Why is the voting age 18?

For most of our nation's history, the voting age was 21. So how'd we get it down to 18? In one sense, it was the fastest ratified amendment in history. In another, it took three decades. Our guide to the hard-won fight for youth enfranchisement is Jennifer Frost, author of "Let Us Vote!" Youth Voting Rights and the 26th Amendment.

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Transcript

Hannah McCarthy: [00:00:02] Nick. Now, there are times when even we so-called adults wonder when we will finally be all grown up. But in the United States, that age is pretty much 18.

Nick Capodice: [00:00:21] Yeah, that's the age you're allowed to finally say I'm a legal adult. I can make my own choices. Unless that choice is to, you know, [00:00:30] drink alcohol legally or rent a car. You can buy one, though, right? Which seems a little funny.

Hannah McCarthy: [00:00:36] It does. Social constructs are a little funny, Nick, and adulthood is one of those. And so is pretty much everything else here in the US. We set an age at which you acquire the rights and responsibilities of what we call adulthood. This is known as the age of majority. Now that age varies somewhat from state to state and from Responsibility [00:01:00] to liability, especially when it comes to juvenile versus adult courts of law. A little less so when it comes to marriage, finances, tattoos and cigarettes. But you know what doesn't vary, Nick? The age at which you can vote.

Nick Capodice: [00:01:21] Well, that is because it is the law of the land. It is a constitutional amendment.

Hannah McCarthy: [00:01:26] It sure is, Nick. It is the 26th amendment, [00:01:30] to be precise. And that is what we are talking about here today. This is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:34] I'm Nick Capodice.

Hannah McCarthy: [00:01:35] And the 26th amendment is a special one. You want to know why it had the fastest ratification in history, took a little over three months in 1971, but actually getting to that point took a little less than three decades. This is a story about federalism taking something that used to be left up to the states and making it a national law. It's a story of grassroots [00:02:00] organizing, coalition building, and that horatian aphorism canonized by English poetry teachers. In that one movie, every substitute teacher had on VHS in the 90s. Carpe diem.

Dead Poets Society: [00:02:11] Seize the day. Gather ye rosebuds while ye may.

Nick Capodice: [00:02:17] Three decades.

Hannah McCarthy: [00:02:19] Oh, yeah.

Hannah McCarthy: [00:02:19] Three decades that included the civil rights movement, one very unpopular war, and a Supreme Court decision. So, without further ado, let's [00:02:30] do.

Nick Capodice: [00:02:34] All right. My first question is about what the voting age was before the 26th amendment was ratified, because the Constitution didn't say anything about voting age originally. And you've said it was something that was left up to the states. So was there an age that all the states agreed upon initially?

Jennifer Frost: [00:02:52] Well, this goes way back in English history, right? So the age of majority. So the age at which [00:03:00] you would have achieved adulthood becomes 21. So it's not you know, if we look at the medieval period or other periods, the age is shifting. But certainly, you know, by the time the American colonies are founded, the age of majority is considered 21.

Hannah McCarthy: [00:03:19] This is Jennifer Frost. She's an associate professor of history at the University of Auckland and the author of Let Us Vote. Youth Voting Rights and the 26th amendment.

Jennifer Frost: [00:03:29] Now, the [00:03:30] important thing is the US Constitution does not lay out criteria for voters. You know, the original Constitution left the qualifications for voters up to the state legislatures. So it's really at the state level that we get 21 being the age of majority and the age at which you would be able to vote for men.

Hannah McCarthy: [00:03:53] Now, the federal government does determine the age for certain things. For example, the age at which you must register [00:04:00] for selective service, also known as the draft.

Nick Capodice: [00:04:03] This is the thing I feel most people know about the history of the voting age. There's that famous slogan old enough to fight, old enough to vote, and I believe that is a conversation that started after President Franklin Delano Roosevelt lowered the draft age from 21 to 18, in World War two. Is that right?

Hannah McCarthy: [00:04:21] Yeah. And actually, the draft age was expanded twice during World War two. The Selective Training and Service Act, passed by Congress and signed [00:04:30] into law in 1940. This is prior to the US entering World War Two, required men ages 21 to 35 to register with their local draft board.

Speaker6: [00:04:41] The lottery will determine the order number of 750,000 who have reached their 21st birthday since the last draft. Another step toward the deferment of older Selectees.

Hannah McCarthy: [00:04:59] In 1941, [00:05:00] the act was amended to require men aged 18 to 64 to register, but only men aged 20 to 45 were on the hook for naval or land forces, aka the draft aka induction aka face and fighting in a war.

Nick Capodice: [00:05:19] Hold up. If you were only drafted up to the age of 45. What's going on with 46 through 64?

Hannah McCarthy: [00:05:26] This was referred to as a kid. You, not the old man's [00:05:30] registration. Oh, my. We weren't going to send men over the age of 45 to war, but we wanted to get a sense of our manpower. Literally, we were trying to figure out our industrial capacity here at home.

Nick Capodice: [00:05:43] Wow. All right. And what about the register at 18? But you don't get drafted till you're 20 thing.

Hannah McCarthy: [00:05:50] Yeah, that didn't last long. In 1942, Roosevelt gave a radio address that laid out the war effort and explained who was needed where. Specifically, [00:06:00] he said that he thought that older men should be contributing to efforts on the home front, and younger men should be conscripted into active duty. And he called on Congress to specifically amend the Selective Service Act to draft men starting at the age of 18, which they did in 1942.

Franklin Delano Roosevelt: [00:06:18] Therefore, I believe that it will be necessary to lower the present minimum age limit for selective Service from 20 years down to 18. We have [00:06:30] learned how inevitable that is and how important to the speeding up of victory. I can very thoroughly understand the feelings of all parents whose sons have entered our armed forces. I have an appreciation of that feeling and so has my wife. I want every father and every mother who had a son in the service to [00:07:00] know again, from what I've seen with my own eyes, that the men in the Army, Navy and Marine Corps are receiving today the best possible training, equipment and medical care.

Nick Capodice: [00:07:19] So Roosevelt isn't saying, sorry parents who newly have to worry about their 18 and 19 year olds being sent overseas. He's addressing the parents whose kids are already serving. [00:07:30] But he also seems to be saying indirectly, don't worry about the younger ones. I promise you, we will train them really well.

Hannah McCarthy: [00:07:39] Right. It's almost like he can't apologize because this is something that's going to happen either way. But he wants to find a way to temper the fears of Americans who are like fighting at 18. Seriously. And that same year. Nick 1942. That was the year that this idea of old [00:08:00] enough to fight, old enough to vote worked its way into the American consciousness. There was a West Virginian congressman named Jennings Randolph. He is sometimes called the father of the 26th amendment.

Jennifer Frost: [00:08:12] And he's one of several congressional leaders. But he becomes the prominent voice and what I love about him, he completely believed in democracy, you know, small d democracy. And he believed in getting people out to vote and to utilize [00:08:30] their right to vote. And the story goes that he used to carry a piece of paper in his pocket. And when someone said, oh, why should I vote? One vote doesn't matter. And he would pull this piece of paper out of his pocket, and he would read a bunch of major decisions and bills that passed into law that passed by one vote. And he said, you think your vote doesn't matter. You know it matters.

Hannah McCarthy: [00:08:53] And he dedicated his career to lowering the voting age, starting by introducing constitutional amendment legislation in [00:09:00] 1942.

Nick Capodice: [00:09:01] Wait, but it didn't happen until 1971?

Hannah McCarthy: [00:09:04] Nope. But what did start to happen? Because there were plenty of politicians who agreed with Randolph, is that states started to lower their voting ages.

Nick Capodice: [00:09:15] Which they couldn't do for voting in the federal election, because that's a national thing.

Hannah McCarthy: [00:09:21] But they could do it for state and local elections. And Georgia did in 1943, lower the voting age to 18. Kentucky did the same in 1955. [00:09:30] All right.

Nick Capodice: [00:09:31] Well, that's a pretty slow trickle, Hannah. Is there something that finally did it? Like what ramped it up? What happened between 1942 and 1971 that made the 26th amendment finally seem possible?

Hannah McCarthy: [00:09:45] The 1960s happened, Nick, and we're going to get to that time of the season right after this break. Ba ba da da da.

Nick Capodice: [00:09:54] Tell it to me, Hannah, but not too slowly. Okay? We're going to be right back. But in the meantime, here's a little reminder [00:10:00] that we Civics 101 are the result of people coming together because they believe in something. Public radio is funded by you, the public. It belongs to you, the public, and Civics 101 is included in that. If you have the heart, mind and financial ability to support our show, please consider doing so at civics101podcast.org.

Hannah McCarthy: [00:10:41] We're [00:10:30] back and we're going back. Back to the era that set the stage for 18 year olds to win the vote The 1960s Narodnik. What happened in the 1960s?

Nick Capodice: [00:10:53] Oh, boy. Hannah. Well, what didn't happen in the 1960s? We have a whole lot. We have the Vietnam War. There's a big one. [00:11:00]

Archival: [00:11:00] At this time. We have a total of 160,000 men in our military units.

Nick Capodice: [00:11:06] We have Kennedy getting assassinated.

Archival: [00:11:09] President Kennedy died at 1 p.m. Central Standard Time.

Nick Capodice: [00:11:14] And then we have the civil rights movement. Greatest of all, let.

Archival: [00:11:17] Us not forget that we are involved in a serious social revolution. And part.

Nick Capodice: [00:11:23] And parcel of the civil rights movement is a huge student movement, this huge counterculture movement.

Archival: [00:11:29] Our nation's [00:11:30] leadership, while striving for peace, has adopted a course that makes real peace unlikely.

Hannah McCarthy: [00:11:37] And the two most important things to keep in mind for the voting age are the civil rights movement and the Vietnam War. So let's dig into this a little bit and start with the Civil Rights movement, which, it should be said, included a ton of student activists and young adults who were not of voting age.

Jennifer Frost: [00:11:59] And most [00:12:00] scholars and people who lived through that time would say the civil rights movement was an inspiration and an impetus to a lot of different groups thinking we should organize, be it students, be it women, be it Chicanos, be it Indigenous Americans, you know. So there is this kaleidoscope of movements that's emerging over the 1960s that, in a way, the civil rights movement being the prompt, but also the groundwork was laid for [00:12:30] lowering the voting age to 18 by the civil rights and voting rights movement. So, you know, we get the Civil Rights Act in 1964, which, you know, ends segregation in the South and does other things. But the next year in 65, we get the Voting Rights Act, which essentially enforces the 15th amendment, which says you can't deny the right to vote on the basis of race, color or previous condition of servitude.

Nick Capodice: [00:13:01] So [00:13:00] the 15th amendment, as well as several other amendments like the 14th and the 19th amendment, they have a clause that says that Congress can take action to make sure the amendment is enforced. Right. And the Voting Rights Act of 1965, it does the same thing. The federal government is saying, hey, states, you can't do those things you're doing, and we're going to enforce that by passing a law.

Hannah McCarthy: [00:13:24] And we do have an entire episode on the Voting Rights Act of 1965. But real quick, it required [00:13:30] certain voting jurisdictions that had a history of racially discriminatory voting laws to get approval from the United States District Attorney or a US district court before implementing or changing any voting laws. It also allowed the use of federal examiners to monitor elections and help people register to vote in certain regions of the country, and it also prohibited the use of literacy tests.

Nick Capodice: [00:13:57] But Hannah, none of these say anything about voting [00:14:00] age, and I feel like I have to point out here that not being able to vote until you're 21 means that you will eventually be able to vote, which is not the same as not being able to vote because of your race or your gender.

Hannah McCarthy: [00:14:14] Yes, absolutely. And I think the reason that age felt so urgent is the one thing that we haven't really talked about in detail yet, the Vietnam War, that made age a really important consideration.

Archival: [00:14:28] Next one after this one, Bruce [00:14:30] Black, the next 121 a California college dropout, he threatened to go over the hill rather than go to Vietnam. In a year, he is promoted to sergeant.

Hannah McCarthy: [00:14:42] In The US had been involved in the Vietnam War for over a decade by the mid 60s, and in 1965, President Lyndon B Johnson announced that he was deploying another 50,000 troops. By 1966, we had [00:15:00] over 380,000 young men deployed to Vietnam. At the same time, news coverage of the war made Americans increasingly mistrustful of the US government's decisions. Student run coalitions at campuses across the country burned draft cards.

Jennifer Frost: [00:15:16] The 60s bring a number of state level campaigns. So 1966 Michigan has a referendum that is on lowering the voting age to 18 that young people really [00:15:30] fight for. They lobby, they organize, they mobilize, they do all sorts of advertising. They bring in the big wigs, and they bring in Robert Kennedy, Robert Kennedy, not junior, his dad to make the case, the United Auto Workers is on board in Michigan. I mean, it is a really robust campaign.

Nick Capodice: [00:15:51] So do they win?

Hannah McCarthy: [00:15:53] No, the referendum did not pass.

Jennifer Frost: [00:15:56] And it's really taken as quite a defeat. And [00:16:00] it's interesting. It was you know, basically the arguments about young people aren't mature enough. You know young people haven't had enough life experience. But there was also this concern. Do we want to give the right to vote to these young people, right. Who are in the streets mobilizing? Et cetera. So it's a real kind of backlash against the activism of the 60s, and you would assume everybody would kind of cry and go home and give up. That's not what happens after November 66th, [00:16:30] when the Michigan referendum goes down to defeat.

Nick Capodice: [00:16:34] All right. So we've got a failed referendum in Michigan, a ton of protesters and a very Unpopular war. So what happens next?

Jennifer Frost: [00:16:43] Martin Luther King is assassinated. Robert Kennedy is assassinated. We have a turning point in the Vietnam War, where the North Vietnamese and the Viet Cong launched their Tet Offensive, and a number of other things happened, including the president, [00:17:00] Lyndon Baines Johnson stepping down and not running again. So we're hearing echoes of that obviously today. So it was a very tumultuous year. There were anti-Vietnam protests, the Democratic National Convention in Chicago, which it's also in Chicago this year, was very conflictual.

Nick Capodice: [00:17:19] The 1968 DNC, otherwise known as maybe the wildest one that has ever been both inside and outside the convention.

Archival: [00:17:27] Members of the Youth International Party, Yippies, [00:17:30] they called themselves, converged on Chicago. They said they were there to protest the war, poverty, racism and other social ills. Some of them were also determined.

Hannah McCarthy: [00:17:40] And those protests, yes, they were about opposition to the Vietnam War. But the other major issue on the table, both for protesters and for the parties, was the voting age, which, as we know, was not lowered in 1968.

Archival: [00:17:57] This evening's activities climaxed a week of [00:18:00] protest activity by the children of Aquarius, and today was no different.

[00:18:04] Listen to us, Mr. Nixon. We've me the hope of a new tomorrow.

Jennifer Frost: [00:18:16] And some, I think, in Hawaii and Nebraska. There were state referenda to lower the voting age to 18. Those go down to defeat in 1968. So it's a time where some people are saying we're [00:18:30] doomed. You know, we're never going to make change. But there were other people who said, wait a second, you know, we were again protesting outside the Democratic National Convention, and we were inside. Some youth advocates were inside. And in fact, both political parties, the Republicans and the Democrats in 1968, in their platform, called for lowering the voting age to 18. So it's it's, you know, it's both this kind of moment of defeat, but this moment of, you know, we got to do something. And [00:19:00] so I say 68 is a turning point when they say we need a national movement. All the things happening in the States is great, but we need something to coalesce it all together. And we get the Youth Franchise Coalition being organized in late 68. It launches in early 69.

Hannah McCarthy: [00:19:18] And the young people in these movements had support from some of the people closest to them, their teachers.

Jennifer Frost: [00:19:23] So the National Education Association, you know, teachers believe in what they're doing in the classroom, [00:19:30] right? They believe that they are educating the future. They know they're educating the future, and they know that their students are interested in politics and care about politics, and so it makes sense they want to support that.

Hannah McCarthy: [00:19:46] And if you've listened to our episode on Strikes and Unions, you will know that in lieu of direct political power, there's another pathway to influencing the government. And the youth followed it.

Jennifer Frost: [00:19:55] A lot of young people were going right into the labor force like they are today, [00:20:00] and they were saying, wait, we've got union members who are 18, 19 and 20, you know, in the 40s, in the 50s, in the 60s, and they don't have a right to vote. You know, so the the labor unions, both, you know, the, the education ones, like the American Federation of Teachers, but the CIO at the time and then it becomes the AFL CIO. Absolutely. Were behind this finally.

Hannah McCarthy: [00:20:23] When it came to successful lobbying and organizing in the 1960s, the NAACP and other civil rights organizations pretty [00:20:30] much wrote the playbook. It worked for the Voting Rights Act of 1965, and they could leverage those same tactics for the youth vote.

Jennifer Frost: [00:20:38] And then the coalition had a strategy document about how we're going to go about it. And that's where I think they also built on this long history of effort is their strategy was dual, right. So we're going to work at the state level to try to get referenda and or amendments passed at the state level to enfranchise young people. [00:21:00] But we're also work at the federal level. And I think it was that two pronged, what we would call bottom up organizing and top down organizing.

Nick Capodice: [00:21:08] So we're talking about different groups with different perspectives, maybe even different reasons for what they're doing, but they're all working towards the same goal.

Jennifer Frost: [00:21:17] And it meant you could come into the movement in a variety of ways, a movement that's really narrow, that says there's only one way to be part of this movement, right? Obviously, you're limiting who's going to be part [00:21:30] of your movement by being flexible and open. You know, you could come into the movement saying, hey, I really think young people should have the right to vote because, you know, they're educated and they're ready to participate. And I could argue, you know, I'm going to focus on the fact that young people are being drafted to fight in Vietnam, right? So doesn't matter. We don't have to agree on our primary argument for why this should happen, but we agree on the goal.

Nick Capodice: [00:21:57] Okay. So on the national level, was [00:22:00] the strategy to get an amendment or was it to pass a federal law? Because I feel like one of those ideas is a heck of a lot easier than the other.

Hannah McCarthy: [00:22:08] Ain't that the truth? Yeah, it did get a little messy, Nick. Messy enough, in fact, for the highest court in the land to weigh in.

Archival: [00:22:17] Oyez, oyez, oyez.

Hannah McCarthy: [00:22:27] But before we ask for the Supreme Court's [00:22:30] opinion, I want to talk about what's going on in Congress. It was 1969, and the clock was counting down on a couple of provisions of the Voting Rights Act of 1965. Do you remember the preclearance requirement? Do you remember what that was?

Nick Capodice: [00:22:44] No.

Hannah McCarthy: [00:22:45] Okay. So that is the part of the act that said that states and districts with a history of racial discrimination against voters had to get approval from the federal government before they could change their voting laws. And that provision was set to expire [00:23:00] in 1970. Okay.

Nick Capodice: [00:23:03] Is this the thing that came up in a relatively recent Supreme Court case about voting rights? Yeah.

Hannah McCarthy: [00:23:08] You're thinking of Shelby County v holder. That was in 2013 and it invalidated that preclearance formula. So today, no states or localities need to get federal approval to change election laws.

Nick Capodice: [00:23:21] But back to 1970, Congress had to talk about it, right? Like whether they were going to keep it or not. And that meant they [00:23:30] could talk about voting rights again.

Hannah McCarthy: [00:23:32] Bingo.

Jennifer Frost: [00:23:33] At the same time, the Senate holds hearings on an amendment to lower the voting age to 18, and this is the first time that the majority of people testifying, and they have people from the civil rights movement, from the labor movement, from the NEA, you know, et cetera. And all sorts of politicians testifying. They agree it should happen. The question that the hearings don't agree on is, how [00:24:00] do we do it through the Voting Rights Act of 1970? Do we do it through a constitutional amendment? Do we do it through the states? Right.

Hannah McCarthy: [00:24:07] Ultimately, Congress decided to put the language about lowering the federal voting age in an amendment to the Voting Rights Act, because an amendment to a law is way easier to pass than a constitutional amendment.

Jennifer Frost: [00:24:21] Now, this was controversial because many people worried that if you add a voting age of 18, 19, 20, you know, [00:24:30] to this Voting Rights Act of 1970, Will it doom the Voting Rights Act that we absolutely need? So there was a bit of concern is this, you know, is this going to be a poison pill for the Voting Rights Act of 1970? But when the lobbyists for the NAACP and other civil rights organizations said, let's go for it, and it ends up passing and it passes overwhelmingly.

Hannah McCarthy: [00:24:57] By the way, the Voting Rights Act of 1970, it [00:25:00] had three new provisions. And this is important because states are going to feel a certain way about this amended act. The first created new rules for voter registration and absentee voting. The second prohibited states from making their own residency requirements, and the third, known as title three, lowered the voting age of all Americans to 18 in all elections.

Nick Capodice: [00:25:21] So 1970. That's Richard Nixon. To be honest, I am a little surprised that Nixon went along with it. He was the main target [00:25:30] of anti-war protests taken up by many of these potential new voters.

Jennifer Frost: [00:25:34] He doesn't like that that is in there, that title three he doesn't like it, but he knows how important the Voting Rights Act was and is for protecting African Americans right to vote. So he signs it. He signs it reluctantly. And then he says, let's have a Supreme Court case. Let's have some litigation to see if this is constitutional, to lower the voting age to 18 through legislation [00:26:00] rather than through an amendment.

Nick Capodice: [00:26:02] All right. So Nixon was kind of like states, I leave this in your hands.

Hannah McCarthy: [00:26:07] Yeah. At the time, this amended version of the Voting Rights Act was passed, there were still only two states, Georgia and Kentucky, that had laws on the books allowing 18 to 20 year olds to vote in state and local elections. This was not a widely supported issue once you got to the state legislative level. And as we know, states are within their rights to say that a federal law is unconstitutional [00:26:30] and they can refuse to comply, at least until their argument is denied by federal courts. And most states did exactly that. They refused to comply.

Nick Capodice: [00:26:42] And then they sued, just like Nixon was hoping.

Hannah McCarthy: [00:26:45] And then they sued. Arizona, Idaho, Oregon and Texas sued the federal government in 1970, saying that the Voting Rights Act Amendments of 1970 infringed on the rights of states. The Supreme Court agreed to hear the case known as Oregon v Mitchell. Mitchell [00:27:00] being John Mitchell, the Attorney General of the US at the time.

Archival: [00:27:03] We are seeking a decree that title three of the Voting Rights Act of 1970 is unconstitutional and enjoining the defendant from enforcing this title with respect to the plaintiff state.

Nick Capodice: [00:27:17] Were they just suing about the voting age? No.

Hannah McCarthy: [00:27:20] They also sued over literacy tests, state residency requirements, federal oversight of state election laws, all of these cases got lumped into [00:27:30] one because they all dealt with the Voting Rights Act.

Nick Capodice: [00:27:36] Got it. And what did the Supreme Court decide?

Hannah McCarthy: [00:27:39] This is the messy part. So first, the Supreme Court decided 5 to 4 that Congress did have the right to enact amendments that abolished literacy tests and state residency requirements for presidential and vice presidential elections. But they also decided that states could still impose residency requirements for state and local [00:28:00] elections. Now, when it came to the voting age.

Jennifer Frost: [00:28:03] It is a very unique decision because the court splits four said Congress has no role in determining voter qualifications like age, and the other four said Congress does have a role to do this, and it comes down to what we call they call a majority of one. That kind of splits the difference, which is Hugo Black. And what he says is Congress. He agrees with the conservatives that Congress [00:28:30] has no role for state voter qualifications, but he agrees with the more liberal side that that actually Congress does have a role for federal elections. So the decision comes down that says when you're 18, 19 and 20 year olds, you can't vote on state level elections, but you can vote on federal ones. Well, of course it was great in one way. People are going, oh my gosh, fantastic. You know, 18 year olds can vote for president and senator.

Nick Capodice: [00:28:58] So Justice Black establishes [00:29:00] that the federal government has a say in who gets to vote in federal elections, but not state elections. So, Hannah, just administratively, this is a little complicated.

