've landed on one major factor that Pacific Elementary opted for, that other [00:17:00] schools simply do or can not, subsidizing federal funds and caretaker lunch payments with money from the general budget.

Nick Capodice: Most schools don't do that.

Hannah McCarthy: Absolutely not. It takes money away from other programs. But this school wagered that 20 to 30 grand from the general budget would be the right thing for its community in the lunchroom. And if you measure school success by school enrollment, for example, they were totally right.

Nick Capodice: I feel like I'm a little bit in Jessica's camp in terms [00:17:30] of seeing change in the system. Hannah, if most schools aren't going to rejigger their budget process and the federal government isn't going to give them more money, like most schools aren't going to act like Pacific Elementary.

Hannah McCarthy: All right. So let's look at a school system that scaled systemic change way up. That's after the break.

Nick Capodice: But before that break, you're listening to a pair of people who are most certainly running on a tight budget. This [00:18:00] is public radio and we love what we do. And we do it about as cheap as we can. But it really wouldn't work at all without contributions from, you know, the community. And that's you. If you got the pockets to throw some cake our way, please consider. Are making a contribution at Civics101podcast.org, and Hannah and I will keep providing nutritious information for your ears and mind. Thank you. That's it.

Hannah McCarthy: We're [00:18:30] back. And in this episode of Civics 101 we are looking at some wide scale, let's say, issues in the world of feeding kids at school in America. But we love solutions here at Civics 101, so we're looking at that too. And remember, I called up Ross Wilson at the Shah Foundation, not just because he knows how school meals tend to look. He was also part of a project to change the way that they could look at a scale [00:19:00] way larger than, you know, one school trying something new. The target here was the whole city of Boston.

Ross Wilson: Now, we didn't come with a solution. Hannah. Right. We just came. Uh, Jill came with. I'm wondering, and let's collect some data. And the mayor, of course, was like, sure, let's collect some data here. Let's go try to figure out a better, a better way.

Hannah McCarthy: Jill, that's Jill Shah. It's her foundation. And the mayor. That's former Boston mayor Marty Walsh.

Archival: I'm mayor Marty walsh. I like hot dogs. The Red Sox, the Bruins [00:19:30] being the mayor of Boston and answering your questions.

Nick Capodice: Like Marty Walsh, wasn't he the labor secretary under Biden for a bit?

Hannah McCarthy: He was. He isn't anymore. He left that for a job as the executive director of the NHL's player union. But for our purposes, we're talking about Mayor Marty Walsh.

Ross Wilson: We then went to the mayor and said, like, what if we could put mini kitchens in every school? Because in Boston, like many school districts around the country, large urban districts around the country, um, they weren't designed to feed kids. They were designed, uh, well before that, [00:20:00] they were built, you know, hundreds of years ago. Uh, so basically we had we in Boston, we had, you know, the majority of our schools didn't have kitchens. They had like a heater this massive, like old convection oven and maybe a refrigerator. That's it. And we said to the mayor, what if what if we put in, like a combination oven? What if we put in real cooking? And what if we put in sinks? And what if we put in hot and cold serving lines so that students could walk through, like a full salad bar every day and a full hot bar every day, and they get to choose whatever they would like to eat. [00:20:30] What if we could do that?

Nick Capodice: Hannah, that is a lot.

Ross Wilson: I think we can do a pilot. Like, what do you what do you think? And he said, yes, let's do a pilot. And so we tried it out in three schools. The foundation put forward the funding.

Nick Capodice: Okay. Funding that makes a lot more sense.

Ross Wilson: So the foundation said, look, we'll I think on the early stage of all of this, the way we could use philanthropic dollars best is to help government take risks, do pilots, and protect those risks. And that's often the first step in all of this. The government actually wants to [00:21:00] do better. They would like to innovate, but they need that beginning stage of like protecting them from the risk. And they need some capital to help get them, get them through that. And so we provided that, we provided the sort of the expertise we provided the capital. We got past the initial pilot, which was shown to be greatly successful. And then we came into agreement with the city of Boston, where we're going to split the costs essentially on these infrastructure arrangements. And then Boston was going to completely cover the cost of the food service going forward, um, which is really supplemented by the USDA. [00:21:30] And so that was the agreement. It was that we were going to come in with helping get the procure, the equipment. Um, the city of Boston helped do all the installation work, and that now it's run completely by the city of Boston. Every school in the city of Boston has beautiful food every day.

Nick Capodice: Is Ross saying that after this pilot, the city of Boston just went great. We'll take it from here.

Hannah McCarthy: No, this is bureaucracy and money.

Ross Wilson: There's a little bit of nervousness right, on a number of issues. Let me just like give you a couple of those issues. First [00:22:00] was just like doing construction in really old schools. There was a lot of nervousness around that. And like what would happen and how much would that cost? And we had to be really careful and strategic around making sure that we were doing the minimum construction to make sure all of this wasn't, you know, we're not overhauling every school. We're building these finishing kitchens. So we're very clear on the spec for what those kitchens should be. And we knew how much they should cost. And we helped the city through that process.

Hannah McCarthy: I mean, it cost millions of dollars. Boston [00:22:30] has some of the oldest schools in the country, and they definitely were not outfitted with the right kinds of kitchens. And then there were concerns about whether you can get away with cooking at schools, like instead of heating up these hermetically sealed, USDA compliant meals, can.

Ross Wilson: We actually have salad bars and hot bars in schools? Like, will they be safe? Like, will we have an outbreak of E coli, you know, and and the reality was no, we can and schools do have salad bars and hot bars in schools every day and it will be okay. There was also a staffing [00:23:00] issue of saying, you know, we we're relying upon this third party vendor to make these decisions for us on nutritional value. Um, it was really easy. We they just did all the work. So now we have to we actually have to increase capacity to make these decisions locally in Boston. And again, like people stepped up and they and we hired great people and they're able to make these these decisions on the menu. And then will we be able to procure the right ingredients, especially locally. And the answer is absolutely like there are amazing vendors around us. We have [00:23:30] one of the largest vegetable. Distribution centers in the city of Chelsea that we went to, and they helped a lot with procurement of of really great fresh food. And so it works.

Nick Capodice: So what are kids in Boston eating now? I mean, are they happier? Are they eating more?

Ross Wilson: When we stopped feeding kids plastic wrap food and we started asking them what they would like to eat every day, and we provided that. And you could smell food throughout the kitchens and the and the schools in Boston, kids felt like they were cared [00:24:00] for and adults really liked to care for kids. Like, that's why we're in the business of education. Um, and kids feel loved. They feel like these people care about me. They ate delicious food.

Hannah McCarthy: The kicker for me here was this and I nearly did not believe it.

Ross Wilson: When you're paying private companies for profit companies for plastic wrap food, it actually is more expensive than buying the ingredients and paying great staff to cook that food on site.

Nick Capodice: No, Hannah isn't the whole problem that those food corporations provide compliant meals on the [00:24:30] cheap.

Hannah McCarthy: Apparently, if you plan well, you can pretty much cook within the federal reimbursement rate if you first have things like ovens and refrigerators. But there is one other really important piece of this puzzle. And Massachusetts is a good example because as we talked about in our other episode, there's usually a gap. There's a gap between the money that schools have and the money that food costs, and there are kids for whom the food is reimbursed. And then there's everyone [00:25:00] else who has to pay for their meals. It's hard for schools to make up the difference, except Massachusetts does not ask anybody to pay for their meals.

Nick Capodice: What's that?

Hannah McCarthy: Now here's Jessica Terrell again.

Jessica Terrell: A number of states are starting to pass. Um, universal meal plans. Um, and that's kind of heartening to a lot of people. Definitely far away from where we were, um, you know, a decade ago, in terms of the support for that.

Nick Capodice: Universal school meals, as in everybody applies [00:25:30] for the reimbursement program or something like that.

Hannah McCarthy: As in, nobody applies for the reimbursement program.

Jessica Terrell: The amount of work that it alleviated for nutrition directors who suddenly had extra leeway for things, who didn't have to count, the number of kids who fall into the free category and the reduced price category, and collect all this paperwork and you just serve kids meals. You didn't have to chase debt. You didn't have to hire debt collectors.

Nick Capodice: Wait, how is this possible? Isn't the whole issue that you have to qualify for free lunch at school? [00:26:00]

Hannah McCarthy: Well, in Massachusetts, voters approved a 4% tax on its wealthiest residents. That will mean an additional billion dollars in tax revenue, some of which will go to simply making sure that no kid has to pay for food at school.

Nick Capodice: If I may, Hannah, a tax on the wealthy is not America's favorite idea.

Hannah McCarthy: Nope. And the seven other states who have passed legislation to make free meals available, a lot of them do it differently. So New Mexico and Michigan, for example, simply set aside [00:26:30] money in the budget.

Nick Capodice: Okay, so some states simply make it happen because they decide it's actually a priority, I guess. But I do want to go back to one thing that Jessica said, because debt collectors for student meals.

Hannah McCarthy: Yeah. So, uh, free school meals for all. There is an idea that could seem to be about simply supplementing food provided in school cafeterias. A straightforward right, but it takes care of a really big issue. At the same time. [00:27:00]

Jessica Terrell: There's been this national pushback against that kind of idea, right? It's called lunch shaming. And the idea that you have kids in one line, kids in another line, or kids who are deprived of being able to go to prom or have their food taken away from them in front of their fellow classmates, or have their hands stamped because they owe school debt. Um, but even though there's this pushback against it, there's all sorts of other ways that families are, um, singled out and pursued for school debt that are that are really problematic [00:27:30] lunch shaming.

Nick Capodice: Making kids feel shame for not paying for their lunch and like, literally stamping their bodies.

Hannah McCarthy: Because otherwise the trials of adolescence are totally shame free. And by the way, the lunch shaming part is just an element of this issue.

Jessica Terrell: The story that I'm working on right now is that while there was this whole outrage right about this one school district, it was West Wyoming Valley, I think, in Pennsylvania was a Pennsylvania school district that sent a letter to parents that [00:28:00] owed school debt, threatening to call CPS about the school debt. And everyone was outraged. Right. This became like a national backlash. Major news organizations covered. It might have even made international news, but it's actually very common policy to have it written in a school district policy that calling CPS is one possible repercussion of having unpaid meal debt and not paying meal debt for your children. Apparently, something like half of school districts in North Carolina almost mentioned CPS [00:28:30] in this. Louisiana has a law on the books that says, um, if you are an elementary school district that provides elementary school and you have any you have a policy of denying kids a meal for any reason. On the third denial, your district is supposed to call CPS. That is like like an like a supposed to be like a trigger point. Only one school district last year reported denying meals to kids. They denied some 421 meals in Ascension Parish. Um, they would not respond to our questions about this. I [00:29:00] found at least ten states where there are districts with policies written that reference child services in the school meal policy as one of the possible repercussions, that it could be a sign of abuse and you could be reported.

Nick Capodice: But not having money is not child abuse. Hannah.

Hannah McCarthy: Correct.

Nick Capodice: So how is that even possible?

Jessica Terrell: So it's not supposed to be. Being poor is not child abuse. However, there's a long history of many people that argue a long history of criminalizing poverty in the United States. And [00:29:30] so many people are concerned, and rightly so. I think that signing up for any, you know, getting snap, um, what was formerly called food stamps, there are lots of things that can put you on the radar of social services and make you much more likely to get a CPS case. So they will say, you know, in North Carolina, the organization that crafted the policy this is modeled after says, you know, we'd be horrified to think that any district was threatening to take away families because their kids owed meal debt. However, [00:30:00] it's fair warning to parents that if you are choosing not to provide meals for your children or give them school lunch money, it could be a sign that you're neglecting them. That's how they put it.

Nick Capodice: A Child Protective Services shot across the bow, if you will.

Hannah McCarthy: Yeah, and lots of states will. I want to bring in one more voice here. This is Crystal Fitzsimons, the director of school and out of school time programs at the Food Research and Action Center. We met her in our other episode on school meals. [00:30:30] And yes, she and her organization do have a strong point of view on this issue. I asked her about this lunch shaming thing and how kids, even kids who qualify for free or reduced price lunch end up being lunch shamed.

Crystal Fitzsimons: Within the school cafeteria. Kids are not supposed to be overtly identified if they're receiving free or reduced price school meals, but there are different things that happen in cafeterias that kind of send [00:31:00] that message. Yes, if there's a la carte food and it's a different line, and then you have the reimbursable school lunch program and some kids are getting one line and other kids are getting in the other, that does send a message that kids really do understand. And one of the things that we see about the stigma related to participating in free or reduced price school meals is that kids actually start opting out of it as they get older and become more aware of it. So, you know, participation in school lunch [00:31:30] is lower in middle schools and lower in high schools compared to elementary schools.

Nick Capodice: Okay, I can totally understand this. I have a deep personal relationship to it. You're treated differently in front of your peers in the lunchroom, of all places, where there's nowhere to hide from a huge chunk of the student body. And so you decide. You know what? No, no, I'm not going to participate in a program that singles me or my family out as not being able to afford something.

Crystal Fitzsimons: And, you know, that [00:32:00] is one of the many reasons why we really think free school meals for all is the solution. Because at Frac, we do really focus on the needs of kids whose households are struggling to put food on the table. But by making the school lunch program available to all and increasing participation by all students, you help eliminate some of that stigma around participation and increase participation. So healthy school meals for all. [00:32:30] It's an important way to reduce paperwork, but it's a really important way to reduce stigma and shame and to really make sure that the kids who need access to school breakfast and school lunch feel comfortable and excited about participating in the program.

Nick Capodice: Now, when Crystal says free school meals for all, does she mean on like a state by state thing? Or are we talking federal level?

Hannah McCarthy: Crystal is talking federal. So again, [00:33:00] I've mentioned the Obama administration era school meal changes. That was part of something called the healthy Hunger-Free Kids Act. That act included a provision, the community eligibility provision, to be exact, that allows high need schools to provide free meals for all.

Crystal Fitzsimons: And so fast forward 6 to 7 years, just before the pandemic hit, about 1 in 3 schools that participate in the National School Lunch program were actually offering free breakfast and lunch to all their students through this [00:33:30] program. So that's huge. And that was a huge shift in how the programs operate. And 1 in 3 schools.

Hannah McCarthy: And a bunch of schools, 40,000 of them kept that going after the pandemic as well. But as for the rest of the schools, especially in states that do not have universal free meals for all.

Crystal Fitzsimons: So we really see two opportunities to move forward for Congress. One is they should make school meals available to all kids across the country at no charge, like [00:34:00] they could easily do it. They did it during the pandemic. We have kids sitting in a classroom who are hungry. It's disruptive to that child's learning and it's disruptive to the entire class. So it's money well spent to make sure that all kids are in the classroom, well nourished and ready to learn. They could do kind of a fallback option, which would be supporting that community eligibility option that I mentioned. Because the way that program works, it's kind [00:34:30] of a complicated reimbursement structure, but it still designed to reimburse schools based on the poverty level in the school. And what they could do is they could increase those reimbursement levels so that all schools that are considered eligible for community eligibility would be able to offer free meals to all of their students because they were getting more federal reimbursement. And there are bills that would do that that have been introduced in Congress. So and we also [00:35:00] have a universal school school meal bill that was introduced as well. You know, we do see a lot of energy and a lot of momentum behind healthy school meals for all. And I am hopeful that that is going to turn into action.

Hannah McCarthy: So Crystal's thing is, in part, look what the pandemic showed us during the pandemic. Congress made free meals available to all and people loved it. They wanted it. It made life easier for everybody. And [00:35:30] the voting public reinforces that in states where universal free meals are already a thing. I asked Jessica whether she had hoped that the federal government would take massive overhaul action, and she was a little more skeptical, at least in the short terme.

Jessica Terrell: I do have hope because there are so many people out there who really do care about it. You know, so many people who like the Oregon mom who spent 15 years trying to get improvement to her school lunches and [00:36:00] was one of those moms who packed food from home until she realized that, like, she had to be a part of trying to change the system. So I do have hope for school meals. Yet at the same time, clearly not so much hope that it's going to change immediately that I'm banking on not having to think about lunch for my kid in two years. So that's the, I think, caveat for it. Um, yeah, I don't know. There are a lot of people who are doing a lot of, a lot of really hard work out there, and there's a lot [00:36:30] of momentum and a lot of places, and I think we're starting to, you know, caring about our food and what we put into our bodies and understanding that there are some serious flaws with our industrialized food system is starting to become more and more of like a mainstream idea, like the ideas that would have been dismissed as like, you know. Peppier environmentalists like are becoming more and more accepted. So I, I do think that there is hope. I just don't know how long it's going to take for us to get there. [00:37:00] And that's the worrying part, because six years to me is not that long. But that's elementary school for my generation of kids.

Nick Capodice: I keep coming back to this, thought Hannah. Uh, and it might be a little naive, but that thought is, well, kids have to be in school. We make public school education free to them, [00:37:30] so why can't we feed them, too? Like, isn't that part of the whole process of creating the best kind of learning environment, giving them something to eat. And it's not even like a massively complicated one. Um, it isn't new learning standards or rolling out a new national curriculum or a national test. It's food, ideally good food for kids to eat.

Hannah McCarthy: Yeah, well, I got to confess, I had the same thought basically [00:38:00] along the lines of why does feeding children exist in a different category than educating them or providing them with extra curricular options? We require that they move their bodies in a school environment, for example, if they are able. But we argue about how to feed those bodies so that they are capable of that movement. And I'm just going to leave us with how Ross Wilson responded to this one.

Ross Wilson: Sometimes we do things that are easier for adults, [00:38:30] and we slowly gravitate to what's easy for adults. And that's one thing we did in the city of Boston. There were some there were some things that led up to it where there was a big decision to close a central commissary in the city of Boston at one point that was cooking centrally and sort of delivering food hot or cold. And at that point the city just said, well, we're not going to invest in that facility, and we'll just move to completely unitized meals. So I think one ease for adults and two priorities, we often lose focus of what our priorities are, and we [00:39:00] shift and then we forget why we did something. And we've seen this over and over again. When a district makes a decision, say, hey, we're going to go do this. And then a new superintendent comes in and that is completely off the table and we lose focus. So we we often have a short attention span. So I think adult focus and a short attention span are the two reasons why we're giving kids plastic wrap food. And then I can't over look, the fact that we have sometimes have low expectations for ourselves and for our city. And we got to always question that and [00:39:30] push forward and say we we should accept only the best and we should push for only the best.

Nick Capodice: So basically, Hannah, this is something I feel like I never get to say because we're rarely talking about how grown ups are supposed to show up for kids. But in this case, maybe, just maybe, the grown ups could stand to grow up a little themselves.

Hannah McCarthy: Or maybe. Act more [00:40:00] like kids who want good food. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by Otte, Daniel Friedel, Catherine Appleton, and Sven Lindvall. By the way, if you want a quieter version of American democracy, the kind that is always around, even when your battery runs out. Nick and I wrote a book. [00:40:30] It's called A User's Guide to Democracy. We love it very much, and we hope you will too. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

The Politics of School Lunch

Federal and state dollars pay for so much of what goes into the American public school education of our kids, but it isn't so straight forward when it comes to keeping them fed on school grounds. What movements and laws lead to American school kids accessing lunch? What does it cost, and who has to pay? Jessica Terrell, journalist and host of Left Over podcast and Crystal FitzSimons, Director of School and Out-of-School Time Programs at the Food Research and Action Center are our guides to the first part of our two-parter on school meals in America.  

---

Transcript

Teddy: [00:00:02] All right. It's meatloaf or fish sticks.

Pete Rigley: [00:00:05] Teddy, it's been meatloaf or fish sticks every Friday since school was invented.

Hannah McCarthy: [00:00:14] Nick, do you remember lunch in public school?

Nick Capodice: [00:00:18] I don't think there's anything I remember better about public school than the lunch we had.

Pete Rigley: [00:00:23] Just for the record, you should know that meatloaf also goes by several other names. Pepper steak. [00:00:30] Swiss steak. A cube steak. And Salisbury steak.

Nick Capodice: [00:00:41] One thing that stands out to me was a dish called American Chop suey, which was basically a macaroni in a pasta sauce.

Hannah McCarthy: [00:00:47] Yep. Um, I remember a few things. I remember in elementary school, there were always like every day potato sticks, like thin pieces of potato chips, basically. And I always I was [00:01:00] like, why can't we just have full potato chips? Um, and on certain days, I think it was probably Fridays. There was Elios pizza.

Nick Capodice: [00:01:08] Oh, yeah. We always had Friday pizza. It was always rectangular. Yeah.

Hannah McCarthy: [00:01:11] Rectangle pizza. It was never fully cooked on the bottom. Uh, and then every once in a while there were mashed potatoes and they were served with an ice cream scoop with gravy, and they were probably out of a box. But I am who I am, so I ate them.

Nick Capodice: [00:01:23] The smell of school lunch is something I can't forget.

Hannah McCarthy: [00:01:26] Oh yeah. No, I remember the smell.

Nick Capodice: [00:01:28] It was like food, but [00:01:30] it wasn't like a good food smell. It's like. It's like food adjacent, if that makes any sense.

Hannah McCarthy: [00:01:35] It does. I know exactly what you're talking about. There was something almost like antiseptic about it. Um, I also remember that every morning someone would come into the classrooms to collect milk money.

Nick Capodice: [00:01:45] I remember that, too. Milk and orange juice money.

Hannah McCarthy: [00:01:47] Yeah. Which I always thought was odd. Like even as a child, I thought like, can't you just give us milk for free? Just milk.

Nick Capodice: [00:01:54] Well, Hannah, nothing's free, is it?

Hannah McCarthy: [00:01:57] Ain't that the truth? The [00:02:00] Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:02:04] I'm Nick Capodice.

Hannah McCarthy: [00:02:05] Today I decided. Wouldn't it be interesting to take a look at how we feed our kids in America's schools? And I was right. It was interesting.

Jessica Terrell: [00:02:14] If you're somebody who cares about gender equality and equal pay and women's rights and children's health and racial inequality and justice and racism and history, climate change, [00:02:30] so many of the things that we're grappling with in society and so many of the things that we were particularly grappling with coming out of the pandemic are all really represented in this one program.

Nick Capodice: [00:02:39] Oh, is that all?

Jessica Terrell: [00:02:40] That's it.

Hannah McCarthy: [00:02:41] This is Jessica Terrell.

Jessica Terrell: [00:02:43] I am the reporter and host of Left Over How Politicians and Corporations are Milking the American School Lunch. So this is.

Hannah McCarthy: [00:02:51] How I discovered Jessica's work through this podcast, which I highly, highly recommend, by the way.