Jennifer Frost: [00:29:15] It was going to be a nightmare for states and localities to administer, was going to cost a fortune. So what ends up happening out of the Supreme Court decision is all these state secretaries of state, they end up saying this is unmanageable. [00:29:30] We need consistency.

Nick Capodice: [00:29:33] So the secretaries of state signed on because they needed to be able to run their elections. And the law as it stood was making that really difficult.

Hannah McCarthy: [00:29:41] And that was the final piece that made the 26th amendment possible. Because remember when Nixon first signed the Voting Rights Act of 1970 into law, fewer than half of the states said that they would do it. But after the Supreme Court said, well, you have to do it when it comes to 18, 19 and 20 year olds voting on the national [00:30:00] ballot, the various secretaries of state were like, hang on, we are the ones actually running these elections. And they were going to their state legislatures and saying, we are not equipped to handle this right now.

Nick Capodice: [00:30:13] As in, it is administrative chaos to have one foot and one voting age for state and local elections and one foot in the other for federal elections.

Hannah McCarthy: [00:30:22] But there is a way out of this A way that ultimately the states would have to participate in. [00:30:30]

Jennifer Frost: [00:30:30] What the scholars argue is that constitutional amendments. They say there's four things that you need. You do need popular support. You do need legislative support. You do need judicial support, and you need support from the federal governments and the state governments. So some of the people who said it should let the states decide this. Well, actually the states do have a role because the states have to ratify an amendment. So, you know, when you when you have all [00:31:00] these different building blocks, it makes an amendment quite a robust process.

Nick Capodice: [00:31:07] Now hang on. To ratify an amendment you have to have an amendment to ratify. And I know we talked about that congressman who proposed such an amendment, but that was way back in 1942.

Hannah McCarthy: [00:31:18] Jennings Randolph.

Nick Capodice: [00:31:19] Yeah. Jennings Randolph. Was he still around?

Jennifer Frost: [00:31:24] He's there at the beginning and he's there at the end. His [00:31:30] career and his consistent advocacy over time. Proposing the 26th amendment again and again in Congress. He's there for the whole story.

Hannah McCarthy: [00:31:41] So he was still in office, but he was not the one to bring it back up. That was a senator from Indiana who had learned that it would cost states millions of dollars to register millions of young people to vote in completely separate systems. Never mind the fact that they would have to change their constitutions to comply with the age provision, and [00:32:00] probably couldn't do it in time. So several congresspeople proposed the 26th amendment in the very same, unchanged language that Jennings Randolph proposed in 1942.

Nick Capodice: [00:32:11] Wow.

Jennifer Frost: [00:32:12] It's the most quickly ratified amendment in US history, partly because of this administrative chaos that's going to happen, which has led some people to argue, oh, it was just an administrative maneuver. Right. It was just it was just [00:32:30] about making sure that voting processes were going to be easy to administer. And so, yeah, in the short run, there's no doubt that that administrative chaos was part of the argument. In fact, the House Judiciary Committee made that their main argument for we got to pass a constitutional amendment. But you don't even get that possibility without all the effort that came before. You know, so by just looking at that, you foreshorten the whole complex, [00:33:00] important history that got us to that point.

Hannah McCarthy: [00:33:03] Speaking of that whole complex, important history, Nick, I'm glad you brought up Jennings Randolph. He's the late West Virginia senator who was instrumental in the fight to lower the voting age, who gave young people a principal to levy against those who would deny them the vote. We're old enough to fight for you. Die for you. We're old enough to vote for you. When the 26th amendment was ratified [00:33:30] in 1971, Randolph got a call from the white House. Senator, would you like to select the first 18 year old who will register to vote?

Nick Capodice: [00:33:40] You're kidding. You're kidding.

Ella Marie Thompson Haddix: [00:33:42] And I just remember it was snowing.

Hannah McCarthy: [00:33:44] This is an excerpt from an interview done by West Virginia Public Broadcasting in 2021. It was with the woman who was that then 18 year old. Her name is Ella Marie Thompson Haddix. She's a retired schoolteacher. See, Randolph happened [00:34:00] to be in West Virginia when he got the call. So he asked the nearest college to please find an 18 year old ready and willing to register. And then he drove over there and picked her up.

Ella Marie Thompson Haddix: [00:34:13] And the roads were slick because Senator Randolph and I had to cross the street, and we held on to each other, crossing the street to the courthouse because we were afraid we'd fall down.

Hannah McCarthy: [00:34:24] Ella murray's older brother, Sergeant Robert Thompson, had been drafted to fight in the Vietnam War [00:34:30] in 1965. Two years later, he died fighting for his country. But without the right to vote in it. So it was particularly poignant for his sister to register, let alone to be the first 18 year old in the country to do it. She did have one misgiving, though. She was going to register. Republican Senator Jennings Randolph was a lifelong Democrat.

Ella Marie Thompson Haddix: [00:34:57] But he was very gracious about it. I told [00:35:00] him, you know, if he wanted to look for somebody else, that would be okay. And he said, no, absolutely not. It didn't matter whether it was Democrat or Republican. It was that, you know, he'd finally managed to get this 26th amendment through Congress. He it was his privilege to take an 18 year old to register.

Nick Capodice: [00:35:22] You know, if you want yet another reason to register to vote, there you have it. The guy who wrote the amendment doesn't [00:35:30] care how you do it. [00:35:32] Just do it.

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Made possible in part by the Corporation for Public Broadcasting.

Middle Class, Totally Relatable & Elite! (The Campaign Jargon Trivia Episode)

Why do very different political candidates say the same things over and over? Things like "middle class," "coastal elites" and "middle America?" What do those things even mean? That's what this episode is all about. 

Also...some civics and history trivia that's VERY much on-topic. Sort of.

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Transcript

Middle Class, Totally Relatable & Elite! (The Election Jargon Trivia Edition)

Christina Phillips: Are we ready?

Nick Capodice: Yeah, but what are we doing here?

Christina Phillips: So I've gathered you all here on this Friday afternoon at the end of the DNC, because it is time to talk about election jargon, election catchphrases. I'm Christina Phillips.

Rebecca Lavoie: I'm Rebecca Lavoie

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy.

Christina Phillips: This is Civics 101. And it is the election jargon edition of Civics 101 trivia. So [00:00:30] as I said, the DNC just ended. Rnc was earlier this summer. We're in the final couple of months of the election, which means that on the national and local level, you cannot escape politicians talking to you about you and at you. So today I have prepared a game of trivia about all the stuff the candidates say on the campaign trail. It's going to be a blend of critique, analysis and pettiness, and hopefully it will be fun. So [00:01:00] way back at the beginning of this year, we asked our audience to send us some of the most overused verbiage they hear politicians say on the campaign trail. And each round of this trivia is based on some of the most common themes we heard from listeners. I will read a couple of listener emails. They're vague, broad, and they shift depending on who is saying them. So I tried to pick things that both Republicans and Democrats say all the time, but we're kind of going to look at how it depends on who's interpretation it is or [00:01:30] who they're trying to appeal to. Does that sound good?

Rebecca Lavoie: Context matters, is what you're saying.

Christina Phillips: Context? Yes, perhaps. All right.

Christina Phillips: Before we start, I'm going to spoil a little bit so I can get your reactions. We're going to be talking about phrases like middle class, middle America elites. If you had to explain to somebody Why so many politicians, [00:02:00] despite the fact that they are trying to distinguish themselves from their rivals, use the same phrases over and over again. Why do you think that is? Why do they do this?

Hannah McCarthy: I've been thinking about this a lot lately, because I often think about, in our own world how to do things slightly differently, right? Like the different kinds of messaging we could use. I have this feeling that the answer is, why would we do something different if this is the way we've always done it before.

Rebecca Lavoie: Or if it works.

Hannah McCarthy: Or if it works? Yeah, yeah, yeah. Like [00:02:30] we find that these terms test. Well, we're not going to mess with that. Because what if when we mess with that it screws everything up?

Nick Capodice: I think it's about repetition and getting little things lodged in people's minds. When I hear these phrases over and over again, like middle class or the liberal media, you know, stuff like that, if you hear it enough, you associate one side or the other or one candidate or the other with something, because repetition is the greatest way to get something stuck in your head. I was also wondering last night why? Why candidates always. Oh my [00:03:00] God, like the last ten years, they're like, it just won't work. And we're not doing it again. Like we're not going back. Somebody do it. Well, 40 years ago. Yeah, that's what we do.

Rebecca Lavoie: They did.

Nick Capodice: You know who did it? Who did it?

Archive: Read my lips. No new taxes.

Rebecca Lavoie: Yeah, I guess I guess it's been going on forever. Forever? Yeah, yeah, yeah.

Nick Capodice: I mean, Roosevelt probably did it. Yeah.

Christina Phillips: Are [00:03:30] you ready to start?

Nick Capodice: Yes. Yes, absolutely.

Christina Phillips: Okay, so our first category is called mid because I'm trying to be cool with, you know I'm feeling the the age of my demographic which is millennials. So okay so we're talking about two distinct phrases that suggest they're speaking to two different populations, but they actually overlap quite a bit. When you think about where and how candidates, [00:04:00] especially presidential candidates, campaign in our current election system, aka the Electoral College, the phrases I am talking about are middle class and Middle America. Okay. When you hear middle class as a phrase that politicians use over and over again, like, what do you think of?

Hannah McCarthy: Nonexistent. Sorry.

Rebecca Lavoie: Yeah.

Christina Phillips: I love it, I love it. Yeah.

Rebecca Lavoie: Rebecca, I think of everybody who is not rich. They call everybody middle class who's not rich like everybody.

Christina Phillips: Mhm.

Nick Capodice: My [00:04:30] sister and I were talking about this last night. She was like were we middle class or were we poor. We were trying to decide and we couldn't figure it out. So I feel like it's an income number. Right. It's like somewhere between.

Rebecca Lavoie: But there is like some data I think that shows that a lot of people think that they're middle class when they're not. Right. Like, everybody believes that they're middle class. Even people who are below the poverty line believe they're middle class. Even people who are upper middle class sometimes believe that they're middle class, like middle class is a category that, like almost everybody puts themselves into, right?

Christina Phillips: Yes, that is correct. And I think that was more true [00:05:00] pre 2008. There have been studies that have shown that many, many people more than actually qualifies as what we would call middle income, identify as middle income. It is true that it seems like this is where people would like to put themselves and often categorize themselves. I actually tried to find some data on what counts as, quote, middle class. The income brackets was the closest I could get, and this is from the Pew Research Center. So the Pew Research Center defines this middle income [00:05:30] household as those with an income that is two thirds to double that of the median household income after incomes have been adjusted for household size, which is a very weird it's a weird definition. Basically, it's saying that there is a range of income that counts as middle income, and then the other two categories are lower income and An upper income. So the middle income household range in 2018, which was the most recent data I could find, was 48,000 [00:06:00] to $145,000 per household per year. And approximately over the last couple of decades, that is the biggest group. So there will be, you know, at least 50% sometimes all the way up to 65, 70% of people fall into that range. The important distinction is that that range is getting smaller. So that lower income group, which is below that 48,000, and that [00:06:30] upper income group, those two groups are getting bigger. And the amount of wealth in that upper income group is much higher. So that's really the big change. But we are talking about technically the biggest demographic of incomes in America. What about middle America stands out to you?

Nick Capodice: Well, middle America. You know, I actually have no idea. I grew up in I was born in the Midwest. I grew up in New England, but I was born in the Midwest. [00:07:00] It's like, is the Midwest, middle America? Non-coastal non-coastal.

Hannah McCarthy: Yeah, that that's what I think. But it also seems a little silly, a little funny to think that, like, the middle of the country is middle America, but is that literally what we mean?

Rebecca Lavoie: Doesn't it also mean like a regular folks? I mean, there's a non-elite non-coastal. What it evokes for me, like manufacturing jobs, farming, Rust belt, religious values, like slightly more like salt of the earth. [00:07:30] Like there's a there's a like an evocation of imagery that you see, the B-roll that I see when I hear the word middle America, like in a commercial. It's all that stuff.

Archive: It's morning again in America today. More men and women will go to work than ever before in our country's history, with interest rates at about half the record highs of 1980. Nearly 2000 families today will buy new homes, more than at any time in the past four years.

Christina Phillips: Yeah, I think what's interesting is, [00:08:00] like both the vice presidential candidates are trying to capture that in a very like, I think, interesting way. Like J.D. Vance grew up in the Ohio, Kentucky region. He wrote a book, you know, the Hillbilly Elegy, about, you know, this group of white Americans that was seen as ignored, you know, by liberals.

Archive: I grew up in Middletown, Ohio. A small town where people spoke their minds, built with their hands [00:08:30] and loved their God, their family, their community and their country with their whole hearts. But it was also a place that had been cast aside and forgotten by America's ruling class in Washington. When I was in the fourth grade, a career politician by the name of Joe Biden supported NAFTA, a bad trade deal that sent countless good jobs to Mexico.

Christina Phillips: Tim Walz is, if you listen to any of the speeches like he's the football coach. He's from Nebraska, governor [00:09:00] of Minnesota. And Tim Walz is very much defining himself as homegrown, relatable guy.

Archive: Now, I grew up in Butte, Nebraska, a town of 400 people. I had 24 kids in my high school class, and none of them went to Yale. But I'll tell you what. Growing up in a small town like that, you learn how to take care of [00:09:30] each other. That that family down the road, they may not think like you do. They may not pray like you do. They may not love like you do. But they're your neighbors and you look out for them and they look out for you.

Christina Phillips: I think in terms of this election, what stands out to me is that like three of the most important states in the election right now are Wisconsin, Michigan and Pennsylvania. [00:10:00] And I feel like a lot of this middle America conversation comes up around these states that are very, very important for the Electoral College, that kind of thing. Now, I have some questions, and I tried to find a definition of like, what is the most quintessential [00:10:30] middle class middle America? Like what politicians seem to think is the most relatable demographic group. And I found a study called Middletown, USA. Are you familiar with this?

Rebecca Lavoie: No. Okay. I love it. Okay.

Christina Phillips: So this this is a study that was carried out by this cultural anthropologist power couple, Robert and Helen Lynd, in the 20th century, and it examined the people, behavior, and economic conditions of a real city in the United States that they chose because it was, quote, as [00:11:00] representative as possible of contemporary American life. Now contemporary American life being the 1920s 30s 40s. When this study was really active, they called the city Middletown in the study. It is an actual city, and we're going to talk about that. They released their first results in 1925. Follow up results were in 1929. There were also results in the 1930s. And the takeaway was nothing really changes because there wasn't a huge difference in demographics, income level [00:11:30] behavior of people in this city in Middletown, USA.

Rebecca Lavoie: Despite the Great depression.

Christina Phillips: Yes.

Hannah McCarthy: Wow, wait, really?

Hannah McCarthy: There wasn't a shift in in income.

Christina Phillips: There wasn't a significant shift in lifestyle interests and not really an income, employment or what kind of employment you had.

Rebecca Lavoie: That rings true to me, actually. Perception. Not reality. Right? Yes.

Christina Phillips: Yeah, yeah. So the idea that like, nothing really changes. Okay. So there is a huge caveat to this study, which is when they were trying to decide [00:12:00] which city to choose, the lens intentionally picked a city that was nearly racially homogenous, that is mostly white, and they focused only on the change of that white population over time. So all of the results of this study are based on the white population. And in my notes, I literally wrote, well, maybe this isn't the average town then, but, you know, I digress.

Hannah McCarthy: Well, you said that they were trying to pick the city most representative of contemporary American life, and they picked one. That's a far cry [00:12:30] from representative of contemporary American life.

Christina Phillips: Yeah, yeah. And even in the 1920s, like, there's no excuse for it.

Nick Capodice: Well, this study came out like shortly after we banned pretty much all immigration to the United States like, this was a time when we were practicing eugenics in the United States before Hitler did it a little bit later. Like, this is this is a this is a bad dark period in American history.

Christina Phillips: So this first question is, what is the city? [00:13:00] What I'm going to do is I'm going to read some facts about this city. And when you have a guess, shout it out. Okay. Okay. All right. Number one, this is not a state capital. The name of the state the city is in starts with I.

Rebecca Lavoie: Chicago.

Christina Phillips: No. Uh.

Christina Phillips: Um, the capital of this state that the city is in has the name of the state in it.

Rebecca Lavoie: And it was.

Nick Capodice: Stated in Indiana.

Rebecca Lavoie: Yeah. Yes. Is it South Bend?

Christina Phillips: No.

Rebecca Lavoie: Ah. [00:13:30]

Christina Phillips: The city gained the nickname Little Chicago during the prohibition era because it was a hideout for organized crime bosses.

Nick Capodice: Oh, I know this.

Nick Capodice: I was born so close to there. Is it Gary, Indiana? No, not Louisiana, Paris, France, New York or Rome. Okay. I'm still thinking.

Christina Phillips: The city was the location of an encounter with a UFO in a Steven Spielberg movie.

Nick Capodice: It’s got to be Close Encounters…

Nick Capodice: Is it Muncie?

Christina Phillips: It's Muncie.

Christina Phillips: And Muncie. A Muncie gal. Can you beat.

Nick Capodice: That? Have you ever seen. Have you guys ever seen, uh, The Hudsucker Proxy, the Coen brothers film?

Rebecca Lavoie: No.

Christina Phillips: But I do know a lot of films and television shows that are trying to approximate this, like, middle America. Vibe chose Muncie in part because it was like the Middletown study made Muncie. It put it on the map, kind of as like if you're looking for like the corn fed American town, right? Muncie [00:14:30] is it. So the two other facts I have is Bob Ross filmed the Joy of painting in the local PBS studio there, and the city Pawnee in the show. Parks and Recreation was inspired by this city. Wow. So we're talking about Muncie Indiana.

Nick Capodice: Go Eagles. So Eagles is their team.

Christina Phillips: Okay so Nick that's one for you. Okay. So this next set of questions are going to be about the results of the Middletown study from 1925. This is going to be Price is Right style. So I'll get a guess from each of you. The closest without going over wins. Oh. All right. All right. [00:15:00] This study organized people into two classes working class and business class. Working class built things and did manual labor. The business class was defined as people who worked with people, business owners, lawyers, physicians, clergymen, teachers. It also there was a definition that they had to get additional education or training, which I don't love that because like, I'm pretty sure that people who do manual labor also need to get additional training, but they've defined it that way. So the first question is, what percentage of the population in [00:15:30] Middletown of this study were considered working class?

Hannah McCarthy: I'm going to say 38%.

Christina Phillips: Okay. Nick, do you have a guess?

Nick Capodice: All right. Working class I'm going to say 67.

Rebecca Lavoie: Mhm. I was going to be much closer to that too. I'm going to say go one less. I'm going to make it tight. You ready. 74.

Christina Phillips: Whoa. It's 70.

Christina Phillips: You just went over 70%.

Hannah McCarthy: I mean I should because what does it take to run a city? People who make the city, right? Yeah, [00:16:00] yeah yeah, yeah.

Christina Phillips: So that one is one point for Nick. Okay. The next question, what percentage of the working class. So 70% of the community surveyed was not part of a union.

Nick Capodice: So this is the 1920s. Yeah. So it's after I'm just I'm just thinking out loud. It's after the Triangle Shirtwaist fire. Unions are starting to get big. What percentage is not in a union or isn't a union is.

Christina Phillips: Not in a union.

Nick Capodice: I'm going to say 20%. [00:16:30]

Christina Phillips: All right, Rebecca, do you have a guess?

Rebecca Lavoie: I'm going to say 45%.

Speaker9: Okay. Hannah.

Hannah McCarthy: Okay. Uh, Nick, you said 20%. I said 20. We're not in a union. We're not in a union. 50%.

Christina Phillips: 100%.

Nick Capodice: Oh, none of them were in a union.

Christina Phillips: Unions have been driven entirely out of Muncie at the time of the study, which I think is funny, that they're like, this is representative of America, right? And I think you had the highest number, right?

Hannah McCarthy: 50. Yeah.

Christina Phillips: So you get that one.

Nick Capodice: Well done. Yeah.

Hannah McCarthy: For [00:17:00] your one point.

Christina Phillips: What percentage of the population studied lived in a nuclear family. So this is defined as two parents and some children.

Rebecca Lavoie: I'm going to say 85%. Okay.

Hannah McCarthy: I'm going to say 80%.

Christina Phillips: Okay. Wow. Nick.

Nick Capodice: Also, who's not a nuclear family? I'm thinking like grandparents. You know who you know, the kids have moved out or, you know, single men and women. Uh, but Muncie, you said 85.

Rebecca Lavoie: I said 85. You said.

Nick Capodice: 80. [00:17:30] I'm going for broke. I'm going 90%.

Christina Phillips: It's 86. So Rebecca was basically right. Rebecca there. Yeah. Okay, so a couple of other facts about Muncie at this time. The elite class, which was a subgroup of the business class that held government positions, it was entirely Republican.

Rebecca Lavoie: Did airlines like, just steal this terminology for their seating, like straight from the study?

Nick Capodice: Oh my goodness.

Rebecca Lavoie: It's incredible.

Hannah McCarthy: I was thinking the same thing.

Rebecca Lavoie: It's like their point system just came right from this.

Christina Phillips: Yeah, yeah. [00:18:00]

Christina Phillips: So that is Middletown, USA, aka Muncie, Indiana. Wow. Nick, you have two points. Hannah. You have one point. Rebecca. You have one point. Okay, off we go. This [00:18:30] next set of questions is called the Goodfella, and it is about how candidates have attempted to appeal to voters by making themselves seem more relatable. And in doing so, I think they're pretty revealing, intentionally or not, about what they actually think is relatable. Um, to quote the character Henry Hill in Goodfellas, who ran with the Lucchese crime family right after I got here, I ordered some spaghetti with [00:19:00] marinara sauce, and I got egg noodles and ketchup. I'm an average nobody. Okay, so this is actually based on an email from a listener named Haley. So here's what Haley says. I am so tired of candidates referring to the price of gas and eggs specifically.

Nick Capodice: What's interesting, I started carrying in my pocket a little laminated sheet of the price of crude oil around the world, and then the price of gas mirrored over that. And it's exactly the same thing. So, you know, why aren't we getting mad at the president of, you know, Uganda anywhere in the world? Yeah.

Christina Phillips: I [00:19:30] think it's interesting that presidents love to talk about the price of gas as a campaign like stump thing. When your episode is demonstrated, they do not control the price of gas.

Nick Capodice: But they have nothing whatsoever to do with the price of gas.

Christina Phillips: But they know that we think they do.

Archive: More Americans are working, more have health insurance, incomes are rising, poverty is falling, and gas is $2 a gallon.

Archive: I didn't even I. [00:20:00]Thank you for reminding me. Thanks, Obama.

Christina Phillips: Okay, so what I'm going to do is I'm going to read you excerpts from some speeches from people who were eventually elected president. So these are all former presidents and the first person to guess who the president is wins. Okay. So here is the first speech excerpt where I grew up, the town motto was the sky's the limit. And we believed it. There was a restless energy, a basic conviction that with hard work, [00:20:30] anybody could succeed. And everybody deserved a chance. There were dry wells and sandstorms to keep you humble, lifelong friends to take your side, and churches to remind us that every soul is equal in value and equal in need.

Hannah McCarthy: George H.W. Bush.

Christina Phillips: It's not. This president attended Yale and Harvard.

Rebecca Lavoie: George W Bush. Yes it is.

Hannah McCarthy: Oh come on. Technically, they're talking about the same place.

Christina Phillips: Yeah, this [00:21:00] is true. This is true. Yeah. So this is him accepting his presidential nomination at the RNC in 2000. And yeah, as we've said, he's he's the son of a former president. I mean, come on. And also, he attended Phillips Andover in Massachusetts. He went to Yale. He went to Harvard. He started his own oil business in Texas. I don't know, those wells.

Hannah McCarthy: Didn't run dry that. Much.