Jessica Terrell: [00:02:56] It delves into the National School lunch program, sort [00:03:00] of the origins of it, some of the current challenges and the potential. When the podcast originally started, I was coming out of the pandemic. Um, I had recently become a mother, and there were a number of things in society that I honestly had not taken a very hard look at until I became a mom, and suddenly started looking at different things and thinking about them in a different way. And when I first [00:03:30] thought about school lunch, it was not a very exciting idea for me. I was like, yeah, I don't know that I want to do a podcast on school lunch. But the thing that really compelled me to want to do the project is that there are so many social issues that are wrapped up in this one program.

Nick Capodice: [00:03:46] Now, can we just establish some definitions before we get started? It's like when we say school lunch, we mean the food that public schools provide to kids in America, right?

Hannah McCarthy: [00:03:57] Both public and private, nonprofit [00:04:00] schools and residential institutions. There are a few other types of places that qualify under USDA eligibility requirements.

Nick Capodice: [00:04:08] And school lunch is like part of a program.

Hannah McCarthy: [00:04:10] Yeah, and I'm going to get to that.

Nick Capodice: [00:04:11] And it isn't free or I guess like it's not fully subsidized by the government.

Hannah McCarthy: [00:04:16] Not fully. It's free for some people if they qualify and apply, it's a whole thing. Also, I'm saying lunch and I'm mostly using lunch as an example in this episode. But lots of schools provide breakfast, snacks, and sometimes even dinner to kids. [00:04:30]

Nick Capodice: [00:04:30] So we're talking about food at school.

Hannah McCarthy: [00:04:33] Yeah, but it's not as catchy I agree. So I spoke to Jessica. She's our journalist guide. And by the way, a lot of what Jessica is sharing and a lot of what I learned comes from a book by the wonderful Jennifer Gaddis called The Labor of Lunch. I recommend it as the perfect companion to this episode. I also spoke with someone at a nonprofit who deals a lot with school meals. This is Crystal Fitzsimons,

Crystal FitzSimons: [00:04:55] Director.

Crystal FitzSimons: [00:04:56] Of school and out of school time programs for the Food Research and Action Center. So [00:05:00] the Food Research and Action Center, commonly called FRAC.

Hannah McCarthy: [00:05:03] Frac, is mostly funded by the Community Services Administration, which is under Health and Human Services. It also receives donations from foundations, corporations and faith based groups.

Nick Capodice: [00:05:13] Are we talking lobbyists here?

Hannah McCarthy: [00:05:15] Yeah, we're talking some lobbying, training, research. They're an advocacy group. They advocate for childhood nutrition programs and food benefits for people with low and no income. So yeah, full disclosure, because not everyone is on board with that kind of advocacy or spending of federal dollars, [00:05:30] I wanted to talk with them because they do a ton of research into food programs in schools.

Nick Capodice: [00:05:35] So it's political.

Hannah McCarthy: [00:05:36] Yeah, feeding kids is political.

Speaker7: [00:05:42] How?

Hannah McCarthy: [00:05:43] All right. I'm going to let Jessica and Krystal take this one.

Jessica Terrell: [00:05:46] School meal programs are expected to pay for themselves and be self-sustaining. In many ways. Federal government pays a lot of money to it, but it's not funded the same way that many other things are at a school level. We have had an ongoing fight, and [00:06:00] this is part of the political fight that continues about whose job it is to feed children. Should it be society's job or should it be a parent's job?

Nick Capodice: [00:06:12] So this is basically why school lunch is not just automatically free for all students. Well, to.

Hannah McCarthy: [00:06:20] Fully answer that, Nick, we gotta go back to the beginning.

Nick Capodice: [00:06:23] Of course we do.

Jessica Terrell: [00:06:25] During the Progressive ERA, you have a time period in America where [00:06:30] there's a lot of new programs going in, a lot of questioning about the role of government, the role of family. And you start to see in different cities across the country movements to provide lunch in schools for children. You see a lot of kids who are going hungry. And at the same time, part of this movement is a movement to really elevate the role of what was often thought of as like women's work, the idea that feeding [00:07:00] children in society, preparing food for kids, all of these things had some sort of like economic and political value as well.

Crystal FitzSimons: [00:07:07] And then in the early 1900s, you know, a number of cities had lunch programs and some of their schools Chicago, Cleveland, Cincinnati, Saint Louis, Los Angeles, just to name a few. Um, but school lunch really did start as kind of communities coming together, volunteers coming together, you know, identifying a need and wanting to serve the kids in their community. [00:07:30] Yeah. I mean, I think it really was about looking at needs and looking at assets. And, you know, in those early days really thinking about charity and supporting, you know, families and, you know, rising up with schools and kids attending school.

Jessica Terrell: [00:07:44] And so it was kind of those two things coming together. And some of the cities, not all of the cities that sort of led to this push for, um, women to go into schools and start up lunch programs. And a lot of them were these community based, nonprofit kind of ventures. [00:08:00] And part of it was also food safety. So making sure that what kids were buying while their parents were in the factories was something that was like, safe and nourishing.

Nick Capodice: [00:08:09] By the way, the Progressive ERA is basically the how it started. Half of Civics 101 how it's going and.

Hannah McCarthy: [00:08:17] How it started school meal wise, was not too terribly dissimilar to how it's going as far as the self-sustaining part works community efforts toward feeding kids. That was fine, right? But they had to do without additional [00:08:30] funds.

Jessica Terrell: [00:08:31] And in getting these meal programs in place in the late 1800s, early 1900s, there had to be this sort of bargain that they would not cost the school district money, that they would sort of function on their own.

Nick Capodice: [00:08:44] How long did this last that these programs had to be their own isolated thing?

Hannah McCarthy: [00:08:49] Well, the Progressive ERA is considered to have ended when World War one ended. And then, well, you know.

Nick Capodice: [00:08:59] Yeah, [00:09:00] I know.

Crystal FitzSimons: [00:09:00] Yeah. Well, the federal government really kind of stepped in during the Great Depression. So at that point, communities were really struggling. A lot of communities didn't have the resources to run the programs on their own. And so one of the first things that happened was in 1936, there were federal funds made available to the US Department of Agriculture, which actually oversees the school nutrition programs. Now, um, to purchase commodities that could be used in school lunch programs. And so that was kind of their first foray into supporting school [00:09:30] lunch at the federal level.

Nick Capodice: [00:09:31] Wait real quick. Commodities.

Hannah McCarthy: [00:09:33] Yeah. Okay. So that's a pretty important part of the puzzle here. But all you really need to know is that commodities in this case are food purchased by the USDA. And because the USDA can purchase a whole lot of food, it can then sell it to schools for less than they would buy it elsewhere.

Crystal FitzSimons: [00:09:49] And so for every lunch that's served in a school, schools get a certain value of commodities. So the idea is that the commodities do give USDA the opportunity to purchase [00:10:00] surplus food to also support the school nutrition programs in an economical way. But yeah, that really has continued kind of that marrying of commodities with the school nutrition programs.

Hannah McCarthy: [00:10:12] One other element that convinced the government that they needed to intervene in how their kids were eating, they.

Jessica Terrell: [00:10:18] Found during World War two that a large number of young men who were found ineligible to serve were not physically fit because [00:10:30] they were malnourished. And so suddenly, malnutrition coming out of the Great Depression becomes like this national security issue because it's affecting our ability to fight wars. It's kind of crisis.

Nick Capodice: [00:10:42] Okay, okay. So you've got to support the nation's agriculture, and you've got to support the nation's troops. And making sure kids are fed well in school supports both those things.

Jessica Terrell: [00:10:53] It can do kind of two things. We can make sure that more kids get meals. We're dealing with this national security issue. [00:11:00] And then on the other hand, it becomes an opportunity to also stabilize farmers and food production.

Hannah McCarthy: [00:11:07] Also, having a stable food production system is a form of national. Security, especially during war when you can't necessarily rely on other nations for food.

Crystal FitzSimons: [00:11:16] Then, in 1943, a Congress authorized $60 million to support school lunch and school meal programs. So some schools ran just a school meal program as opposed to providing the full lunch. And that [00:11:30] program is actually still available. All there are very few schools that participated at most participate in the National School lunch program. And then when we finally got to 1946, that's when the National School Lunch Program was created through the National School Lunch Act.

Nick Capodice: [00:11:46] Okay, there's the law.

Hannah McCarthy: [00:11:48] Hit Me, otherwise known as the Richard B Russell National School Lunch Act provides low cost or free school lunch to qualifying students. Who is Richard B Russell, you ask?

Nick Capodice: [00:11:59] I [00:12:00] do.

Hannah McCarthy: [00:12:00] Oh, you do.

Archival: [00:12:02] From Washington. A special report to the people of Georgia by Senator Richard Russell. Here is Senator Russell. We are now confronted on the floor of the Senate with the vicious, iniquitous civil rights bill which has come over from the House of Representatives after passage.

Jessica Terrell: [00:12:21] What happened was during the creation of the National School lunch program, there's this big debate over whether it should be a state issue or a federal issue, [00:12:30] like who governs it, who figures this out. And one of the the main proponents of the national school lunch program is Richard B Russell, who is a southern senator who was a staunch segregationist. And from what I was told by people in the podcast, you know, really one of the reasons why it was kind of left up to states to govern this program in the beginning was because there was concern from Russell that making it a program [00:13:00] could like basically support desegregation.

Nick Capodice: [00:13:02] So a staunch segregationist championed a bill having to do with providing low income kids with lunch.

Hannah McCarthy: [00:13:10] Staunch segregationist, definitive white supremacist, worked against anti-lynching bills, helped pen the Southern Manifesto with Strom Thurmond.

Nick Capodice: [00:13:18] Strom Thurmond as in racist filibuster against the Civil Rights Act. Strom Thurmond, the.

Hannah McCarthy: [00:13:26] Very same longest one to date. So yep, this [00:13:30] guy, Richard B Russell, worked really hard to implement this school lunch program. He was all about supporting agriculture in the US and all about getting affordable, nutritious meals to kids who couldn't afford them, often thinking about his own constituents in Georgia. But he was also vehemently anti-desegregation, and it was really important to him to reinforce that the School Lunch Act did not mean federalization of schools, because federalization of schools in a nation that eventually did federalize desegregation would [00:14:00] be wholly opposed to his white supremacist segregationist ideals. The program administration would be left up mostly to the states. Definitely a kind of separate but equal message there. Of course, the equal part never really does pan out, does it?

Jessica Terrell: [00:14:15] So by making it up to individual states, you can kind of choose which schools you choose. I mean, there was no like straight across the board. Here's how much money you have to make in order to qualify for free or reduced price lunch. No guarantee that like every student has to get to it. It's kind of like left [00:14:30] up to states to roll out how they want to do it. And so what ended up happening was you have a lot of money being spent on these post-World War Two newly built schools in the suburbs where a lot of white families were fleeing, like white flight. Um, so families are moving more to the suburbs. A lot of money gets put in them. You've got these really nice school cafeterias that are being set up, and then you have a lot of urban school districts that serve a lot of black students, a lot of immigrant students. [00:15:00] And those districts were not necessarily provided the same funding and support. And so they have to figure out other ways of doing things.

Nick Capodice: [00:15:10] So even though there was this program to subsidize meals for kids who couldn't necessarily afford them, kids in those neighborhoods with greater need. And here I imagine we're talking often about kids of color. They still weren't getting the same quality of meals as kids in other districts were getting.

Jessica Terrell: [00:15:27] There was a promotional video that I found, [00:15:30] and it sort of shows this. I mean, it goes to like a couple different schools and it's promoting the National School Lunch program.

Archival: [00:15:35] Attendance at this school is high and so are the grades. And one reason could very well be a noon day lunch in the National school lunch program.

Jessica Terrell: [00:15:47] And you see, um, like this really nice suburban cafeteria. And then you see, like a kind of cramped, large central kitchen where a lot of black women are preparing kind of cold [00:16:00] sandwiches to put in packed lunches, to deliver to schools, to kind of deliver their lunch with clearly without the same facilities.

Archival: [00:16:07] Of course, there are schools that just don't have handsome. In cafeterias like this, or efficient kitchen facilities of their own. But this hasn't stopped some schools that lack such facilities. They still have a lunch program. A different kind.

Archival: [00:16:24] School lunches are prepared every day in one big central kitchen that services many neighboring [00:16:30] schools with no kitchen facilities of their own. The lunch?

Jessica Terrell: [00:16:36] Um, so then in the 1960s and into the 70s, I believe there's really a kind of major push, um, during the welfare rights movement to kind of address some of these inequities and to make it so that there is a more guaranteed and fair school lunch for children who need it. Um, which is in line with what the original goal of the program was.

Nick Capodice: [00:16:58] Now, Hannah, I have heard that the [00:17:00] Black Panthers figure into this story at some point. Is this where they come in?

Crystal FitzSimons: [00:17:03] So we definitely need to give credit to the Black Panthers for our school breakfast program. And then in 1971, school breakfast was made available to schools with a focus on serving those schools to, um, have students from low income households and working parents. And then back in 1975, the school breakfast program was permanently authorized.

Hannah McCarthy: [00:17:24] So yeah, school breakfast was not as widespread or nationally thought of a thing [00:17:30] until the Black Panthers made it one. And they essentially put the federal government to shame.

Archival: [00:17:36] But there's another side to this organization in Oakland, in many ways a poor community. The Panthers are also known for their projects, like the breakfast program for school children and for the Community Learning Center.

Jessica Terrell: [00:17:47] So the Black Panthers started a free breakfast program in cities, and it was wildly popular. I mean, it was it was incredibly popular program. Even people who maybe were not big supporters of [00:18:00] the Black Panthers or their cause were really big supporters of this meal program that they were doing, feeding kids. You know, there's a lot of food insecurity. And so the Black Panthers started this breakfast program, and there was a concerted movement to quash it because, um, there was a sense that this was going to, you know, really make the Black Panthers more of like a mainstream accepted, like make them really popular. And so I talked to people who could remember people [00:18:30] coming in. There's I think in some of the FBI files, there's notes of people coming in and FBI agents coming in and, like, destroying the breakfast in schools.

Nick Capodice: [00:18:39] I'm sorry. What?

Hannah McCarthy: [00:18:41] Oh, uh, j Edgar Hoover is what?

Nick Capodice: [00:18:43] Ah, okay.

Archival: [00:18:45] A b c d e f g g and g man.

Hannah McCarthy: [00:18:49] Who. Now, for some of you, that will already be shorthand for autocratic, law breaking, dogmatic extremist who was working in and supported by a system plagued by lawbreaking, dogmatic [00:19:00] extremists. Hoover was the head of the FBI for 47 years. He saw the Black Panthers free breakfast program as one of the greatest threats to efforts to destroy the Black Panthers, in part because it won the hearts and minds of liberal whites and the loyalty of black children. So yeah, among many other tactics, he would send FBI agents into places where the Black Panthers were serving breakfast and have those places raided and pretty much destroyed. Mm.

Jessica Terrell: [00:19:27] It's horrifying that that actually like, it's documented [00:19:30] reality. But what it did do was put pressure as well, um, on the federal government to start offering breakfast in the school meal program. And so the national school meal program that we have today, where breakfast is a part of it for kids who need it, I think really directly stems from the work of community feeding in the Black Panther programs and some other programs, but mostly the Black Panthers. That really kind of embarrassed the federal [00:20:00] government for the fact that they were not doing this. And here were these community members being painted as just, you know, kind of out there militants who were doing this really important community service without funding.

Hannah McCarthy: [00:20:10] So it's in this swirl of social pressure that Congress is like, fine, fine, we get it.

Jessica Terrell: [00:20:17] So Congress goes ahead and amends the law. So basically what happens is they go ahead, they change it, but they don't provide extra a lot of extra funding. There's a little bit of funding that's provided for some facilities, [00:20:30] but it's not like, okay, we're going to make this huge expansion of school meals and we're going to really fund it so that we can finally have this really robust, really great program. Everybody's going to have access to it. It's more like, okay, we're gonna expand it, but you're gonna have to figure out how you're going to pay for more of it.

Nick Capodice: [00:20:47] So how do they pay for it?

Hannah McCarthy: [00:20:49] We'll follow the money just after the break.

Nick Capodice: [00:20:55] But before that break, just a quick reminder that our show is listener supported. We [00:21:00] could not make it without you. If you're a fan of our mission to constantly unpack how our democracy works, head on over to our website, civics101podcast.org, and support us in any way you can. And thanks.

Hannah McCarthy: [00:21:18] We're back. We're talking meals in schools. And Nick, before the break, you asked me how exactly schools were able to expand their meal programs without an expansion of their pocketbooks. And when Congress first expanded [00:21:30] the school lunch program, they added a small but significant provision.

Jessica Terrell: [00:21:35] And so the one change that they made at the time was to allow the entry of private businesses into the national school lunch program. Back when the national School Lunch program initially passed into law. Some of those early reformers, they made a lot of concessions because they wanted this national program. And one of the things that they managed to walk away with successfully was like [00:22:00] sort of keeping private businesses out. They'd always been kind of suspicious of like private business, you know, the people who were there selling candy to kids or bread laced with sawdust as filler, you know? So like there'd been this push from the very beginning to, like, make school lunch like a social enterprise, a nonprofit thing. Charities could run it, keep the businesses out. And so that changed. And that is like sort of the beginnings that we see really, of all of a sudden this move toward processed food, [00:22:30] centralized kitchens, heat and served meals, which is the situation a lot of school districts today, um, really starting with this expansion that happened without the funding to to really do well cooked from scratch meals, build the kitchens needed in these districts.

Nick Capodice: [00:22:47] So we're left with a bunch of schools without kitchens. And the easiest thing to do is to acquire pre-made meals from giant food corporations. And just why is that easier? [00:23:00]

Hannah McCarthy: [00:23:00] All right. So these giant food corporations, food service management companies, or FSM, CHS, in case you want to know the names, the big three are Aramark, Chartwells and Sodexo. They are able to provide a lot of meals that meet USDA standards for feeding kids, and at a price that schools are able to pay. Now, let me clarify that under the school lunch program, qualifying meals for qualifying students are reimbursed by the federal government. The rest is paid for by students, parents, caregivers, or, [00:23:30] I'm sure in some cases, students themselves.

Nick Capodice: [00:23:32] So this is the mostly self-sustaining thing.

Hannah McCarthy: [00:23:35] This is it's like running a business within a school. Now, the USDA has studied the cost versus reimbursement of lunch program meals. Bottom line is the meals cost more to produce than the government reimburses. So schools mostly go with two options to make up for this gap. They choose the cheapest, easiest options from those FSM, CHS and offer kids a la carte options. [00:24:00] So these are usually not necessarily super healthy. Often like fast food or trendy foods that are definitely super kid enticing.

Nick Capodice: [00:24:10] Can I hazard a guess here? Hannah? You sure.

Hannah McCarthy: [00:24:12] Can.

Nick Capodice: [00:24:12] This might mean not super great or healthy meals.

Hannah McCarthy: [00:24:16] Yeah, let me give you an example. Or actually let me give you thousands of examples.

Nick Capodice: [00:24:21] Oh man. Okay.

Hannah McCarthy: [00:24:22] Yeah. So.

Jessica Terrell: [00:24:27] I think one thing that a school nutrition director [00:24:30] pointed out very early on in the reporting, which really stood out to me, is like, if you look at the menu, if you pull up a menu of a school district in Minnesota and another one in California and another one in Louisiana, pull up half a dozen school districts across the country, and chances are you're going to see the same food being served in each school district. And the point that he was trying to make is like, why is this when we have such regional differences, when you have, [00:25:00] like Latino students in this district in Southern California and like all these different communities, and yet they're eating Tony's Galaxy Pizza, which is like a really, really popular item that you'll see on a lot of them. So what happens in a lot of districts, they order big bulk orders of precooked meals that are often manufactured specifically for the school lunch program. They come in these boxes that have information on the side that tells you exactly [00:25:30] how many components that are required for the school meal program are contained in each item.

Jessica Terrell: [00:25:35] So two whole grains, two servings of whole grains, 1.5oz of meat, all of these things that they will eventually be ordered for and have to prove that they're serving kids in each meal. And you can order Galaxy Pizza or Nacho Dippers or beef Taco sticks was one of the less appealing sounding ones, and it really streamlines things for these districts. I think the districts [00:26:00] do the best job that they can to make these meals as appealing as possible, and they have that, you know, taste servings with the kids to try and sample it up. But at the end of the day, what you have is a lot of people who, you know, are like unwrapping individually wrapped plastic meals and reheating them. In large convection oven and then putting them out for kids whose parents are sometimes unaware of what their kids are eating, sometimes happy with it and during the pandemic, increasingly distressed about it because they [00:26:30] started to actually kind of see stuff and see the 30 odd different ingredients that are listed that you can't pronounce on the wrapper.

Hannah McCarthy: [00:26:36] During the pandemic, the federal government, specifically the USDA, issued waivers that would allow all kids, regardless of income levels, to access no cost meals subsidized by the federal government. And participation in the school lunch program went way up during this time. This was a super popular move, even if the food itself wasn't all super popular. But [00:27:00] of course, that program ended. Jessica also learned that these USDA requirement meeting meals, while healthier often than a lot of what kids eat during the day, also have things like sodium restrictions, basically akin to what you might give someone at risk of heart attack or stroke.

Nick Capodice: [00:27:18] Meaning the food has basically no taste.

Hannah McCarthy: [00:27:21] Yeah. In fact, some school nutrition workers encourage kids to ask their parents to pack them salt packets for lunch. She also made the point that, you know, [00:27:30] while these meals may have X number of vitamins and minerals and whole grains, they might also come as highly processed, highly preserved food and reheated plastic packaging. And then even if you do want to eat that food, can you afford it?

Crystal FitzSimons: [00:27:45] Any child can participate in the National School Lunch program, but the question is how much you pay. And so kids who come from households with low income actually can be certified for free or reduced price school meals. And so free school meals, [00:28:00] it's 130% of the poverty line, or below 130% of the poverty line or below. You qualify for free school meals 130 to 185% of the poverty line. You qualify for reduced price meals.

Nick Capodice: [00:28:13] So what is this percentage of the poverty line thing mean?

Hannah McCarthy: [00:28:17] The federal government sets the poverty line each year based in part on the economy. So there's one for the contiguous United States. And then there are two separate levels for Hawaii and Alaska, respectively. The 2023 number for a family of four [00:28:30] is $30,000. So 130% of that is 39 grand. All right.

Nick Capodice: [00:28:37] Got it.

Crystal FitzSimons: [00:28:37] And then there's certain groups of kids who we consider vulnerable and want to make sure they have automatic access to free school meals. And so kids whose households participate in the Supplemental Nutrition Assistance Program, which a lot of people think of as the food stamp program, kids who are homeless or in foster care, or migrant, um, [00:29:00] who participate in the Temporary Assistance for Needy Families program or the food distribution program for Indian reservations. And in some states, they automatically certify kids who are from low income households and participate in Medicaid. So there is a big effort to try and link kids who need free school meals to automatically receiving them. And if kids who are eligible aren't certified that way, then they have a school meal application process where families fill out a school meal application, convey their [00:29:30] income, and then they get certified for free or reduced price meals. And if you're not certified for free meals, if you're certified for reduced price meals, you can be charged $0.40 for lunch and $0.30 for breakfast. And kids who are not certified for free or reduced price meals generally are charged close to the cost of the meal, which you know is set in some ways by the school district.

Hannah McCarthy: [00:29:56] Now during the Obama administration under the healthy, Hunger-Free [00:30:00] Kids Act, something called the Community Eligibility Program was rolled out. The reimbursement itself is multilayered, but what you need to know is that low income schools and districts can offer free meals to all students without ever making parents apply for those meals. All right.

Nick Capodice: [00:30:16] So this is basically what we did during the pandemic.

Hannah McCarthy: [00:30:19] It is. But in this case, of course, it's limited to those low income districts. And that pandemic era provision was time limited.

Crystal FitzSimons: [00:30:26] It wrapped up at the beginning of the 2022 [00:30:30] 2023 school year. So a lot of schools actually went back to that community eligibility option. And we had over 40,000 schools then last school year that continued to offer free meals to all students using that option. And then we had a number of states that decided to go ahead and pass healthy school meals for all and commit state funding to making sure that that continued in their state because they just thought it was so important.

Nick Capodice: [00:30:59] Wait. Hold [00:31:00] on. There are states that just go ahead and make meals available to everyone, like for free.

Hannah McCarthy: [00:31:09] There are states that just go ahead and do a lot of things, Nick, and not all of it is rosy and surprise. This is just the beginning. This was, for the most part, the federal part of the picture, the big laws and the big business. There is way more going on with the students, the nutrition workers and [00:31:30] the states. And you know, not everyone's got time for that all at once. So we went ahead and put it in another episode. Check out our feed for part two. Come and get it. How [00:32:00] do you feel about your school's lunch program? Do you love it? Do you hate it? And what do you remember most about school lunch? Record us a voice memo and email it to Civics 101 at nhpr.org. That is Civics 101 at npr.org. Don't forget to include your name and where you're from, and we might just play it on the show. That does it for this episode. It was produced by me, Hannah McCarthy with Nick Capodice. Christina Phillips is [00:32:30] our senior producer. Rebecca Lavoie is our executive producer. Music in this episode by Mary Riddle, Walt Adams, June Rosenfeld, Sven Lindvall, Daniel Friedel, Alexandra Woodward, Elliot Holmes, OTE, Baegel, and the New Fools. Also shout out to Pete and Pete, one of my favorite shows of all time. And the origin of that clip you heard at the beginning of the episode. And finally, shout out to all of the school nutrition and cafeteria workers in America who are doing everything they can to keep kids happy [00:33:00] and healthy, sometimes with the leanest of resources. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

Does Santa Break the Law?

One our favorite subjects in recent memory: is Santa's method of present delivery... legal?

Is Santa trespassing?

Is he breaking and entering?

Are these criminal issues, or civil ones?

---

Transcript

 Archival: Now you give us the facts of the case. One can be found guilty.Of reckless driving in a number of different ways. Intentional infliction of emotional distress and illegal entry without the homeowners permission.

Archival: Hundreds of thousands of dollars in employment taxes ...We would make such a finding of burdening interstate commerce, presumably because we believe we have the capacity to figure out what is interstate commerce..we'll that's how we do it in the North Pole..well, that's not how we do it here. Santa Claus is FINISHED

Nick Capodice: You're [00:00:30] listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today on our podcast that explores the basics of how our democracy works, we answer a listener question. Elijah Grosvenor wrote us and asked, Would Santa be breaking the law when he enters your house through the chimney? Would he be a stalker because he knows everything that you do? In short, Hannah, is Santa a criminal?

Hannah McCarthy: The People versus Santa Claus, [00:01:00] also known as Saint Nick. Kris Kringle Pere Noel.

Nick Capodice: Babbo Natale, Father Christmas.

Hannah McCarthy: Do you remember in The Lion, The Witch and the Wardrobe when Santa just shows up?

Nick Capodice: It was like, Well, I guess Santa is here! And he's got a sword.

Now for your presents. Mrs. Beaver!

Nick Capodice: Gave that Mrs. Beaver a brand new sewing machine, if I recall correctly, anyways. The city fathers may cluck their tongues and cry, What [00:01:30] has this to do with civics? But, Hannah, I swear, this question begs a thorough investigation of how some laws apply to us. We're going to talk about trespassing, burglary, stalking, and also criminal versus civil cases, tort law, the commerce clause. And finally, how a legal professional might defend the jolly old elf were he to be on trial.

Hannah McCarthy: Can we start with that first violation? Santa comes into your house. Is he trespassing?

Nick Capodice: Well, [00:02:00] let's approach the entirety of Santa entering your home. And to do this, we're going to look at at least three possible offenses.

Colin Miller: Right. So trespass would be entering someone else's property without permission. And so on the one hand, you could say, sure, Santa's trespassing, and the other you could say there's implied consent or an implied license.

Hannah McCarthy: Colin Miller!

Nick Capodice: Yeah, that's right. I needed a legal hard hitter for this episode, so I reached out to Colin [00:02:30] Miller. He teaches criminal law and evidence at the University of South Carolina School of Law.

Hannah McCarthy: I have heard Colin say that so many times because I used to edit the podcast that he co-hosted. Undisclosed Addendum. What is an example of implied consent or license?

Colin Miller: Like if I'm having people come into my home to do plumbing work or to do carpentry, etc., If I'm welcoming Santa in even without explicitly doing so, I'm leaving out milk and cookies. I'm welcoming him in. Then in that case, it [00:03:00] wouldn't be trespassing.

Hannah McCarthy: So the act of leaving milk and cookies and writing to Santa earlier that year could be argued as implied consent for his entering your home.

Nick Capodice: Right. And if we're talking trespassing, that's not him just coming into your house. Trespassing is somebody coming into the four corners of your property lot.

Hannah McCarthy: Does that include the air above your house?

Nick Capodice: Oh well, you know, we have to do an episode on who owns the air, who rules [00:03:30] the skies. But as of right now, the US Supreme Court hasn't ruled on a definitive number of feet above your property. That is yours, but it is generally accepted to be anywhere from 80 feet to 500 feet.

Hannah McCarthy: So if you fell from the sky and landed on somebody's house, could that be trespassing?

Colin Miller: Not necessarily. And this is interesting. There's a defense to trespassing called necessity. And so imagine you're flying a hot air balloon and all of a sudden it starts [00:04:00] malfunctioning.

Nick Capodice: I think we're going down! Nigel, we descend!

Colin Miller: And you land on someone's property. That would typically be trespassing. But you claim necessity. I was going to die unless I landed this hot air balloon. So, yeah, if Santa lands the sleigh on top of the house again, assuming there's not consent by the homeowner, which there might be, that could be considered trespassing.

Hannah McCarthy: All right. We've got the sleigh on the roof. Now let's go down the chimney. Is that breaking and entering? [00:04:30]

Nick Capodice: Not anymore. Not in most states.

Colin Miller: So breaking and entering is kind of the old common law crime that's become burglary, although some states still have breaking and entering. And even though it's called breaking and entering, it's not necessarily breaking something as much as moving something like opening a window, etc.. And so my question is, how does Santa operate when he enters the chimney? Is he actually moving something? Is he causing damage or magically is he going down the chimney and not causing damage? So breaking and entering probably [00:05:00] not.

Hannah McCarthy: Wait breaking and entering is not a thing anymore.

Nick Capodice: No, the breaking part has been removed in the majority of our country, so we have to consider Santa as a potential burglar.

Colin Miller: There are still some states that have breaking and entering, but for the most part it's been replaced by burglary. No. So burglary is entering the dwelling of another with the intent to commit a felony or theft inside. Meaning if I break into someone's home and I plan to steal their Monet painting and I'm caught before I [00:05:30] do so I'm still guilty of burglary because I had the intent to steal it. When I enter, Santa is giving gifts. The only thing he's doing in the home would be maybe drinking the milk and cookies. But again, that sort of offered to him, right? He's not taking that without consent that's being given to him by the homeowners.

Hannah McCarthy: All right. Now, this brings us back to the question of the day. Is Santa a criminal? Are these crimes?

Nick Capodice: I'm so glad you asked that, Hannah. I had call and [00:06:00] break down the difference between a civil and a criminal case.

Colin Miller: So criminal law is every state has criminal statutes. They prescribe, prohibit certain behavior, murder, trespassing, arson et cetera. And if the prosecution in a state believes you violated a criminal law and they can prove it beyond a reasonable doubt, they represent the state, the people, and your punishment would be typically imprisonment. It could be a fine, it could be restitution, [00:06:30] etc.. And then the civil system would be I, as an individual, am suing for damages. Monetary damages based upon harm caused to me individually.

Nick Capodice: Trespass can be civil or criminal, and burglary is almost always criminal.

Hannah McCarthy: And what defines a felony?

Nick Capodice: Believe it or not, it is the punishment.

Colin Miller: For criminal violations, we have a dichotomy. We have misdemeanors and we have felonies. And so, for instance, at the federal level, a misdemeanor [00:07:00] is defined as a crime with a maximum punishment of one year or less. So it's a lesser punishment felony. The maximum punishment is more than a year. And so that designation of the severity of the crime.

Hannah McCarthy: So if Santa is found guilty of a criminal violation, he could face fines or imprisonment. But if it's a civil violation, he could be sued.

Nick Capodice: Yes. And this is an area of law that is called tort law.

Hannah McCarthy: Tort?

Nick Capodice: Do you know anybody who went to law school?

Hannah McCarthy: Yes.

Nick Capodice: And [00:07:30] you ever heard somebody say like, oh, I got torts at 5:00 tomorrow?

Hannah McCarthy: Not specifically, but I have heard them talk about tort law. Do you know what tort law is?

Nick Capodice: No, I don't. But I do know somebody who does. And as it is the holiday season, I think we should just give her a quick call.

Hannah McCarthy: Oh, I know who this is.

Cami Capodice: Hey, little brother.

Nick Capodice: This, by the way, is my older, smarter lawyer sister, Cami. Everyone should have a lawyersister. You went to law school, right?

Cami Capodice: I did. I did.

Nick Capodice: Can [00:08:00] you tell us what a tort is?

Cami Capodice: A tort? Yeah. Well, the amateur baker and me wants to say it's a cake. I guess you want the legal definition. Yeah, Well. Well, the legal definition of a tort is an act or omission that gives rise to injury or harm to another. And it amounts to a civil liability as opposed to criminal liability. I think the example that most of your listeners will probably be familiar with is [00:08:30] a car accident, right? Or a slip and fall, something like that.

Nick Capodice: Did you enjoy like studying torts when you were in law school?

Cami Capodice: Yes, it was actually my favorite subject. It's different from a crime. So there is some overlap between torts and crimes, and I'm probably getting a little too in the weeds on that. But when I said civil liability and the definition of tort, what I meant by that was that it's a monetary damages are awarded as opposed to what we think of punitive damages, [00:09:00] like having to go to jail for a crime.

Nick Capodice: Okay. Thank you, Cami for answering my question. I've wanted to know that for a long time.

Cami Capodice: You're most welcome.

Nick Capodice: All right. Love you.

Cami Capodice: Love you, too.

Hannah McCarthy: Okay, so how could Santa be prosecuted under a tort?

Nick Capodice: There is a tort called IIED or an NIED that is intentional or negligent infliction of emotional distress.

Colin Miller: So that would not be a criminal act. But yes, [00:09:30] you could have the family of the naughty kid getting coal suing Santa if they could establish that he caused their child's emotional distress.

Hannah McCarthy: I know we got to take a break, but I have one more civil case hypothetical,

Nick Capodice: Shoot.

Hannah McCarthy: It's funny you should say that, because let's say Santa gives a child a bb gun for Christmas.

Hannah McCarthy: This child wrote Santa and asked for it. They maybe [00:10:00] sat on his lap in a department store and asked for it. The kid gets the BB gun, shoots it and knocks his glasses off.

Archival: Oh, no. Where are my glasses?

Hannah McCarthy: Can Santa be considered liable here?

Nick Capodice: No, he cannot. Once a gift is given, it is the property, sole property of the giftee. Now, this hypothetical child could sue the Red Ryder BB gun manufacturing company and say that there were insufficient warnings about recoil. But in this case, Santa is totally off the hook. [00:10:30] And yes, we are going to take a short break, but when we're back, we're going to get into the complicated web of interstate and international commerce when it comes to the man with the bag.

Hannah McCarthy: But first, it is the holiday season

Nick Capodice: A Hickory dock

Hannah McCarthy: And if you are in the giving vein, our show is listener supported and we would be most appreciative of a tax deductible gift which you can make by clicking on the link in our show notes or at the top of our website, civics101podcast.org. [00:11:00]

Hannah McCarthy: We're back. We're repurposing every free music bed we can find that has sleigh bells in it because we are answering a listener's question. Is Santa a criminal? Now, Nick, we've covered the domicile part. But I want to know about another thing our listener brought up. Stalking and voyeurism. [00:11:30]

Colin Miller: Right, Right. Going to find out if you're not here. Nice, right?

Nick Capodice: Again, this is Colin Miller, law professor at the University of South Carolina School of Law.

Colin Miller: Depending on the state again. Right. The stalking is a crime. Voyeurism is a crime. They have all different elements. But Right. If you're having Santa monitoring 24 seven around the year to find out if the kids are naughty or nice, that could constitute voyeurism in terms of stalking. That would be about causing [00:12:00] harm or mental distress, etc., which that's not Santa's goal.

Hannah McCarthy: But again, as we heard earlier, giving a kid goal or nothing at all could be infliction of emotional distress.

Nick Capodice: Yeah, but that that's a bit of a stretch. However, there is a far greater possibility of violation if we look at Santa through the legal lens of surveillance. And we say this all the time in our show, but in this instance, it really matters when we go state to state, we are talking about consent [00:12:30] to be recorded. And since you and I work in radio, we think about this a lot.

Hannah McCarthy: Well, we think about this a lot because as journalists, it's never really a question as to whether or not we should ask for consent. But there is this idea of a one party consent or two party consent state.

Nick Capodice: Right. And journalists or not, here in New Hampshire. We are in what's called a two party consent state. We are one of 13 states that have some manner of two party or all party consent. We have to let the person that we're recording know through words or implication [00:13:00] that we are recording them. Now, the other 37 states are called one party consent states.

Hannah McCarthy: Meaning that if I am in Wisconsin or Georgia or New York, I could record audio or video of someone without their consent.

Nick Capodice: Yes, but your intent matters here. It's against the law to record somebody with an intent to blackmail or commit another crime. And there's a big exception here. You can't be recorded somewhere where you have the, quote, expectation [00:13:30] of privacy.

Hannah McCarthy: Right. Like a store can have a security camera behind the cash register, but not in the changing rooms or the bathroom.

Nick Capodice: Yeah, and I can't set up a camera from my house into my neighbor's bedroom because that would be a violation of their privacy.

Hannah McCarthy: So let's bring this around to Santa. I kind of feel like this one could be the definitive mark against Kris Kringle if he knows when you're sleeping. Is he in your bedroom?

Nick Capodice: My only counterargument to that is that we don't have evidence of illegal surveillance. [00:14:00] You know, he sees you when you're sleeping and he knows when you're awake, but we don't know how. He knows that. We're in another legal realm here. This is one of super powers, and there's not a lot of case law around that.

Hannah McCarthy: All right. Let's move this sleigh along to a very different legal world. Interstate commerce.

Nick Capodice: Yeah. Is Santa's skirting taxes or tariffs by a hauling that sack of toys hither and yon. Because as we've heard before, Hannah, things can get a little dicey whenever you cross [00:14:30] state lines.

Colin Miller: He is obviously crossing state lines and international lines, etc.. But in terms of commerce and commerce clause, he is not seeking compensation unless you unless you consider the milk and cookies, compensation for him giving gifts and showing appreciation. So that would then trigger the Commerce clause and he would have to declare the items that he is bringing in to sell. So yeah, I guess you could have a violation there.

Nick Capodice: And real quick to anybody out there who's heard of the Commerce Clause but isn't exactly sure what it is. Here [00:15:00] is a brief primer.

Colin Miller: Commerce Clause is all about the government regulating interstate commerce. So among the states and this sort of go with the classic Supreme Court case, and this is Wickard versus Filburn, which is a person growing wheat in their backyard. And that was like the Paradigm Commerce Clause case from a century ago that sort of been refined.

Archival: Now, the possession, the regulation of possession is so necessary to the prohibition of marijuana [00:15:30] in interstate commerce, the Congress should be able to reach it just as it was able to reach the growing of wheat in Wickard. That's the question that needs to be answered.

Colin Miller: But yeah, certainly if you were to say in this case that Santa is exchanging gifts for milk and cookies, then in that case he's going to have to deal with customs laws and everything regulating conducting a business internationally and across the states.

Hannah McCarthy: So Santa could be busted for tax evasion. [00:16:00]

Nick Capodice: That's how they got Capone.

Hannah McCarthy: You're not seriously equating Santa to Al Capone?

Nick Capodice: No, I'm not. But it's easy for us to just throw out the milk and cookies as incidental. But they keep coming up. They are part of the implied consent to enter the house, and they could turn his actions into those of a transactional nature.

Hannah McCarthy: How many people does Santa visit?

Nick Capodice: Well, that's a really tough number. There was a great article from the Washington Post that I read called The Breathtaking Scale of Santa Claus's Task on Christmas [00:16:30] Eve, which took into account ages of children across the world, religions, celebration of Christmas, even among those who don't practice Christianity. And their rough estimate is about 530 million children across the world. Now, that's going to be at least a billion cookies and about 3.6 million gallons of milk.

Hannah McCarthy: So Santa's real superpower is the ability to process that much dairy. I'm glad we brought the world wide perspective in here because I have always [00:17:00] wondered who governs the North Pole?

Nick Capodice: Everybody and nobody. Hannah. The North Pole is not land, it is ice. So therefore it is governed by the Law of the Sea. A treaty from 1982 which about 150 countries signed. Every single country that touches the Atlantic Ocean may claim ownership of the North Pole.

Hannah McCarthy: Seriously. So you can't if you're an inland country, you can't claim ownership of the North Pole. That's so silly. [00:17:30]

Nick Capodice: Well, you're owning a little part of the ocean, you know. And this matters when we look into our next issue. Does Santa violate any labor laws?

Colin Miller: It's like in the US we have OSHA, which is about workplace safety. We have FLSA, which is about labor standards. And whether you're, you know, obviously what are elves and how much are they working? Is this child labor around Christmastime? Are they violating labor laws by having them work too long and too hard? What's the workplace [00:18:00] like there? All of those could potentially be issues for Santa. Yeah, obviously, if there were complaints lobbied against Santa and the North Pole, you could have people coming in and determining, is this a safe workplace? How many hours per week are they working? How much are they being paid to Santa have money? Is minimum wage implicated? You know, there's all sorts of things that come into play if they're under US jurisdiction, if it's not. What law actually governs the North Pole? Unclear.

Nick Capodice: Before [00:18:30] we finish up, I just want to say. Yeah, all of this is pretty wishy washy. And that's kind of how the law works, isn't it?

Hannah McCarthy: Yeah, I know. We cannot ever answer a listener question without saying. Well, it depends.

Nick Capodice: Well, it depends. That said, Collin laid out one charge against Santa. That's pretty ironclad.

Colin Miller: There's the song about Grandma got Run Over by a Reindeer.

Hannah McCarthy: I despise [00:19:00] that song.

Nick Capodice: You do? Yeah, I do, too. I hate, I hate. I hate Peter Pan. But not as much as I hate that song. But we've got to bring it up because according to the song, Grandma did get Run Over by a Reindeer.

Colin Miller: Assuming that's true and the kid singing it says it happened walking home to our house on Christmas Eve, Santa would probably be guilty of [00:19:30] involuntary manslaughter. You know, going back, he is reckless now or he is negligent. He caused the death of grandma. And so if that song is right, that's involuntary manslaughter.

Hannah McCarthy: Okay. So let's assume that Santa is charged with any or all of these criminal and civil violations. He comes into court. What would his defense be?

Nick Capodice: Well, I asked Colin if you were charged with representing Santa. What would you ask him before the trial?

Colin Miller: I don't know that I need to ask him anything because I think [00:20:00] I kind of know what his M.O. is and what he's doing. What I would try to do within the bounds of the law. Which is interesting because you're in New Hampshire. I think New Hampshire is the only state that advises and informs jurors explicitly about jury nullification.

Hannah McCarthy: What is jury nullification?

Colin Miller: So jury nullification says even if the state proves all of the elements of a crime beyond a reasonable doubt, jurors have the inherent ability to nullify and say, [00:20:30] I think this is an unjust prosecution. I'm going to find the defendant not guilty.

Hannah McCarthy: So this means getting a jury to vote a certain way regardless of whether the defendant is guilty.

Nick Capodice: Yeah, and this is quite rare, but this is you saying to the jury, look, yeah, my client did these things. That has been proven, but they shouldn't be punished for it. And I ask you to vote not guilty even though they did it.

Colin Miller: And I think Santa would be the paradigm case of jury nullification of, [00:21:00] look, they're saying he violated these laws. You all know what Santa Claus does. He brings joy, he brings gifts, happiness, hope, etc.. If you were to find him guilty, he would no longer be able to do what he was doing. And it would be awfully tough to find 12 men and women on a jury, none of whom would nullify. Meaning. We have a unanimous verdict of guilt, meaning Santa is shut down. So jury nullification is my huge defense as defense counsel for Santa.

Nick Capodice: So [00:21:30] Santa is off the hook in my books today, Hannah. And my only regret is I couldn't figure out about the legality of owning reindeer because they're owned in the North Pole.

Hannah McCarthy: Right. And the North Pole is owned by everyone. Some countries that perhaps allow reindeer ownership and some that perhaps do not.

Nick Capodice: Can you name all the reindeer?