Christina Phillips: Okay. So that is George Bush trying to appeal to the Americans. All right. The next one. I used to milk cows by hand. I used to plow with a [00:21:30] four horse team instead of a tractor. I used to sow wheat with a drill that had only 12 hoes on it, and I used to cut wheat with a binder that cut eight feet wide. So this is a Democratic president who was born in the 19th century. This president also served as vice president. And this president was one of the architects of NATO.

Nick Capodice: Truman.

Christina Phillips: Yes.

Christina Phillips: Truman was one of the least wealthy presidents in history. So, you know, relating to people in [00:22:00] that way, I think he probably could do it better than a lot of other presidents. But one thing I thought was interesting was that Congress increased the presidential salary while he was in office from 75,000 to 100,000, and also gave the president $50,000 in tax free money. And these inflation calculators that we always see are never accurate, but it's about a salary of $1.2 million today. Do you know the current salary of our president right now?

Rebecca Lavoie: Isn't it 250 thousand or [00:22:30] 75?

Christina Phillips: $400,000 oh.

Rebecca Lavoie: Oh wow. Wow.

Rebecca Lavoie: Big inflation.

Christina Phillips: He is one of those presidents that gained a lot from being a president. Like he walked away from it in a really good position. So here's the next speech. If you can stretch your imaginations back this far. My own college days happen to fall during the Great Depression. I had to work my way through college. As a matter of fact, I had one of the best jobs I've ever had while I was doing [00:23:00] that washing dishes in the girls dormitory. But seriously, those were days when announcements telling people not to leave home looking for work because there was none were made on the radio. Well, when I got my diploma, unemployment was around 25%. Yet here we are, just a half century later, and we Americans are enjoying a standard of living Undreamt of when I was your age.

Nick Capodice: Who would make.

Nick Capodice: A little funny joke about the, you know, washing dishes in a place surrounded by ladies. I'm gonna guess Jimmy Carter. It's not Jimmy. [00:23:30]

Rebecca Lavoie: No. Darn it! It was too. He was too young. Too young? Yeah. Yeah. Because he was actually born after Kennedy. Okay.

Christina Phillips: So here's a hint. Worked as a sports broadcaster. This president also served as the president of the Screen Actors Guild.

Rebecca Lavoie: Ronald Reagan. Reagan. Yeah.

Christina Phillips: Rebecca. You snuck it in there. This was from remarks to students and faculty at Purdue in Indiana in 1987. It was also something he told the story about at a student Q&A in Kansas in 1983. A student Q&A at a high school in Illinois in 1984, and at a fundraiser in Eureka [00:24:00] College in 1986. So, like Kate accused Lizzie of being an out for repeater on the iconic Disney Channel show Lizzie McGuire. I accuse Ronald Reagan of being a speech repeater, which is actually something a lot of candidates do all the time.

Christina Phillips: Yeah. Well, I think it's funny.

Nick Capodice: Like, there's a lot of great videos of Reagan telling America Russia jokes on YouTube, which he had a really good joke delivery.

Rebecca Lavoie: Yeah. He was an.

Nick Capodice: Actor. Nobody tells. Yeah, but nobody tells jokes anymore. And he would just tell funny political jokes. I just missed that.

Archive: The story was an American and a Russian arguing about their two countries. And the Americans [00:24:30] said, look, in my country, I can walk into the Oval Office. I can pound the president's desk and say, Mr. President, I don't like the way you're running our country. And the Russian said, I can do that. The American said, you can. He says, yes, I can go into the Kremlin, to the general secretary's office, pound his desk and say, Mr. General Secretary, I don't like the way President Reagan's running his country.

Christina Phillips: So the score right now is Rebecca has three, Nick has three, and Hannah [00:25:00] has one. Yep.

Rebecca Lavoie: All right. Next two days everybody. Yeah.

Christina Phillips: This category is called again America great make. Which is just make America Great Again in alphabetical order.

Christina Phillips: I will be here all night.

Christina Phillips: This is not for points. But which president? Before Trump made that slogan famous? [00:25:30]

Nick Capodice: This is the Gipper. Ronald Reagan, right?

Christina Phillips: Yes, yes. This was in his Republican nomination acceptance speech in 1980. It was also used by Bill Clinton in speeches in 1992, and of course, Donald Trump in the 2016 and 2020 and now 2024 presidential election.

Archive: We will make America proud again. We will make America safe again. And we will make [00:26:00] America great again. Thank you. Ohio.

Archive: Thank you. Thank you.

Christina Phillips: A lot of listeners asked us to talk about this. So I've got a category that's basically about what does Trump think is the greatest time in America when he says Make America great again. When is he talking about? We actually have an answer from an interview he gave in 2022 to the New York Times. Does anyone have a guess.

Hannah McCarthy: When he thought the greatest [00:26:30] era in America was, yeah, like just after World War two?

Nick Capodice: Yeah. The 50s.

Christina Phillips: Yeah. So he said that it was after World War II was one that was the first period and.

Rebecca Lavoie: Then the 80s, not.

Christina Phillips: The 80s. He said the turn of the 20th century, which Trump said was when, quote, the machine of entrepreneurship was built.

Hannah McCarthy: The entrance into the 20th century.

Christina Phillips: Yeah, yeah.

Hannah McCarthy: Like the Gilded Age.

Hannah McCarthy: The Gilded Age. So, like the height of poverty in cities, you mean? Yeah. You know, it was really bad [00:27:00] for a lot of people.

Nick Capodice: Black lung. Yeah, that was a tough time. Children falling into mills.

Hannah McCarthy: I should say. Height of poverty and height of wealth. Right. Yes, exactly. It was. This was like the same era that Jacob Riis published all of his photographs of what was actually happening while people were throwing balls and like.

Rebecca Lavoie: An age of great disparity.

Hannah McCarthy: Yes, yes. Great disparity.

Nick Capodice: Children throwing stick balls in how the other half lives and rich people throwing balls on Park Avenue.

Rebecca Lavoie: Yeah, it was like the pre-setting for Annie, right? Like, that's how I like to think.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: That's good. Yeah.

Christina Phillips: Okay, so I have [00:27:30] a question for each of you about this turn of the century. So this era that President Trump thinks was one of the greatest. So, Hanna, first question for you in 1900, this titan of the oil industry and the namesake of an oyster dish with breadcrumbs and spinach controlled more than 90% of the nation's oil refineries. Who is it?

Hannah McCarthy: This is not my wheelhouse.

Christina Phillips: Oyster dish with breadcrumbs.

Hannah McCarthy: Yeah, I don't eat shellfish. Oh, God.

Rebecca Lavoie: Okay.

Hannah McCarthy: I might be an East coaster, but. Okay. Yeah, [00:28:00] I know, sorry, guys.

Rebecca Lavoie: Oh, my God.

Nick Capodice: It's a it's a person who's mentioned in one of the greatest songs ever written, sung by Taco Bell and Fred Astaire. Puttin on the Ritz. Also in Young Frankenstein.

Hannah McCarthy: Rockefeller. Yeah. Yes. It's Rockefeller. Oh, okay.

Christina Phillips: Let me give you that.

Hannah McCarthy: Okay. Thank you.

Christina Phillips: Um, Nick, next question for you. This board game allows you to, quote, gossip with other passengers, receive telegrams and collect all five pieces of your personal property to advance from the second class to the first class section of the ship. But watch out, you might get put back in third class or worse [00:28:30] yet, never make it to your lifeboat in time.

Nick Capodice: Oh my gosh. So there is a board game called Titanic. There is. Oh my gosh, when was it made?

Christina Phillips: It was made in 1998 by an uncredited designer. It says it uses the similar system to escape from Colditz. I don't know if you know what that means.

Nick Capodice: I do know escape from Colditz.

Christina Phillips: So you must collect necessary items to make it to a lifeboat before the Titanic sinks. There's also a game that was created in 2022 called deckchairs on the Titanic, where you compete [00:29:00] to earn tips from happy customers whilst the ship sinks. Which, ooh, dark.

Hannah McCarthy: Yeah, yeah.

Nick Capodice: That's a game I would play.

Rebecca Lavoie: Have you seen a Kamala Harris tip that she gave a child for speaking in public? The tip is, if you have a fear of public speaking, think of yourself as being somebody on the Titanic who knows that it's sinking and you are the only person who has that information, and you must convey it because you have the knowledge. So when you're talking to people, even if you're afraid, remember there's something that you know that they don't that you have to tell them. [00:29:30]

Archive: Are you going to worry about how you look.

Archive: And how you sound? No, no, because the thing that's most important is that everyone knows what you know, because.

Archive: They need to know what you know. You see what I'm saying?

Rebecca Lavoie: So I like that a lot. Decent tip. I mean.

Hannah McCarthy: Ideally, you're not like, screaming it. No, I was going to.

Christina Phillips: Say I don't think that I would be a good public speaker if I saw that iceberg.

Nick Capodice: Congratulations on your commencement. Oh, Jesus.

Nick Capodice: I took the road less traveled [00:30:00] by.

Hannah McCarthy: Made all the difference.

Rebecca Lavoie: It was inside myself all along.

Christina Phillips: Okay, Rebecca. This question is for you. At the 1893 World's Fair in Chicago, which showcased marvelous inventions such as the zipper, the Ferris wheel, and Cracker Jacks, it was also the location of a three story mortar hotel for a serial killer [00:30:30] who confessed to killing 27 people. What's the name of the serial killer?

Rebecca Lavoie: Oh, it was the basis of the book devil in the White City.

Nick Capodice: Ah, the last name Rebecca of the serial killer is shared by someone called the greatest fictional detective in the world.

Christina Phillips: Mhm.

Rebecca Lavoie: Oh, is it Holmes? I don't know.

Christina Phillips: H.H. Holmes.

Christina Phillips: And by the way, he's from New Hampshire originally. Great. Wonderful. Find out in the devil in the White City. You will not hear about him for like the first like five chapters. Just get ready. You're going to read a lot about the elevator.

Hannah McCarthy: Teased. It's been teased that girls are disappearing and young men are disappearing. [00:31:00] And so I know something's about to happen.

Christina Phillips: That book is really about the World's Fair and about architecture, which is why I love it. Okay, so the score is four. Rebecca. Four. Nick two. Hannah. All right. By the way, a 2016 New York Times study asked Americans what they thought the greatest era of America was, and they chose before 9/11. That was the era that was chosen.

Rebecca Lavoie: All of that time.

Christina Phillips: Before 9/11. And now we're going to take a quick break. And when we come back, we will talk about elites. [00:31:30] We're back.

Christina Phillips: This is Civics 101. We are doing civics trivia, all about the words that politicians say during a campaign cycle. Right now we're going to move on to something we hear all the [00:32:00] time, and we have an email from a listener about this. And that is the term elites. Elites, the umbrella term. Okay. So here is an email from Josie. Hi Civics 101 team, I saw your most recent emails that you're looking for campaign trail tropes. So I asked my family for suggestions and this is what we came up with. Coastal elites, blah blah blah economy from the bottom up and the middle out. The American people. Extremism. Grassroots. Woke parent [00:32:30] rights. Thanks so much for making Civics 101. All the episodes are really interesting, and it's useful to be able to listen to old episodes about court cases or important documents that I need to know for my AP government class. Josie 15 years Arlington, mass. Thank you so.

Hannah McCarthy: Much. Thank you Josie. Thank you.

Christina Phillips: Yes, I if it's okay with you, Josie would like to take Coastal Elites and broaden it out to just elites, if that's all right, because I think coastal elites are part of that. But elites as a term is interesting because it's been used by [00:33:00] different politicians from different parties over time. We've got, of course, the coastal elites. We've also got the Washington elites, the corporate elites, and then just generally accusations of elitism. The key here is that elite is used as a criticism, which is interesting from a language perspective, because if you think of describing like an athlete or a product as elite, it's a good thing. The elite five blade shaving tool. But when somebody is called elite, it's a bad thing.

Hannah McCarthy: To my understanding. So I grew up just south of Boston. [00:33:30] I went to high school in Boston. I went to college in Vermont in a school that's just like kids sitting around talking about philosophy and dancing.

Rebecca Lavoie: It's elite.

Hannah McCarthy: Right? It's elite. And then. And then I got a second degree in New York City and like. And yet at the same time, like, my car broke down two days ago, and like, I don't have enough money to fix it, right?

Hannah McCarthy: So it's been broken down since I've known you.

Hannah McCarthy: I've been driving a rickety old Honda Civic. Is being an elite an ideological [00:34:00] thing? Is it presumed that given these experiences in life, I feel certain ways about the world? Yes. Because it's like my bank account is not elite.

Rebecca Lavoie: What I hear when I hear this word, and I remember it sort of coming into fashion, Is. I mean, in my lifetime, when I remember coming to fashion, it sort of presumes people who think they're smarter than you. Christina, I'm pointing at you like you're the avatar for, like, the audience for whom this is intended. Right. Like, I am the politician. And the elites believe that they know what's best for [00:34:30] you. But you are not like that. You are regular. Like you are just a person who may or may not go to college. And that's okay. You are just a person who may or may not have read this or done that or you know. And it's like, and that's okay, because we're just regular folk. We're not the elite. But that's what evokes for me.

Nick Capodice: For me, it's interesting, just in the last 20 years or so of hearing the term sort of bandied about, it's that it's usually people who are exceptionally wealthy.

Rebecca Lavoie: And who went to Ivy League schools.

Nick Capodice: Who went to Ivy [00:35:00] League schools because their father did and because their father did. You know, and these accusations of elitism are always sort of anti-intellectual. It's felt to me, as opposed to don't pay attention to the fact that I am literally one of the richest Americans in the country. It always kind of smacked funny to me.

Christina Phillips: Yeah, it's interesting, like as you each have reacted to it, it's sort of like building on this like thesis of elite that I found from a book that was written that was sort of building on this definition of elite that I found that is seen as maybe a seminal definition from [00:35:30] a book called The Power Elite by an American sociologist called C.wright Mills. He wrote this book in 1965, and he wrote it specifically to critique a certain group of people who held a lot of power and wealth. So, Hannah, to your point, like, am I considered part of the elite? To some people, yes. I lived on the coast. I got multiple degrees. And then also the way that politicians talk about elites, even if they are one to the American people to kind of say, like, you shouldn't trust these people because they're not like you. But [00:36:00] then also the people who are using this phrase elite are often part of one elite category, and they're speaking about other people in this elite category. They're using a term that sort of describes themselves.

Rebecca Lavoie: It cuts both ways, right? Because Elizabeth Warren uses it about corporate America. She's a Harvard professor, right? She can be called an elite by the people who look at the intellectual class as elites. And she's using the term to describe, you know, the business minds who think that they know what's best for you [00:36:30] and need to be like anti-monopolist or whatever. So it's very interesting.

Christina Phillips: Yeah. So I'm going to read a quote from Mills when he defines this group. He said the most impersonal problems of the largest and most important institutions are fuzed with the sentiments and worries of small, closed, intimate groups. In such circles, adolescent boys and girls are exposed to the table conversations of decision makers and thus have bred into them the informal skills and pretensions of [00:37:00] decision makers. Without conscious effort, they absorb the aspiration to be, if not the conviction that they are the ones who decide. And he said that there are certain categories that the elites are. They run big corporations. They run the machinery of the state and claim its prerogatives. They direct the military establishment and most importantly, they do not see themselves as elites. Wow. So [00:37:30] I have a very dumb trivia about things that have been called elite and things that politicians have done that have been considered elite. Okay. So I'm going to go around you each will get a question. So Hannah, you first you have to identify this elite object or behavior. Okay. Okay. This peppery tasting green has its origins in the Mediterranean. When I googled the recipe using [00:38:00] this ingredient, the first result was from the New York Times cooking website with over a thousand reviews. It's blanc salad with parmesan arugula. Yes, this is arugula. Now, do you remember which politician was called elite for eating arugula?

Hannah McCarthy: I remember that quote unquote insult, but I don't I don't remember...

Nick Capodice: Were they called arugula munching, Chardonnay sipping? Is it like Al Gore?

Christina Phillips: It's actually a politician who, like, talked about arugula in a speech and [00:38:30] everybody jumped on it. Former President Obama, he once said on the campaign trail, anyone gone into Whole Foods lately and seen what they charge for arugula and the culture lost it. It was called arugula gate.

Rebecca Lavoie: To be fair, a lot of people don't go to Whole Foods to check out the price of anything because, yeah.

Nick Capodice: There goes our Whole Foods sponsor.

Christina Phillips: Yeah. Sorry. He was trying to appeal to this idea of expensive food prices that maybe the president can or cannot control, and he just failed.

Rebecca Lavoie: Perhaps Whole Foods is not the best example. [00:39:00]

Nick Capodice: Okay. He was the president. Couldn't he have lowered the price of arugula?

Speaker9: Just kidding. Getting it.

Hannah McCarthy: Also, the president's not going shopping. That's the other thing that's hilarious about that.

Rebecca Lavoie: They don't carry money.

Christina Phillips: So Nick, this question is for you. Identify the elite object or behavior. This thing was first used on a ten pack of Wrigley's chewing gum in 1974. [00:39:30] It can be used by an employee to speed up transactions, or by people like me, who want to avoid those same employees because they are afraid of being judged in the grocery store line.

Nick Capodice: I think it's the barcode that you scan the UPC code?

Christina Phillips: Yes the grocery store scanner.

Nick Capodice: Did you know that in Norway the boats have UPC codes on the side?

Christina Phillips: That's really smart.

Nick Capodice: So that when you go out you can skandinavian.

Christina Phillips: Oh no, oh no, I fell for your joke.

Hannah McCarthy: Poor Christina. Wow. That's a really good idea. [00:40:00]

Christina Phillips: Okay, so do we know which president was accused of not knowing what a grocery store scanner was or how to use one, and that that was elitist?

Nick Capodice: I have a guess on this. I remember because I was in debate club in eighth grade, and we were fighting about whether or not a president should know how to scan something in. I think it might have been George H.W. Bush. Yeah, it is.

Christina Phillips: So to be fair, he was not actually grocery shopping when this happened. He was at a grocery store [00:40:30] convention in Florida, and he just seemed really impressed by the scanner. And so one New York Times headline was Bush Encounters the Supermarket comma amazed.

Christina Phillips: All right.

Christina Phillips: Rebecca, this is for you. Most often used by mechanics, soccer player Lionel Messi also had one in his apartment building so he could step right out of his car and straight into his living room.

Rebecca Lavoie: Is this a car lift? [00:41:00] Like a jack? Yeah, it's.

Christina Phillips: A car elevator.

Hannah McCarthy: Wow. Yeah.

Christina Phillips: So which presidential candidate was accused of being elitist because he wanted to install one in his house?

Rebecca Lavoie: Mitt Romney?

Christina Phillips: Yes. Good job.

Rebecca Lavoie: Thank you. Thank you very much. I am a student. I am a student of Mitt Romney and Mitt Romney's entire thing, because I worked in the newsroom at NPR during that campaign. I remember all the stories that we get to publish on our website about the wealth, because Mitt Romney also has a huge compound [00:41:30] on Lake Winnipesaukee here in New Hampshire. There's a lot there's a lot of there there.

Christina Phillips: The one that I found, for example, was his beach house in La Jolla in San Diego. He wanted to install a car elevator. So one good headline from this was, what is a car elevator? And why does Mitt need one. From the Atlantic.

Christina Phillips: So there we go. Okay. Um, Rebecca, you have five points. Nick, you have five points. Hannah. You have three points. Okay. I think maybe Hannah. This this will be your category, but I might be wrong.

Hannah McCarthy: We'll see.

Christina Phillips: Okay, [00:42:00] so this last and final category, also about elites, is called the Undead Elites. In 2004, the Republican PAC club for growth took out an attack ad against Democrat Howard Dean, who was the former Governor of Vermont and a candidate in the 2004 presidential primary. And the ad accuses Dean of doing a bunch of things that are elitist, like it stands out in history as like one of the most interesting attack ads, I think. And so I'm going to go around and I'm going to ask [00:42:30] you each if this so-called elitism describes Howard Dean or the most famous and important millennial coastal vampire, Edward Cullen, famously played by Robert Pattinson in the greatest saga.

Hannah McCarthy: Yes.

Nick Capodice: Nice knowing you guys.

Christina Phillips: So that's this coastal vampire played by Robert Pattinson. The greatest saga of our generation, the Twilight Saga. When I tested this trivia with my boyfriend, he was like, you have to say who Edward Cullen is because people might not know. And I was like, I just made you watch all of the Twilight movies. [00:43:00] And he was like, but people might not know. So there you go. That's what we're talking about. Hannah? Yes. Is this an elitist trait of Howard Dean or of Edward Cullen, coastal vampire? Reading the New York Times.

Hannah McCarthy: I'm gonna say Edward Cullen.

Rebecca Lavoie: No, it's Howard Dean, right? He got accused of reading the New York Times.

Christina Phillips: He got accused of reading the New York Times.

Hannah McCarthy: He got accused of reading.

Christina Phillips: In this ad. This ad basically [00:43:30] says, like, Howard Dean You, blah blah, blah, blah, blah, blah, blah, blah, blah, elitist.

Christina Phillips: Ad, to my knowledge, and my deep reading and watching of all the Twilight things. I've never seen him read. He never references the New York Times.

Hannah McCarthy: Okay, okay.

Christina Phillips: Fair enough. Nick, is this an elitist trait of Howard Dean according to this attack ad, or is it a trait of cold and sparkly? Edward Cullen vegetarian.

Nick Capodice: Vegetarian. Now, is doctor Dean a vegetarian? Well, the vampire is not vegetarian if they drink blood. So I'm going to go with doctor Dane. No.

Nick Capodice: How [00:44:00] could a carnivorous undead creature who drinks the blood from living.

Rebecca Lavoie: To prevent himself from drinking the blood of living victims.

Christina Phillips: He only drinks animal blood Nick.

Nick Capodice: Oh, I didn't know that. He's like the Bunnicula of real people.

Christina Phillips: He calls himself a vegetarian. He says we're vegetarians.

Nick Capodice: Okay.

Christina Phillips: Because they only drink animal blood.

Christina Phillips: Well, none for you.

Nick Capodice: Just what you see on the side of the tin, I guess.

Christina Phillips: All right. Rebecca. Elitist Howard Dean or erudite Edward Cullen? Body [00:44:30] piercings.

Rebecca Lavoie: I was really hoping you were going to say something else. Um, Howard Dean.

Speaker9: It is Howard Dean.

Rebecca Lavoie: Earring right?

Christina Phillips: Um, okay, so here's the thing. I had to do a cursed Google image search for Howard Dean piercing, because I was trying to figure out none of his photos show a piercing of any kind. I was, like, zooming in on his ears to see if there were piercings in his lobes, but I could not find a single image where he had an ear piercing. But in this ad they claim that he has a body piercing. [00:45:00]

Rebecca Lavoie: Mhm.

Christina Phillips: So if you've seen it I tell you I'm just like zoom, zoom zoom in on pictures. I'm like I can't see a piercing. So I'm assuming he has one or they just are accusing him of having body piercings.

Rebecca Lavoie: Yeah. Maybe that's what that scream was about. Yeah.

Nick Capodice: We're going to Oregon and Michigan.

Christina Phillips: Uh, Hannah?

Hannah McCarthy: Yes.

Christina Phillips: Redemption.

Hannah McCarthy: I hope so.

Christina Phillips: Is this an elitist trait of Howard Dean or of Edward Cullen? Vegetarian vampire latte drinking?

Hannah McCarthy: I'm gonna say Howard Dean.

Christina Phillips: It is Howard Dean. [00:45:30]

Hannah McCarthy: Yeah, that one's too easy. I don't think vampires can consume food. It makes them sick, right?

Christina Phillips: Yeah, I mean, they they say it just tastes like dirt or ash or something.

Nick Capodice: Somebody especially like lactose, right?

Speaker9: Especially lactose.

Hannah McCarthy: Especially that.

Speaker9: Nick.

Christina Phillips: Howard Dean or Edward Cullen piano playing.