Hannah McCarthy: Dasher. Dancer. Prancer. Vixen. Comet. Cupid. Donner. Blitzen. [00:22:00] Rudolph the Red-Nosed Reindeer.

Nick Capodice: You missed one.

Hannah McCarthy: No, I didn't.

Nick Capodice: Yes, you did, Olive.

Hannah McCarthy: What's the joke?

Nick Capodice: Olive the other reindeer.

Nick Capodice: Well, that's enough of this huffamaruff. Happy holidays to all you out there from us at Civics 101. For real. This episode is written by me Nick Capodice with Hannah McCarthy. Our staff includes Jacqui Fulton, Christina Phillips as our senior [00:22:30] producer, and Rebecca Lavoie our executive producer. Special thanks always to and for my sister Cami. Movies I quoted in this episode are the BBC version of The Lion, The Witch and the Wardrobe, the Paper Chase and Santa Claus, the movie, all of which I know very well, and can perform on command, and also the Christmas story, which I cannot. Music in this episode by Ryan Kilkenny, Pandaraps, Howard Harper Barnes, Brightarm Orchestra, Timothy Infinite, The New Fools (not the girl by the whirlpool) Dylan Sits, Raymond Grouse, Anthony Earls, KieloKaz, ProletR, and the guy whose albums ALWAYS end up under my tree, Chris Zabriskie. Even [00:23:00] though they hold their heads in shame every time they hear it, Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

What is a Federal Holiday?

What makes a holiday a federal holiday?

How does something go from an annual tradition to a mandated day off? Who decides to make a holiday official?  Our guides to the holiday season are Jeff Bensch, author of History of American Holidays, and JerriAnne Boggis, Executive Director of the Black Heritage Trail of New Hampshire.

Note: the original version of this episode contained reference to the Lemon Test, a metric established by the Supreme Court in Lemon V. Kurtzman in 1971. The Court established a three pronged test for determining whether a statute is in violation of the establishment clause of the Constitution. The statute must have a secular legislative purpose. Its principal or primary effect must be one that neither promotes nor inhibits religion, and it must not foster, quote, excessive government entanglement with religion because there are three other holidays that are secular in that act. When the Federal government established Christmas as a federal holiday, it in no way compelled anybody to practice religion. It merely said the office was closed, therefore allowing a Christian holiday to pass the test. HOWEVER, the Lemon Test was essentially overturned without explicitly overturning it in Kennedy v. Bremerton School District in June 2022. At this point, it’s highly unlikely that the Court will ever determine Christmas to be a violation of the Establishment Clause. Still, the test is gone. Shoutout to listener Arturo for writing in to point this out to us. You keep us honest, everyone, don’t ever forget.

---

---

Transcript

Hannah McCarthy: Nick, [00:01:30] you know, when you're a journalist, that tends to mean spending every morning clicking through about a dozen or so press releases just to clean out your

Nick Capodice: Inbox, yeah, there's a guy who was an extra in Pirates of the Caribbean who I get an email about, like once a month, who's got got an opinion to share about something.

Hannah McCarthy: I feel like you should interview him.

Nick Capodice: I Should.

Hannah McCarthy: You just consider it and at least a few times a month, it's something like we hope you're planning to cover a National Diatomaceous Earth Day or National Clean Out Your Virtual Desktop Day.

Nick Capodice: Last week, I [00:02:00] got one that was like, Hey, we know, you know, it's National Peppermint Bark Day.

Hannah McCarthy: Everybody knows.

Nick Capodice: Here's what you should be doing to cover it, and if we have these experts to talk about it, if you're interested.

Hannah McCarthy: And I'm always like, who came down from on high and decided that it was National Bubble Wrap Appreciation Day.

Nick Capodice: I'm going to blame big bubble wrap for that one. Bunch of bubble wrap moguls sitting on their bubble wrap, thrones popping their product.

Hannah McCarthy: I have looked into it. Some of these micro holidays, a term that I stole [00:02:30] from Atlantic writer Megan Garber, are manufactured by industries to sell things. You're right. Now some are, to my mind, legitimate reminders that draw awareness to illness or social problems or important events. I'm cool with that, and some are just nonsense that has made its way onto the internet like National Walk Around Things Day.

Nick Capodice: Is that real?

Hannah McCarthy: Yeah. Well, I mean, what do you mean? Is it real? None of this is real, and I can only assume the point [00:03:00] of National Walk Around Things Day is to celebrate the act of walking around things.

Nick Capodice: I had no idea you were so passionate about this.

Hannah McCarthy: I think it's the arbitrariness. It's not grounded in anything. Or maybe the excuse for selling stuff also really bothers me. Or maybe Nick, maybe five years of National French Dip Day press releases finally broke me.

Nick Capodice: You're going to forgive me, Hannah. But aren't all holidays made up? I mean, somebody at some point says, [00:03:30] this is the special day. Everybody take your kid to the doctor in a red wheelbarrow and eat some plums because it's William Carlos Williams Day.

Hannah McCarthy: You wait, you'll get a press release for that tomorrow. But I take your point. Yes, all holidays have to start somewhere. But some holidays really go somewhere. There are holidays that are far more significant, far more real, if you will. So today, to cleanse the palate, Nick, we are going to talk about the holidays [00:04:00] that rise all the way up to the powers that be, who proclaim them to be real, who make them official. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice,

Hannah McCarthy: And today we are covering the 12 count them only 12 federal holidays on the United States calendar.

Nick Capodice: There's only 12.

Hannah McCarthy: Only 12.

Hannah McCarthy: And this is the how and the why of becoming official.

Nick Capodice: Right, [00:04:30] and just to start, I want to clarify, calling something a national holiday does not make it a federal holiday.

Hannah McCarthy: Correct. In actual fact, the United States does not have national holidays the way that some other countries do.

Nick Capodice: Well, what do you mean?

Hannah McCarthy: Well, you can't have a national holiday in the United States because Congress does not have the constitutional authority to force the 50 states to observe a holiday. [00:05:00]

Jeff Bensch: It only applies to federal employees.

Hannah McCarthy: This is Jeff Bensch, the author of History of American Holidays

Jeff Bensch: And in the early days and only applied to federal employees in Washington, D.C., shortly thereafter applied to all federal employees. And then the banks usually take the day off.

Nick Capodice: But this is something I've always wondered Is a bank holiday the same thing as a federal holiday? Like, do banks somehow fall within the federal employee world because they're regulated by the Federal Reserve?

Hannah McCarthy: That is a great question. No [00:05:30] banks do not have to close on a federal holiday, but they usually do because they tend to follow the U.S. Federal Reserve calendar. Basically, it's hard to do business when the thing that regulates You takes the day off.

Nick Capodice: It seems like we all tend to follow that calendar, though. Like every year, we get a list of paid holidays from New Hampshire Public Radio. And I'm pretty sure it adds up to about 12.

Jeff Bensch: Generally, once the federal government declares a holiday, then the states will tend to ratify it afterwards.

Hannah McCarthy: A [00:06:00] state holiday is a day made official by state legislatures, and even on these days, with some exceptions from Massachusetts and Rhode Island, private employers are not required to give a paid day off. Sometimes, even a state employer doesn't have to pay a state employee during that day off.

Nick Capodice: I feel like this is another tried and true example of how does the civics one on one topic work? And the answer is federalism.

Hannah McCarthy: Yeah. Per usual, every state can do it differently.

Archival: It's a state holiday today, meaning most [00:06:30] government offices will be closed. It's all in remembrance of the Bennington battle...

Archival: The state offices in both Alabama and Mississippi are

Archival: Closed today for Confederate Memorial Day and for our state. It is one of three. Nevada Day is the best because everybody comes together. Everybody enjoys themselves.

Archival: We all have a holiday in Rhode Island and only

Archival: In Rhode Island. It's Victory Day, a state holiday that marks the end of World War Two...

Jeff Bensch: Well, a couple of holidays, you know, states would resist it after the federal  [00:07:00]throughout history, you know, like Memorial Day, for one, because it started after the Civil War and the southern states were not not into it. It took them a while.

Nick Capodice: Actually, this makes me think of New Hampshire in particular. I grew up when this argument was happening. Weren't we the last state in the Union to make Martin Luther King Jr. Day a holiday?

Hannah McCarthy: New Hampshire is kind of tied with South Carolina. They made it a holiday in 1999 and under a good deal of protest in the Legislature. [00:07:30] I should add South Carolina state law gave public employers the option of observing either MLK Day or one of three Confederate holidays now that ended in the year 2000, when MLK Day became a compulsory holiday. But just for the record, Confederate holidays are still, albeit quite controversially celebrated in several states in the U.S., including South Carolina.

Nick Capodice: Well, that's another prime example of federalism at work, I suppose. State [00:08:00] legislatures can enshrine whatever date they want. I'm thinking, for example, those states that opt not to celebrate Columbus Day and celebrate Indigenous Peoples Day instead, right?

Hannah McCarthy: Yeah. And that's something that the federal government has also considered doing replacing Columbus Day with Indigenous Peoples Day, which gets to this practice that Jeff mentioned earlier, right, of the federal government copying what a state does. So Labor Day is actually a great example of this.

Jeff Bensch: Different labor unions wanted a holiday to celebrate [00:08:30] labor and the eight hour workday and then the 40 hour workweek, and after various strikes and riots before then, different groups had created their own Labor Day.

Hannah McCarthy: Oregon was the first state to make Labor Day a legal holiday, and that was an 1887. There were 28 states celebrating Labor Day as a state holiday before Congress finally made it a federal holiday in 1894. And in a case like this, it is not like the federal government was a champion of laborers [00:09:00] or unions.

Jeff Bensch: It was a Pullman strike of 1894 that instigated Labor Day, and there the federal troops came in and that railroad strike was big and it spanned many other labor unions. But the federal troops came in and force the workers back to work and arrested a bunch and all that kind of stuff. But then later on that year, the president Cleveland agreed to make a federal holiday, hoping [00:09:30] to win back some of the votes he lost by sending in the federal troops.

Nick Capodice: So how does a federal holiday end up being signed by a president? I mean, if it carries the force of law, does it work like a bill? Does it go through the legislative process and get signed by the president at the end?

Hannah McCarthy: Well, for one thing, presidents sign observations of holidays all the time. But that doesn't make a federal holiday.

Jeff Bensch: You might get

Jeff Bensch: A presidential proclamation or executive order [00:10:00] that designates it as a holiday. And usually that might only be for one time or for a short period. It's really not an official holiday until it goes through Congress. It's just like any other law.

Hannah McCarthy: The most common argument against a federal holiday at the legislative level, by the way, is money. It costs millions of federal dollars to shut down offices, but still pay employees for the [00:10:30] day.

Nick Capodice: And this is another thing where it's like any other bill. It's it's an issue of funding, right? So if all these holidays had to be established by law, that means that when the United States was established as a country, Thanksgiving, for example, was not a federal holiday.

Jeff Bensch: There's the act of 1870. There was for holidays, New Year's Day, Independence Day, Thanksgiving and Christmas.

Nick Capodice: Hold on 1870. So it's basically one hundred years [00:11:00] before we had any federal holidays at all.

Hannah McCarthy: Yeah, the 1870 Act was passed quote to correspond with similar laws of states around the district and in every state of the Union. Loads of states already had Thanksgiving state holidays, albeit on different days. President Lincoln made it the fourth Thursday in November, years before Congress made it a paid holiday for federal employees.

Jeff Bensch: And then 1968t, we had the Uniform Holiday Act, which sometimes the Uniform Monday Holiday Act. So Washington's Birthday Memorial Day, Columbus Day and Veterans Day were all put on on Mondays.

Hannah McCarthy: And anybody who reads a fabulous newsletter will know that people were so mad that Veterans Day had been moved from November 11th that it was eventually switched back.

Nick Capodice: All right, I've got eight so far, four in the 1870s, four in the 1960s. What [00:13:30] are the other four?

Hannah McCarthy: The next holiday to show up is a great example of what being a federal holiday actually means, because this holiday is only celebrated by employees in Washington, DC and only every four years. Any guesses?

Nick Capodice: Yeah, but I didn't know this Inauguration Day is a federal holiday.

Hannah McCarthy: Yep, as of 1957. Then comes Columbus Day in '68. MLK Jr. Day in '83. [00:14:00] And finally, the very recent Juneteenth, which was made a federal holiday in 2021. And like many others, that is a holiday that has been celebrated since before the federal government had established a single one. Now that it's finally recognized at the federal level, though, what does that mean for this long hallowed holiday? I want to take a look at our most recently established federal holiday to ask what the pros and cons are of making something a federal holiday. [00:14:30] I'll have the answer to that question after the break.

There is so much I wanted to put in this episode that simply didn't fit. Like, for example, did you know that if you celebrated Christmas in Massachusetts in 1659, you would be fined five shillings?

Nick Capodice: Oh yeah, those Puritans, they hated Christmas.

Hannah McCarthy: They called it Foolstide because there was so much eating and drinking and mocking of authority. And people would go around begging and would sometimes just burst into the homes of the wealthy [00:15:00] as well. And speaking of holidays, the Puritans were not a fan, just generally. They only took a few days off. They took off for the Sabbath. Election Day, Harvard commencement day. And then there were the occasional fast and Thanksgiving days. Fast days were also called humiliation days.

Nick Capodice: Humiliation days.

Nick Capodice: Well, who wouldn't want to be a Puritan Hannah?

Hannah McCarthy: This is good stuff, right? So what do I do with it? Why I put it in our delightful and fun [00:15:30] newsletter. Of course, that's where all of the stuff goes. That does not make it into the episode. Like the Isle of Lost Trivia.

Nick Capodice: The Isle of Misfit trivia. It's called Extra Credit. You get it in your inbox every other Tuesday, and it is the best way to get the B sides of Civics 101. It's also where we put important updates and announcements, and I swear it is very much not annoying,

Hannah McCarthy: Absolutely worthy of space in your inbox.

Nick Capodice: You can sign up by clicking Subscribe to the newsletter at civics101podcast.org.

When [00:16:00] we're not lounging around in our slippers on a cushy paid holiday, we at the Civic 101 team are working our collective backsides off to make this show that we love. So if you love it too, and you're in the position to do so, please consider showing us some support. What with the law and all our public radio station pays us holiday or no, and you can help ensure that they're always going to do so by clicking the donate button at Civics101podcast.org. Ok, back to the stuff that really [00:16:30] matters.

Hannah McCarthy: All right, we're back. And now that we've covered what a federal holiday is and how it happens, I want to get into the nuance of the thing what happens to a holiday when you make it federal and to do that? We're looking at our most recent one.

JerriAnne Boggis: So throughout history, Juneteenth has been known by many names Jubilee Day, Freedom Day, [00:17:00] Liberation Day, Emancipation Day and today, a national holiday. So Juneteenth is a holiday that's been traditionally celebrated by African-Americans honoring and celebrating what was considered the end of enslavement. On [00:17:30] June 19th, 1865.

Hannah McCarthy: This is JerriAnne Boggis, longtime friend of the show and the executive director of the Black Heritage Trail of New Hampshire. Now, remember that date June 19th, 1865 a date celebrating the end of enslavement? That is two years after the Emancipation Proclamation of 1863.

JerriAnne Boggis: And it often surprises [00:18:00] people that we still had enslaved people in the Americas even after the Emancipation Proclamation. But it took the army actually marching into Galveston on June 19, 1865, and war then, you know, an additional war to officially enforce the Emancipation Act to free the enslaved people there.

Nick Capodice: Right. It wasn't as if Lincoln writes this proclamation, and suddenly all enslavers [00:18:30] freed their enslaved people.

Hannah McCarthy: And it isn't even that all enslaved people were made free in 1865.

JerriAnne Boggis: The exact date when we could say that all enslaved people were free is not really known because there were pockets of resistance across the country. There's pockets of fighting still enslaved people running away, self emancipating themselves all throughout the southern regions. We just don't know. But that June [00:19:00] 19th was celebrated because we had hard evidence and hard facts of that order that came into Galveston from the federal government to enforce and to forcefully enforce the Emancipation Act.

Hannah McCarthy: When I reached out to JerriAnne to talk about Juneteenth, I knew that the Black Heritage Trail had held educational celebrations of the holiday for years, and I knew that she was present when New Hampshire Governor Chris Sununu signed a law recognizing [00:19:30] Juneteenth as a holiday. Though importantly, Nick, not as a paid day off for state employees. Remember, I told you that a state doesn't necessarily pay their employees on these holidays. Yeah, but I wanted to hear what it actually meant to her, to JerriAnne to have Juneteenth recognized at the federal level.

JerriAnne Boggis: So I think everything comes with a double edged sword. There's always two sides to any coin. I'm really glad that it's been publicly recognized [00:20:00] and federally recognized as a holiday because it changes the narrative of American history to say, you know, that all enslaved people were freed with the Emancipation Proclamation. This federal acceptance of this June 19 creates that debunks that myth, right? It serves as a place for that dialog for us to honestly look at [00:20:30] what our history is, not a sugar coating of our history, but the reality of what it was and how that affects us today. The other side of the coin as typical typical American fashion that that's problematic and worrisome is that we'll turn it into a consumer event. You know, we'll have Juneteenth sales, you know, [00:21:00] like Christmas sales. It'll just be another another marketing opportunity rather than an understanding of of what the holiday is.

Nick Capodice: Yeah. And this makes me mad. This is a personal grudge of mine, and it makes me think of Labor Day in particular. Labor Day is ostensibly a day to commemorate American workers and their long struggle for protections and wages. But for most people, it is now just an end of summer holiday and a great time to get a deal on a car.

Hannah McCarthy: And [00:21:30] JerriAnne pointed out that even the celebration of Juneteenth has the potential to lose the thread to miss the whole point of remembering the emancipation of America's enslaved.

JerriAnne Boggis: There's a celebratory feel to it because we are celebrating, but African-Americans are not out of the woods in our country. Racism is still strong, still intact, still affects every segment of our systems. So I think [00:22:00] that knowledge needs to be also acknowledged that it's not the mint julep celebration, right? It is a realization of looking at. What's really going on in the country? So this is one of those things where you don't want to critique good folks who are trying to do good things but end up doing bad things, you know, because of a misunderstanding. I think we have to really think about how we celebrate [00:22:30] it and what it means. I think event with just white votes doing African-American things doesn't feel genuine.

Hannah McCarthy: So, for example, when a community jumps at the opportunity to celebrate Juneteenth this holiday, the federal government has finally said is worthy of recognition. The question is how are they really celebrating it and with whom?

JerriAnne Boggis: I think some some communities hurriedly pulled together something to celebrate Juneteenth, [00:23:00] right? And it was like, Oh my God. And you know, I think I have to put everything in its context to, you know, our last two years with the pandemic, you know, with the George Floyd murder case, our communities were really aware of the lack of diversity, their lack of action. So I think there was this push to understand or do something quickly to say, Oh, no, our community is not racist. [00:23:30] Oh no, that wouldn't happening in our town. Or No, we need to figure this out. And in that frenzy created these events without thought.

Hannah McCarthy: I want to reiterate JerriAnne is not disappointed that Juneteenth has been made a federal holiday. I asked her if it was a net positive, and she said yes. Of course, the point is really, is Juneteenth going to be just another day off in some states? Ok, [00:24:00] for example, Nick, do you actually stop to give thanks on Thanksgiving?

Nick Capodice: I try, but I sometimes fail.

Hannah McCarthy: Do you mourn the deaths of hundreds of thousands of U.S. soldiers on Memorial Day? Do you think Americans 50 years from now are going to reflect on our history of enslavement and how it has haunted our society and laws every Juneteenth?

JerriAnne Boggis: I think time [00:24:30] will tell just what America will make of this federal holiday. I think that may scare some people to say that Juneteenth may be more celebrated than July 4th. You know, because July 4th is problematic when we think of, you know, a whole percent huge percentage of people being enslaved while we're celebrating July 4th, whereas June 19th, we're looking at a bigger picture, a more inclusive [00:25:00] picture and what's out put it in quotes. Freedom is, you know, I'm just really glad that it's there. And I, you know, have big hopes for the celebration and really allowing people to create a different narrative of what America is.

Nick Capodice: It's interesting to think of federal holidays as an opportunity, even if a federal holiday in practice does not apply to the entire nation. [00:25:30] Giving an idea or an event federal recognition at the federal level, it's symbolic. It says that the U.S. government agrees that something is worthy of observance. Juneteenth was not made a federal holiday because the government thought everybody needed another day off or that like sock companies needed the excuse to make Juneteenth socks,

Hannah McCarthy: Which you can buy at Wal-Mart. By the way, they do already exist, which is exactly the slippery slope JerriAnne was talking about. [00:26:00] Because you're right, Nick, when the federal government creates a federal holiday, that is a political statement, and it gives states and communities the chance to make statements of their own in the way they choose to celebrate both Juneteenth and every holiday.

Nick Capodice: One last thing, Hannah.

Hannah McCarthy: Go for it.

I looked it up during the break and guess what today is

Hannah McCarthy: As [00:26:30] we're taping this episode, it is December 4th.

Nick Capodice: Yes, yes. But guess what that means?

Hannah McCarthy: I don't want to.

Nick Capodice: It's National Sock Day. Like for real.

Hannah McCarthy: I have to go.

Hannah McCarthy: And in a case like this, it is not like the federal government was championing it. How do you say that word? Championing, right?

Nick Capodice: Yeah, it was championing.

Hannah McCarthy: It was not like the federal government [00:27:00] was championing labors. So really hard championing, championing.

Nick Capodice: Yeah. Just like a champion of.

Hannah McCarthy: Ok.

Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with Nick Capodice. Our staff includes Christina Phillips and Jacqui Fulton. Rebecca Lavoie is our executive producer. Music in this episode by Yung Kartz, petrochines, Mello C, Marten Schellekens, Ketsa, Breakmaster Cylinder and Audiobinger. You [00:27:30] can find this in all other episodes at our website civics101podcast.org. And if you're looking for more, albeit significantly quieter civics lessons, you can check out the book that Nick and I wrote. It's called A User's Guide to Democracy: How America Works, and it was illustrated by the very wonderful New Yorker cartoonist Tom Toro. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

Term Limits for Congress?

Voters love the idea of term limits for Congress, so why don't we have them? And would they deliver on their promises?

While we don't currently have term limits on members of Congress, they do exist in 16 states. What can we learn from the state legislatures that already have them? And how might term limits impact how Congress works?

We talk with Carlos Algara, assistant professor of political science at Claremont Graduate University, where he studies political parties, electoral accountability, and legislative behavior, and Jordan Butcher, assistant professor of political science at Arkansas State University, where she studies state legislatures. She is the author of the forthcoming book Navigating Term Limits. 