Nick Capodice: Oh, boy. Uh, well, I don't think I can't really see Howard Dean tickling the ivories, you know, because he would have made a song out of it if he had. If he had, I'm going to say Edward Cullen, the vampire. [00:46:00]

Christina Phillips: You are.

Christina Phillips: Correct. Nice job.

Nick Capodice: Well, they call me a Twilight expert, and that's why.

Christina Phillips: Okay. Rebecca.

Speaker9: Volvo driver Edward.

Christina Phillips: Cullen. Okay. This is actually a trick question. It's both. But I'm going to give you the point.

Rebecca Lavoie: Oh, Edward Cullen is famously a Volvo driver. And he's like, has that R type Volvo. And he's like super into it. And it made me think that like the author maybe had like just gotten a Volvo and she was super into it because like there's a lot of description of that car in those books - a lot.

Hannah McCarthy: There is a lot of car talk.

Rebecca Lavoie: Yes.

Rebecca Lavoie: Yeah. [00:46:30]

Christina Phillips: Big Volvo was really in on the Twilight Saga.

Hannah McCarthy: That was the only time I was like, this is so boring.

Christina Phillips: Yeah, I do when I - when I showed Ben all the Twilight movies, he was like, is that a Volvo? When he, like, does his, like famous turn to, like rescue her from the men because he read his.

Rebecca Lavoie: Volvo R type station wagon?

Christina Phillips: It's like it's a real sporty car, guys.

Rebecca Lavoie: So specific, so specific.

Christina Phillips: Okay, so here's the [00:47:00] full quote of this ad. Howard Dean should take his tax hiking, government expanding, latte drinking, sushi eating, Volvo driving, New York Times reading, body piercing, Hollywood loving left wing beep show back to Vermont, where it belongs. The beep is not a swear, but it's a pejorative word that I don't want to say.

Rebecca Lavoie: Oh, okay.

Christina Phillips: So we've reached the end of our trivia. Final score, Hannah. [00:47:30] Four points. Yeah, Nick. Six points. Rebecca seven points.

Nick Capodice: Oh, well done.

Rebecca Lavoie: Rebecca. I don't think I've ever won one of these. This is so exciting.

Nick Capodice: You did very well.

Nick Capodice: This is fantastic. What was your favorite part of you being so smart today?

Rebecca Lavoie: Edward Cullen driving a Volvo.

Rebecca Lavoie: I was like, oh, I was, I was I had my fingers crossed.

Speaker9: Yeah. Yeah.

Rebecca Lavoie: I was like, please, oh please oh please.

Hannah McCarthy: Oh. If you had said multiple degrees, that would have been a good one too. That's right.

Hannah McCarthy: Oh [00:48:00] yeah.

Christina Phillips: That's actually. Yeah, that is a good one.

Christina Phillips: Multiple high school degrees.

Christina Phillips: I can't believe. I can't believe they never go beyond high school in those movies.

Nick Capodice: Oh, can I tell a funny Howard Dean story? Please do. We started. Hannah and I started as co-hosts. Like, what, six years ago or something like that. And one of your first interviews, you were like, well, I'm doing one in presidential campaigns. It was Howard Dean's campaign. His campaign manager. And you were like, should I ask him about The Scream? And I was like, yeah. And then you asked the guy and he was like, do you think I'm not ready to talk about the scream?

Hannah McCarthy: Yeah. Yeah.

Nick Capodice: I'm talking about the scream [00:48:30] until I'm dead. I used to watch You're the Man Now dog videos of, like, heavy metal mash ups of that of The scream. Yeah. Yeah. I miss those days.

Rebecca Lavoie: Yeah. I like the goat mash up. You know the Taylor Swift goat one?

Hannah McCarthy: Oh, yeah. Oh, yeah. Yeah.

Nick Capodice: Trouble when you walked in?

Christina Phillips: Yeah.

Rebecca Lavoie: I will say, I cannot believe that the most gratifying thing for me to learn today is that we have not one, not two, but three Twilight experts working on this team. [00:49:00]

Speaker9: Sorry, Nick. That's all right. I mean, at least you can start anytime. Nick.

Rebecca Lavoie: That makes us elites, right?

Speaker9: I mean, we are elites. We are elites.

Christina Phillips: Unfortunately.

Rebecca Lavoie: Thanks so much, Christina.

Speaker9: All right. Thank you. Christina.

Christina Phillips: This episode was produced by me, Christina Phillips, and edited by our executive producer, Rebecca LaVoy. Music in this episode from Epidemic Sound [00:49:30] and Chris Zabriskie Civics 101 is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

So Long, Chevron

The Chevron Doctrine, or Chevron Deference, was an established judicial principle. When the law was ambiguous, the courts would let the agency experts interpret it. After a Supreme Court case called Loper Bright v Raimondo, that is no longer the case. So what does that mean? What exactly has gone away? What happens next?

Our guides to the wonkiest of  the wonk are Robin Kundis Craig and Mustafa Santiago Ali.

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Transcript

Hannah McCarthy: [00:00:02] Hi, Nick.

Nick Capodice: [00:00:03] Hello, Hannah.

Hannah McCarthy: [00:00:05] This is Civics 101. But today, Nick, we're going to dip a toe into 202.

Nick Capodice: [00:00:13] Oh, boy. All right.

Hannah McCarthy: [00:00:18] Today we are talking about something that is wonky. And by that, I mean it's actually about being wonky. As in preoccupied with [00:00:30] arcane details, especially arcane policy details.

Nick Capodice: [00:00:35] All right. Hannah. Oh.

Hannah McCarthy: [00:00:39] I think we are all going to come out of this one semi understanding something that a lot of us don't understand at all. And Nick, isn't that the point of this show?

Nick Capodice: [00:00:48] Yeah. Hannah. Fine.

Hannah McCarthy: [00:00:50] All right. Let's get to it.

Robin Kundis Craig: [00:00:56] Uh, hi. My name is Robin Kundis Craig. Greg. I am [00:01:00] the Robert H. Schroeder Distinguished Professor at the University of Kansas School of Law. I teach environmental law subjects and write about administrative law and climate change.

Hannah McCarthy: [00:01:16] I called Robin up to talk about something called the Chevron Doctrine. And the reason I wanted to talk about it is because the Supreme Court recently overturned it in a case called Loper Bright Enterprises [00:01:30] v Raimondo.

Nick Capodice: [00:01:32] You mentioned this one before on the episode on the Supreme Court docket. This is the case that's about fisheries.

Hannah McCarthy: [00:01:38] Yes, fisheries and federal regulation. But for the purposes of this episode, here is what I want you to keep in mind two basic principles. One, I.

Robin Kundis Craig: [00:01:50] Mean, there's no question that the courts have the basic authority to interpret statutes. Congress has statutes that's, you know, laid out in article three. It's recognized in the [00:02:00] Federal Administrative Procedure Act.

Hannah McCarthy: [00:02:02] Courts can interpret laws. That's pretty straightforward. All right. And two, the.

Robin Kundis Craig: [00:02:07] Issue that people worry about is the court's expertise. Because in some of these statutes, you're getting into some pretty technical issues.

Hannah McCarthy: [00:02:19] Judges are not experts of all agency minutiae. Now, this one is, I think, a little bit trickier, but on its face should seem [00:02:30] kind of clear. So the Chevron doctrine.

Robin Kundis Craig: [00:02:33] Okay, so the Chevron doctrine came in in a fairly early Clean Air Act case, Chevron versus NRDC.

Hannah McCarthy: [00:02:42] Okay, Nick, I think it is fairly common for the details of a Supreme Court case to feel a little obtuse. You get just below the surface and you find yourself in a sea of legal arcana. But with Chevron, the surface itself is, well, [00:03:00] listen for yourself.

Robin Kundis Craig: [00:03:01] And what was going on in that case was that the EPA had decided that the term stationary source, which is a defined term in the Clean Air Act, but it's defined ambiguously, particularly because it refers to both a facility and a emission source, like a smokestack. So the question was, what if you have a big facility [00:03:30] like a factory that has multiple smokestacks, do you count that as one stationary source, or do you count it as ten stationary sources? And so it was a matter of interpreting the statute to figure out what Congress would have wanted or whether it had left discretion to the EPA.

Nick Capodice: [00:03:51] When Robin says so, the question was, Does she mean? Like the question like this is the question before the Supreme [00:04:00] Court how to define smokestacks? Because when I think about the questions the court is answering, they tend to be a little more straightforward. Like, does the segregation of public education based solely on race violate the Equal Protection Clause of the 14th Amendment? That kind of thing? I can wrap my mind around that.

Hannah McCarthy: [00:04:19] Yeah, I think the trick with Chevron is not letting your eyes glaze over at the details of this case, because it is so inside baseball, which Nick [00:04:30] is actually the point. Congress passed a law that said that states needed a permit for something. The EPA, the Environmental Protection Agency, said, actually, we have a rule based on that law that says you don't. And so the Supreme Court had to decide whether the EPA was allowed to do that.

Nick Capodice: [00:04:52] So, in short, and correct me if I'm wrong here, they had to decide whether a federal agency was allowed to interpret [00:05:00] a federal law.

Hannah McCarthy: [00:05:02] So yeah, Congress says something and the EPA says this something means this. And then Scotus says, okay, EPA, you are allowed to do that. Congress was vague, and the EPA is within its rights to interpret the law that way.

Nick Capodice: [00:05:21] And that is the Chevron doctrine.

Robin Kundis Craig: [00:05:24] What the Supreme Court said in Chevron is that if Congress [00:05:30] has not spoken to an issue, or if it's actually ambiguous, when you try to apply the statute in place, which was the case in Chevron, again, a stationary source could be either the factory or the smokestack. Um, then what we're going to do is defer to the agency that's in charge of fulfilling that statute or in charge of implementing that statute.

Nick Capodice: [00:05:57] Defer to the agency [00:06:00] when Congress hasn't been specific about something.

Hannah McCarthy: [00:06:02] Yes. And we also call the Chevron doctrine the Chevron deference and that deference part that is coming from the judiciary. They are the ones deferring, like when an agency rule is challenged in a court, a court cannot swap out its own interpretation of a federal law for the agency's interpretation if that agency's interpretation seems reasonable. Now, this is law. [00:06:30] So it's a little more complicated than that. But that is the gist.

Robin Kundis Craig: [00:06:34] So the EPA, effectively, when Congress was being ambiguous, got to interpret the Clean Air Act to do what it thought made the most sense or was most logical or whatever.

Nick Capodice: [00:06:46] And we're talking about this because Chevron isn't actually a doctrine anymore, right?

Hannah McCarthy: [00:06:53] That's why.

Archival: [00:06:55] Carl. That's right. This is a sweeping decision by the Supreme Court to overturn what's called the Chevron [00:07:00] precedent here. The reason it's significant is because it has enormous implications for the administrative state in the United States of America and all federal agencies and their ability to interpret the law. What the Chevron precedent.

Robin Kundis Craig: [00:07:12] The problem that developed and that was addressed in Loper Bright is that meant that courts were basically ceding interpretive authority to agencies. And that's what finally led to the Loper bright decision. Now, there were a lot of connections in [00:07:30] between. I won't go into those details unless you want me to.

Hannah McCarthy: [00:07:33] So I think we can skirt around the conniptions for the most part. But here's another gist. Congress makes a law. Something shifts in the world, and that law was made before that shift. Like, I don't know, let's just say the climate changes or we have a global pandemic or something like that. What do you do?

Robin Kundis Craig: [00:07:55] So you get those kinds of issues where a problem Congress [00:08:00] was not thinking about could not have been thinking about because it didn't exist at the time, suddenly lands in the agency's lap and they have to decide, does the statute extend this far or not?

Nick Capodice: [00:08:12] Can I make this kind of silly for a sec?

Hannah McCarthy: [00:08:14] Hannah, please.

Nick Capodice: [00:08:16] All right. Okay. Congress passes a law that says horses must be protected. And then years later, we discover unicorns. And [00:08:30] it's like, oh, nuts. Is a unicorn a horse? Do unicorns fall under the Horse Protection Act? At what point is a horse not a horse anymore?

Hannah McCarthy: [00:08:43] Okay. Incredible. And Robin says the debate about such a question goes a little bit like this, except she used proteins as an example.

Robin Kundis Craig: [00:08:55] The Food and Drug Administration has to decide whether a compound [00:09:00] that has helpful properties is a biologic or a drug.

Hannah McCarthy: [00:09:08] The Horse Protection Agency has to decide whether a unicorn is a horse or something else. And that hinges on horse leanness.

Robin Kundis Craig: [00:09:18] That turns on whether it's a protein or not. Well, I mean, what does Congress know from proteins? Um, uh, so, you know, if you've got a string of amino acids, when does [00:09:30] it switch from being a string of amino acids to being a protein?

Nick Capodice: [00:09:34] When does it switch from horse to magic? Congress doesn't know.

Robin Kundis Craig: [00:09:41] The FDA has to make those kinds of calls. And, um, that actually is defining a term, but it requires some deeper understanding of medicine, of biochemistry, of what Congress [00:10:00] is trying to accomplish, of why we have a distinction between biologics and drugs in the first place.

Hannah McCarthy: [00:10:06] Leave it to the people who know animals versus mythology, Middle Ages, Renaissance writing, and the Bible. Okay. They are the ones equipped to decide when something is a horse and when it just looks like one, but is magic. There's a reason we make the distinction.

Robin Kundis Craig: [00:10:21] And so what people are worried about is when courts are faced with these issues that require some [00:10:30] real expertise there, in a litigation context, the way the American legal system works is each side puts on its own experts, and you have battles of the experts, which can make it sound like it's a fair choice for the court, which experts it wants to go with, and that's not always true. Another thing is that a one wing of the court has really gotten into, quote unquote, plain meaning interpretations [00:11:00] of statutory words, and not every statutory word should be interpreted by its plain meaning, because it is dealing with a technical subject, and it needs a more specialized definition.

Nick Capodice: [00:11:19] No rightly idea what that means, Hannah.

Hannah McCarthy: [00:11:22] All right. The example that Robin gave me was tomatoes. There was once a case about import taxes on vegetables. [00:11:30] Now, Nick, a tomato is a fruit.

Nick Capodice: [00:11:33] Oh. This one? Yeah. By definition, yes. A tomato is a fruit.

Hannah McCarthy: [00:11:38] But.

Nick Capodice: [00:11:39] But most people think and treat a tomato like a vegetable.

Robin Kundis Craig: [00:11:44] And so in that case, the court actually took what's called a purposive approach, looking at what Congress was trying to accomplish, looking at the purpose of the statute. And it said, look, most people in Congress, most people in the United States consider tomatoes [00:12:00] to be vegetables. Therefore they're subject to the import tax. Okay.

Nick Capodice: [00:12:04] So that's a plain meaning interpretation. Like, sure, you can dance around it and say that Congress didn't intend to include tomatoes in the vegetable tax, but come on. Of course they did.

Hannah McCarthy: [00:12:16] Yeah, but proteins are different. I mean, unicorns.

Robin Kundis Craig: [00:12:26] If you look up a simple definition of what a protein is, it'll say a string of [00:12:30] amino acids. Well, yeah. But then a biochemist will tell you, but it's got a fold and it's got to get complex and it's got to be doing something. And and that's the distinction the FDA made in that situation.

Nick Capodice: [00:12:43] A unicorn appears to be a horse with a horn, but actually in a unicorn, expert will tell you that their horn has to have healing properties. When it throws itself off a cliff to escape you, it has to land on that horn and survive, and [00:13:00] that they won't throw themselves off a cliff to escape a virgin.

Hannah McCarthy: [00:13:03] We're not talking about fruit here. We're talking about the distinction between a horse and all of our wildest dreams coming true. One is higher stakes than the other. But what the Supreme Court did in the Loper Bright case is, say, you know what the.

Robin Kundis Craig: [00:13:19] Logic of the Loper Bright decision is? We're not going to engage in Chevron deference because it's not in the APA, the Administrative Procedure Act.

Hannah McCarthy: [00:13:28] The APA says [00:13:30] that when an agency interprets a law and makes a rule, for example, yes, horses must be protected, but a unicorn is not a horse. You do not have to protect unicorns.

Nick Capodice: [00:13:43] Although, I mean, to be fair, you should.

Hannah McCarthy: [00:13:45] Yeah. No, you definitely should. But anyway, that rule can be reviewed by a court. And then that court shall decide, quote all relevant questions of law, interpret constitutional and statutory provisions, and determine [00:14:00] the meaning or applicability of the terms of an agency action.

Nick Capodice: [00:14:04] So a court could say, I don't know, looks kind of like a horse to me.

Hannah McCarthy: [00:14:10] But for the past 40 years, we had the Chevron deference, which required courts to defer to the agency interpretation when a law was ambiguous or left an administrative gap like the protect all Horses law does not say protect all equines. It says protect all horses. And [00:14:30] if the agency interprets that to mean not unicorns, Chevron would have meant, yep, the agency knows best.

Nick Capodice: [00:14:39] But Chevron is over. Now it.

Hannah McCarthy: [00:14:41] Is dunzo. And we're going to talk about what that might mean and what it might not very soon. But first, Nick and I are going to take a little break so that we can think about unicorns. Absolutely.

Nick Capodice: [00:14:52] And before we do that, just a quick reminder that Civics 101 is listener supported. And everything from our unicorn research, our in-depth [00:15:00] unicorn research to our microphones is possible because of you. If you want to join the beautiful community of Civics 101 supporters, you will be our unicorn and we will protect you. You can do that at our website civics101podcast.org.

Hannah McCarthy: [00:15:17] All. Right. We're back.

Hannah McCarthy: [00:15:27] We're talking about the end of the Chevron Doctrine [00:15:30] or deference, a 40 year judicial principle that told courts that they had to leave some things up to the experts. And before the break, I promised that we would try to understand what that means. Now that Chevron is over. We'll hear from Robin again in just a moment. But I want to introduce you to our second guest.

Mustafa Santiago Ali: [00:15:49] Well, I'm glad Robin went over it. I mean, I can go deep on the law, but most folks fall asleep. Um, so this.

Hannah McCarthy: [00:15:55] Is doctor Mustafa Santiago Ali. He's the executive vice president of the National [00:16:00] Wildlife Federation. He has also spent a lot of his life empowering civic voices in many, many communities. And we are going to have a whole other episode about that. But for the purposes of this episode, we talked to Mustafa in part because of his 24 years at the EPA. When I asked him about Chevron, he told me to consider the political climate when it was first established.

Mustafa Santiago Ali: [00:16:26] Yeah. So, you know, you got to understand the moment, right? That was the Reagan [00:16:30] administration. Uh, they were very focused on federal Agencies having the power to make decisions, but at that time they were wanting federal agencies to make decisions around deregulation, and that's why they were so supportive of the Chevron case.

Archival: [00:16:53] Anyone who's ever wrestled with a tax form, or had to make sense out of a complicated bureaucratic regulation knows how costly [00:17:00] and time consuming government overregulation can be. And that brings me back to regulation.

Nick Capodice: [00:17:06] Okay, so when the Chevron deference was established, the hope of the executive branch was that it would lead to deregulation, not more regulation.

Mustafa Santiago Ali: [00:17:16] They did not know that over the years, we would have a country that became more diverse, diverse in ideas, diverse in a number of other ways, and they would no longer have that power to be able to support [00:17:30] business and industry in the way that they saw fit, and that people would be demanding that our federal agencies continue to do a better job in protecting their lives. And that's why going all the way back and understanding those dynamics around the Chevron versus NRDC case is so important.

Hannah McCarthy: [00:17:48] Essentially, Mustafa sees Chevron as having been something that allowed federal agencies to do what they are ostensibly supposed to do protect people and make the country [00:18:00] a safer, healthier place.

Mustafa Santiago Ali: [00:18:02] Well, you know, I'm not old enough to have been there back then, but, you know, I did have the opportunity to have mentors who were there and who appreciated the fact that the expertise that individuals had garnered over years, not just in school, which is important, but also in real life experiences on the ground, being able to understand the laws that folks in Congress were making.

Nick Capodice: [00:18:29] So Mustafa [00:18:30] is saying that the agency experts have spent their whole career in and out of school, understanding the stuff that Congress passes laws about.

Hannah McCarthy: [00:18:38] Right. And Mustafa says that even Congress knows that it doesn't always, or even often really know what it is passing laws about.

Mustafa Santiago Ali: [00:18:48] And even they also said we don't have the expertise to know all the ins and outs, but we will rely on these federal agencies who do have the experience and expertise [00:19:00] to make sure that the regulations that we put in place are going to be the ones that are going to be beneficial to people. So over the years, people really appreciated being able to. One honor the oath that they took and to do the best job that they could, to make sure that the American public had the things that they needed to have safer and healthier lives.

Nick Capodice: [00:19:22] I do just want to jump in quickly here. Hannah, in all seriousness, in all of my years of us working on this show, often talking to people [00:19:30] who are either in federal agencies or used to be in federal agencies. This is definitely the case that they took an oath to well and faithfully discharge their duties. And they take it super seriously because, you know, civil servants were not handpicked as a presidential favor to somebody to just sit in a chair. They are qualified. They want to do their jobs as best as possible because they know who they're doing them for.

Hannah McCarthy: [00:19:56] I totally agree, I am always honestly quite moved [00:20:00] by the amount of good faith, effort and civil servants. Okay, so these civil servants lost a little bit of the judiciary's faith in them, right? Chevron is over.

Mustafa Santiago Ali: [00:20:12] Well, Justice Elena Kagan, she criticized the decision, arguing that it turns judges into de facto policymakers. And what she was really saying in that moment is that, you know, we may have experience in the law, but we do not have the experience of [00:20:30] a scientist, of a toxicologist. Of a biologist. Of a number of these folks who have spent their years in perfecting their craft and then understanding how they could utilize that. So she said, you know, it was never the intention for us to be able to take this power away from the agencies that have to do this work. So that's what she was speaking about in that moment, in her dissent.

Hannah McCarthy: [00:20:56] We actually have to talk about this dissent, Nick. It is not [00:21:00] often that a justice's dissent gets as much news coverage as this one did. Outlets described it as devastating, scathing, even blistering.

Nick Capodice: [00:21:11] Really like for this inside baseball case?

Hannah McCarthy: [00:21:15] Yes, really. Justice Kagan said, quote, as if it did not have enough on its plate. The majority turns itself into the country's administrative czar. She said, quote, a rule of judicial humility gives way to [00:21:30] a rule of judicial hubris. She quotes the Chevron opinion from 1984 which said, quote, judges are not experts in the field and are not part of either political branch of the government. And then she goes on to say, quote, those were the days when we knew what we are not.

Nick Capodice: [00:21:48] Justice Kagan is not pulling any punches there.

Hannah McCarthy: [00:21:52] One of her big points, Nick, was precedent matters in the world of law. It's called stare decisis, [00:22:00] relying on and respecting the rulings and opinions of past judges. Justice Kagan ends her dissent by saying, quote, my own defenses of stare decisis, my own dissents to this court's reversals of settled law by now fill a small volume. Once again, with respect, I dissent.

Nick Capodice: [00:22:23] So she used her dissent in part to say, I keep dissenting, and it's often for the same reason. [00:22:30] And oh, look, I have to do it again. Is it a stretch to say that she sounds tired?

Hannah McCarthy: [00:22:39] I mean, she does. She sounds fully exasperated. And I do think it's important to note, for those out there who don't read Scotus opinions regularly, they often end in something like, respectfully, I dissent. But in the past few sessions we have gotten sign offs. Like with sorrow, we dissent [00:23:00] or with fear for our democracy, I dissent. The justices really don't give interviews. They don't write op eds. This is the closest that we get to that. So that is what Kagan thinks. Here's what Mustafa thinks.

Mustafa Santiago Ali: [00:23:19] Well, I'm an optimist, right? But I'm also an optimist that deals with the reality of the situations that we find ourselves in. And we have made progress over the last 40 years [00:23:30] in relationship to environmental protection because we were able to regulate entities. You know, there was a time in our country when rivers were catching on fire, when in many cities you couldn't look up and see the sky because there was so much air pollution, smog that was there. Now, you said that there are some folks who appreciate the decision. That's true. There are some folks on the business and industry side, usually those who are in the fossil fuel world, but there are many others who have real [00:24:00] concerns with this. Why do they have those concerns? They have concerns because they like to have a stable playing field, if I can say it that way. They like consistency. And this breaks 40 years of consistency, which means it makes it much more difficult for them to plan and to actually have the utilization of their capital resources. So that's one side of the equation.

Nick Capodice: [00:24:25] A stable playing field. And that's an interesting way to put it, because it's [00:24:30] not like Mustafa is saying, you know, regulation is over or regulation is just going to be left up to the courts entirely. He's saying we had a way of doing things that worked well and this throws that off.

Hannah McCarthy: [00:24:44] Yeah, I think I actually asked both Robin and Mustafa, you know, basically like, is the sky falling from the perspective of these federal agencies? And as is so often the case, the sky is almost never falling because the country is a multi-layered and complicated [00:25:00] entity. But Mustafa did add this.

Mustafa Santiago Ali: [00:25:04] The other side of it is that this creates a chaos. There are going to be additional judicial actions that are going to happen. This also, most folks in business and industry and I work with a number of them over the years when I was at EPA. They also understand that this will slow processes down. And one of the things that they have always shared is that we want to have fairness in the decisions that are happening, but we also wanted [00:25:30] to expedite more quickly. So this also presents another set of challenges for those in business and industry. You have to remember, what came out 40 years ago didn't just set precedent for law in relationship to EPA. There were a number of other federal agencies that were also a part of the sets of actions that came out afterwards, that we are literally weakening the protections that the FDA and a number of other places.

Hannah McCarthy: [00:25:56] So we've talked quite a bit about the environment here, because that [00:26:00] is Mustafa's and Robin's area of expertise. But Chevron was cited in over 18,000 cases over the course of its life. There are a lot of federal agencies who have had their rules reviewed and accepted by the judiciary because of Chevron. Mustafa's worry is that the Loper bright decision Will just, generally speaking, make the whole system less efficient.

Mustafa Santiago Ali: [00:26:29] You've also [00:26:30] made it much more difficult for us to have timely sets of responses, because no longer does the agency make final judgments on things. It ends up the courts are the ones who do that. So it just creates this administrative burden. It creates additional cost, and it will probably frustrate many of the folks who are hoping that our federal agencies can be as efficient and effective as possible.

Hannah McCarthy: [00:27:06] And [00:27:00] to those who hear this episode and are thinking, all right, so the courts are in charge of what kinds of rules agencies get to make. Robin told me about this other form of deference that does still exist.

Robin Kundis Craig: [00:27:23] There always have been and always will be a lot of agency decisions that would not have raised [00:27:30] Chevron as an issue to begin with. Then what the court went at great lengths to say was that, hey, we're still going to allow what's known as Skidmore deference. And Skidmore deference means basically whatever the agency's interpreting, it's not formal enough that we're going to give it Chevron deference. But if the agency convinces us they're right, we'll go with the agency. So as [00:28:00] long as the court sticks with that and says, yeah, we will agree to to listen to the agency and, and be persuaded when they're being persuasive. Um, there is still a fair amount of deference room left for the agency.

Nick Capodice: [00:28:15] All right. Hold on a minute. There's basically, like a lesser chevron.

Hannah McCarthy: [00:28:18] There is kind of for now.

Robin Kundis Craig: [00:28:22] Now, why I'm phrasing that the way I'm phrasing it is, is the court made up Skidmore deference just like it made up Chevron [00:28:30] deference?

Hannah McCarthy: [00:28:30] Robin explained that, you know, the Supreme Court said there is the Administrative Procedure Act and Chevron is not in it.

Robin Kundis Craig: [00:28:38] Well, guess what, Skidmore deference isn't in the Administrative Procedure Act, either.

Nick Capodice: [00:28:43] Got it. It isn't impossible to imagine this other deference also going the way of the dodo.

Hannah McCarthy: [00:28:50] Robin did tell me that it would be very strange to not give an agency the chance to explain and defend their thinking, especially when they're being sued [00:29:00] and a judge does not have to use Chevron to say that an agency is allowed to do their thing.

Robin Kundis Craig: [00:29:06] For the lower courts, for the federal district courts, and particularly the federal courts of appeal, which decide way more cases than ever reach the Supreme Court. I think most judges, particularly in highly technical cases, are going to be interested in what the government's position actually is. There's still a general respect for [00:29:30] the federal government. One hopes continues that will lend them to at least listen, at least take seriously whatever it is that the federal agency is saying. If, as I suspect will happen, the majority of lower court judges, district court and court of appeals judges stick to business as usual. Basically, they're just not going to be saying Chevron.

Nick Capodice: [00:29:58] Is it possible, Hannah, [00:30:00] that getting rid of Chevron doesn't change much?

Hannah McCarthy: [00:30:04] It is possible, but it isn't likely. There are states around the country that don't like certain rules, and their chances of successfully challenging those rules just went up. That means more lawsuits against federal agencies. One other thing, Nick. The Administrative Procedure Act, the thing that Scotus based its loper bright decision on. It says that people [00:30:30] have six years to sue an agency over a new rule.

Nick Capodice: [00:30:34] Like the agency makes a rule and a state or a company or what have you has six years to challenge it. And if they don't challenge it in six years, they just can't do it, period. Yeah.

Hannah McCarthy: [00:30:46] Well, on July 1st, 2024, the Supreme Court issued a ruling that says that that six year statute of limitations begins when the plaintiff is quote unquote, injured, not when the agency [00:31:00] makes the rule.

Nick Capodice: [00:31:01] Now, what does that mean?

Hannah McCarthy: [00:31:02] That means that if I open a business selling cupcakes tomorrow, and a federal agency issued a rule about cupcake size in 1954, I am allowed to sue that agency over that rule because it limits how big my cupcakes can be, and I do not like that.

Nick Capodice: [00:31:19] Even though that rule is 70 years old, right?

Hannah McCarthy: [00:31:22] And I have six years to do it. In other words, there's really no such thing as a finalized [00:31:30] rule anymore.

Nick Capodice: [00:31:32] So way more lawsuits then.

Hannah McCarthy: [00:31:40] All of this brings me to a point here in this strange inside baseball of an episode, we've been talking a lot about what this means in terms of process and rules and regulations, but Mustafa brought it all back around to the human beings in those agencies. There was a time [00:32:00] when the courts prioritized what those people had to say, because it was assumed that they knew best. The end of Chevron is probably going to change that.

Mustafa Santiago Ali: [00:32:12] Well, I think the concern is that people feel undervalued. And, you know, almost on every job you want to help people to to know that they're honored and valued and keep morale high. Right. Um, and when you have these types of actions, it sends a message that [00:32:30] you're not as valuable and you're not as needed. And the level of expertise and intelligence that you bring, you know, that is not a priority in the process.

Nick Capodice: [00:32:41] Okay, Hannah, one last question for you about all this. Go for it. We are talking about agencies making rules. Those rules are based on laws. And Chevron said that when the law was unclear or ambiguous or what have you, the agency knows best. [00:33:00] So now that it's over, can Congress just make laws more specific, kind of do a little bit more heavy lifting? Is that the possible answer to this?

Mustafa Santiago Ali: [00:33:11] Again, I'm an optimist. So my answer is yes. But there are also some challenges, right? We now are going to have to have folks on Capitol Hill who are creating much narrower laws. And the problem is that, one, it's hard for people to get anything done on Capitol Hill. Right now, we're asking [00:33:30] folks in a very tough time to be able to create the new sets of actions that are going to be necessary to keep people protected, and that's just going to take work. So we just have to be very mindful of that.

Hannah McCarthy: [00:33:43] So narrower laws. Sure. A horse. And by that we do not mean a unicorn. And for now, and I do mean for now Congress has one other option.

Robin Kundis Craig: [00:33:57] You know, I think one of the important [00:34:00] things for people to understand is that the overruling of Chevron is not yet a constitutional decision. I expect it to be a constitutional decision about the next time where that distinction matters. But it's not yet a constitutional decision, which means technically, Congress still has something to say. So because the court [00:34:30] rested on the Administrative Procedure Act, Congress could go back and rewrite the Administrative Procedure Act to write Chevron back in. It could also put deference into various statutes when it really wants the agency expertise to be listened to. Now, like I said about the time Congress actually decides to do that is about the time I think the court will reach for article three of the [00:35:00] Constitution and make this constitutional ruling, which then Congress can't overrule. But for the moment, Congress could, if it wanted to really start tailing deference in various statutes? Because the Administrative Procedure Act is a default. If a specific statute says do something else, that specific statute governs.

Hannah McCarthy: [00:35:24] But of course, as many of us know, relying on Congress to take action is not always [00:35:30] the best course of action. So instead, I will leave you with this one last thought. It's from Mustafa, who pointed out that, you know, not just because of Chevron, but because of a lot of what's been going on at the Supreme Court. We're all paying a lot more attention.

Mustafa Santiago Ali: [00:35:49] We have a public that is now becoming more aware of how incredibly important it is to understand who our judges are, what they stand [00:36:00] for. And if we should be supporting them. Um, especially if they're elected judges or the individuals who will, you know, place those judges in those respective positions. So that gives me hope. Now, I know that we still have lots of education to do so folks can make the best decisions for themselves, but I'm seeing people starting to pay so much more attention. People stop me in [00:36:30] the airport. We'll have some questions about a number of issues, and this is one of those that, you know, five years ago, folks wouldn't have said, hey, but what do we do about the courts? So I think, you know, it's a beautiful evolutionary moment. I just wish that it also didn't come with the pain of many folks having to deal with these sets of actions that are going on.

Hannah McCarthy: [00:37:05] That [00:37:00] does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca LaVoy is our executive producer. We might have gone a bit above and beyond the basics on this one, but if you are looking for a little more 101in your life, Nick and I have a book. It's called A User's Guide to Democracy, and it's your pocket companion to living in this twisty, twirly nation of ours. You can find it wherever books are sold. [00:37:30] Music in this episode by Jay Vartan. Adeline. Park. Floors. Deuces. Staff and Karlin. Sugoi! Real heroes. Paper twins. Paisley. Pink. Dejana. Beigel and Jon Bjork. As always, you can get more Civics 101 at our website civics101podcast.org. Civics 101 is a production of NPR New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Go play a game.

Nick and Hannah both love board games. There I said it. So what are they doing in a Civics 101 episode? 

Well, from Student Council and Model UN to CIA intelligence acquisition scenarios, there is a fine line between games and simulation. We learn more about things when we pretend to do them. 

Today we talk to three designers about their civic-centric games; Tory Brown of Fort Circle Games discusses Votes for Women, Cole Wehrle of Wehrlegig Games breaks down John Company, and Non Breaking Space explains Cross Bronx Expressway, an upcoming game from GMT.

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Transcript

Non Breaking Space: First of all, thank you. All over there at the table. This is a game that is obviously near and dear to my heart, and I like to just sort of be able to see other people, one learn it, see them, react to it and take in. I'm not sure if you have any background or any information about the Bronx prior to this, but I think that you hopefully will walk away with at least the interest and curiosity about like, oh, okay,

Nick Capodice: This is NB. NB stands for Non-breaking space. Who is explaining [00:00:30] their new board game, Cross Bronx Expressway? If you've heard of.

Non Breaking Space: The Cross Bronx Expressway, I apologize because you more than likely spent about an hour in traffic.

Nick Capodice: I'd heard, or rather I'd seen on discord that NB was demoing this game at the MIT Game Lab in Cambridge. It was at an event I desperately wanted to go to called Games Against Oppression, and the MIT Game Lab generously let me come in and see [00:01:00] it in action.

Non Breaking Space: The first way that everybody can lose the game is if the city goes bankrupt. And the way this.

Nick Capodice: And if you're curious what a game about city planning. Robert Moses eminent domain in the South Bronx from 1940 to 2000. Looks like. Just you wait and be, by the way, is anonymous. And to give full disclosure, this is an episode about board games and civics and game designers and a whole bunch of stuff. But I got to say, NBI is a friend of mine. Hanna's too. We've [00:01:30] played games with them in person on the internet. We talk about games all the time. So who are we and what are we doing here today? People who have listened to our show for a long time know a little bit about us personally. The things we're obsessed with.

Nick Capodice: The dolls we had as a child. Our favorite musicals. that Hannah played the cello and I [00:02:00] the harmonica. But if you met a friend of mine on the street and you were like, hey, what's that Nick guy all about? Eventually, after the Shakespeare and the Michael Caine impressions and the books about con artists, eventually board games would come up. But we're not like a memoir show. You're probably asking, what are board games doing in a civics 101 episode? Well, stick with me. Call me a Pollyanna. Call me a big hearted galoot with stars in his eyes. But [00:02:30] after months of madness, utter madness in the world of civics and politics, sometimes I feel that maybe, just maybe, board games could save us all. Or maybe that's too much. You're listening to Civics 101. I'm Nick Capodice.

Hannah McCarthy: I'm Hannah McCarthy

Nick Capodice: And today we are talking about civics in board games. Where are you at, by the way? Where are [00:03:00] you recording this?

Hannah McCarthy: Um, right now I am sitting in my childhood bedroom at my parents house in Braintree, Massachusetts.

Nick Capodice: Usually we record these things in studios, but today we decided to sort of do it wherever we were. I'm in my kitchen, which is why maybe it's a little bouncy. It's going to be a miracle if no leaf blower comes in like in this neighborhood.

Hannah McCarthy: It'll be a miracle if the cat doesn't knock at the door. She does this funny thing where she just kind of, like, slams into it. She's like.

Nick Capodice: All right, just to kick it off, Hannah, [00:03:30] everybody's thinking it. I'm just saying it. We both love board games. So first you tell me, why do you like games so much? Like, what do they do for you?

Hannah McCarthy: I think it's so it's a number of things. I think if I have to be really deeply honest with myself, um, I'm someone who's a little bit hyperactive And playing a board game feels like something is [00:04:00] matching my energy. The degree to which not all board games, but the degree to which it asks me to use parts of my brain that I don't always light up for a long time. Nick, I don't know if you remember when you and I would play board games. I might have been a little bit of a sore loser.

Nick Capodice: You were such a sore loser. Yeah, it would, like, end the night.

Hannah McCarthy: And I had never interrogated that part of myself. And over years and years and years of playing board games, I learned how to lose, [00:04:30] which I think is vital to civil discourse. Like, you have to know how to lose, and you also have to know how to handle sudden shifts in the conversation with grace and dynamism. And I think board games taught me that.

Nick Capodice: I have a bunch of reasons. As you know, I think everybody in the world should play games. And I'm going to tell everybody my deepest private reason at the end of the episode. But for a Civics 101 lens, [00:05:00] I'm going to give the morality play reason.

Hannah McCarthy: A morality play reason.

Nick Capodice: Morality play reason. You know what? Morality plays are, right?

Hannah McCarthy: Uh, yeah. I was a theater kid, Nick. Morality plays where, like, I think 15th century or something. And, um, it's the, like, devil and the angel on the shoulder. And these are these plays that, like, personify the virtues and the vices. And you've you've got someone who, like, follows this arc of, like, you know, being [00:05:30] dragged down by the vices and giving over to the vices. But then there's it's usually a redemption story as well. Like eventually, like, even if someone commits avarice, in the end they will choose like charity, right?

Nick Capodice: Yeah. Like the sins themselves would come up to you like avarice or wrath or lust would be like, you should do this. And then the angels are like, no, but I bring all this up, Hannah, because there's a book I once read called Morality Play by Barry Unsworth. And here's a 30 second summary of this book. And I think about [00:06:00] this every day. So there's a troupe of actors and they're touring medieval England and they're doing morality plays, and they visit a town where a murder just happened. Now, a person had already been found guilty of a murder. This person was arrested. And the theater troupe, to make a little extra money, can't really get the butts on the seats. They decide to do a staged production of the murder. So when they're rehearsing, though, because they were playing the characters involved in the murder, [00:06:30] they realize something. And what they realized was that it wasn't possible.

Hannah McCarthy: Wait, like what wasn't possible?

Nick Capodice: Any of it! The person that the town arrested couldn't have done it. None of it added up. They were wearing the wrong clothes for the season. They couldn't have held the knife in the hand. They said they did. The police arrested the wrong person. And here's the point. When you inhabit someone else, when you pretend to be doing something, [00:07:00] you have a far different understanding of it than if you just like, read a book about it.

Hannah McCarthy: So it sounds like you're saying that when you're playing a game, because we are talking about games here. And, you know, maybe for our show, playing a game that explores some sort of civic process, um, it maybe unlocks a new understanding of that process because you're actually participating in something. This is my big civics thing, Nick. It's like you don't get lead laws unless the president's dog dies from eating [00:07:30] lead. Like you have to experience something to feel empathy and to understand it.

Nick Capodice: Absolutely Hannah. Students do simulation all the time. Student council, model UN, driving simulators. The CIA does this too. The Army does this

Archival: What's called a warfighter exercise. It is the first part of the brigade's annual training period and it involves.

Hannah McCarthy: Yeah. So I've heard of war games. Right. And I've been like, what are they actually doing? Like, Nick, do you know [00:08:00] what kinds of games the CIA uses to train agents?

Nick Capodice: Yeah, they use a bunch of, uh, one is called kingpin the hunt for El Chapo, the creator of this game, Volko Ruhnke. He is a CIA intelligence educator who said, quote, it is to train analysts who might work with law enforcement and other partners around the world to find a well armed, well defended, well protected bad guy. End quote. Now this guy Volko Ruhnke, he [00:08:30] makes lots of games that non CIA agent people love. You know, I have run games on my shelves and I didn't know he was with the CIA. And likewise the Army has a massive colossal board game. It's one they run every two years. It's called warfighter exercise. I don't think they refer to it as a game though. But what they do is they test out combat operatives in different world arenas.

Hannah McCarthy: But you're not really a war games person, right? [00:09:00] Like you don't you don't really play a lot of war games.

Nick Capodice: Yeah I would not really play war fighter exercise. I don't have interest in playing at war. Hannah. Even when I play civilization, I'm like, let's just be nice to everyone and develop our sciences.

Hannah McCarthy: I always went the religious victory route, which probably I don't know if that's because I was raised Catholic or what, but I wouldn't say that was let's be nice to everybody.

Nick Capodice: So today I'm going to share three games with our listeners. [00:09:30] Hannah. Now, these are not reviews of these games. There's too many other places that do that. I'm just going to give a brief explanation of what they are and what they teach us about politics. Three games that explore three different civics topics, because there are games like that out there nowadays.

Tory Brown: It is not just risk and monopoly anymore. Thank goodness.

Nick Capodice: This is Tory Brown. She is the designer of the board game Votes for Women.

Tory Brown: So Votes for Women is a [00:10:00] board game I designed about the American woman suffrage movement and the ratification of the 19th amendment. It is primarily when you play it. You look at a map, you draw cards, you're trying to build power in states, and you are playing back and forth. Suffrage versus opposition to recreate the time period from 1848 to 1920, when our American woman suffrage movement was successful in ratifying the 19th amendment.

Hannah McCarthy: Okay, so some people play like the actual [00:10:30] suffrage movement, people who are fighting for a woman's right to vote, and then others play the opposition to that.

Nick Capodice: Yeah. Would you be willing to play as opposition?

Hannah McCarthy: Um, know thine enemy, right?

Nick Capodice: And the reason Tory wanted a player at the table to play opposition is because opposition was real and is real.

Tory Brown: Opposition was a real nuanced effort to stop social [00:11:00] progress. And we know that those forces sort of never really went away. And I think to learn about our history and help us think about our present so that we can get engaged in a better future for us all. People have been extraordinarily resistant. Some some people have been extraordinarily resistant to playing opposition, which I think really took me by surprise. Board gaming, and specifically war gaming folks play as Nazis. Folks play as the Confederacy. They play all sorts [00:11:30] of unsavory or distasteful sides. But folks who have no problem playing as the as a Confederate really been resistant to the idea of playing as opposition. And when we talk about it, when they post, when I'm able to sort of have a conversation, people say it just feels really personal, that they know their mom, their wife, that women in their lives, it feels that it drains some of the fun out of the activity to play [00:12:00] in opposition.

Nick Capodice: Just as an interesting side note to anyone out there who says this is all dusty history and it's in the past and we're over it. Women have the vote. Facebook banned ads for the Kickstarter of this game because it dealt with a quote unquote sensitive social issue.

Hannah McCarthy: Because it dealt with like, racism or what I don't understand.

Nick Capodice: I don't actually understand either. I think just advocating to get women the right to vote was enough to be like, oh, not right now. We're in sort of a tough [00:12:30] political time. Mhm.

Hannah McCarthy: Okay. Have you played Votes for Women?

Nick Capodice: I have not, not in person because in spite of banned ads it is sold out and it's in a reprint right now. So I've just played it online and can I just say real quick it is gorgeous, Hannah. The art on the cards and on the board. It comes from a massive archive of primary sources like leaflets, newspapers, cartoons, photographs, etc. not.

Tory Brown: Every historical board gamer is gifted [00:13:00] with such great primary sourcing, but a big reason I think the game is so beautiful is the graphic designer that I worked with Bridget and Delicado, and it meant a lot to me as a woman to be able to work with another woman on this project. And she created this, this overall visual style, a motif that sort of harkens to the scrapbooks of the era.

Hannah McCarthy: All right. So what are you doing in this game? Like, what's what's the game play? What's the mechanic?

Nick Capodice: You are moving around the country trying to [00:13:30] foster or quash support for women's suffrage. So you play cards to campaign in states, to organize, to lobby, to trigger events. It is six turns in total, and it takes about an hour or so.

Hannah McCarthy: To your whole morality play idea here. Nick, what does Tory want? Players to leave the game understanding in a different way? What what sort of change does Tori hope happens?

Tory Brown: The idea for the game is that [00:14:00] movements are magic and that it took 70 years. Untold number of people, and a lot of hard work to ensure that women across America were full citizens of this country. There's still a lot of work on, you know, on voting rights and on who gets to be full counted Americans.

Nick Capodice: This game truly makes you feel the difficulty in getting an amendment ratified. It makes [00:14:30] you understand different coalitions.

Hannah McCarthy: I do wonder because, you know, we made two episodes on the 19th amendment. I, I fell down the rabbit hole on this world of suffragists in America. And many of the women in this movement, especially the most powerful women in this movement, were racist. They used horrible language. Um, there were some leaders who claimed that white women should get the vote before black men, and they criticized the 15th amendment. Does Tori address [00:15:00] that in this game?

Nick Capodice: She does.

Tory Brown: It is ultimately like the crux of the game. You cannot ignore the issue of race. It is a part of American history at every turn, right? It's not like some college professors at Berkeley in 1992 just decided to, like, invent woke language right? In the newspaper. They're talking about white supremacy in 1910. This is the language of our history, and this is language that we need to deal with and understand has not just been invented as some kind of divisive topic. [00:15:30] This is like the thread of our American history.

Nick Capodice: Votes for Women 60 minutes. Not difficult to learn. Super fun. You learn a whole lot, not just about history, but like Tori said, the power of movements. All right, break time. Get some pretzels and fill the tumbler. Two more games and maybe an excess of inside baseball when we get back.

Hannah McCarthy: Where did that term come from, Nick? Inside baseball.

Nick Capodice: So it comes from the 1890s. [00:16:00] And the inside in this expression means like inside the park. At this time, people thought baseball was like hitting dingers, like hitting home runs. But if you play an inside baseball, you're not focusing on that. You're focusing on getting people on base through walks and bunts and clever plays and all that. It's not as fun, maybe for the crowd to watch, but you're really working the system instead of just like slamming dingers over the fence. Well, if you are a fan of inside or outside baseball, and by baseball I mean civics, [00:16:30] and you want the 101 from 200 episodes in book form, check out the one that Hannah and I wrote. It's called A User's Guide to Democracy How America Works, and you can get it wherever.