---

Transcript

Archival: [00:00:00.85] I thought a long time about term limits. I mean, partly because I've been here for a while, partly because I grew up in a generation with a different structure of politics. But the truth is, prior to 1890, every Congress was over 50% freshman. And while people like.

Nick Capodice: [00:00:18.46] All right, I think I know who this is, Hannah.

Hannah McCarthy: [00:00:20.98] Do you?

Nick Capodice: [00:00:21.97] Yeah, like 90% sure. And I'm going to go for it. Newt Gingrich. Final answer.

Hannah McCarthy: [00:00:27.37] You got it. That's a good ear there, Nick. This is from when Gingrich was a Republican speaker of the House in 1995, when he was talking about a proposed constitutional amendment. This amendment was attempting to put term limits on the US Congress for the first time since the Constitution was ratified.

Archival: [00:00:47.59] That we could, in fact, find a reasonable way to run the US Congress closer to the American people, with a greater range of diversity and with a tremendous constant increase of people showing up who have new ideas, new approaches, and new experience.

Nick Capodice: [00:01:03.52] And term limits. To be clear, as in, a member of Congress can only serve a certain number of terms, and after that, they're ineligible to run for office again.

Hannah McCarthy: [00:01:13.48] Correct. And the debate here was about the length of those term limits. Some people wanted to limit members of the House to three two year terms, otherwise known as six years. Others, like Gingrich, said he would settle for nothing less than a 12 year term limit.

Archival: [00:01:30.37] Flatly, I think if you had a leadership for this country that had only a six year learning curve, that is just too short. I mean, I don't know that I'm all that smart, but but as hard as I worked at it, I didn't get it in the first six years.

Nick Capodice: [00:01:42.88] All right. So he's saying here that it takes at least six years to even know what you're doing in the house in the first place, before you can even start to be a meaningful member of Congress and then, you know, get stuff done. That argument makes a lot of sense on the surface. Hannah, it's not a stretch to say that more experience probably makes you better at your job.

Hannah McCarthy: [00:02:02.29] Yeah, but here's the thing. In 1995, when Gingrich made this speech, he had been in the House of Representatives since 1979. This was his first year as speaker, one of the most powerful positions in the federal government, and it took him 16 years to get there, which.

Nick Capodice: [00:02:21.40] Means if there had been a 12 year term limit already, which he was advocating for, he would have been out two election cycles ago.

Hannah McCarthy: [00:02:28.84] Yeah, but there's another reason that Gingrich might have been suggesting this. Legislative term limits are widely popular among voters. They were in the 1990s, and they are now.

Archival: [00:02:42.58] A new Civitas poll found an overwhelming majority of people believe there should be term limits.

Archival: [00:02:47.56] Polling shows that 82% of the population does support. Term limits in Congress. So right now.

Archival: [00:02:53.86] We have term limits. This as three terms in the House, two terms in the Senate, six years or eight years. Right. And it makes it hard to gain any real experience in either chamber.

Archival: [00:03:03.97] The ongoing fight over term limits in Bossier City is back in the hands of City council after a contentious meeting today. The council.

Hannah McCarthy: [00:03:16.58] A recent study by the Pew Research Center found that 87% of voters are in favor of some kind of term limits in Congress. And just in the past year, two Republican legislators, Senator Ted Cruz and Representative Ralph Norman, proposed their own constitutional amendment that would cap the House at three two year terms and the Senate at two six year terms.

Nick Capodice: [00:03:39.23] All right, so if 87% of voters want congressional term limits, and it seems like even politicians who would be impacted by them are willing to back the idea, it seems pretty straightforward, like it's a slam dunk. But I'm guessing you're about to tell me why I'm wrong.

Hannah McCarthy: [00:03:56.24] You bet I am.

Hannah McCarthy: [00:03:57.29] This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:03:59.36] I'm Nick Capodice.

Hannah McCarthy: [00:04:00.29] And today we're talking about congressional term limits, an idea that is extremely popular with voters but has almost no chance of ever coming to fruition, at least anytime soon. We're going to talk about that, and we're also going to talk about why there is a pretty strong consensus, at least among political scientists who have studied legislative term limits, that they don't really work the way we think they will.

Nick Capodice: [00:04:25.31] All right. Hannah, why do so many Americans want term limits in the first place?

Hannah McCarthy: [00:04:30.23] Right. Here we go.

Carlos Algara: [00:04:32.24] Generally, it's framed as getting new perspectives in.

Hannah McCarthy: [00:04:36.23] This is Carlos Algara. He's an assistant professor of political science at Claremont Graduate University, and he studies Congress, legislative representation and congressional elections.

Carlos Algara: [00:04:46.79] We don't need, for example, these quote unquote career politicians going to Washington and losing sight of what's going on back at home. Right. So you get this Potomac fever when you go to D.C. and the relationship, the connection you have with the electorate sort of gets severed.

Nick Capodice: [00:05:06.20] All right. That makes sense to me on some level. But if your constituents feel you don't care about them because you've got the Potomac fever, they can just vote you out. Right? But that's what elections are for.

Carlos Algara: [00:05:17.36] It's a little bit of a paradox, because voters believe that getting new blood in Congress, new folks, you get fresh perspectives, and therefore you can sort of break the gridlock that's plaguing Capitol Hill.

Nick Capodice: [00:05:29.66] So even though certain politicians get singled out as a reason for having term limits due to their age, for example, like Senator Mitch McConnell or Senator Dianne Feinstein before her death. Term limits are popular, at least among voters, because they reflect a frustration with the institution as a whole.

Hannah McCarthy: [00:05:47.36] Yeah, and this really started in the 1990s. 23 states, bolstered by a rise in power of the Republican Party on the national level, placed term limits on their congressional leadership and in many places, on their state legislatures as well. Now, those term limits on the federal level wouldn't stick around, which we'll talk about in a minute. But it's still pretty remarkable that so many politicians were behind the idea of limiting their own careers.

Nick Capodice: [00:06:16.40] Yeah. What was going on in the 1990s that made this such a popular idea?

Carlos Algara: [00:06:20.81] The Congress of the late 1980s, early 1990s was an institution that voters viewed as relatively scandalous.

Nick Capodice: [00:06:29.12] I feel like the word relatively is doing some heavy lifting here.

Hannah McCarthy: [00:06:32.87] Yeah, I guess if we look at recent history, I mean, we're not talking about multiple speaker elections in the same year or challenging people to fights during hearings, but there was plenty of drama.

Carlos Algara: [00:06:47.78] So you had a Democratic speaker, Jim Wright, in the late 1980s, who is forced to resign on the basis of ethics violations.

Archival: [00:06:55.58] Late yesterday evening, the Standards Committee of Official Conduct voted a preliminary inquiry in the matter of Speaker James Wright. The assertions.

Archival: [00:07:09.80] That was for receiving unauthorized gifts and profiting off speeches.

Carlos Algara: [00:07:13.55] You had the Keating Five, which was another scandal on the Senate side.

Archival: [00:07:18.23] Five senators were showered with Keating gifts in exchange for putting the squeeze on federal regulators to go easy on him. Mccain denied he did anything wrong.

Hannah McCarthy: [00:07:28.37] That was a group of senators who stopped federal regulators from investigating a businessman they'd all profited from.

Carlos Algara: [00:07:33.86] You had the House banking overdraft scandal, where members were using the banking system as a little bit of a slush fund.

Archival: [00:07:41.51] About 6300 checks had been written by members in a 12 month period that, for one reason or another, were overdrafts. It sounded fairly dramatic at the.

Hannah McCarthy: [00:07:51.38] And that was when representatives were overdrawing from their house checking accounts, sometimes for personal expenses, without any real penalties.

Nick Capodice: [00:08:01.28] Oh my.

Carlos Algara: [00:08:02.03] So the term limits movement really takes off on the basis that, you know, going to the state legislature, going to that experience is corrupting.

Hannah McCarthy: [00:08:11.27] So we have the Democratic Party, which had held the majority in Congress for almost 40 years at this point, as the old guard, the powerful and corrupt politicians whose longevity itself, at least to voters, is seen as part of the problem. And this feeling serves the purposes of Republican politicians, many of them younger and newer than the Democrats who wanted to end that Democratic stronghold in Congress.

Nick Capodice: [00:08:36.08] So folks like Newt Gingrich are running against the establishment.

Hannah McCarthy: [00:08:39.56] Basically, this is also something that we see today in Congress, people campaigning and building their reputation on the idea of being anti-establishment and even blaming the rest of Congress for something voters don't like.

Carlos Algara: [00:08:52.16] Traditionally, this gives rise to a sort of a paradox, right, that members of Congress run for Congress by running against Congress. And this is very much a bipartisan push. Right. And one thing to keep in mind is, you know, unlike being a governor of a state or being the president, individual legislators can shirk responsibility for what the legislature does and does not do. So, for example, if I am a Democratic senator and I have an angry constituent that says I'm really upset at Congress, they should have done more on Build Back Better. We should have had more environmental protections, for example. Well, I can say, yes, I was pushing that, but I'm only one of 100 senators, or I'm only one of 435 members of Congress so they can shirk responsibility for the institutional result, which is why contemporary political scientists argue Congress is much more unpopular than individual members. Members of both parties like to run against the institution. If you're trying to get ahead of the term limits thing, well, I'm one of the good ones, right? I'm fighting for you. You know, we need term limits for the other legislators, but not for me.

Nick Capodice: [00:10:05.57] So that explains to me why politicians might support term limits, even though they're hypothetically backing something that limits their own power in the future. But after all this rah rah pro term limits stuff in the 90s, there are no term limits on any members of our US Congress. Are there?

Hannah McCarthy: [00:10:25.64] No, there are none.

Nick Capodice: [00:10:26.99] So what happened?

Hannah McCarthy: [00:10:28.16] What happened was that states started imposing term limits on their delegation in US Congress and on their state legislatures, and the Supreme Court stepped in and was like, look, it's fine if you want to limit your own state government, but you can't do that to the federal government. And that Supreme Court case, by the way, was in 1995. It is called Term Limits, Inc. v Thornton.

Carlos Algara: [00:10:50.18] The basic premise behind this decision, right, is that states cannot alter the Constitution. So it ruled that the 23 states, I believe it was that implemented that pass at the state level, term limits on members of Congress cannot do so right. That the only institution that can set the parameters about membership is the Congress itself.

Nick Capodice: [00:11:13.46] All right. So all of those state imposed term limits on Congress were overturned. So how would we do it now? Like how would we even enact term limits on Congress. Because there have been proposals put forth by legislators currently serving in Congress today.

Carlos Algara: [00:11:27.56] Of course, there's no term limits in the Constitution. I suspect that if you want to pass term limits for individual members of Congress, it would have to come through constitutional means. And so what does that look like? You need a two thirds supermajorities in both chambers of Congress, and then it has to be ratified. By a supermajority of the states. And so it's very of course, it's very taxing to pass a constitutional amendment, which is why there's not a lot of them. The last one was in the early 1990s dealing with congressional pay raises. So the deck is stacked against them because we have high transaction costs. But ultimately that's what it would take, right? You would have to have these institutions made up of legislators to agree to limit the amount of terms that they would possibly serve, which in and of itself is something that sort of defies logic, because there is no incentive by which a legislature would pass a law limiting its influence, which is what you're doing with term limits.

Hannah McCarthy: [00:12:34.04] So once that Supreme Court decision came down, Republicans in Congress did push for that constitutional amendment. That's what you heard Newt Gingrich talking about at the top of the show. And the idea just kind of fell off the priority list.

Nick Capodice: [00:12:49.19] But the idea is back now.

Hannah McCarthy: [00:12:51.08] It is, but it's different. And what's different now is that it isn't individual scandal or the bad behavior of certain congresspeople that drives the term limit movement. It's a twofold perception. One, the Congress and governmental establishment as a whole is corrupt, and two, that the other side is bad, as in the other party. So when it comes to voting, constituents are going to vote along party lines regardless of scandal or personal behavior. And when it comes to term limits, any member of Congress can say, hey, you know what? I agree the whole system is corrupt. Bring on the term limits. In fact, I'll propose the bill myself.

Carlos Algara: [00:13:36.41] So, for example, I think the first bill that Senator Rick Scott from Florida when he was elected proposed was a congressional term limits initiative. And certainly, if you look at Congressman Gaetz in the whole unseating of speaker McCarthy, one of his arguments was, you know, you promised us a vote on term limits. Term limits are, you know, going back to this paradox, very popular amongst voters. And so on the one hand, it makes good politics. I'm going to introduce a bill, and I'm going to push for a vote on congressional term limits. On the other hand, it has no teeth to it because this will probably never get a vote. And if it does, it'll never pass the Senate. So it's just cheap talk.

Hannah McCarthy: [00:14:17.03] All right. We have delved deep into the history of this idea of congressional term limits, only to learn that they are very unlikely to happen, and yet they are still so popular. And they do exist not on the national level, but in 16 state legislatures. So after the break, I want to talk about what term limits look like in practice on the state level. Do they deliver on their promises? And if by some chance, term limits get popular enough in Congress and among voters to cause us to add a 28th amendment, what would it do? And we're going to get into all that after the break.

Nick Capodice: [00:14:57.77] But before that break, Hannah and I are delighted that we don't have term limits as co-hosts of Civics 101, at least that we know about. We are going to be with you as long as we can. If you want to support the work we do, consider making a gift in any amount at our website civics101podcast.org. It means a ton to us. All right.

Hannah McCarthy: [00:15:27.95] Hello. Hello, we are back. This is Civics 101 and now we are going to talk about the role of term limits in the 16 states where they exist. And term limits are a lot less straightforward than they seem, and they have some interesting results. So right now I want to bring in someone named Jordan Butcher. She's an assistant professor of political science at Arkansas State University, where she focuses on state government. And she's the author of the forthcoming book, Navigating Term Limits. So what's unique.

Jordan Butcher: [00:16:00.28] About the states that have term limits is they have what we call direct democracy. Meaning the way that we get term limits is through ballot initiatives.

Nick Capodice: [00:16:09.46] So real quick, just a note on ballot initiatives. This is instead of a state law that originates in the legislature and goes through the houses and gets signed by the executive. Ballot initiatives are laws enacted by the voters during elections, and.

Hannah McCarthy: [00:16:23.74] 15 out of the 16 states with term limits did it that way.

Nick Capodice: [00:16:27.07] What's the one exception?

Hannah McCarthy: [00:16:28.18] Louisiana, where the legislature actually chose to impose their own limits.

Nick Capodice: [00:16:32.95] Okay. And do all these states sort of do term limits kind of the same way?

Jordan Butcher: [00:16:36.82] So in my research, I'm really, really, really big on the argument that term limits are not binary. And that is something that we have done for years within the discipline of political science and state politics is we treat term limits as you either have them or you don't. And while that's not totally wrong, it's also not the best measure because we have four different kinds of term limits. And within those four kinds we have different year lengths.

Hannah McCarthy: [00:17:05.83] Now, Jordan says four. But I'm going to start by explaining two major differences. Lifetime bans and consecutive bans. First lifetime bans. Meaning once you hit a certain number of years in the legislature, you cannot be reelected.

Nick Capodice: [00:17:22.87] So term limits for the president. Those are an example of a lifetime ban. As of the 22nd amendment, which was ratified in 1947, a president does two full terms in office, and then they're done.

Hannah McCarthy: [00:17:34.15] Bingo. In California, Oklahoma and Michigan, you can only serve in the legislature for a total of 12 years. Now it could all be in one chamber, or you could serve in both chambers. But you max out at 12 years. Missouri and North Dakota have a lifetime ban of eight years, but that's in both chambers. So the total would be 16 years if you served eight in both.

Jordan Butcher: [00:17:57.55] Most people tend to just stay in the same chamber, because that's where you get your experience and your expertise, and that pays dividends the further in your career. So you don't normally switch, but you can. But then what we tend to ignore is this difference between our lifetime and our consecutive bans.

Nick Capodice: [00:18:14.14] And now consecutive bans. Are those just pretty much what they sound like? There's a limit on the number of years you can serve in a row.

Hannah McCarthy: [00:18:20.77] Yes, but.

Jordan Butcher: [00:18:22.48] That allows you to switch to the other chamber briefly and then you can go back.

Hannah McCarthy: [00:18:26.05] You can also get a job elsewhere, until time enough had passed that you could run for election again. But once you leave, the clock resets. The most common consecutive limit is eight years in the house and eight years in the Senate.

Nick Capodice: [00:18:37.87] I just want to point out here, it sounds like a lot of these term limits wouldn't actually shorten someone's legislative career, except for maybe the lifetime bans.

Hannah McCarthy: [00:18:47.74] Yeah, pretty much what it does is cause more turnover, even if some of the same people are cycling in and out.

Nick Capodice: [00:18:54.19] So, Hannah, how have term limits changed state legislatures in those states where they exist?

Hannah McCarthy: [00:18:59.92] Well, for one thing, diversity, a common argument for term limits is that they would theoretically free up space in legislatures, which would allow for more diverse legislatures.

Nick Capodice: [00:19:10.45] And has that actually happened?

Jordan Butcher: [00:19:17.92] We don't see that or we haven't seen that to this point, because what people forgot was if you're forcing out white men, you're also forcing out minority members, you're forcing out women at the same time. And women and minorities are already so much harder to recruit to those positions by forcing them out. It's made it difficult to replace them when you force women and minorities out. You have to have some strategy to replace them. And that was not in place.

Hannah McCarthy: [00:19:48.07] This is Carlos Algara again.

Carlos Algara: [00:19:50.23] There's generally a political science consensus that at the state legislative level, it empowers special interests. Right. Because you're losing a lot of this institutional knowledge. You're losing the seniority. You're empowering special interests because lobbyists provide a lot of information for legislators. And also you're empowering the governor.

Jordan Butcher: [00:20:10.15] So it's actually become more burdensome for those that work with interest groups or the bureaucracy, because every time they have a new member to deal with, they have to re-explain how everything works, because those relationships with interest groups, those relationships with bureaucrats, other state officials are so important to how the government functions. But that's a really high start up cost. If every session you've got 30% of your legislature is brand new, you have to re-explain how everything works. Within eight years it will be one. Hundred percent. Now that's a heavy burden placed on everyone else in government.

Hannah McCarthy: [00:20:50.47] Because don't forget, the legislature is not just there to pass laws.

Jordan Butcher: [00:20:55.45] Another key role that lawmakers are supposed to participate in is oversight of the bureaucracy, especially at the state level, where a lot of resources are disseminated in that way.

Hannah McCarthy: [00:21:07.48] The legislature oversees the budget and ensures the executive branch is doing what it is supposed to do with the resources. It's been given both things that you might not necessarily know how to do right when you start the job. And Jordan has seen legislatures with term limits have to adjust for that lost experience.

Jordan Butcher: [00:21:26.95] There are now far more intensive trainings for states that have term limits before they start. They have these new entities that help again with oversight. And most legislatures have research divisions. There are ways that the legislature has learned to adapt, but a lot of these ways that they've learned to adapt are in non-elected officials. And so then people just kind of need to reconcile if they want that adaptation to come through an elected official or these non elected officials who are essentially functioning and keeping the legislature running.

Hannah McCarthy: [00:22:02.38] And in a state House with term limits, where you don't have experienced legislators because you're not really permitted to. You have to find it somewhere else.

Jordan Butcher: [00:22:12.43] Missouri has one of those lifetime bans, and I saw some unique things. So in one instance, I saw a former staffer who had been a long time staffer. I believe the lawmaker that they worked for was terming out. That lawmaker had encouraged the staffer to take over that seat. So we see that recruitment happens a lot. Term limits are not. But because it was a long term staffer, the staffer knew the district. They knew the needs of the district and the constituents. So the staffer took over for that member that was turning out. I've also seen strange things. Like term limited lawmakers terming out of office and then becoming staffers for other lawmakers. That would be unheard of in other states. You would not leave your elected position to then go be a chief of staff for another elected official. Those things don't really happen in other states.

Nick Capodice: [00:23:18.25] What about those politicians who are about to term out because they don't have to campaign anymore like they're done? Do term limits make them more focused on their work?

Carlos Algara: [00:23:28.34] So there's no incentive in that last term knowing that you won't face voters again to shirk. And so that politician might be eyeing the next job, right. And might vote accordingly. So that's the biggest critique of of term limits is why would you possibly sever that relationship where a member can vote in accordance with potentially special interests at the expense of their electorate, knowing full well that they'll never have to face voters again?

Nick Capodice: [00:23:54.77] So, Hannah, I know that state government is a whole completely different animal than our federal Congress. But I do wonder, is there anything we can learn from what's happened in states with term limits that could give us a clue as to how they would affect Congress in the rare event an amendment were to pass doing so.

Hannah McCarthy: [00:24:14.18] Well, states are so often the lab for experimenting with federal policies with potential federal policies, well, states are so often the laboratory for experimenting with potential federal policies. So we kind of already know what would happen, a loss in institutional knowledge, expertise and influence. For one thing, Congress already delegates a lot to the president because it is so mired in gridlock. Carlos says that term limits would probably intensify that.

Carlos Algara: [00:24:50.02] You know, they're delegating a lot of the implementation of policy to the executive branch. And so I suspect you would see that more frequently and much more pronounced if you were to implement term limits. What I would stress is there's value in expertise. There's a whole host of very important political science research that shows that some members are more effective than others. Some members are more likely to influence public policy on behalf of their constituents. And one of the predictors of that legislative effectiveness is seniority, because it takes seniority to be in a position of leadership. A legislative career is like any other career, right? You get better with it as you learn on the job.

Hannah McCarthy: [00:25:34.48] One thing Carlos said that really struck me is that one of the few things that political scientists agree on is that term limits are bad.

Carlos Algara: [00:25:44.89] You would lose a lot of really effective legislators, and you would rob the opportunity for individual legislators after term limits are implemented to be effective. So yeah, it's a trade off.

Nick Capodice: [00:25:56.53] All right, Hannah, where does that leave the 87% of Americans who say that there should be term limits on legislators? I mean, love them or hate them? The truth is we're not likely to see them, at least on a national level, anytime soon.

Carlos Algara: [00:26:10.45] We already have term limits. You can vote them out, and some members even things are so Partizan they are being voted out. So, you know, to a certain degree, I would argue that we already have term limits and they're called elections.

Hannah McCarthy: [00:26:28.53] This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Rebecca Lavoie is our executive producer. Music. In this episode by Thage, Spring Gang, peerless, The New Fools, Toby Tranter, I'm In, Katori Walker, Sarah the Instrumentalist, Ryan James, Car, Paper Twins, and Sven Lindvall. You can find our entire catalog and so much more, including how to get in touch with us at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

What is the Order of Succession?

America's first congress debated it in the 1790s, and it's been debated about ever since. Who should step into the president's shoes if the offices of President and Vice President are simultaneously vacant? Today we talk about the many different Presidential Acts of Succession that we've had in the US, as well as designated survivors, the "football," and the recurring question of the constitutionality of such acts.

Click here to listen to our episode on the Executive Branch, should you want to learn the mnemonic "See That Dog Jump In A Circle, Leave Her House To Entertain Educated Veteran's Homes."]

---

Transcript

Archival: We defend the physical capital of the United States with these thick Jersey barriers. But obviously the statutes to provide for continuity are not nearly as solid. There should not be a scenario that any of the professors that come here before you can put forward where we don't know who is president and who isn't.

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 the [00:00:30] order of presidential succession. We're going to talk about the current order and then how it's changed since the founding, as well as some interesting moments in presidential succession history. We're also going to talk a little about designated survivors. And finally, the arguments about whether our order of succession is constitutional or not.

Hannah McCarthy: All right, let's go. Okay, Nick. The order of presidential succession, or rather the presidential [00:01:00] line of succession, lays out who becomes president if the current president is dead, impeached, has resigned, or is otherwise incapable of holding the job. And we all know that's the vice president, right? Like if Joe Biden died in a plane crash, Kamala Harris would become president.

Nick Capodice: Right. And this sort of thing has happened nine times in US history. Eight deaths, one resignation. But it's that next step which brings this topic up in the news cycle. Every time there's uncertainty [00:01:30] about who is running the House of Representatives. Well, after.

Archival: More than two weeks without a speaker, the plan to keep temporary temporary Speaker Patrick Henry through the end of the year appears to be a no go. That was the plan initially, but it was struck down. What is all the drama mean for the line of succession then, when it comes to the presidency?

Nick Capodice: Now, Hannah, let me start here by saying that so far this has never, never actually come up. We've never had to go farther than vice president to fill a [00:02:00] vacant presidency.

Hannah McCarthy: All right. Noted.

Nick Capodice: That said, under the most current presidential succession Act, which is from 1947, by the way, in the event of both the president and the vice president hypothetically dying in a plane crash, the next in line is the speaker of the House.

Hannah McCarthy: Now, real quick, did the president and the vice president ever fly in the same plane?

Nick Capodice: They don't. And this is not a law, but rather an informal precedent referred to as the Johnson rule, named after Vice President and then President [00:02:30] Lyndon Johnson. So the president flies on Air Force One and the veep on Air Force Two. And by the way, Hannah, did you know that Air Force One is not actually a plane?

Hannah McCarthy: Excuse me?

Nick Capodice: No, it's not even like a fleet of presidential planes. Any plane, any Air Force plane that the president is on uses the call sign Air Force One. And while we're doling out the trivia, LBJ was reportedly so finicky about the temperature in the cabin [00:03:00] of Air Force Two when he was vice president, that the flight crew installed a fake thermostat that didn't do anything whatsoever right by his seat, and he never complained again.

Hannah McCarthy: I'm fairly certain that my father did the same thing in my house growing up.

Nick Capodice: But back to the order of succession. I don't want to dwell on the grisly possibilities of how exactly this can happen. But if the president, Vice president, and speaker of the House are all gone at the same time, next [00:03:30] in line is the president pro tempore of the Senate, which is the person in the majority party of the Senate who has served the longest in the Senate. Now, currently, that is Patty Murray. She's the Democratic senator from Washington state. Okay.

Hannah McCarthy: And who's after Senator Murray?

Nick Capodice: Well, that's where things get a little murky. Hannah, do you remember the little mnemonic device from our episode on the executive branch?

Hannah McCarthy: Oh, this is the one that's like. See that dog jump in a circle?

Nick Capodice: Yeah. That one. I'm going to put a link in the show notes to the episode [00:04:00] on that for more specificity. But the rest of the line of succession consists of the secretaries of each of the 16 departments in the cabinet, in the order of creation of the department. The mnemonic we're referencing here is see that dog jump in a circle, leave her house to entertain educated veterans homes. That's secretaries of state, Treasury, defense, justice, the attorney general, interior, agriculture. Et cetera. I'm not going to do the whole spiel. Just check the episode if you want to learn it. The most [00:04:30] recent tweak to the Presidential Succession Act was in 2006, when they added the Department of Homeland Security.

Hannah McCarthy: Speaking of the Department of Homeland Security, that's Alejandro Mayorkas, right?

Nick Capodice: It is.

Hannah McCarthy: Yes. I ask because the Constitution requires that anyone stepping into the office of president must be at least 35, have been a resident of the US for 14 years, and must be a natural born citizen of the United States, which Mayorkas is not. He was born in Cuba.

Nick Capodice: Yeah, you're absolutely correct. As of this recording [00:05:00] November 2023, Mayorkas is one of two cabinet members who are excluded from the line of succession. The other is Jennifer Granholm, Canadian born Secretary of Energy. And we got one more snarl. The Presidential Succession Act requires the aforesaid officers to be appointed under the advice and consent of the Senate. Now Julie Su, Wisconsin born Secretary of Labor, she was appointed Deputy Secretary of Labor with the advice and consent of the Senate. But then [00:05:30] she moved up to acting Secretary when the former secretary resigned. So that is in question. And I do not know the answer of whether she's eligible or not.

Hannah McCarthy: All right, Nick, I'm ready for that oft used clatter of carriage on a cobbled street. Take me back to when this all started.

Nick Capodice: Your wish is my command, Hannah.

Nick Capodice: 1790 Federal Hall in New York.

Nick Capodice: With our first Congress debated this issue for a while. You see article [00:06:00] two. Section one of the Constitution lays out the succession. Hannah, can you read this for me?

Hannah McCarthy: Yeah. Of course, in the case of the removal of the president from office or of his death, resignation or inability to discharge the powers and duties of the said office, the same shall devolve on the vice president. That's a mouthful. But it makes sense. The veep fills the job.

Nick Capodice: Yeah. And even that, though, comes into question pretty quickly as I'm going to get into in a little bit. But first I'm going to finish with [00:06:30] the other part. Quote. The Congress may, by law, provide for the case of removal, death, resignation, or inability both of the president and vice President declaring what officer shall then act as president and such officer shall act accordingly until the disability be removed, or a president shall be elected?

Hannah McCarthy: In other words, Congress is in charge of deciding the order. Is that what that's saying?

Nick Capodice: Yes. And our first Congress could not agree. Now, some suggested speaker of the House [00:07:00] come next like we have now. But at the time that was Thomas Jefferson, and members of the Federalist Party did not like that because Jefferson was leading the opposition party. So Chief Justice of the Supreme Court was floated. President of the Senate, Pro tem was floated. But it was not until 1792 that Congress came to an agreement the first Presidential Succession Act, which was signed by George Washington.

Hannah McCarthy: What did they end up choosing as the next in line after the vice president?

Nick Capodice: They chose president pro tem [00:07:30] of the Senate, and the speaker of the House came right after.

Hannah McCarthy: So that was the reverse of what we have right now. Right. And no cabinet folk at all?

Nick Capodice: Nope. Not at all. And just to reiterate what I said earlier, this never came up. There was never a time that the presidency and vice presidency were vacant simultaneously. But what did come up was a whole lot of disagreement. The very first time we had a succession 1841. William [00:08:00] Henry Harrison. Old Tippecanoe dies of pneumonia a mere 31 days after his inauguration, his veep, John Tyler. So here's the question that arose. Hannah. Is Tyler assuming the powers of the presidency, or does he actually become the president? Those are two different things. Now, according to John Tyler, it was very much the latter. He took the presidential oath. He vetoed bills that came from his own party, the [00:08:30] Whigs, who not so secretly referred to Tyler as, quote, his accidency.

Hannah McCarthy: Oh yeah. I remember reading somewhere that Tyler went so far as to return letters addressed to Vice President John Tyler completely unopened.

Nick Capodice: Yeah, that was his style. But regardless of the general disdain members of Congress had for Tyler's ascendance to the presidency, a precedent had been set. When presidents die, the vice president becomes [00:09:00] the president. Quick last Tyler tidbit here. He didn't have a vice president ever. And in 1844, a gun exploded while he was on a boat in the Potomac. The USS Princeton, six people died. And had he been one of them, we would have had our first ever third in line president who was president of the Senate Pro Tem, Willie Magnum.

Hannah McCarthy: Were there any other close calls like this where the VP became president? No new VP was elected. And then that new president nearly died. [00:09:30]

Nick Capodice: Yeah, two big ones in this time period. And they kind of came one after the other. As you know, Abraham Lincoln's assassination was part of a bigger plot. The plan was also to assassinate his vice president, Andrew Johnson, as well as his secretary of state, William Henry Seward. Those last two didn't succeed, so we didn't have to get into it. But then Andrew Johnson, he was impeached in 1868, and he was one vote shy of being removed from office. Had he been removed, Senate President Pro Tem Benjamin [00:10:00] Wade would have become president. And then we had kind of a relatively quiet era, succession wise, until Charlie Guiteau shot President James Garfield over a perceived slight.

Archival: My name is Charles Guiteau, My name, I'll never deny.

Nick Capodice: So Garfield died when Congress was not in session. Chester a Arthur became president. There was no veep. There was no speaker of the House. There was no president of the Senate. Pro [00:10:30] tem.

Hannah McCarthy: Is this what finally pushes Congress to revisit the Presidential Succession Act and say, basically, we need something a little better than this?

Nick Capodice: Yeah. And then the next president, Grover Cleveland, his veep died eight months into the term. And Congress was like, we can't have this happen again. And they passed the 1886 Presidential Succession Act. It's the second of the three that we've ever had.

Hannah McCarthy: How was this one different? Did the cabinet finally get involved?

Nick Capodice: Oh, they didn't just get [00:11:00] involved, Hannah. They were it. Speaker of the House is not even on the list in this new act. Neither is president of the Senate pro tem after the vice president. It was the secretary of state and then the Treasury and then all the way down the cabinet line.

Hannah McCarthy: What was their reasoning to change it so drastically?

Nick Capodice: There are a few reasons, mainly that things had been kind of a mess and that there were so many close calls. And also another interesting point. Secretaries of state [00:11:30] were a pretty good pick for next in succession, because they tended to become president a lot of the time. In the 100 ish years before this act was passed, six presidents were former secretaries of state. Okay, Hannah, one more act before we get off the presidential history train. And I'm going to make this one quick. 1947, the act under which we currently operate.

Archival: Over the white House at Washington, the flag flies at half staff as a grief stricken nation mourns the death [00:12:00] of Franklin Delano Roosevelt, president of the United States. Inside, in the historic Cabinet Room, Vice President Harry S Truman takes the oath of office as 32nd president. Administered by Chief Justice.

Nick Capodice: Franklin Delano Roosevelt. Died 82 days into his fourth term. His veep, Harry S Truman, had already set the wheels in motion for a new order of succession. See, he didn't like this cabinet only structure. And he argued it should be [00:12:30] speaker of the House and then president of the Senate pro tem and then the cabinet.

Hannah McCarthy: What was his problem with the cabinet?

Nick Capodice: Well it wasn't a problem necessarily. Like Truman didn't have beef with the cabinet. He just said that it gave the president too much power because think about it, Hannah, cabinet secretaries are appointed by the president, not the speaker of the House. And the president of the Senate are not. They are elected officials. They're chosen by the people. Truman thought it was a stronger check on the presidency. See [00:13:00] to have it this way, the way we have it now, after the vice president. It's the speaker of the House, the people's chamber.

Hannah McCarthy: One thing that stands out to me here is that there have been a lot of times when we had no vice president, which is something I guess we finally got around to addressing when we ratified the 25th amendment.

Nick Capodice: Which, if I'm not mistaken, Hannah, we have not one but two episodes about that is.

Hannah McCarthy: Correct.

Nick Capodice: Okay, now we've got the history of succession. Out of the way. Hannah, I think it's time we talked about absolute [00:13:30] worst case scenario presidential vacancies. And I'm talking about sitting alone in an unspecified location, watching the state of the Union address with an ominous leather bag at your feet. We are going to get into the so called Designated Survivor right after this break.

Hannah McCarthy: But before the break. Are you the kind of person who wants to know more about that gun that exploded on a ship, almost killing John Tyler and throwing us into succession chaos? Or why [00:14:00] Nick likes the theme song to the show, succession so much.

Nick Capodice: That's true. Hannah. It is a perfect theme.

Hannah McCarthy: All right then, you are the kind of person who would like our newsletter extra credit. It comes out every two weeks. It is fun. It is free. And you can sign up at our website civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the line of presidential succession. And, Nick, you were going to take us into some dark [00:14:30] territory.

Nick Capodice: I was Hannah.

Speaker9: Mike, please just tell us what you know.Capital's been attacked. Congress cabinet. Eagle is gone. Sir, you are now the president of the United States.

Nick Capodice: Gosh, that is pretty grim. I'm going to brighten it up with a little cheery music here. Well, actually, I never saw that show. Designated survivor. Did you ever see it?

Hannah McCarthy: I think I might have watched like one [00:15:00] episode of it, but I did not. I didn't stick with it, even if I did.

Nick Capodice: Well for those listeners out there who haven't seen it, the plot of the show Designated Survivor is that the Secretary of Housing, played by Kiefer Sutherland, is the designated survivor. During a state of the Union address, the Capitol is destroyed in an explosion. Everybody dies and he becomes president.

Hannah McCarthy: Nick, when did this practice begin? Having one member in the order of succession skip big events like the state of the Union or an inauguration? [00:15:30]

Nick Capodice: Well, this practice started during the Cold War.

Archival: At the conclusion of World War Two, eight more countries had fallen under the hammer and sickle. And an important part of historic Europe today is under communist domination.

Nick Capodice: It was in this era, this era of duck and cover. This era of fear of nuclear warfare, that we started to have a designated survivor. And it's something we continue to this very day. [00:16:00] And it's not just the president. Hannah, I was surprised to learn the House and the Senate also each have one member skip events like this to maintain the existence of Congress in the event of an utter catastrophe.

Hannah McCarthy: A one person Congress. Okay. How is the designated survivor chosen? Is it just completely random?

Nick Capodice: It's pretty much completely random. It's at the whim of the white House, with the exception of if a department's going to get like a shout out at the state of the Union address, that secretary is probably going to be [00:16:30] there. And for fun. Anyone out there? If you want to see the list of all the former designated survivors, UC Santa Barbara has a list of everyone. Since 1984, secretaries of the departments of the Interior and Agriculture top the charts. Go check it out.

Hannah McCarthy: So where does the designated survivor go?

Nick Capodice: We don't know. We don't know. We have no idea until after the fact. It's different every time. Designated survivors [00:17:00] are usually escorted by members of the military, and the location can vary from like a bunker type facility to a random restaurant. One guy said he was flown to his daughter's apartment in Manhattan.

Hannah McCarthy: That's not so bad.

Nick Capodice: And there's another thing that all designated survivors get the 45 pound leather satchel that is colloquially referred to as the football.

Archival: Mr. president. This is the nuclear football. We'll be with you whenever you leave the white House.

Hannah McCarthy: All right. What is [00:17:30] in the football, exactly?

Nick Capodice: The contents of the football vary among administrations. There's an antenna in there. There's a lot of top, top, top secret information on orchestrating a nuclear attack. There are launch codes, that sort of stuff. There's also a plastic card with an identifying code on it to make sure the person ordering such a nuclear strike is the person authorized to do it. I bring this up because that little card is called the biscuit.

Hannah McCarthy: The biscuit?

Nick Capodice: The biscuit. There's [00:18:00] a lot of stories that go from comical to horrifying, involving the football and the biscuit and losing them, potentially. But I'm not going to get into those.

Hannah McCarthy: All right, to wrap it all up, Nick, you said at the beginning of this episode that when it comes to the current presidential order of succession, there are some disagreements.

Nick Capodice: There are. And these go from arguments about the logistics of it all in the modern era to the very constitutionality of the Presidential Succession Act. [00:18:30] So first off, Hannah, after the attacks of September 11th, 2001, a nonpartisan think tank called the Continuity of Government Commission was created. It was created to explore what would happen if an attack of the magnitude of nine over 11 were made on the Capitol. Jimmy Carter was on it. Gerald Ford was on this commission, as well as myriad academics and political strategists.

Hannah McCarthy: What did they find out? Did they change anything?

Nick Capodice: Well, they found a lot out, [00:19:00] and they tried to change things. They published three reports suggesting changes to the Presidential Succession Act to ensure stability if such a catastrophe happened. They suggested things like removing members of Congress from the line of succession, and including people who did not live in Washington, D.C., in the line of succession. But those reports were ultimately ignored, and the commission was finally dissolved in 2011.

Hannah McCarthy: And as to the constitutionality of it all, that's something I want to know about, [00:19:30] because we've operated under Presidential Succession Act since almost right after our Constitution was ratified. Are there people who think that we've just been doing it wrong this whole time?

Nick Capodice: There are. There is a rather famous paper by two renowned legal scholars and brothers, Vikram and Akhil Amar. It is a 25 page essay from 1995 questioning the Presidential Succession Act, and it focuses on one single word [00:20:00] and that word is officer.

Hannah McCarthy: As in from that chunk of article two that we started with, quote, declaring what officer shall then act as president and such officer shall act accordingly, unquote, etcetera. Yeah.

Nick Capodice: That one. The Amar's argue that in the context of that clause, the word officer extends to members of the executive branch only.

Hannah McCarthy: So under that argument, the speaker of the House is not an officer, [00:20:30] neither is the president pro tempore of the Senate.

Nick Capodice: Which might not seem like a big deal, Hannah, but were there sudden vacancies of the president and vice president at the same time? We have a potential constitutional crisis. Yes, we are under an act right now that says the speaker of the House succeeds to the highest office in the land, but because of the ambiguity of whether that speaker is an officer or not, political opponents of whomever the speaker is could theoretically [00:21:00] put this nation in turmoil. There was another article I read by a legal scholar, Josh Blackman, and he stated that the Amar's theory, quote, if correct, risks throwing the United States and the entire free world into a state of chaos. Bush v Gore would seem tame by comparison. End quote.

Hannah McCarthy: What strikes me about all of this is that the order of succession is not a hard and fast rule. It's like, well, [00:21:30] it's like everything we talk about on this show, it's like church and state, the Second Amendment powers of the president. Those are all things that different Congresses and different administrations have interpreted and reinterpreted since our founding. And like all questions of interpretation, the final arbiter, I mean, it might be one day, Nick, the Supreme Court. Yeah.

Nick Capodice: It might be. And in this instance, Hannah, I think both of us can say unequivocally, we hope the need to interpret [00:22:00] this never arises.

Hannah McCarthy: Yup. I can say that.

Kevin Jackson: Hey, everyone, this is Kevin Jackson. I teach government and AP government at Petaluma High School in Petaluma, California. Right now, we're talking a lot about the 14th amendment, whether [00:22:30] it's the Equal Protection Clause, the Due Process Clause, or selective incorporation. This episode was made by Nick Capodice and Hannah McCarthy. Civics 101 staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode by Kilo Caz, Kevin McCloud, The New Fools, Fabian, Tell Timothy. Infinite 91, Nova, El Flaco Collective, Forever Sunset, Francis Wells, Eric Kilkenny, blue Dot Sessions and Mr. Chris Zabriskie. [00:23:00] Civics 101 is a production of NHPR, New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

SCOTUS Watchlist

The Supreme Court chooses what it wants to offer opinions on, and those opinions redefine the way law works in this nation, trickling down to your world works for you. So what did they pick this time around? This is our watchlist for the most significant cases before the court this year.

---

Transcript

Hannah McCarthy: [00:00:00] Hello? Hello, this is me. I'm talking. Here we go.

Nick Capodice: [00:00:03] All right. From the top.

Hannah McCarthy: [00:00:08] Nick Capodice.

Hannah McCarthy: [00:00:10] Hannah McCarthy.

Hannah McCarthy: [00:00:11] Civics 101.

Nick Capodice: [00:00:12] End of episode.

Hannah McCarthy: [00:00:14] Ta da!

Nick Capodice: [00:00:17] But for real, I am excited for this episode, Hannah, because you promised me a madcap romp through one of our favorite subjects of all time, the Supreme Court, the arbiter of the Supreme law of the land.

Hannah McCarthy: [00:00:28] That is right. And why are we [00:00:30] doing this? Well, the Supreme Court must, according to their own rules, convene for a term at 10 a.m. on the first Monday in October, and it.

Nick Capodice: [00:00:38] Is currently November as we speak these words. So we're about a month and change into the term.

Hannah McCarthy: [00:00:42] And during this term they're going to hear arguments in cases they've decided to review. Now this argument schedule is public. I'm going to post it on our website. And the arguments themselves are public, but seats are limited and you got to wait in line to get there. So in lieu of that, though, I certainly encourage you, my beloved [00:01:00] member of the public, to follow your civic minded heart to the queue, I'm going to let you know what's going to be going on behind those big brass doors this term.

Nick Capodice: [00:01:08] You know, we really could make a whole episode just about those doors.

Hannah McCarthy: [00:01:11] We really could. Just so everyone knows, the doors to the Supreme Court are wicked impressive. You know, I probably will make an episode about them at some point. Famously, the only work of art or architecture that the sculptor of those doors ever signed, which, by the way, is in the tradition of great classical artists [00:01:30] only ever signing the front of what they consider their magnum opus, their masterpiece. Were those doors, right? He was like, this is my greatest work ever, my most important representative of truth and justice. Okay, I digress. The doors are cool. Supreme Court Docket 2023 to 2024. Let's start with the most recent case to be heard. November 7th United States v Rahimi.

Samuel Alito: [00:01:58] We'll hear an argument this morning in case 22 [00:02:00] 915 United States versus Rahimi. General Perliger.

Samuel Alito: [00:02:04] Mr. Chief Justice, and may it please.

Hannah McCarthy: [00:02:07] Questions at issue. The second amendment, domestic gun violence and gun safety.

Nick Capodice: [00:02:11] So you're starting this off easy.

Hannah McCarthy: [00:02:13] This case is going to determine whether a federal law that prohibits people with domestic violence convictions from possessing guns is constitutional.

Nick Capodice: [00:02:21] So currently there is a federal law that says people with domestic violence convictions cannot have guns.