Hannah McCarthy: We're back.

Hannah McCarthy: We're talking about board games and civics. All right, Nick, you said there were three games, right? So give me number two.

Nick Capodice: All right. Game number two is one that [00:17:00] we have played Hannah. We're going to talk about the company.

Hannah McCarthy: Mhm. I know what you're talking about here.

Nick Capodice: Tax laws nepotism. It's John company picky spouses fancy houses play John company.

Hannah McCarthy: If you continue along these lines I will have to take a little break and, uh, work on my Elaine Stritch. So let's just let's get moving here.

Nick Capodice: And John company, you fail a roll if you roll a five, and then you can sing rolling a five. [00:17:30] The game is John Company.

Cole Wehrle: John Company is a business game, but it is unlike other business games because in John Company there is only one business. It's a game about a state sponsored monopoly.

Nick Capodice: This is Cole Wehrle of Wehrlegig Games and Leder Games. He is the designer of John Company. The state sponsored monopoly, by the way, is the British East India Company, nicknamed John Company, which accounted for half of the world's trade in [00:18:00] the late 1700s.

Hannah McCarthy: And I think it's very important to mention here that the actions of John Company probably accounted for. I don't know the percentage, but a whole lot of, uh, nefarious and evil and bad actions.

Nick Capodice: Yeah, it did, Hannah. And I swear I'm gonna get to that.

Cole Wehrle: And in this game, the work of that one business is divided among several players. So in this game, you are running a business together and apart, and you will sometimes find yourself having to work with your rivals within the company. And sometimes [00:18:30] you will find yourself having to work against them. And the result is it produces a business that behaves very idiosyncratically, and this is the perfect timbre to use to describe the rise and fall of the British East India Company, which is a state sponsored charter, and the game tracks its history from 1710 till its collapse in 1857.

Nick Capodice: As of this moment, I have not yet played a game that accurately depicts the machinations of US government, what it is like to bargain and trade and pass a budget and enact legislation. If [00:19:00] that game does exist and I just don't know about it, please email me. But John Company is, in my experience, the closest thing to that. So who are you? You are the heads of families who are trying to get rich and powerful, and you get rich and powerful. By running a budget, you are collectively spending money to hire armies to elect each other to positions of power within the company. You build trade offices in India. You install your kid as the governor of Bombay. [00:19:30] You bribe the Prime Minister to pass laws that lower the taxes on your shipyards. There are a thousand other things you do, but what's it all for? All the looting and the hoarding and the nepotism. What's it all for? It's for a nice rich house in the country with lots of windows. And you can live in it when you retire.

Hannah McCarthy: And I suppose you could also look at the American political system in that way.

Cole Wehrle: There are connections between the United States and the East India [00:20:00] Company, the Boston Tea Party. The tea dumped was East India Company tea. The United States flag looks a lot like the same flag that was used by the British East India Company.

Nick Capodice: I have written about this in a few newsletters, but real quick I encourage everyone out there right now just look up a picture of the East India Company's flag from 1707. Just do it and I guarantee you will let out a gasp or like at least a mm.

Hannah McCarthy: Mm because it's pretty much the American [00:20:30] flag.

Nick Capodice: It's pretty much the American flag. Yeah.

Cole Wehrle: And it's important to note that in the late 18th century, the East India Company, while despised in certain circles, was admired. In others. It was a modern corporation with a very low overhead and tremendous profitability. It was run by kind of, quote unquote, enlightened principles. And some of those principles involved profit. And so, you see, when you start looking in the framework of the East India Company, overlaps in terms there are presidencies in India, they're managed by presidents. It's [00:21:00] an executive system. So there are these little bits of overlap where it seems like if if you know the same framers of the Constitution when they're at the convention, if they would have been reading the British newspapers, they would have been reading about the East India Company and the regulatory regime. And certainly I feel like some of those ideas have found their seat in our own system of governance.

Hannah McCarthy: You know what I kind of love about this? Because I am a cynical person, but I think cynicism is healthy and important for understanding. [00:21:30] And, um, you know, we think of our framers as these intellectuals who were diving deeply into the histories of Athens and Rome and the writings of all of these philosophers and interest in the enlightenment. And, you know, they're thinking, how are we going to run this great monarch free experiment? And then at the same time, they're also looking at this uNBelievably successful and wealthy and nefarious British [00:22:00] corporation and saying, you know, maybe, maybe, uh, they got some things right. Yeah.

Nick Capodice: Like a little bit of. Yes. And they're, you know, England was a monarchy. I mean, we don't want to do it like that, but I mean, look at these guys. They elect officers for terms of varying length. They vote on stuff democratically. As a company. They're rich as can be. I mean, that's kind of an interesting model, isn't it? I was going to say Rich Roosevelt, but they know Roosevelt back then.

Hannah McCarthy: All right. But we still haven't gotten to [00:22:30] the fact that the British East India Company did really bad stuff. And, you know, when I was playing John Company, I'm in this moment trying to figure out how to make as much money as possible in Punjab. And, you know, while I'm doing it, it's like, can I prevent a truly justifiable revolution from happening? Uh, and I just had this feeling of like, I should not be playing at this. I shouldn't I shouldn't be gamifying this.

Nick Capodice: I [00:23:00] absolutely agree, and that discomfort is deliberate. You should wonder that every second.

Cole Wehrle: So the rulebook of John Company is bookended by two short essays. One of them is an introduction to the game, which ends with a note that the game is going to deal with subjects of imperialism and empire, and not that's not going to be suitable for all groups and all interests. So before you turn the page, you know, I want people to be [00:23:30] aware that there's a monster at the end of the book. Um, and it's going to be up to a player's judgment if they want to go out hunting for that monster, because the East India Company, for most people who know anything about it, know it to be quite a venal and evil institution. Um, this is a company that was responsible for more than one famine, the deaths of millions of people, depending on how those numbers are tabulated. Um, the emergence of the of the British Empire [00:24:00] in the 19th century. It's got a bad rap sheet, and yet it was populated by humans like you and me, by people who were often well-intentioned. And when I was a teacher, I often found students had a tendency to sort the past into categories of good and evil, to pass a lot of judgment, and to have difficulty imagining themselves and the kinds of positions of their historic counterparts. And of course, as [00:24:30] is said often, you know, the past is another country. It's a totally strange place, but games are a way of bridging that divide. They are, you know, engines of sympathy, as one critic had said. And there are ways of transporting players. And I wanted to present players with the kind of banal reality of those big imperial frameworks. I want them to see how everyday people, when working in concert, can throw a bunch of small and even good decisions [00:25:00] and aggregate produce something quite awful.

Nick Capodice: Like Tory said earlier, Hannah, there are games where you play as Nazis, there are games where you play as the Confederacy. But in my experience, those games don't make you wrestle with the notion of why you're doing what you're doing. You're just trying to, you know, like win this war or win this battle. Put those tanks over there and those troops over there and bang, I win in John company, though on one side you're staring at this massive map of India, and then on the other side, you're looking at these [00:25:30] quaint English countryside estates you are forced to reckon with the reason why you're doing what you're doing. And the game sort of like even mocks any attempt you make to distance yourself from the ramifications of your actions. Like, are you really going to say, well, it wasn't me who colonized anything, I'm just the director of shipping. I just deal with fishing boats. I didn't try to create an empire.

Hannah McCarthy: It makes me think of that fairly well-known expression of Hannah Arendt's used to describe Nazi Germany. [00:26:00] You know, she called it the banality of evil. Um, essentially, there's true evil in the world, and it is also facilitated by administration and bureaucracy, and evil is parceled out among so many people, so many tiny little actions, responsibility and a sense of what you're actually engaging in becomes diluted and compartmentalized.

Nick Capodice: I don't think you could have put [00:26:30] that a better way, Hannah. There is so much more I want to say about John Company, about window taxes and empire and playing with that line between historical reality and fiction. But I'm just going to end with this. Before I played John Company, I knew next to nothing about the British East India Company, and since playing it, I have bought two books. I've listened to 20 podcast episodes about it. I'm obsessed now. Is it fun? [00:27:00] I don't know. Hannah, do you think it's fun?

Hannah McCarthy: No I don't. I play a lot of games that I love, that I don't consider fun, but I love them deeply.

Nick Capodice: You know people say things that get like, put on their Wikipedia page and they last forever. And I don't know if Cole Worley wants this to be on his tombstone, but he has said publicly he is, quote, not interested in whether or not a game is fun, end quote. So John [00:27:30] Company may be a game for you might not be a game for you. But however you feel, I promise you this, even if you don't have a good time playing it, which I really hope you do, you will come away knowing something and feeling something completely new. All right.

Hannah McCarthy: All right. Two games down, one to go. Um, is this last one [00:28:00] the one that I'm really jealous that you got to play and I didn't? Yeah. All right, tell me about Cross Bronx Expressway.

Nick Capodice: So far, we've got a game that teaches us about the suffrage movement. And we've got a game that teaches us about the intermingling of politics and corporation and empire in the late 18th century. But our third and final game is it is about the stuff, Hannah, that you and I talk about on every single Civics 101 episode. It is about how [00:28:30] the government, its people, i.e. Americans and businesses all pull and tug on each other to answer this question what are we doing? What do we do as a government? Who do we help? Who do we hurt? How do we do it? Who gets the money? So to learn about it, I called up Non-breaking space and I called and be up. When we in America and civics in general was just like having a week. You know, we've. [00:29:00]

Hannah McCarthy: Been having a lot of those lately.

Non Breaking Space: I'm good man, I'm good. I'm just sort of like dealing with the day to day of 2024, you know, it's just, you know, like this can be on the podcast. Man, I told you, you got me right now. This is what you got, right? Like, um, it's a hard time in the world right now. And just the day to day, I think if you're not reflecting on the harshness that you see around you on a day to day, then you probably should be.

Nick Capodice: But anyways, here's what the game is about.

Non Breaking Space: So [00:29:30] at a high level, Cross-bronx Expressway presents the history of the South Bronx from 1940 to 2000, and I could probably stop the description at that, at which point you say, either you know what that is or you have no idea what that is, and say, cool. Like if you know what that is, though, it's a pretty like I think of it as a template for urban development in the late 20th century and [00:30:00] its impacts on, um, sort of the in this microcosm of that impact on a global scale in terms of how we've sort of done, um, as human beings. And so looking at that period, the game sort of allows you to understand some of the decisions that were made and the impacts of those decisions from a socio economic perspective.

Nick Capodice: Hannah you know how we always say that local politics is more important than federal politics, like it [00:30:30] impacts our life. More specifically, I do.

Hannah McCarthy: And we also say that because the role that you can play in state and local politics, I think is more significant, right? I mean, like when it comes down to it, politics is people, even though we sometimes pretend it's not. And, uh, if you can talk to people, you can do more. So that's why we say it. But it is, you know, hard to pay all that much attention to such things when, you know, as we are less than 100 days [00:31:00] before a presidential election, you know, it can be a little bit hard to pay attention to. I don't know what your comptroller is doing.

Nick Capodice: Well, this game is a distillation of hyper local politics.

Non Breaking Space: And so what's the South Bronx represents? You know, New York City is five boroughs Manhattan, Queens, Brooklyn, Staten Island and the Bronx. I said that in the wrong order. And my Bronx people know that. I do know the right order, but I just wanted the Bronx to be last. Um, but, [00:31:30] um, the the history of the South Bronx is really interesting in the structure of that broader city, because they're sort of migratory patterns that have happened in New York that revolve around the space of residential spaces in the city. You can go back and look at the whole history of immigration in New York, and there's this cycle of different immigrant populations moving to different locations in New York and sort of relocating their communities as the city itself sort of evolved. [00:32:00]

Hannah McCarthy: All right. So what happens in this game?

Nick Capodice: Whenever I teach a game to people, and I think I learned this from the brilliant lads of the board game review website. Shut up and sit down. When you teach a game, you should start with these eight words. Who are we and what are we doing? In cross Bronx, a game for three players and it's got to be three players. Exactly. You each play as one of three factions.

Non Breaking Space: So there's three factions. The first [00:32:30] faction is the public faction, which represents sort of the government entities, both at multiple levels, at the borough level, at the city level, at the state level, and going all the way up to the federal level. There are implications that all of those for what's happening in the Bronx. And so the public player is sort of representative of that. And then you have the private, which is really about private businesses that are in the area and not necessarily always like big corporate entities that we think of today. But they're like even like small, um, business [00:33:00] entities from people that live just outside of the Bronx. And I do want to make that delineation of that. The private is considered those people that own businesses in the Bronx that live outside of the Bronx, um, or our investment. Investing in. So there's also the bankers and all those things that are putting money into this area but do not reside within it. And then the community is the last faction is really all of those people that are within. And it includes the businesses like the small business owners, the people [00:33:30] that own their own buildings, things like that are included in this community faction, um, that is representative of all of the different diversity that happens of people in the South Bronx.

Hannah McCarthy: All right. So one player is the government, one player is businesses outside of the neighborhood, and one player is the actual community in the South Bronx.

Nick Capodice: Exactly. And I'm not going to explain all the rules today, but basically what you're doing is you're building infrastructure and organizations [00:34:00] to help people out and or to help you out. So you've got people in the neighborhoods which are these unpainted wooden cubes.

Non Breaking Space: And then there are these little pink cubes, and the little pink cubes are called vulnerabilities, and they represent the vulnerabilities that exist within the communities. The map is split into the seven districts of the South Bronx, and in each of those districts, you can have a number of an amount of infrastructure that can then house the population. So you're putting [00:34:30] the wooden cubes, the natural wooden cubes onto these tiles that represent the infrastructure that's in those districts. And so when there are then little small pink cubes inside of those districts, it means that within that community there are some vulnerabilities that are being dealt with. And this is just like common things that, you know, like, do you have the resources to get your kid to school every day? Are you living hand to mouth to just be able to buy, to pay the rent or even things like, [00:35:00] um, do you have transportation to get to work every day? You know, those types of things are the vulnerabilities where if you don't have them, they can trip the that part of the community up into patterns that just downward spiral.

Nick Capodice: However you can house vulnerabilities in your infrastructure. Your faction can mitigate vulnerabilities. And you know it might not be in your organization's best interest to do so. You're taking care of lots [00:35:30] of other stuff. You're trying to make money. You're trying to make sure New York City doesn't go broke and you don't go broke. But if you don't take care of them, things can go pretty badly pretty quickly.

Non Breaking Space: If these vulnerabilities grow in each of the districts to large, where there are unhoused or vulnerabilities that are not housed in infrastructure, there comes the census phase at the end of the decade, and during the census phase, there is a quota. And the quota basically represents the city having to sort of deal and contend [00:36:00] with how things are as a whole and quotas being a big method that was utilized, and how these vulnerabilities then end up in the corrections facilities of Rikers Island on the map.

Nick Capodice: And events happen based on the decades you choose to play things like redlining, suburbanization, blackouts, presidents and presidential hopefuls visiting the Bronx.

Archival: Concern, the Republican nominee traveled to the South Bronx. Is there more. [00:36:30]Jobs coming through the Bronx for us? I am going to try as hard as I can. All I can tell you is that I'm going to try to bring that about, and not with the kind of a promise that Carter made.

Hannah McCarthy: Did NB give you essentially, you know, a thesis statement for this game?

Nick Capodice: He did, and he gave it to me in one word, modernity.

Non Breaking Space: You get to this point in New York's history where the wave of modernity [00:37:00] is just too big to fail. And that's sort of like, I think that's one of those concepts that's hard to think of, like, what does that mean? The wave of modernity is too big to fail. And this is like at the juncture of the rise of interstate highways. And the New York State Thruway is coming through. Cars are becoming bigger and bigger and more important, but also the transportation of things through automotive vehicles is becoming more important. So the highways are getting bigger and all of that. And New York City represents this hub [00:37:30] of activity for the East Coast and indeed for the for the globe.

Archival: We need this marvelous superhighway to end traffic jams like this, to take trucks out of our cities and put an end to this.

Non Breaking Space: And so all of this traffic has to converge in New York in some way.

Archival: Here. Thruway Authority Chairman B.D. Ptolemy discusses the 535 mile superhighway system with Robert Moses, guiding genius of our cities, parkway system and city construction [00:38:00] coordinator.New York City is the focal point in this system.

Nick Capodice: Now, this history of the Bronx and the game starts before World War two. Lots of projects had started before that, but when the war hits, the budget is frozen. So you have a neighborhood that is full of stalled infrastructure.

Non Breaking Space: So nobody can spend any money. So they're not doing any of these projects until after the war. And then there's all of these people right front and center, ready to sort of go and say, hey, we've got the plans ready, let's get this going. Let's get this thing [00:38:30] in action. We're already 4 or 5 years behind because of this war. Let's go. And so that happens, which is the, again, the inevitability of this wave of modernity comes and the pattern of utilizing the movement of immigrants to different locations to sort of build up their sort of or even more specifically, to sort of climb their way up the social status ladder, basically is in the way and it's in the way, in the same [00:39:00] way that the physical location of the South Bronx is in the way of where all of these highways are going to converge and come together to be able to draw this traffic through the city. And that is what the game of the South Bronx Expressway is about. One [00:39:30] of the reasons that I made this game is because of the love that I really have for the Bronx as a whole, as it's really about like community and hard working community, like people just like getting up to go to work and do their job and want to come back home and feel like home. And that's what people have been forever. Just striving to do is just be able to have that life, to do their work and come back and feel home.

Nick Capodice: Non-breaking space. Cross Bronx Expressway. [00:40:00] Now, by the way, NB did a ton of archival research for this game. He even wrote a history book to go along with it like it goes in the box of the game. I promise you again, you're going to learn something new.

Hannah McCarthy: All right, so I know we've covered the three games here, Nick, but if we may, I would like to go back to something that we talked about at the beginning of the episode. You know, there are so many games out there. Um, they go by a lot of terms. There are Euro games, worker placement, deck [00:40:30] builders, dungeon crawlers, and a seemingly infinite number of war games. Right? Move in tanks on hexes. And there just seem to be far, far fewer games that explore, for example, civics concepts. Which honestly, that's a little bit odd to me because politics politicking is a game, right? It might be one of the most gamey things we human beings do. [00:41:00] Um, Voting. Negotiating. Achieving policy. Campaigning. Right. Why? So many, like, very war specific games and so few about politics.

Cole Wehrle: A great question. Why so much war in games? Uh, why why so much war? I mean, games are always a reflection of the culture that produces them. And so and in that way, one of the things that [00:41:30] you see in the mid 20th century, with the rise of historical game publishers such as Avalon Hill, is a desire to make games which had often been a pedagogical, a child enterprise, a toy to make them seem more adult. And the way they did that is they made them into what was thought of as scientific war games. These were historical studies, and there was nothing more serious than the Battle of Gettysburg. And so they were a way for games to generate credibility. And then, of course, that itself became an ascetic. [00:42:00] And there they were. It was reflecting back the, you know, a war movie from Hollywood. When you look at a lot of those Avalon Hill covers, what they are are redraws and scans and remixes, collages of movie posters. They're all kind of militaristic esthetic as ricocheting around our little, our little cultural box.

Nick Capodice: You could also ask, why are there so many games about colonizing or settling somewhere and acquiring resources?

Tory Brown: These games that, like the whole point is to colonize foreign lands and extract their wealth. Maybe [00:42:30] we don't want to wait. We could make these these conversations. We could make these agreements among ourselves. And, you know, capitalism responds to these kinds of forces and agreements among communities where we'll see fewer of those games and hopefully more games that give you a little something more, whether that's history, whether that's decision space, whether that's the opportunity to be creative in a different kind of way, whether, right, like there's all of these different directions we can head [00:43:00] when we allow ourselves to move forward in a way that recognizes each other's shared humanity. That allows for different preferences to flourish, but creates a sort of bottom line on what is acceptable, what is desirable, and what is important to have on our table and on our shelves.

Nick Capodice: And to revisit something we talked about earlier. Why is fun the most important thing?

Non Breaking Space: I mean, let's let's back up for a second. [00:43:30] Like, I definitely enjoy games for fun. I think we've played some games where it's just like, yeah, let's just have some game for some fun. And there's a sense within the hobby at large that that's what games are, that games are fun, right? Um, they're escapist. They're ways that you can sort of say, let me take a break from my day to day and just do something that's, you know, Fun. This, that notion really being [00:44:00] institutionalized within the hobby, like this is a notion within the hobby. I think at a high level, if you ask over 50%, and I think much more than 50% of the hobby, if you did a survey, it would be like, yeah, games are supposed to be fun. If it's not fun, it's not a game. Um, it's something else and not really what people are up for. And I think that notion itself is detrimental [00:44:30] to what games can be. And so it is also framed what types of games get made and how they get made. And so when you ask this question in terms of like war games and why so much of gaming is from this perspective, it's really a question of, well, how can you simulate the fun? And just think, it.

Non Breaking Space: Just take that for a second and think about like, well, how can we simulate the fun? Let's take [00:45:00] a topic and how can we simulate the fun and fun in a war? Context ultimately boils down to some degree of propaganda. Like you can't escape that, and that is honestly a dis justice injustice to our broader humanity. Like it's a misrepresentation for our personal benefit over [00:45:30] the collective benefit of addressing things more seriously is where I'm going to end up getting in trouble. Because like, I love playing games for fun. Like I was saying before, like that, like that's me. You know, I have a, like, dark and deep history with games, um, going back and in my later days I've sort of come around to this notion of like, yes, I can do that, but that's not the games that I want to [00:46:00] make.

Hannah McCarthy: Very last thing here. You promised that you would share your secret reason why you love games so much. So give it up.

Nick Capodice: All right. I feel that games are a different language, and you can say things to people in that language that you don't in any other way. I used to have this music teacher who said that when I played the [00:46:30] trumpet, that's a different language, and I'm speaking in that language and conveying things that my heart wants to, that I can't any other way. And games are that for me. So for a shared hour or 5 or 12, you are able to express joy, defeat, love, excitement, trickery, astonishment, everything and it is like a play. I subscribe to the notion that acting is just living under imaginary circumstances and a game is that too? It's an excuse to [00:47:00] do that. And like in a play, you will discover things about your friends and yourself every minute. So go play a game.

So many thanks I have to give. If you like what the three designers I spoke with are putting down. Check out their other stuff. NB is working on a game called The Council about a city council. Can you believe it? Cole [00:47:30] is about to publish something he made with Jo Kelly called Molly House. It is a game of queer joy and betrayal in 18th century London, and Fort Circle is working on one about the Supreme Court called the First Monday in October. Krys, you think I'm gonna forget you? Krys Bigosinski and Kate Sykes. Those are the two people responsible for letting me know about the interaction among the CIA and the Army and the military and board games. Thanks, guys. Also, I have to thank The Acceptables who make me love [00:48:00] games and myself more and more each day, and especially MJ, who never uses real swords. This episode was made by me Nick Capodice with Hannah McCarthy. Big surprise. Our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Music. In this episode by Jesse Gallagher, Meyden, Scott Holmes, Blue Dot sessions, A bunch by Epidemic Sound and who loves you and who do you love? Chris Zabriskie.

Nick Capodice: Hey, before I go, can I just say this when I say play [00:48:30] a game? I don't just mean these intricate, wonderful, complex things. Play poker, play cribbage, play scrabble, play hearts, kid. They work well. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

What is a whistleblower?

Choosing to blow the whistle on the U.S. government is a big deal. It's a huge risk and, despite legal protections, can result in major negative repercussions. So why do people do it? What happens to them when they do? What protections do they have, and do those protections work?

Our guides to the process are Kathleen McClella, Deputy Director at WHISPeR, Danielle Brian, Executive Director and President of the Project on Government Oversight and Chris Appy, Professor of History at the University of Massachusetts Amherst.

---

Transcript

Archival: These latest leaks in Edward Snowden's campaign seem to be time for maximum embarrassment for the U.S. And the president.

Archival: I don't think he's a hero.

Archival: Obviously, the government was over surveilling more than they were being honest with the public. But this is not a simple whistleblower gets caught up. This is man decides to betray his country, leave with secrets.

Archival: We could not have carried off the Bin Laden raid if it was on the front page of the papers tonight. [00:00:30]

Archival: In a shocking move, President Obama is allowing Chelsea Manning, the Army private convicted of stealing and leaking hundreds of thousands of documents and videos to be a free woman in May.

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 a rare breed of individuals and the dangerous and often controversial path they [00:01:00] tread. We're talking about whistleblowers.

Hannah McCarthy: We're talking about people who spill secrets, right? Right.

Nick Capodice: And the people who spill the secrets versus the secrets they spill. That's actually going to be an important distinction here, but we're going to get to that in a little bit. First, let's start with the basics.

Hannah McCarthy: Please Nick, what is a whistleblower?

Kathleen McClellan: So a whistleblower is someone who reveals information in the public interest that exposes waste, [00:01:30] fraud, abuse or gross mismanagement or a violation of law, rule or regulation.

Nick Capodice: This is Kathleen McClellan. She's the deputy director of the Whistleblower and Source Protection Program at Exposed Facts. The program is nicknamed WHISPeR.

Hannah McCarthy: That is a little bit of an acronym stretch, but I'm here for it.

Nick Capodice: WHISPeR provides pro bono legal services to whistleblowers and media sources, with a focus on human rights and civil liberties. Kathleen herself has [00:02:00] represented whistleblowers from the NSA, the CIA, and the FBI. So, to be clear, she is coming to us from a particular side of this issue.

Hannah McCarthy: And Kathleen mentioned that whistleblowing is about information that is in the public's interest. It's about telling the American people that the government is doing something so wrong that they have to know about it, like you're only going to blow the lid off that popsicle stand if there is something pretty bad going on in there.

Nick Capodice: Which leads [00:02:30] me to the next big thing about whistleblowing. Revealing big information is extremely high stakes.

Kathleen McClellan: I just came to truly admire these people, because I don't think that I would ever have the courage to be a whistleblower. Unfortunately, I think I would be a bystander. I'm way too establishment. And so to see these people who so dedicatedly believe in the mission of their agency and in the reason that they're in federal service, that they will risk their own career [00:03:00] for the benefit of the public. I mean, that's really admirable.

Hannah McCarthy: All right, Nick, I see news stories all the time that cite anonymous government sources. And, you know, we hear phrases like speaking on the condition of anonymity and according to people familiar with a story. Are all of those people whistleblowers?

Nick Capodice: Yeah, that's a good distinction. And no, they're not. Kathleen says there is a difference between what the government calls a quote unquote leak and [00:03:30] whistleblowing.

Kathleen McClellan: Leaks happen every day. The biggest leaker is the US government. Let's keep in mind that every day you read about anonymous government sources telling the press something and plenty of times about national security. And plenty of times that information includes classified information. But those were what you would call authorized leaks.

Hannah McCarthy: Authorized leaks, as in, these are the secrets that the government is choosing to spill.

Nick Capodice: Yeah. Information that is otherwise [00:04:00] classified and protected might be purposefully, if anonymously, leaked to the press.

Hannah McCarthy: So why? What's the game here?

Nick Capodice: Ultimately, it's about control giving the public some, but not all of the information seeming transparent without revealing all your cards.

Hannah McCarthy: So an authorized leak is maybe something that might make the government or someone in the government [00:04:30] look good, or look better or something.

Nick Capodice: Yeah, these leaks can also be used to float an idea and see how the public responds to it before you carve it in policy stone, or to spin news coverage, or to just mess with the political opponent or to curry favor with the press. So that is an authorized leak. But if you want to know when a whistle has been blown, pay attention to how the government responds.

Kathleen McClellan: The government loves to pathologize whistleblowers and come up with reasons why [00:05:00] they might have done something. They were disgruntled. They were angry. They were going through a divorce. They come up with all kinds of reasons why people might be whistleblowing. Unfortunately, the reasons never seem to include the government misconduct being exposed, which in our experience we found is the reason people are whistleblowing is because they've seen something that is so bad that they feel that the public needs to know about it.

Hannah McCarthy: Got it. Okay with whistle blowing? It sounds like the government is more likely to focus [00:05:30] on the person who did it, as opposed to the actual information which came out, which makes sense if you want to distract from that information itself. Speaking of, if someone is this worried about something this big within the government, is there any way to take care of it on the inside instead of going to the public?

Nick Capodice: Yeah, I mean, it's a little more involved than going to HR for something this big. You're probably going to go to the inspector general. [00:06:00] But Kathleen says that doesn't always work.

Kathleen McClellan: It's a structural problem. So you can have an aggressive inspector general investigator trying to do the right thing. However, ultimately the authority for that inspector general is with the agency head, even though they have a mission statutorily to act independently. And even though they're trying to do that, at the end of the day, the executive branch has authority and the agency head has authority. And so if you locate the oversight, it's like the fox [00:06:30] guarding the hen house. If you locate the oversight mechanism within the same agency that you're trying to do the oversight, when the whistle blowing gets big enough, when the challenge gets controversial enough, it will fail. Inevitably, structurally, no matter how well intentioned the actual individuals working within the Inspector General's offices are.

Nick Capodice: Basically, inspectors general should be able to freely report information to their boss and to Congress, but that doesn't always happen.

Hannah McCarthy: So whistleblowing might not [00:07:00] work at all. And even if it does, the government might write off that. Whistleblower as a disgruntled problem person. Is there any system in place that actually helps a whistleblower?

Nick Capodice: Several in fact, Hannah. One such system comes from the Whistleblower Protection Act.

Kathleen McClellan: So the federal Whistleblower Protection Act came out of a long history of people within the government trying to raise concerns and being retaliated [00:07:30] against. And it was first passed in 1989 and has been amended several times since, when whistleblowers, federal government whistleblowers, were simply not given the protection intent that the act.

Nick Capodice: The law says that certain federal employees can blow the whistle on violations of the law mismanagement, waste of funds, abuse of authority and when behavior poses a significant danger to public health or safety.

Hannah McCarthy: Okay. And you said certain employees [00:08:00] who is allowed to do this.

Nick Capodice: It applies to most executive branch employees or former executive branch employees. It also excludes a significant chunk of people.

Hannah McCarthy: Like.

Nick Capodice: Political appointees, uniformed military service members, employees of the intelligence community, including the FBI and employees of the US Postal Service, interestingly.

Archival: When you control the mail, you control information.

Hannah McCarthy: So [00:08:30] if you're sharing information that is protected under the act and you're one of the protected employees, can you tell just anybody?

Nick Capodice: Yeah, well, not anyone. Not exactly. They can talk about it internally to people inside their agency, a supervisor or somebody higher up. You know, they can also tell the offices of the special counsel or federal inspectors general. Those are really the safest places to go under the Whistleblower Protection [00:09:00] Act. But you can, with exceptions, you can go to Congress, coworkers, managers, independent government watchdog organizations, and finally, the media.

Hannah McCarthy: What are the exceptions?

Nick Capodice: The exceptions are vast, and they mostly have the same name. Sensitive material.

Hannah McCarthy: Sensitive material.

Nick Capodice: Sensitive material. Now, sometimes that means classified. Often it does not. The [00:09:30] various agencies define lots of information as sensitive but not classified. So at the end of the day, whistleblowing is about knowing whether the information you're sharing is allowed to be shared, and whether the person you're sharing the information with is allowed to receive it.

Hannah McCarthy: And it is the Whistleblower Protection Act, right? What are these individuals protected from?

Kathleen McClellan: Essentially, what you cannot do is retaliate [00:10:00] against a whistleblower. So you cannot take a personnel action, meaning you cannot fire them, suspend them, give them a reprimand, a written reprimand, any sort of personnel action that you would do. You cannot do under the Whistleblower Protection Act. And there are some other things as well.

Nick Capodice: For example, moving them to another department, reducing their pay or responsibilities, ordering a psychiatric evaluation or making a significant change to their duties, responsibilities or working conditions.

Kathleen McClellan: But it's important [00:10:30] to note that that applies to most federal whistleblowers. There are different laws that apply to corporate whistleblowers, and most national security and intelligence agencies are exempted from the federal Whistleblower Protection Act.

Nick Capodice: The intelligence community has its own whistleblower protections, but because they're usually the ones dealing with the really big secrets, it is a whole other complicated system. Interestingly, Congress says it's allowed to receive classified information, but [00:11:00] the executive branch does not always agree with that.

Hannah McCarthy: So generally speaking, is the classified stuff kind of tricky to get out there?

Nick Capodice: Yeah, it is.

Kathleen McClellan: Unfortunately, as a client of ours like to say, the government often classifies their crimes and the government is so motivated to keep things secret because why would you want to reveal that, you know, a drone strike that you want to say killed militants, actually killed civilians? You wouldn't want to reveal that information. The motivation to keep [00:11:30] it secret is just too great. And so structurally, without a protection for whistleblowers to come forward and bring out more truthful information, without accountability for overclassifying information, for classifying information in order to cover up misconduct, without accountability for those things, there's no way to kind of strike the correct balance.

Nick Capodice: There's also the Intelligence Community Whistleblower Protection.

Hannah McCarthy: Act, and that's the law that's supposed to protect whistleblowers in the intelligence community right from retaliation. [00:12:00] Like, I don't know, for example, getting their security clearance taken away.

Nick Capodice: Yeah, but Kathleen doesn't think the law is very effective, even with that provision against retaliation. Now, I want to introduce another guest here. Uh, Danielle. Brian, She is the executive director of the Project on Government Oversight. So there are protections in place for whistleblowers in some cases.

Danielle Brian: There's a real tension between the need, especially around national security, to reveal [00:12:30] misconduct and wrongdoing, but at the same time protect national security. And one of the things that we think is a really important reform is the government has as a tool the Espionage Act to go after. And it's certainly deters people from revealing wrongdoing because they know that the government has, under both Democratic and Republican administrations, aggressively applied the Espionage Act.

Nick Capodice: Now, we have talked about the Espionage Act before, [00:13:00] but real quick, this is the law that made it a crime to unlawfully detain or disclose information that could harm the United States or benefit its enemies. It was designed with spies and foreign agents in mind, but it has since been used against whistleblowers.

Kathleen McClellan: The first time it was used against a whistleblower for revealing allegedly classified information was in the Daniel Ellsberg case, the Pentagon Papers case.

Hannah McCarthy: Oh, [00:13:30] Nick, we gotta talk about the Pentagon Papers. I'm surprised it's taking you this long.

Nick Capodice: Yeah. You knew it was coming. Hannah, we will talk about the Pentagon Papers right after this break.

Hannah McCarthy: But before that break, Civics 101 is listener supported public radio. If you like what we do, then we're asking you to help support us. You can do that at our website, civics101podcast.org. And thanks.

Hannah McCarthy: We're back. We're [00:14:00] talking about whistleblowers and their protections, sometimes lack thereof. And Nick, before the break, you promised me one very loud whistle.

Nick Capodice: Maybe the loudest whistle of all, Hannah, this would [00:14:30] not be an episode about whistleblowers if we didn't talk about Daniel Ellsberg and the Pentagon Papers.

Chris Appy: Daniel Ellsberg is probably the nation's most famous whistleblower. In 1971, he became a household name when he released to the press and the public a 7000 page top secret history of the Vietnam War that exposed decades of government lies about that war.

Nick Capodice: That's Chris Appy. [00:15:00] He's a history professor at UMass Amherst and director of the Ellsberg initiative for Peace and Democracy.

Chris Appy: And what makes his life so interesting, in part, is that he, like many whistleblowers, had been an insider in the government and in the military and had once been a strong advocate of the Vietnam War. But his political and moral conversion, especially in the late 1960s, was quite dramatic. I don't know of [00:15:30] another top government official who so fundamentally changed his mind about a policy that he had helped put in place, and who took so many personal risks to try to expose what he had come to see as not just a mistaken war, but actually a criminal war.

Nick Capodice: Now, the story of the Pentagon Papers and the subsequent Supreme Court case dealing with them is big, fast, fascinating, and deserves its own episode, which I hope we [00:16:00] get to. But for today, we are focused on how Ellsberg leaked the papers and what his work meant for whistleblowers who came after.

Hannah McCarthy: How did Ellsberg fundamentally change his mind?

Chris Appy: Ellsberg had been deeply involved in nuclear policy as an insider, first at the Rand Corporation, a think tank largely funded then by the Air Force and primarily working on nuclear strategy. And as with the Vietnam War, early in his career, [00:16:30] he had been a proponent of many of these policies and over time came to view our nuclear policies and nuclear weapons as general as a fundamental existential threat to humanity that must be faced and overcome.

Nick Capodice: In 1967, Secretary of Defense Robert McNamara commissioned a study about the US's involvement in Vietnam. Ellsberg was part of the research team, and he was disturbed by the conclusion of the study, [00:17:00] which showed that for years the US government escalated an increasingly unwinnable war and concealed the facts from Congress and the American people. Ellsberg reached a breaking point.

Chris Appy: Ellsberg remembers this is in August of 1969, going to the men's room and sobbing uncontrollably with a sense of great guilt that this war was eating [00:17:30] up our young, both by sending people to fight and die in Vietnam, and by relying on young activists to try to bring it to an end. It was at that point he asked himself, well, what might I do if I were willing to sacrifice my career and even perhaps serve time in prison? So he then began to think, well, I've got access to these top secret documents. What if I were to try to get them into the public record? Might that make some difference [00:18:00] in shortening the war?

Nick Capodice: And this happened before the passage of the Whistleblower Protection Act. Daniel Ellsberg expected to be imprisoned for releasing the Pentagon Papers. All he knew is he had to blow the whistle.

Archival: I could no longer cooperate in concealing this information from the American public. I did this clearly at my own jeopardy, and I am prepared to answer to all the consequences of [00:18:30] these decisions.

Nick Capodice: So Ellsberg hands the goods off to the press. The government tries to stop the press from publishing, and ultimately the Supreme Court says, no First Amendment. You can't stop them. The American people get the truth. But Ellsberg, he is facing 12 felony counts, including violation of the Espionage Act. And [00:19:00] this is the first time that the Espionage Act was used against a whistleblower for revealing classified information.

Chris Appy: And what makes it particularly difficult when you are indicted under the Espionage Act is that judges don't allow you to explain your motivations. All the prosecution has to demonstrate is that you did, in fact, retain these papers and transfer them to others. They don't need to know about your motives, which were to expose wrongdoing [00:19:30] and even illegal activities, and to make the case that it should never be a crime to expose a crime.

Hannah McCarthy: Wait a minute. Did Ellsberg get convicted?

Nick Capodice: No, he did not. Then President Richard Nixon wanted to dig up dirt on Ellsberg. So he sent in his plumbers.

Hannah McCarthy: His plumbers?

Nick Capodice: His plumbers, the people tasked with plugging the leaks coming out of the Nixon administration. The plumbers were not super [00:20:00] law abiding.

Chris Appy: So-called plumbers broke into Ellsberg's psychiatrist office. And that fact, and others like illegal wiretapping of Ellsberg, was revealed in April of 1973 while the trial was still going on. So the judge in that case really had very little recourse other than to dismiss the trial. And so we don't know how the jury would have decided the case. But in any event, it did mean that although Ellsberg's career was effectively sabotaged, [00:20:30] he did not serve any time in prison.

Nick Capodice: Now, Ellsberg died in 2023, but he devoted his life to advocating for modern day whistleblowers like Edward Snowden, like Chelsea manning. Now, Snowden and Manning were in the news quite a bit a while ago. If you don't know about it, look it up. But here's what Ellsberg had to say about them.

Archival: Well, I identify more with Chelsea manning and with Edward [00:21:00] Snowden than with any other people on Earth. Uh, there we all come from very different backgrounds, different ages, different personalities, but we all faced the same question, which is who will put this information out if I don't? And each of us came to the conclusion that this information that the public had to know, um, would have to be put out by us, by ourselves because no one else was going to do [00:21:30] it. I've been urging.

Nick Capodice: People the famous Whistleblowers Club is a pretty small one, comprising people who took immense risks and faced immense consequences. And Daniel Ellsberg is credited with blazing the trail.

Danielle Brian: I think historically it's been a fact that without Dan Ellsberg, the Vietnam War may well have gone on for many more years. But that changed the course of history.

Nick Capodice: Before we wrap up, because it might not be totally responsible to end [00:22:00] on a whistleblower hero's journey, I want to share a piece of advice that Danielle shared with me.

Danielle Brian: My first advice to anyone who is considering being a whistleblower is to really think twice, because rarely does a person who takes that brave step land on their feet with their job intact, with their family intact. So I just want to be honest with them that this is tremendously risky.

Nick Capodice: Even [00:22:30] with protections in place, even if you do it exactly right, even if you follow the letter of the law, whistleblowing is not a particularly safe thing to do. And Danielle sees a future where the spilling of government secrets could become all but impossible.

Danielle Brian: And I will say that one of the things that I'm most worried about as I look at the next year or so, is that former President Trump has [00:23:00] talked about, if he were reelected on day one, he would create a change in the system of government employment. It's what is called schedule F, which sounds kind of just administrative, but what it does is it strips those whistleblower protections that we already have in place because it will remove their status of all the policy making government employees as professional, merit based, protected class of employees and move them [00:23:30] to essentially political appointees, which have certainly no whistleblower protections.

Hannah McCarthy: Nick, one last thing. Um, regardless of what the future does hold, I feel like I've got something pretty telling, given the tension between what the government wants us to know and what the rare whistleblower tries to make public. And I don't always do this, but for fun, just trying to figure out another [00:24:00] word for whistleblower. I, uh, consulted Merriam-Webster.

Nick Capodice: Are we in a commencement speech for eighth grade? You checked the dictionary?

Hannah McCarthy: I swear, this is not a phoning in my high school essay moment. I was just curious.

Nick Capodice: May I? All right, go for it.

Hannah McCarthy: Uh, synonyms include. Rat. Snitch. Spy. Tattler. Squealer. Fink. Narc. Stoolie. [00:24:30] I mean, like, even the gentler ones. Informant, for example, are still pretty negative. Which I think really gestures to the overall point that people don't trust secret spillers.

Nick Capodice: You know, Hannah, I think it will always be true that telling a big Ole secret will make you a pariah in someone's eyes. You just need to figure out if this spill [00:25:00] is worth the mess.

Hannah McCarthy: That does it for this episode. It was produced by Catherine Hurley, [00:25:30] our summer intern who will one day rule us all. Actually, Catherine, why don't you take over?

Catherine Hurley: This episode was produced by me, Catherine Hurley, with Hannah McCarthy and Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoie is our executive producer. Music. In this episode by Blue Dot Sessions, Dusty Decks, the Grateful seven, Amber glow, Taj jokes, major tweaks, T Marie and OTE. If you have questions about American [00:26:00] democracy, you can ask them at our website, civics101podcast.org. While you're there, you can listen to every other episode we've ever made. There are a lot of them. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

How Are Cities Chosen For The Olympics?

The Olympics are a global event. They take years of planning, negotiation and convincing -- not to mention billions of dollars -- to stage. This is how the games are used by the United States and others around the world. This is what it takes to host, what the games do for  a nation and what it means when you refuse to attend. Welcome to the Olympics. 

Our guests for this episode are Jules Boykoff, professor of government and politics at Pacific University and author of several books on the politics of the Olympics, and Nancy Qian, Professor of Managerial Economics & Decision Sciences at Northwestern University.

Listen:

Transcript:

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

Nick Capodice: Can I do the John Williams Olympic theme of mouth trumpet?

Hannah McCarthy: Of course.

Nick Capodice: I think the Olympics theme is one of the unsung heroes of the John Williams repertoire. It's one of my favorites. It's up there with Raiders of the Lost Ark. My TV, when I was a kid, couldn't get any channels like local or cable or anything. All we could do is watch the VCR. So my grandmother every four years would mail about 20 tapes of the Olympics to me and my sister, and we'd watch them religiously.

Hannah McCarthy: What was your favorite year?

Nick Capodice: 1988, Seoul. Reebok. Reebok, Reebok. And you thought everything was happening in Seoul? We know all the commercials. Great Run winners give their best all the way to the finish line.

Hannah McCarthy: Did you love it for the commercials or for the athletes?

Nick Capodice: For both? Because we didn't have TVs, so the commercials were just as joyous.

Archival Seoul 1988 Olympics Commercial: And you thought everything was happening in Seoul?

Hannah McCarthy: Every two years, people who represent the absolute best in their field, the best in the world descend on one of the globe's cities and show us exactly what they can do.

Archival: Usain Bolt!

Archival: A perfect score, 10.0 for Nadia Comaneci, a perfect score. Cannot be, no one can run that fast. He's done it!

Hannah McCarthy: Billions of people tune in to watch the celebration of athleticism, of commitment and excellence. And that's what the Olympics are all about, right? The athletes.

Jules Boykoff: The Olympics are political. They have been political for a very long time, and they go back to being political all the way to the beginning.

Hannah McCarthy: This is Jules Boykoff. The guy who shattered my understanding of the Olympic Games. He's also professor of politics and government at Pacific University in Oregon and author of four books on the politics of the Olympic Games.

Jules Boykoff: In fact, if anybody tells you that the Olympics are not political, there is a very good chance that they are making their living off of the Olympic Games.

Hannah McCarthy: And that, my friends, is what we are digging into today. I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And this is Civics 101. Today we are exploring the global games and how they are used by the United States and others around the world. We'll talk about what it takes to host the games, what the games do for a nation and what it means when you refuse to attend. Welcome to the Olympics.

Nick Capodice: Now, I always thought the Olympics were a pretty wholesome affair. So can we get into this whole Olympics being shattered for you thing?

Hannah McCarthy: All right. Let's just say I have a lot more to think about when I binge watch floor routines.

Jules Boykoff: 1936, there was the Berlin Olympics where Hitler made the games extremely political, and he used the games as a trampoline for his invasion into Europe after those games

Archival: the German team as hosts come last and then Germany's Führer declares the 11th

Jules Boykoff: Olympiad officially open.

fall forward from there to the Cold War era, where basically the Olympics became a proxy battlefield between the United States and the Soviet Union.

Hannah McCarthy: United States Olympic Committee voted to boycott the Summer Olympic Games in Moscow.

Jules Boykoff: Shimmy forward from there. 2014. The Olympics happened in Sochi, Russia. Incredibly political. I mean, the host there in Russia had just passed an anti LGBTQ law that was very much clashing with principles in the Olympic Charter.

Archival: President Vladimir Putin wants to make it clear that gay visitors are welcome, but he's also keen to stress the country's ban on promoting homosexuality among minors.

Jules Boykoff: And so that was political, and it raised the political hackles of numerous athletes from the United States, for example, and diplomats from around the world. Then you go forward a little bit further. 2018 the Pyeongchang Winter Olympics in South Korea, where the International Olympic Committee played an active role, bringing together the governments of North Korea and South Korea to form a united team for those games.

Archival: Setting foot in South Korea tonight, these North Korean Olympians are making history.

Jules Boykoff: Obviously, every one of those examples show that the Olympics are political.

Hannah McCarthy: By the way, the modern Olympic Games were started in the 1890s by a French aristocrat as a nod to the ancient Greek sporting event. So we've been at this for well over 100 years. And if you're listening to this thinking, excuse me, Hitler used the games to pave the way to his European invasion? I promise you we will come back to that. But the point is, if you embark, as I did on a happy go lucky investigation of the world's greatest celebration of athleticism, you will find that there is a lot simmering just under the five ring surface. And to get there, we have to start here.

Jules Boykoff: If you want to understand the Olympics, looking at the International Olympic Committee as a great place to start, the International Olympic Committee oversees the Olympic Games. This is a nonprofit organization based in Lausanne, Switzerland. It might be a nonprofit, but it's incredibly profitable. It brings in billions and billions of dollars. It makes the rules for who gets to participate in the Olympics, which sports are in the Olympics, which games will be featured, where who will host the Olympics? They make those decisions.