Hannah McCarthy: [00:02:27] For the lawyers representing Rahimi. Yes. [00:02:30] And they're basing this in part on a 2022 Supreme Court ruling in a case called New York State Rifle and Pistol Association versus Bruen. And all you really need to know is that Scotus decided in that case, that gun laws are only constitutional if they're rooted in history and tradition.

Nick Capodice: [00:02:47] Now, what does that mean, exactly? History and tradition?

Hannah McCarthy: [00:02:50] Well, in the Bruen opinion, Clarence Thomas at one point references the era quote before, during and even after unquote the founding. Essentially [00:03:00] what that means is they're going to ask questions like, is there a historical precedent for a Second Amendment based law? And in Rahimi, his lawyers are basically arguing that, no, there is not his conviction based on his gun possession after the domestic violence conviction was unconstitutional and the Fifth Circuit Court of Appeals agreed, they ended up throwing out Rahimi's conviction.

Nick Capodice: [00:03:24] And it was then appealed up to the Supreme Court.

Hannah McCarthy: [00:03:27] Yes. Now, Rahimi himself [00:03:30] is not considered a great poster boy, even by gun rights activists. He is a convicted domestic assailant, and he has several illegal use of firearm charges under his belt. And during arguments, the justices basically said to the lawyer representing Rahimi side, you know, your client is dangerous, right?

Samuel Alito: [00:03:46] To the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?

Samuel Alito: [00:03:51] Your honor, I would want to know what dangerous person means at the moment.

Samuel Alito: [00:03:55] Someone who's shooting at people. That's a good start. [00:04:00]

Samuel Alito: [00:04:00] So that's fair. I'll say this.

Hannah McCarthy: [00:04:04] And Samuel Alito asked the lawyer whether he believed that unless someone is convicted of a felony, they should be allowed to possess a firearm. And when the lawyer hedged a little, Amy Coney Barrett said that she was, quote, so.

Amy Coney Barrett: [00:04:15] Confused because I thought your argument was that there was no history or tradition, as Justice Kagan just said.

Hannah McCarthy: [00:04:24] And then Elena Kagan told the lawyer that he was running away from his argument.

Elena Kagan: [00:04:28] You know, because the [00:04:30] implications of your argument are just so untenable that you have to say, no, that's not really my argument. I mean, it just seems to me that your argument applies to a wide variety.

Hannah McCarthy: [00:04:41] Now, I think the really interesting part of these oral arguments was the conversation between the justices and the lawyer for the federal government. John Roberts, asked her to define what she meant by responsible and law abiding. In her argument. Amy Coney Barrett acknowledged that domestic abuse is violent, but asked how the federal government might assess other behaviors [00:05:00] as dangerous, and then Ketanji Brown Jackson used these arguments as an opportunity to question the historical tradition test set up in Brewer Brewer.

Nick Capodice: [00:05:10] Meaning the case that established this need for historical precedent. Bingo.

Hannah McCarthy: [00:05:15] She talked about the fact that the federal government had used laws to, for example, disarm Native Americans and enslaved people, but that the Supreme Court had not relied on those same laws. In questions of firearm possession. She said she was, quote, a little troubled. [00:05:30]

Ketanji Brown Jackson: [00:05:30] By having a history and traditions test that also requires some sort of culling of the history so that only certain people's history counts. So what do we do with that? Isn't that a flaw with respect to the test?

Nick Capodice: [00:05:45] Wow, that's a lot, Hannah. Per usual, the way the justices use cases to throw constitutional shade basically the most legally important shade that there is. That always fascinates me. All right, let's do the next one. On to number two. [00:06:00]

Hannah McCarthy: [00:06:00] Okay. So let's tick through some cases that have already been heard.

Nick Capodice: [00:06:03] Great.

Hannah McCarthy: [00:06:03] So October 3rd, the court heard oral arguments in Consumer Financial Protection Bureau v Community Financial Services Association of America.

Samuel Alito: [00:06:13] General Prelogar.

Samuel Alito: [00:06:14] Mr. chief Justice and may it please the.

Nick Capodice: [00:06:16] Court. All right. We're talking about money here aren't we. Yeah.

Hannah McCarthy: [00:06:19] So here's what's up. After the 2008 financial crisis about which we made an episode with the very helpful Amy Friend, the Dodd-Frank act authorized the creation of a bureau [00:06:30] within the Federal Reserve to protect consumers from predatory lending practices. Uh huh. So that's the Consumer Financial Protection Bureau, and I'm going to call it the Cfpb from now on. Now, it's funded not by an appropriation during the annual budget process, but directly from the Federal Reserve. Congress has said. That they can spend up to $600 million. And by the way, they have never spent even close to that much.

Nick Capodice: [00:06:55] So how did this case get before the Supreme Court? What was the lawsuit?

Hannah McCarthy: [00:06:59] Well, a group of [00:07:00] money lenders sued the Cfpb. Now they sued over a specific rule. But in the course of that lawsuit, they also pointed out their belief that the Cfpb funding model violates the appropriations clause in the Constitution. And the Fifth Circuit Court agreed. The case was then appealed to the Supreme Court.

Nick Capodice: [00:07:17] All right. And the appropriations clause is the one that lets Congress authorize the spending of public funds. Yeah.

Hannah McCarthy: [00:07:24] And the lawyers who agree with the Fifth Circuit say that basically, if we let Congress [00:07:30] set up this lump sum funding model, they could easily fund any agency in the same way. And that is too much power. The lawyers opposed to the Fifth Circuit ruling say that interpreting the appropriations clause like this could potentially dismantle the Cfpb.

Nick Capodice: [00:07:47] So what happened during the oral arguments? All right.

Hannah McCarthy: [00:07:49] Well, the justices were not strictly divided along ideological lines, which is interesting. Samuel Alito, John Roberts and Clarence Thomas seemed to be pretty convinced that the funding structure is unconstitutional. [00:08:00] You have a.

Samuel Alito: [00:08:01] Very aggressive view of Congress's authority under the appropriations clause. I'm not saying remotely that that's not correct.

Hannah McCarthy: [00:08:09] Neil Gorsuch wondered if funding caps are essential to constitutionality. Amy Coney Barrett is worried about this question of the courts potentially determining how much money an agency is allowed to have money spent.

Amy Coney Barrett: [00:08:22] I mean, I think we're all struggling to figure out then what's what's the standard that you would use. Just assuming that you're right, that there has to be something more than the $600 [00:08:30] million. How do you decide how much is too much or how specific?

Hannah McCarthy: [00:08:33] Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor seem to think that this is a potential overstep for the court to declare the funding structure unconstitutional, and they think it could jeopardize other agencies with different funding models. And then Brett Kavanaugh, he was pretty quiet, but he did mention that Congress could always change the Cfpb's funding scheme if they wanted to, and that the court was not facing some perpetual permanent problem. [00:09:00]

Brett Kavanaugh: [00:09:00] Congress could not entrench a funding scheme. In other words, Congress could not pass a law that says this is the funding scheme and no future Congress may alter this for ten years or 100 years.

Nick Capodice: [00:09:13] Everybody seems to be having a lot of different thoughts about this. Am I hearing here that the Supreme Court is even more divided than usual?

Hannah McCarthy: [00:09:21] Well, it does kind of seem that way. It seems like Brett Kavanaugh could actually be the swing vote in a case like this, but we're going to have to wait and see what happens next year. Okay, [00:09:30] now, Nick, the next one is a big one. So we're going to take a quick break and a deep breath.

Nick Capodice: [00:09:37] All right. And while we do, I ask you, gentle listener, to consider the year ahead both on the court and otherwise, and know that Hannah and I are going to be with you every step of the way. It's our job to help you understand what's going on in America. So if this is something you support in spirit and you've got the ability to do so, I'm asking you to consider supporting it in slightly more [00:10:00] literal terms as well. You can make a contribution to our dear little show by going to Civics101podcast.org and clicking the donate button at the top of the page. All right, deep breath and then back to the court.

Hannah McCarthy: [00:10:28] We're back. We're talking about some [00:10:30] of the major Scotus cases coming up in this term, the ones to watch, if you will. Nick, you ready for another one?

Nick Capodice: [00:10:36] Born ready. Hannah.

Hannah McCarthy: [00:10:37] Gerrymandering.

Nick Capodice: [00:10:38] Oh, you said a thing or two about the old Elbridge Gerry.

Hannah McCarthy: [00:10:42] So Alexander V South Carolina State Conference of the NAACP argued on October 11th. The question did South Carolina Republican legislators engage in Partizan gerrymandering or racial gerrymandering, Mr. Gore?

Samuel Alito: [00:10:58] Mr. Chief Justice, may it please [00:11:00] the court. District one is not a racial gerrymander.

Nick Capodice: [00:11:04] Oh, wow. So how do you figure out which one it is? Wait. Also, is one allowed and the other is not by the way.

Hannah McCarthy: [00:11:11] Well, the court says that racial gerrymandering is strictly barred, but they say that they don't have the power to review Partizan gerrymandering. A lower court says it was racial gerrymandering. South Carolina claims, of course, that it was Partizan. The problem in the last election, black voters in South [00:11:30] Carolina voted 90% Democratic.

Nick Capodice: [00:11:33] Okay, so even if it was Partizan, it would also most likely be congressional redistricting along racial lines. So what did the justices say during arguments about this?

Hannah McCarthy: [00:11:44] Roberts essentially said to the NAACP lawyer, you're trying to disentangle race and politics. That is really hard to do.

Samuel Alito: [00:11:52] We have said that the burden that you're assuming of disentangling race and politics in a situation [00:12:00] like this is very, very difficult, but it is your burden, right?

Hannah McCarthy: [00:12:04] Gorsuch said that if the Maps challengers had provided an alternative map, that would have been the simplest way to prove their point. But they did not. How do you.

Neil Gorsuch: [00:12:12] Prove that they are acting in bad faith without showing that they could achieve their objective some different way?

Hannah McCarthy: [00:12:20] Alito pointed out that the map maker had a lot of experience, and had worked with both parties in the past. I guess that's proof of the map maker not being Partizan.

Samuel Alito: [00:12:29] He is employed by [00:12:30] the legislature. That's correct.

Samuel Alito: [00:12:32] And has been employed by the legislature for some period of time. That's correct. And he draws maps for both Republicans and Democrats.

Archival: [00:12:39] Yes he did.

Hannah McCarthy: [00:12:40] Kavanaugh noted that the Republican lawmakers claimed to have used voting data from the 2020 election, and that if that data was accurate, then the Supreme Court should consider reversing the lower court's decision.

Brett Kavanaugh: [00:12:51] We relied on this political data. The response is that political data is no good. So you couldn't have been. If that data is good, should [00:13:00] we reverse?

Hannah McCarthy: [00:13:01] No, I don't think so. Kagan, Sotomayor and Jackson said that they were only there to decide whether the lower court had made a clear error not to assess all of the evidence of racial gerrymandering. Jackson said there's a difference between the clear error ruling and deciding whether the lower court could have made a different decision.

Ketanji Brown Jackson: [00:13:18] The clear error standard, and I had it here a second ago, is a highly deferential standard that the court may not reverse just because it would have decided [00:13:30] the matter differently.

Hannah McCarthy: [00:13:31] But Amy Coney Barrett said that it's more complicated than clear error, that it's a question of whether the plaintiffs can disentangle race from politics.

Amy Coney Barrett: [00:13:39] I think there's a reason why Dr. Ragusa's report keeps coming up is because it was the best of the expert reports that actually did try to disentangle race and politics, which was the key question here.

Nick Capodice: [00:13:51] Again, like a really hard thing to do before a court.

Hannah McCarthy: [00:13:54] Yep. And finally, Thomas asked the plaintiff's lawyers about the second question at issue. [00:14:00] Even if the court decides that it was not racial gerrymandering, the challengers are still saying that the legislature intended to discriminate against black voters. Thomas asked what Scotus should do about that, and the plaintiff said, we think you should send it back to the lower courts.

Clarence Thomas: [00:14:16] But if you find we find no intent, should we or should we just simply resolve it here?

Archival: [00:14:21] So our position on the second claim is that if this court were not to affirm on the first racial gerrymandering claim and not find racial [00:14:30] predominance there, that this court should remand on the second claim, because we believe the district court used the wrong legal standards.

Clarence Thomas: [00:14:38] To what should that standard be?

Nick Capodice: [00:14:40] If we're talking about gerrymandering, we are talking about a question that really needs to be decided before 2024.

Hannah McCarthy: [00:14:47] Yeah, because it has to do with elections, right. Which means that the court is probably going to act quickly. So I'm going to go ahead and say that it seems pretty clear which way the majority is leaning, but either way, we may not have to wait long to find out. [00:15:00]

Nick Capodice: [00:15:00] Okay, more. Give me one more.

Hannah McCarthy: [00:15:02] All right. October 4th, my childhood best friend's birthday. And also the day on which the court heard Acheson Hotels LLC v Laufer.

Nick Capodice: [00:15:10] Those two things seem very unrelated.

Archival: [00:15:13] Mr. Janikowski.

Archival: [00:15:14] Mr. Chief Justice, and may it please the court.

Hannah McCarthy: [00:15:17] Laufer sued Acheson Hotels because their website did not have accessibility information as required by the Americans with Disabilities Act. The hotels. Says Lawford, did not have standing, meaning.

Nick Capodice: [00:15:28] Does not have the legal ability [00:15:30] to bring a lawsuit. Why is that?

Hannah McCarthy: [00:15:34] Because they say Laffer never intended to stay at the hotel, and a lower court agreed they threw the case out, but a court of appeals reinstated it. Now Laffer is a self-appointed Ada tester. She has sued over 600 hotels for violations. But in this particular case, she actually asked the judges to throw the case out.

Nick Capodice: [00:15:59] Well, that seems [00:16:00] strange, Hanna. You know, especially for someone who regularly launches lawsuits like this.

Hannah McCarthy: [00:16:05] What happened is that one of Lauper's former lawyers was found guilty of ethics violations, and a judge recommended that that lawyer be suspended. Now, Lauper didn't want the controversy around this lawyer to distract from the point of her work to challenge Ada violations, so she wanted the case thrown out.

Nick Capodice: [00:16:24] So she wanted it thrown out. But the justices took it up anyway.

Hannah McCarthy: [00:16:28] They did. And [00:16:30] then they said some funny stuff on the the theme of this case being moot anyway. Well, you.

Nick Capodice: [00:16:36] Know me and funny stuff, Hanna.

Hannah McCarthy: [00:16:38] All right. Well, first Thomas just goes. It seems that this is finished.

Clarence Thomas: [00:16:43] Respondent says that she has withdrawn her suit. So why should we decide this? It seems as though it's. It's finished.

Hannah McCarthy: [00:16:52] And then Alito says the case before us is dead as a doornail.

Samuel Alito: [00:16:57] But the case before us is dead as a doornail [00:17:00] and is not going to arise again between these parties.

Hannah McCarthy: [00:17:05] And then Kagan says this case is, quote, dead, dead, dead in all the ways that something can be dead.

Elena Kagan: [00:17:11] You know, the case has been dismissed by the plaintiff. The defendant is totally different. The defendant's website, everybody agrees, is now in compliance with the Ada. So this is like dead, dead, dead and all the ways that something can be [00:17:30] dead.

Hannah McCarthy: [00:17:31] Now, on.

Hannah McCarthy: [00:17:31] The does Laufer have standing question, Sotomayor said she couldn't think of a time the court ruled on standing before it ruled on Mootness.

Sonia Sotomayor: [00:17:40] But I'm I'm unaware of any case where this court had a standing and mootness issue and decided standing rather than mootness first.

Hannah McCarthy: [00:17:52] And then Roberts was like, well, logically speaking, you have to have a case for that case to be moot. He was actually worried [00:18:00] that not ruling on the standing question would encourage other petitioners to moot cases and manipulate the court's jurisdiction.

Nick Capodice: [00:18:08] Moot in this.

Nick Capodice: [00:18:09] Case, being used as a verb. Yeah. Okay.

John Roberts: [00:18:12] Particularly when you have a program of litigation like this around the country by people who may or may not have standing, can manipulate the court's jurisdiction by. After the court's granted cert mooting out the case.

Hannah McCarthy: [00:18:24] He was like, maybe we should rule on the standing question just so we don't have to get jerked [00:18:30] around again with this moot thing. And then they all debated the standing question, as in whether Lawford could bring the case at all, whether intent to travel is necessary for standing, in this case, the nature of travel itself and whether they were looking at discrimination here, a question that even the liberal justices were not in agreement on.

Nick Capodice: [00:18:51] Okay, I'm going to be honest. This is like a word salad. But I do understand it's good for me. It's like a nutritional word salad.

Hannah McCarthy: [00:18:57] It seemed like even the justices were flummoxed and [00:19:00] that the standing question might just be left to the lower courts, because it's really hard to figure out. Apparently, the decision is expected by summertime. All right. I'm going to give you three more. Ready? Wow.

Nick Capodice: [00:19:12] Okay, but first, can I just quickly point out that no matter how we assess the judgment or make up of a sitting court argument, proceedings can be truly entertaining and kind of weird. And sometimes you'll hear the word moot. So many times the word itself becomes moot. Like if you just say it [00:19:30] a bunch of times like moot moot moot moot moot. That happened to me with the word back a lot when I was a kid. I could just said the word back so many times. Back back back back back back back. It didn't mean anything. Um. So sorry. Yeah. Go ahead. Sorry.

Hannah McCarthy: [00:19:42] You know, I do have to appreciate that arguments are way less. This is what we deified justices know from on high. Then you might expect them to be. There's often a lot of. Well, counselor, what does that even mean? And, like. Okay, so what if we did this? How does that sound to you? [00:20:00] There's just it's a little more human than I ever expected it to be. And I'm reminded of that every time. All right. December 5th.

Nick Capodice: [00:20:09] The day that the 21st amendment was ratified and booze was back, FDR said it's time for beer in 1933. That was.

Hannah McCarthy: [00:20:18] Yep, just in time for the holidays. Also, the day the court will hear arguments in Moore v United States. All right.

Nick Capodice: [00:20:24] So hit me. What is the question at hand?

Hannah McCarthy: [00:20:26] Does the 16th amendment authorize [00:20:30] Congress to tax unrealized sums without apportionment among the states?

Nick Capodice: [00:20:36] A salad, if ever there was one. Hannah.

Hannah McCarthy: [00:20:39] Okay, so here's what that means. The plaintiffs in this case are arguing that under the 16th amendment, which allows Congress to have an income tax unrealized gains. That means money that you haven't gotten yet from, for example, an investment that you haven't yet sold should not be taxable.

Nick Capodice: [00:20:58] But right now they are taxable. [00:21:00] You can be taxed about something that could potentially make you money in the future.

Hannah McCarthy: [00:21:04] Yeah. So right now there are like more than a dozen taxes on unrealized gains. So why that is so savvy investors, corporations and their accountants cannot use fancy footwork to disguise income as nontaxable. Now, if the justices agree with the plaintiffs, that will mean billionaires will get to keep a lot of money, potentially trillions of dollars in tax [00:21:30] revenue. And some of the justices on the court will see their own net worth go up quite a bit.

Nick Capodice: [00:21:36] Oh, wow. Okay. That will actually be interesting to watch out for. You got another one for me? I got.

Hannah McCarthy: [00:21:44] Two more. I think we got to watch. We've got Loper, Bright Enterprises v Raimondo now. It's not scheduled yet. And this one is tricky because it seems to be about fisheries.

Nick Capodice: [00:21:56] Ain't that always the way?

Hannah McCarthy: [00:21:57] What's happening here is that the National Marine [00:22:00] Fisheries Service has this rule that the fishing industry itself has to pay for third party at sea monitoring programs, at.

Nick Capodice: [00:22:08] Sea monitoring programs. What do they get up to?

Hannah McCarthy: [00:22:11] Well, they are they're really important. They go out on fishing boats and they collect, according to the National Oceanic and Atmospheric Administration, scientific management, regulatory compliance and economic data. Basically, these monitors are keeping a finger on the pulse of catch limits and what kinds of fish are being caught.

Nick Capodice: [00:22:29] Right. So just making sure [00:22:30] everyone out there is behaving and we know what's going on with our fish basically.

Hannah McCarthy: [00:22:34] Yeah. And the industry is saying, hey, that is over 700 bucks a day and you cannot make us pay that. They say that based on a fishery act that was passed in the 1970s. The National Marine Fisheries Service is not authorized to create this industry funding model, or make a rule like that at all.

Nick Capodice: [00:22:57] Well, Hanna, if I may, this does [00:23:00] seem to actually be about fisheries.

Hannah McCarthy: [00:23:02] Okay. But what it's really about is something called the Chevron doctrine, so named because it involved the Chevron Corporation appealing a lower court's decision invalidating an Environmental Protection Agency's interpretation. And that sounds really salady, I know, but to keep it super simple ish, this doctrine requires courts to defer to agency expertise. So a lower court told the fishing industry, hey, look, that [00:23:30] fishing act from the 70s requires a government appointed monitor on your boats to ensure compliance, and Congress left it up to the agency to decide how that would happen. If the agency says you got to pay. Well, under the Chevron doctrine, the courts have to defer to the agency. You got to pay.

Nick Capodice: [00:23:51] Okay. So let's just say the Supreme Court sides with the fishing industry in this case. And let's just say that that makes the Chevron doctrine go away. [00:24:00] What does that mean?

Hannah McCarthy: [00:24:02] That could mean that the court is empowering the judicial system to tell executive agencies how to behave when it comes to ambiguous acts of Congress. So basically, if Congress is wishy washy in their language about how a certain law should be followed, federal courts could tell the agency how to follow it instead of letting the agency decide.

Nick Capodice: [00:24:24] Well, the wishy washiness on Congress's part, that's often intentional, isn't it?

Hannah McCarthy: [00:24:29] It's intentional. [00:24:30] A lot of the time, Congress does that when they basically think the experts in an agency are better suited for making certain decisions. One example I read, and this is specifically from the Chevron case, addresses what happens when it comes to the Environmental Protection Agency. The EPA and Congress says, you know, you've got to curb air pollution, but that it is the agency experts at the EPA who decide how much because they understand it better if judges are given the ability to step in. Some people think this [00:25:00] could mean chaos.

Nick Capodice: [00:25:01] Especially, I would imagine, when it comes to politically appointed judges making decisions about corporate regulations or climate change. Yeah.

Hannah McCarthy: [00:25:09] Especially that. So we'll see. All right. Last one, Nick I.

Nick Capodice: [00:25:15] Could do this all day.

Hannah McCarthy: [00:25:15] Hannah Muldrow, the city of Saint Louis, not yet scheduled. A police sergeant was transferred to a different department. She requested a transfer from it. It was denied, [00:25:30] and she says the whole process was sex based discrimination. Now, title seven of the Civil Rights Act of 1964 prohibits an employer from, quote, discriminating against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's race, color, religion, sex, or national origin. And a lower court said that the sergeant would have to prove that she experienced a material employment disadvantage, not just that her job changed.

Nick Capodice: [00:25:59] Wait, but [00:26:00] what is the question that the court has to answer?

Hannah McCarthy: [00:26:02] So they have to decide whether title seven is applicable here. Basically, did the Employee experience Civil Rights Act level discriminatory harm? Is the sex based discrimination claim enough? Or did this employee have to also experience and prove in court a substantial change in duties, benefits and salary? Now, the ACLU filed an amicus brief saying basically that treating someone differently [00:26:30] based on a protected characteristic. That is enough. Their argument is that the Civil Rights Act was passed to prevent discrimination, quote, subtle or otherwise. They say that for a court to require additional justification is to oppose the intent of the law. Now, what's interesting about this one is that a ruling in favor of Muldrow would both make it easier for employees facing discrimination to bring claims, and potentially make it easier for other employees to bring reverse [00:27:00] discrimination claims?

Nick Capodice: [00:27:01] Okay, like as in, I am being reverse discriminated against because there's a program in my workplace that mentors women or people of color, and I'm not one of those.

Hannah McCarthy: [00:27:11] Exactly like that.

Nick Capodice: [00:27:13] Hanna, it sounds like this court term has the potential to make some major, major changes to law in America.

Hannah McCarthy: [00:27:23] Which I suppose every term always does. But when we're looking at these cases, it's important to [00:27:30] remember that what the court chooses to hear is almost entirely dependent on their personal preferences, what they want to talk about and rule on. And it is also worth noting that after last year and a slate of politically important cases, the American public sees the Supreme Court as more political than ever. And that's according to the Pew Research Center, assessing its own three decades of polling. These cases are about workplace discrimination, regulatory oversight, [00:28:00] tax law for billionaires, firearm ownership, gerrymandering and whether the court will even continue to look at cases where plaintiffs may not have standing.

Nick Capodice: [00:28:12] Subjects that everybody would call politically supercharged, except maybe the Supreme Court, at least in their public discourse.

Hannah McCarthy: [00:28:29] All [00:28:30] right. That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Levoy is our executive producer. Music in this episode by Ryan James Carr, Duke Harrington OT rhymed clang soundtracks LM styles tell Sonic and John Rosenfeld. If you liked this episode, or even if you didn't, drop us a line at Civics101podcast.org. Really, we just want to know you're out there, you're listening and what you think. Civics 101 is a production of NPR, [00:29:00] New Hampshire Public Radio.

---

Made possible in part by the Corporation for Public Broadcasting.

What Powers Does the Speaker of the House Have?

In light of the recent kerfuffle regarding the many elections for a new Speaker of the House, we decided it was time to break down the powers and history of the second-most powerful job in DC. 

Dan Cassino of Farleigh Dickinson University tells us all about the Speaker; from fundraising to the rules committee to the steering committee to a self-proclaimed Beelzebub to what the repeated failed elections for a Speaker portends for Congress.

Click here to listen to our episode on How A Bill (Really) Becomes a Law and click here to learn more about committees.

---

Transcript

C101_Speaker of the House.mp3

Archival: With that, I want to congratulate the speaker. I do not have the gavel.

Archival: I passed this great gavel of our government with resignation, but with resolve.

Archival: Speaker, as I hand you this gavel, I just ask that you keep in mind of all the voices in America that have a voice on this floor.

Archival: Before I hand the gavel over to our new speaker, let me say to him simply, let's bury the hatchet.

Nick Capodice: You're listening to Civics 101. [00:00:30] I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about the history and ever shifting powers of what is sometimes referred to as the second most powerful job in Washington, D.C., the speaker of the House.

Hannah McCarthy: Nick. So this position has been in the news an awful lot lately and probably shall continue to be in the months to come. So should we do an as of this recording thing here?

Archival: Major breakthrough [00:01:00] in the House of Representatives. After three weeks of chaos and dysfunction among Republicans, the GOP finally came together to elect a new speaker of the House, conservative Mike Johnson of Louisiana.

Nick Capodice: As of this recording November 1st, 2023, after many failed votes and three weeks of no speaker in the House for the first time in US history, the newly elected current speaker of the House is Mike Johnson. He is a Republican congressman from Louisiana, and he is the 56th person to claim that [00:01:30] role.

Hannah McCarthy: And I would really like to talk about what it means that there have been so many failed votes. But can we just talk about the job first?

Nick Capodice: Absolutely. That sounds good. I'll save the current situation, dealing with the speaker of the House for last.

Hannah McCarthy: All right. So for starters, is this job in the Constitution?

Nick Capodice: Barely, Hannah. Article one, section two says the quote, House of Representatives shall chuse their speaker and other officers.

Hannah McCarthy: That's it.

Nick Capodice: That's it. And it's choose with a 'u'.

Hannah McCarthy: So [00:02:00] in the case of the speaker, this was a we're just going to let the House of Representatives figure out the job kind of thing, right?

Nick Capodice: Yeah. It was. And for a first century or so as a nation, the job was pretty much like the one this guy had.

Archival: We don't name people in the chamber, but people must observe the rules. No, no order, order, order. I am simply and politely informing.

Nick Capodice: To prevent him from crashing into the studio in a rage like the Kool-Aid guy; his name is John Bercow. He's the [00:02:30] former speaker of the House of Commons in the UK. So the job is not outlined in any way in the Constitution. So all the powers of the speaker are created in the House rules by the House. And yes, the speaker's job was to keep order, sort of basic administrative stuff. You talk and then you talk. All questions and speeches were addressed to the speaker. Et cetera.

Hannah McCarthy: Now, that job does not sound like the second most powerful job in Washington, D.C..

Nick Capodice: No, it does not.

Hannah McCarthy: So [00:03:00] what changed?

Nick Capodice: Well, I'm going to say here, and I'll say it again. The powers of the speaker of the House are entirely decided by the House. They could change tomorrow if a majority of the House agreed. But initially, you know, right after we formed as a nation, the job waxed and waned slightly in terms of power for about a hundred years. But the big shift came from a self-identified Beelzebub.

Dan Cassino: The peak of power. The speaker of the House was under Speaker Joe Cannon. [00:03:30]

Hannah McCarthy: Oh Dan Cassino.

Nick Capodice: That's right. Hannah, I needed this broken down by a pro as fast as humanly possible. So I did call Dan Cassino, frequent guest of the show, professor of political science at Fairleigh Dickinson University and executive director of the FDU poll, which does polling on myriad relevant political things. But Hannah, they also just did one on whether people believe the Jersey devil, the flying Hooved monster that lives in the Pine Barrens, exists.

Hannah McCarthy: Does Dan believe the [00:04:00] Jersey devil exists?

Dan Cassino: The Jersey devil definitely does not exist. But you know what 18% of people in new Jersey think he does, and that's good enough for me.

Nick Capodice: But back to the first super powerful speaker, Joe Cannon. He started in politics as a proponent of Lincoln and a member of the Republican Party in 1858, and then became speaker of the House 50 years later.

Dan Cassino: In the early 20th century, around 1919 12, and then again up until 1923, on and off and under Joe Cannon. Joe [00:04:30] Cannon referred to himself as a czar. This was not like other people talking about him saying this guy is like a czar. He referred to himself as a czar. My favorite quote from Joe Cannon has him saying, end quote Behold, Mr. Cannon, the Beelzebub of Congress. Gaze on this noble, manly form me, Beelzebub, me the czar, as in I am in charge of everything.

Hannah McCarthy: Oh, wow.

Nick Capodice: Right. Joe Cannon was saying, this is my house. But you can't just say I'm Beelzebub. You have to actually be in charge.

Dan Cassino: And [00:05:00] the reason Joe Cannon was in charge of everything is because Joe Cannon controlled the Rules Committee. Now. You and I have talked with the Rules Committee before, but the Rules Committee is the most important committee in the House of Representatives that nobody knows anything about.

Nick Capodice: By the way. Dan talks about this in our episode, how a Bill really Becomes a law. We got a link in the show notes.

Dan Cassino: But the Rules Committee does is it decides which bills are going to get to the floor and which amendments are going to be allowed to those bills. And if any talking is even going to be allowed those bills. Most of time they report out what's called a closed rule, meaning no [00:05:30] amendments, no talking, shut up and vote. But this is entirely up to the speaker, at least under Joe Cannon. He appointed everyone on the rules Committee, meaning he personally decided what bills were going to come up and what bills were going to die in early death without anyone ever seeing them.

Hannah McCarthy: For anyone who wants to know the importance of getting a bill out of committee and onto the floor for a vote. We never tire of stating that over 90% of proposed bills die in committee.

Nick Capodice: Thank you Hannah. And in terms of the Joe Cannon [00:06:00] situation, if, say, the entire Republican Party was in support of a bill, they all wanted it to be brought to the floor, they all wanted it to be passed. Joe Cannon, speaker of the House, could just say, nope, not bringing it to the floor for a vote, and there was nothing anyone could do.

Dan Cassino: This was so much power, and he caused so many people to be upset at him that once, while he and some of his allies were out of town, there was actually a revolt in Congress. Progressives on both Democratic and Republican Party got together and [00:06:30] passed a bill to try and limit the powers of the speaker by limiting the extent to which he could appoint members to the Rules Committee to create independent Rules Committee, so the speaker wouldn't be in charge of everything.

Nick Capodice: Joe Cannon lost complete control of the Rules Committee, and thus the role of the speaker of the House lost a lot of its power until the 1990s, when Newt Gingrich was part of the first Republican majority of the House in decades.

Archival: I hereby end 40 years of [00:07:00] Democratic rule of this House.

Nick Capodice: So a little committee talk. The steering committee is the one that decides who gets to be on the other committees. And until Gingrich, the most senior member of the majority party on any committee, was the head of that committee. Now you can listen to our episode on committees to see just how powerful they are. By the way, they're kind of everything.

Hannah McCarthy: All right. And just to recap, the Rules Committee is very powerful because they determine how a bill will be [00:07:30] voted on. And the steering committee is also quite powerful because they determine who exactly gets to be on all the other committees, including the aforementioned rules committee.

Nick Capodice: Absolutely. And I've got a little more Rules Committee stuff coming your way, Hannah. But first, back to Newt Gingrich, who made a move to give the speaker of the House cannon esque power.

Dan Cassino: So he got rid of the seniority rule. And so suddenly you not only have to be a senior member, but you have to be in good graces with [00:08:00] the steering committee. The Republican steering Committee, which is led by and mostly appointed by Newt Gingrich. So, again, he's not doing he's doing indirectly through the steering committee. Gingrich also reasserted a great deal of control over the Rules Committee, because the steering committee decides who gets a committee seat, including on the rules committee. So Gingrich is basically controlling who gets on the Rules Committee, albeit indirectly. So suddenly after Gingrich and Democrats, of course, when they took back power in the House, Representatives also followed these rules. The speaker suddenly gets all this extra power. [00:08:30] Now, there.

Nick Capodice: Are term limits of how long you can be the head of a committee. You can't do it for more than two terms. But surprise, surprise, that limit can be waived by. wanna hazard a guess?

Hannah McCarthy: I'm going to roll the dice here and say that it's probably speaker of the House.

Nick Capodice: Seven come 11 McCarthy.

Hannah McCarthy: Okay, so the power is starting to show here, but I want to get back to what you mentioned earlier about how the Rules Committee decides how a bill will be voted on or amendments that are going to [00:09:00] be added to it. Can you give me a for instance here?

Nick Capodice: Absolutely.

Dan Cassino: The speaker has power to the extent that he can control the committees that are actually looking at the bill. So farm bill first. The Agriculture Committee has to look at it. They report that bill out. Then after they report the bill out, then it's going to go to the Rules Committee. And the Rules Committee can decide. We don't want to hear that bill, which case? The bill is dead. Or they can decide we are going to hear the bill, but we're going to put in certain amendments. They'll be allowed or certain amendments that will not be allowed, or we'll just have a rule in there that says, this guy gets to give amendments and this guy doesn't. [00:09:30] We even could get wacky with the rules. My personal favorite is the king of the Hill rule. King of the Hill rule says we're going to have a whole bunch of amendments in which everyone gets the most votes, gets in the bill. You can do literally whatever you want. The one that gets people most upset about these rules, of course, is a self-executing rule that says that if the rule is passed, the bill itself is considered to have been passed.

Hannah McCarthy: Hold on. Can you run that by me again?

Nick Capodice: Yeah. Me too. When Dan said this to me, I must have had my head tilted like a golden retriever. [00:10:00] Nick.

Dan Cassino: Nick is looking at me like this doesn't make any sense. So here's the way it works. When a bill is reported out of the Rules Committee, the first thing that happens is the entire House has to vote on the rule to adopt the rule for that bill. Once they adopt the rule for the bill, then that bill gets calendared and the speaker of the House is going to add it, and we're going to vote at some point on that bill. What a self-executing rule does is it says if you vote for this rule, we believe we're just going to consider that you have voted for the underlying bill. So which [00:10:30] means the bill, the underlying bill that the rule is about gets passed, despite the fact that no one actually ever votes for the bill.

Hannah McCarthy: All right. Is Dan saying here that the Rules Committee can make it so that just them agreeing on the rules for a bill makes the bill pass without a vote of any kind? Like how how is that possible?

Nick Capodice: That's exactly it. And it's not common. Newt Gingrich did this 38 times during his tenure. Nancy Pelosi, [00:11:00] interestingly, she considered it to pass the Affordable Care Act, but she didn't do it in the end. This is a way to pass extremely controversial legislation without anyone taking the fall, because it never goes to the floor.

Dan Cassino: So no one can actually criticize me for voting for the bill because I, Representative Dan Casino, never vote for the bill. What's my what's the ad against me going to say? Dan Casino voted for a rule that stated that if the rule was passed, then the underlying bill would also be moved. [00:11:30] The heck is that?

Hannah McCarthy: You know, I think I'd still vote for Dan.

Nick Capodice: Oh, yeah, without a doubt. Well, we've got to take a quick break here, after which I'm going to talk a little bit about how the speaker is involved with fundraising, as well as an assessment of how much power the speaker has right now. Fall of 2023. Short version, not as much, but you're going to love the long version.

Hannah McCarthy: But before that break, just a reminder that Nick and I write a newsletter about the funny, depressing, trivial, and [00:12:00] sometimes even beautifully banal things that we discover when making this show. It's called extra credit. It is free. It comes out every two weeks, and you can sign up at our website, civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the speaker of the House here on Civics 101. And Nick, you were going to talk about how the speaker is involved with fundraising. [00:12:30]

Dan Cassino: So speakers of the House in the modern era run leadership PACs.

Nick Capodice: Again, Dan Cassino, professor at Fairleigh Dickinson University and nonbeliever in the Jersey devil.

Dan Cassino: So we all know that PAC is a political action committee. The speaker of the House raised a lot of money on their own. Oftentimes. Imagine you're Nancy Pelosi, you are representing Berkeley. You have more money than you know what to do with because no one's even ever running against you. So you raise all this money. What are you going to do with it? The answer is you're going to give that money to other members of your party in order to buy their loyalty. [00:13:00]

Nick Capodice: Nancy Pelosi, by the way, Hannah is a very, very effective fund raiser since she entered leadership in the House in 2002. She has raised over $1 billion for the Democratic Party.

Hannah McCarthy: What?

Dan Cassino: In order to say, hey, look, I'm helping you get reelected. So maybe you want to vote for me and consider supporting me for speaker. The farther you are from the median of your party, the more you need to be giving people money in order to get them to vote for you. And Nancy Pelosi gave a lot of money. [00:13:30] What about Kevin McCarthy? Oh, Kevin McCarthy also has a huge leadership PAC. Kevin McCarthy, also, to those eight members who voted to oust him, those eight rebels who voted to oust him, he gave them $150,000 last year. Even the people who don't like him, he's still giving money to or was was giving money to. Now he's not the speaker anymore, but he still has that PAC. Of course.

Hannah McCarthy: Does the speaker have to be there all the time, like holding the gavel and saying, who can speak and all of that?

Dan Cassino: No, of course not. So the speaker speaker has other stuff [00:14:00] to do. All members of Congress, if you watch C-Span, the House representatives is almost always empty. The reason you won't notice that is because C-Span is not allowed to move its camera, so C-Span can't move its camera. The speaker of the House, once they pass the rules, then has to keep its camera just focused on the front. So you just see the guy who's speaking, you don't see that nobody's there. The speaker of the House is oftentimes not there because they have important fundraising to do, and they've got to meet with people. They've got lots of stuff to get done. So but there's nothing terribly important happening. The speaker of the House is not going to be there. Right. Speaker was going to [00:14:30] do other things, and they deputize other people in order to recognize speakers and all of the other technical nonsense that happens when you're watching C-Span.

Hannah McCarthy: All right. Real quick, who can do the job? Does the speaker have to be a member of the House of Representatives?

Nick Capodice: Now, there is some disagreement about this, but technically anyone can do it.

Dan Cassino: There is nothing in the rules that says a dog can't be speaker.

Archival: He's right! Ain't no rules in the dog can't play basketball.

Dan Cassino: We are [00:15:00] fully in Airbud territory. There's nothing that says you have to be a member of the House of Representatives to be speaker of the House. So we had people floating for a president. Donald Trump could be speaker of the House Airbud could be speaker of the House. Nick Capodice could be speaker of the House. They can elect anyone they want. It's actually a little bit like being elected to Pope, except you don't get to have a funny hat.

Hannah McCarthy: All right, Nick, just one last thing here. Let's examine the elephant that has been sitting there patiently in the corner for 20 minutes, twirling its trunk. What does Dan think is going on with what [00:15:30] I think is probably fair to call a debacle? Over the last month, when the House was unsuccessful to nominate a speaker.

Nick Capodice: Yeah, let's get to that. Dan started off by telling me what the power of the speaker is like when you have the full majority fully backing them.

Dan Cassino: So the speaker is one of the most powerful people in Washington. When the speaker has control of the House, they can do whatever they want. As long as that speaker has 218 votes on their side, they can say, up is [00:16:00] down, black and white. They can pass any bill they want whatsoever. There's no filibuster. There's no way for the minority to get any input whatsoever. As long as you control the Rules Committee, you have 218 votes. You can do all sorts of things. You can force the opposition into embarrassing votes. They don't want to take the rules committee. You can make them vote for things they don't want to vote for. Make them vote against things they don't want to vote against just to create embarrassing ads, which something happens all the time. You can use these exotic rules to make of all these crazy things happen where people are voting [00:16:30] for amendments that are never going to get in, or don't vote for amendments that are self-executing rules so you can pass bills that anyone actually voting for in the first place. You have absolute power like the Emperor. If you have 218 votes, if you don't have 218 votes, though, as we're seeing right now, you're out.

Nick Capodice: Now. Mike Johnson was indeed elected speaker with 220 votes. Every Republican voted for him. But the GOP majority in the House is so slim, so narrow. If only a handful of Republicans don't like anything [00:17:00] he does, we're going to be right back where we were last month.

Hannah McCarthy: But why is this happening right now Nick?

Nick Capodice: Dan told me it wasn't about the speaker, necessarily. He said it's about the strength of our political parties.

Dan Cassino: Political parties are so much weaker than they used to be. Political parties used to be very, very strong. I live in a state in new Jersey where we still have incredibly strong parties. What does that mean? In my district, the district next to mine, we had a member of our state assembly who was very popular. [00:17:30] Her constituents loved her. She'd been in office a long time. She upset the party and as a result, even though she was popular, even though she would certainly win any primary she was in, she gets kicked out of office by the party because she was embarrassing them. That's when you've got strong party control. The sort of convulsions we've had in the House of Representatives do not happen in a system with strong party control, because the in an ideal world, the speaker has levers of power to get people to play nice.

Nick Capodice: But over the last [00:18:00] 4050 years, we have slowly removed those levers of power. And what we see now is the end result that the speaker is not leading the party. The speaker is subject to the whims of the party. Now, state party power and thus state speakers of the House are still enormously powerful. Dan said that if a revolt like the one where Kevin McCarthy was ousted, if that happened in new Jersey?

Dan Cassino: They would have been gone. They would have been gone a long time ago. Right. The House, the the state [00:18:30] party, the county, the county party and the state party and the assembly leader, the equivalent of speaker of the House would have shut them down, and they would have either learned to play nice or they would have been out of office. And it doesn't matter how much the individual voters wanted them, they would have been gone. I know it sounds like we're making a mafia type threat and this is new Jersey, but it doesn't have to go that far. There's going to be relegated to ballot Siberia, or they're going to be gerrymandered into the district. Strong parties make sure that you have a strong speaker that can get stuff done. We've done [00:19:00] is reduce the power of the parties. Individual candidates now have so much more power than they did in the past. They can go on news, they can go on TV, they can raise money from constituents, raise money from all over the country. They don't need the speaker anymore. If they don't need the speaker, they don't need the party. That leverage is gone and we're all paying the price for it.

Anti Cassino Campaign: Over the last two years, Dan Cassino has done some pretty underhanded political wheeling and dealing. Cassino [00:19:30] approved a legislative rule that contained a provision where the House of Representatives then deemed a second piece of legislation as approved, without requiring a separate vote, because it was specified as such in the rule. You never vote for.

Dan Cassino: You just vote for the rule. And the speaker says, yeah, that's good enough.

Anti Cassino Campaign: Maybe Cassino should spend more time legislating and less time not believing in the new Jersey devil. Real Americans think it's time for a change. It's time we elect a member of Congress who's loyal, warm, and can sink three pointers with his [00:20:00] nose. Americans think it's time for air Bud, paid for by the Council for Americans who want more canine representation in Washington, D.C., for America Foundation.

Speaker2: That dog will hunt.

Speaker7: Mr. speaker.

Nick Capodice: That is our episode on the speaker of the House. This episode is made by me. Nick Capodice with you. Hannah McCarthy. Thank you. Christina Phillips is our senior producer. Rebecca Lavoie, our executive producer. Music in this episode by Scott Holmes. Origami. Reptile. Lobo, [00:20:30] loco Hollis, Nico, the new Fools, Martin Moses, Spring gang, ext. Bonfield, Francis. Wells, Dan. Casinos personal theme song is Electro Lab by Scott Gratton. And finally, my favorite zebrowska of the house, Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio. Airports.

---

Made possible in part by the Corporation for Public Broadcasting.