Hannah McCarthy: The International Olympic Committee, otherwise known as the IOC, gets that tax exempt nonprofit status. And because it's a non-disclosure Switzerland, I can't give you a breakdown of what it spends its money on, but it's worth noting that Olympic athletes receive very little financial support from the IOC. It's also worth noting that committee membership comprises a fair number of royals and corporate executives, and then you have the two hundred and six countries who participate in the Olympics. Each has a National Olympic Committee. Ours is called the United States Olympic and Paralympic Committee.

Nick Capodice: Team USA.

Hannah McCarthy: Team USA. Oh, and just as an aside, we are one of the very few nations in the world that does not have a Ministry of Sports and does not federally fund our Olympic Committee, in part because we are one of the only countries in the world that debates the connection between politics and sports in other countries. That connection is explicitly acknowledged. There are, for example, left and right wing soccer clubs worldwide.

Nick Capodice: I mean, our president throws the first pitch of the baseball season. We sing the national anthem at sporting events.

Hannah McCarthy: We're about due, by the way, for quick dive into why we call elections races.

Nick Capodice: Oh, absolutely, it is a sports metaphor.

Hannah McCarthy: It is one hundred percent the sports metaphor. In Great Britain they called it a "standing." Anyway, the IOC would agree with all those politicians and franchise owners in the U.S. who assert that politics has no place in sports. It's literally on the books. You can find it in their charter, and we're going to get to that later. The Olympic Charter, by the way, that's the rules governing all Olympic operations. So here's how the Olympics have traditionally gone from a glint in a city's eye to the big event.

Jules Boykoff: For many decades, cities would vie against each other for the right to host the Olympic Games. And often you'd see multiple cities going for one Olympics and they would make bids. They put together candidature files that said what they were going to do should they get the right to host the Olympics. And what would happen was after they would make their pitches. The International Olympic Committee members, the whole body around a hundred or so members currently would vote on which City gets to host the Olympic Games, and in years where it was competitive, it could be a really tight vote.

Nick Capodice: You said the way they traditionally happen, so I'm going to guess that something changed.

Jules Boykoff: This changed massively in 2017, when again, numerous cities were going for the 2024 Olympics, but one after the other dropped out. Here in the United States, we saw in Boston a vigorous and rigorous activist community teamed up with local politicos to raise big questions about the idea of hosting the Olympics.

Archival: If you're like me, the idea of a Boston

Archival: Olympics at first is kind of exciting. So why the only 40 percent of Massachusetts voters support Boston 2024.

Jules Boykoff: Ultimately, decision makers elected officials in Boston handed back the bid that they had been handed by the United States Olympic and Paralympic Committee.

Hannah McCarthy: I remember this in part because I grew up near Boston, and to be honest, I got a little thrill by the idea of the Olympics coming to town. But the public polling was bad enough to convince the city to withdraw its bid. So Boston backed out and nearly everyone else had already dropped out at this point.

Jules Boykoff: Only Los Angeles and Paris were still standing. And so at that time in 2017, they allocated the 2024 Olympics to Paris and the 2028 Olympics to Los Angeles.

Nick Capodice: To how is it that the Olympics were just handed to Paris and L.A? Did residents of those two cities say they really wanted it?

Jules Boykoff: Neither city had had a ballot measure where everyday residents of those cities were given an opportunity to weigh in to say whether they wanted to host the Olympics or not.

Hannah McCarthy: It turns out that around a dozen Olympic bids were revoked between 2013 and 2018. The reason voting ballot measures at demands for a vote or someone winning office on an Anti-Olympic platform.

Jules Boykoff: And so what the general trend is, whenever you see an outburst of democracy that tends to not benefit the International Olympic Committee, then all my days studying the Olympic Games. I have never once seen a grassroots democratic bid come from the ground up in society, where everyday working people in the city say, Hey, we really want to host the Olympics. Never have I seen that. Instead, it's always well-connected political and economic elites who figure they can use the Olympics to trampoline their careers or to make some money. I mean, there really is a lot of money sloshing through the system.

Nick Capodice: But how does that work, exactly? If the Olympics are indeed largely unpopular with citizens, why would someone hoping to help their career even put in a bid?

Hannah McCarthy: Well, it's still the Olympics. It's still a prestigious major event that draws the attention of nearly the entire world. I mean, if you're the mayor who brought the summer games to your city, you are someone who got something enormous done. And by the way, you're networking with the other elite folks in your city and people who work at the International and National Olympic Committees, you're meeting important people. You're also probably not going to be the person in charge anymore. By the time the Olympics come to town, so you are unlikely to be blamed for the downsides of hosting the Olympics.

Nick Capodice: All right. And this is the part I need some help on. Jules is saying essentially that when you ask the voters if they want the Olympics, they tend to say, Heck, no. So why? What is so unappealing about hosting the Olympics in your hometown?

Jules Boykoff: This goes all the way back to a really interesting case that a lot of people don't think about in the 1970s, when Denver was handed the 1976 Winter Olympics.

Archival: The Denver Olympic story starts in a land of Olympian proportions.

Jules Boykoff: Your listeners might be saying Denver 1976 Olympics. I don't remember those. That's because they never happened, because people across the political spectrum, from fiscal conservatives to more a left of center environmentalists got on the ballot, a measure that said we will give no public money to host these Olympic Games and guess what? They won. Conservatives, liberals and everyone in between turned out and voted down. Hosting the Olympics in Denver with public money. And so those games never happened in Denver, the International Olympic Committee was forced to move them to Innsbruck, Austria.

Nick Capodice: Ok, I get that it's a money thing that's relatively easy to understand. We're going to spend massive amounts of public money is rarely a popular proposition with voters.

Hannah McCarthy: That's only part of it. But yeah, hosting the Olympics means investing a huge amount of money into infrastructure. After all, you need somewhere to host the competitions so we can start there. Jules broke it down for me like this. There are four major issues that citizens worry about when it comes to hosting the Olympics.

Jules Boykoff: Every single Olympics for which there is reliable data going all the way back to nineteen sixty has had cost overruns. In other words, I call this Etch-A-Sketch economics where in the bid phase of the Olympics, the people putting forth the bid say that it will only cost, say in the case of Tokyo, seven point three billion dollars. Then they get approved by the International Olympic Committee. They take that Etch A Sketch, they shake it up and they put a brand new number on it that is inevitably higher. In the case of Tokyo is around four times higher. I mean, estimates are in the neighborhood of $30 billion were spent on the Tokyo Olympics. So from 7.3 Billion to $30 billion.

Nick Capodice: 30 billion.

Hannah McCarthy: Yeah. It's -

Nick Capodice: 30 billion. 30.

Hannah McCarthy: Yeah.

Nick Capodice: With a B.

Hannah McCarthy: Yes. It's an immense amount of money. But I got to be clear here, the IOC does provide a chunk of that budget, but host cities are still responsible for the cost of venue construction, security, transport, medical services, customs and immigration and a bunch of other operational stuff.

Nick Capodice: Oh, I remember 2016 watching the Brazil opening ceremony, and there's this moment when it was just supermodel Gisele Bundchen walking the length of the stadium. And the announcer is like, yeah, they had some last minute budget cuts.

Jules Boykoff: A second trend the social scientists have identified is the militarization of public space

Hannah McCarthy: In recent years. In particular, the Olympics have become an explicit terrorist target, not to mention the standard security risk that comes with a massive infusion of people, teams and spectators.

Jules Boykoff: Essentially, local security forces use the Olympics like their own private cash machine, getting all the special weapons that they would never be able to get during normal political times. And they don't just return those after the Olympics. In fact, they keep them and they become part of everyday policing.

Hannah McCarthy: And then there's this factor that I think often flies under the radar when a city wins an Olympic bid. The Olympic Village, the competition venues, those are going to have to go somewhere in that city, and that means moving people around.

Jules Boykoff: There's also the displacement and eviction of everyday working people in the city. So when China hosted the Olympics back in 2008, one point five million people were displaced from their homes in order to make way for Olympic venues in Rio de Janeiro. For the twenty sixteen Olympics, there were seventy seven thousand people who were displaced to make way for the Olympics, even when the numbers aren't really high. The human cost is still very real. I visited Tokyo in July 2019, where I interviewed two women who are displaced by the 2020 Olympics. But not only were they displaced by the Twenty Twenty Olympics, they had actually previously been displaced by the nineteen sixty four Olympics, the same women. And so that social public housing complex of working people and working families was decimated. A community was decimated in Tokyo.

Hannah McCarthy: On top of all this, cities will often make promises about how the Olympics will benefit a city long term, widespread improvements to housing and other infrastructure. And if you look at Atlanta, for example, that City really did see a boon from the 1996 Olympics. Certain areas improved and stayed that way, but long neglected low income communities tended not to see that same benefit. In fact, it was only those communities closest to the action of the games that got a makeover back in ninety six. Finally, the last major concern for cities, especially for activists equipped to push back against the Olympics.

Jules Boykoff: The last trend that social scientists have pointed to more and more is the tendency to engage in greenwashing. In other words, promising big ecological gains in society by hosting the Olympics, but not really having much follow through. And again, Tokyo is really instructive in that sense. Originally, when they were to get the Olympics, they were telling the International Olympic Committee that these would be the quote recovery games that would help the affected areas around Fukushima that had been slammed by the triple whammy earthquake, tsunami and nuclear meltdown to recover more quickly.

Hannah McCarthy: The thing is, Jules interviewed people in Japan, elected officials, scholars, people on the street, and they said that hosting the Olympics actually slowed down the green recovery process. A lot of the equipment and materials needed to deal with that crisis in Fukushima were sent to Tokyo, where the Olympics were being held instead of staying where they were pretty desperately needed.

Jules Boykoff: So because of those four trends, there are just simply fewer and fewer cities that are game to host the Olympic Games anymore.

Nick Capodice: Wow. So at this stage, Hannah, I'm starting to cast about looking for the upside. We've heard the Olympics are expensive. They militarize public space. They displace communities and they fail to deliver on environmental improvements. So what does a successful Olympic season look like? Do we even have them?

Jules Boykoff: So I've done a lot of research around the nineteen eighty four Olympics in Los Angeles. This is one that Olympic boosters often point to as one of the more successful Olympics, if you will.

Archival: Welcome to the opening ceremonies of the Games at the 23rd Olympiad at Los Angeles.

Jules Boykoff: First of all, we didn't lose a ton of money. They ended up with a small surplus. And if you talk to people in Los Angeles, some of them really do have a positive feeling about that.

Hannah McCarthy: Some people, though, Jules means like the mayor of L.A., Eric Garcetti and fellow Olympic supporters media tycoon Casey Wasserman. So yeah, there are people who will say that there's a major upside, but there's always the other side of the coin.

Jules Boykoff: I also interviewed lots of Latin X and African-American residents of Los Angeles who felt very different about those games. What they said when they thought about the nineteen eighty four Olympics was they remembered the words of the helicopter blades above their neighborhoods. They remember the machinery, the military. Her eyes, machinery that was brought in to keep activists at bay during the Olympics, who are trying to raise big questions about the spending around the 1984 Games and other elements. And so there's a real racialized remembrance of the Los Angeles Olympics, and we can't just brush the feelings and experiences of those folks under the table. We need to think about that as well.

Hannah McCarthy: By the way, those same marginalized communities are looking at the 2028 L.A. Olympics with the memory of how they did not benefit and were in fact negatively impacted back in nineteen eighty four, which is why you see groups like no Olympics L.A. taking a stand against their city's games.

Archival: And you know, our main mission is to stop the Olympic Games, not just from happening here in L.A, but just to educate people on why that's the thing that needs to happen.

Hannah McCarthy: But I want to pivot here, Nick, because the way a city's residents feel about hosting the Olympics, that is just one piece of the political puzzle. What are the other motivating factors for hosting the Olympic Games? How are these games used as a political tool and what do the athletes remember them? Think about this? That's all coming up after the break. Before we dive back into the international intrigue that is the Olympic Games, I am here to tell you that there is a great deal of stuff that did not make it into this episode and it is good stuff. The Olympics have layers upon layers of complicated dynamics, and that makes sense because this is a global event. But the point is the stuff that didn't make it in. You want to hear it? Trust me. For example, what does it mean for one TV network to have exclusive broadcast rights for the Olympic Games? It means a lot, people and I want to tell you and I will and our next extra credit newsletter, we send it out every other week, and it's packed with the other stuff we are learning and the clips from the cutting room floor. You can subscribe right this very moment at our website civics101podcast.org. All right. Let the games begin.

Nick Capodice: All right. Hannah, before the break, we heard about how the Olympics end up in a city and the impact of hosting for good or for ill. But it seems to me that the power of the Olympics extends beyond political hobnobbing and justifying major spending. So what else motivates cities to host them? What does it for them?

Nancy Qian: For over a year now, I've actually been working on a research project about the motivation that governments have for holding the Olympics.

Hannah McCarthy: This is Nancy Qian. She's a professor of economics and decision sciences at Northwestern. I spoke with her after reading an article she wrote called Good and Bad Olympic Nationalism. And she told me that over the course of her research, she's found that democracies tend to bid on the Olympic Games when they're doing well, economically speaking. But autocracies, a.k.a. governments where power is concentrated in one person's hand, are the opposite.

Nancy Qian: Autocracies are more likely to bid for the Olympics bid and win, I should say so. These are meaningful bids when things aren't going well economically.

Nick Capodice: Wow. So it's like, Hey, citizens pay no mind to the fact that things aren't going so well right now. We're going to try to host this flashy, distracting, prestigious event, which, by the way, is exactly what a bread and circus is. It's basically anything that superficially pleases people.

Nancy Qian: Obviously, most bids are not successful, right? So the vast majority of bids are just signals that the country is interested. And maybe it gives the country some news headlines like, you know, we're going for it. This is something interesting to do. And maybe it distracts the country from other types of news. But most bids are not serious bids, right? They don't have a chance.

Hannah McCarthy: This is an important factor. We can talk about the politics of hosting the Olympic Games and we will do more of that in just a moment. But that distinction is reserved for those nations who actually make the cut.

Nancy Qian: I think so often we just focus all of our attention on the big power players, right? Like the economic political superpowers who are also the one getting the most medals. And also most often they host the Olympics more often than the other countries, right? So there's good reason for focus. But there's so many countries, most countries, there's over one hundred countries that go to the Olympics. Most of them will never host the Olympics. Most countries don't win medals actually like any medals. And then for these countries, the Olympics are an entirely different experience,

Hannah McCarthy: And it's in that entirely different experience that you can find the difficult to measure positive vibes principle. What good can the Olympics do, especially when you are not the one hosting the games?

Nancy Qian: Researchers have shown using data from soccer games that, for example, for African countries competing together is really good for national unity, so it is still about patriotism and national unity. But it doesn't seem to have that negative element of international competition with other countries, which makes sense because they're not really contenders, right?

Nick Capodice: I would imagine that there's this sense of being sort of the David to the Goliath of the world's best sports teams, and that's something to bond over with other nations who are in the same boat as you. And also, you do get to play with the major contenders, and that's got to feel good.

Nancy Qian: All countries that go to international sporting games can get a big boost of patriotism and nationalism and bonding. But the political effect of that binding differs depending on where on the political spectrum of power you are, right? So if you're a weak state, that's fractionalized coming out of years of civil war, you know, competing in the Olympics. This is a moment of building solidarity for your country, which is good, right? By and large.

Nick Capodice: Oh yeah Hannah, this makes me think of South Sudan joining the 2016 Olympics, it was a huge deal because here you had this newly independent nation asserting its place on the world stage.

Archival: And a person that never heard about South Sudan or never see South Sudanese, to see that we are a new country. And also we need...

Hannah McCarthy: I do want to touch on this contendere question this idea that some nations are simply not contenders? Developing nations might not be meaningful contenders because their economic and political environment is not conducive to training and supporting their athletes. And there have been calls for the IOC to create a separate Olympic Games for developing nations or to build central training grounds for athletes who don't have access to them at home. Still, as it is now, these non contenders do stand to get something out of participation in the Olympic Games.

Nancy Qian: So really, it's it's more about a shared experience of being at the Games together, something that you've been doing, something you've been training for years that can actually build solidarity between people from different countries as well as different groups within countries, right?

Hannah McCarthy: For example, take the infamous divide of the Cold War. It was enough for the U.S. to boycott the Olympics in the Soviet Union and then for the Soviet Union to turn around and do the same to us. When the Cold War came to an end, Soviet and American athletes were face to face for the first time in a long time.

Archival: They're not one of the better serving teams in the world, and they can put a little pressure on the Soviets. They can make some points...

Nancy Qian: All of a sudden, you know, athletes who weren't allowed to talk to each other before, like the floodgates were open, and it turned out that all they had were like, these really positive feelings about the other athlete. So this sort of gives you the sense that a lot of the politics surrounding it is manufactured by the government and the media. My sense is that it's easier for the smaller countries because there's there's less incentives for governments and media to create tension, create political tension or magnify existing tensions.

Nick Capodice: Ok, Hannah, speaking of magnifying tensions, I have to ask about what is going on as we speak, which is a diplomatic boycott of the 2022 Winter Olympics in Beijing, China.

Archival: A diplomatic boycott now of the Beijing Olympics over China's crackdown on democracy and human rights abuses.

Nick Capodice: The United States announced it first and then Canada, Australia and the UK followed suit. And from what I understand, China was not happy about it.

Archival: Yeah, David, they are calling this one pure political provocation, and they are now threatening countermeasures, though they are not specifying what those are....

Nick Capodice: So my first question is this does a boycott mean that we're not going to go to the Olympics at all?

Hannah McCarthy: Great question. It did. Once upon a time, I mentioned the U.S. boycott of the Soviet Olympic Games during the Cold War. That was a boycott in which even athletes were not permitted to attend the games, and we're not doing that this time.

Nancy Qian: I actually talked to some former Olympians about it. I just happened to have an opportunity and they were like, This is nothing like the Cold War, right? Because the Cold War, they didn't let the athletes go, and that was terrible for the athletes. That was a huge cost for the athlete. That was a price that was paid to make a huge political gesture.

Hannah McCarthy: In 1980, the Olympic Games were taking place in Moscow. The Soviet Union had recently invaded Afghanistan, and President Jimmy Carter set a deadline for Soviet troops to withdraw when they didn't make that deadline. Carter said, OK, we're boycotting the Olympics

Jimmy Carter: Human rights and who believe in peace. Let our voices be heard in an absolutely clear way and not add the imprimatur of approval to the Soviet Union and its government.

Hannah McCarthy: And not only that, any American athlete who attempted to attend the games under, say, a neutral banner would have their passport revoked.

Nick Capodice: And what does it move like that say to the rest of America?

Hannah McCarthy: Well, a lot of Americans pitied those athletes who couldn't compete. They were Olympians without the Olympics. Still, Carter was saying, we will in no way appear to support an anti-democratic regime. This was an acknowledgment of the political power gesture of going to the Olympics, of sitting with other leaders and diplomats and shaking hands and smiling while your country's athletes display their elite skill, which, by the way, brings me to a boycott that did not happen,

Nancy Qian: Such as the one in Berlin where people in hindsight thinks maybe someone should have banned it. But we all went. Everybody went the entire Western world who ended up at war with each other later all went and participated and celebrated.

Archival: And meanwhile, a packed

Speaker3: Stadium and flag draped cheering streets greet Chancellor Hitler on his way to perform the opening ceremony.

Hannah McCarthy: This is the 1936 Berlin Olympics, also known as Hitler's Olympics, and it started the first meaningful Olympic boycott movement in the United States. A lot of Americans were opposed to attending. Here's Jules Boykoff again.

Jules Boykoff: The boycott movement was widely supported in the United States, certainly by Jewish groups who could see the writing on the Wall already with what Hitler was doing after his rise in 1933. But it was really gaining steam even among certain athlete groups in the United States as well.

Hannah McCarthy: The quote boycott movement was widely publicly discussed leading up to the 1936 Berlin Olympics. What message will it send if we send our athletes to Berlin? Will that legitimize this burgeoning Nazi regime?

Jules Boykoff: So what happened was the American Olympic honchos decided to send over a guy named Avery Brundage on a Fact-Finding mission to Berlin to figure out what was actually going on there. Well, Brundage, it should be said, was very pro-Nazi, very pro Germany. He was wined and dined by the Germans. He had his own translators, which were, of course, Nazi approved translators. And guess what? He comes back to the United States and says there's nothing to see there. Everything is going to be fine. And of course, don't even need to worry about this anyways, because the Olympics are neutral, they are not political. And so we have nothing to fear here.

Hannah McCarthy: Of course, that wasn't true. And closer to the games, it became apparent that there was in fact vehement anti-Jewish sentiment in Germany leading up to the Berlin games.

Jules Boykoff: And in fact, the president of the International Olympic Committee at the time account, named Henry Bilat, later was alarmed by the anti-Jewish signage that he saw in the countryside as he traveled to those Winter Olympics in Garmisch-Partenkirchen. And he requested directly to Hitler that he get those signs down because they were going to do no good for the Olympic Games or really humanity more generally.

Hannah McCarthy: Mind you, Hitler was not really into sports. He was not convinced that he should go along with the IOC. Ultimately, Joseph Goebbels, his propaganda minister, convinced him to end. Germany then got to use the Olympic Games in a number of ways, for example, and this one blew my mind. It was the Germans who invented the modern Olympic torch relay.

Archival: Berlin's great day dawns with the arrival of the Olympic flame at the end of its 2000 mile journey from Greece.

Jules Boykoff: At that time, it was basically a scouting mission to figure out who are you are going to invade next for Germany and if you see where the torch went. Those were countries that were soon conquered, many of them.

Nick Capodice: Seriously? Why did I not know that little piece of information?

Hannah McCarthy: Yeah, I hadn't either. Apparently, Hitler also saw this relay is a great way to tie the Olympic Games to their Greek roots, which was important to him because he saw a link between ancient Greece and the Aryan race. And then, of course, there's the fact that the Olympics meant major media coverage for Nazi Germany.

Jules Boykoff: The New York Times wrote glowingly of Hitler as one of the great leaders of our time after those Olympic Games. And so, you know, people who are following those Olympics were high on the five ring supply, if you will, at the time. And it really helped Hitler and gave him more space to maneuver politically moving forward.

Nick Capodice: All right. So if we want to look at exactly how politically powerful the Olympics are, this seems like the perfect example. The major power players of the world, including the United States, attend these games hobnob with Nazis, and it really helps that regime on the global scale.

Jules Boykoff: There's a lot of people wondering, are we essentially doing the same when we allow Russia to host the Olympics in twenty fourteen or China in twenty twenty two? And hey, there's plenty of people that are concerned about that. The Olympics are being held in the United States, which has eight hundred military bases around the world, it must be said, whereas China only has three who's the United States spends a huge amount of money on its military compared to these other countries. And so I think in fairness, that needs to be brought into the frame as well. When we're talking about these Olympic Games and the processes of democracy and how it can help forces in society that are anti-democratic gain a foothold through hosting the Olympic Games.

Hannah McCarthy: All right, so now we're going to move away from the politicians, the nation states the potential invasions, the diplomacy to the athletes, the actual Olympians at the heart of these games. How did their politics fit or not within the Olympics? That's coming up after the break.

Nick Capodice: But first, just a quick reminder that Civics 101 is a listener-supported show. Go to our website civics101podcast.org, click the donate button with whatever amount is good for you and you'll get a gold medal in our eyes.

Hannah McCarthy: Welcome back to Civics 101. We're talking the politics of the Olympics, including the politics of the people at the very heart of these games, the athletes, we know these games are a way to connect with other great athletes that for the competitors, the political divides of their nation are insignificant in the face of their mutual respect for others who train as hard as they do, who are a part of their very small club. But Olympians themselves figure it out a while ago that they too can use these games as a platform just as their home countries do.

Jules Boykoff: That epic moment of political dissent where John Carlos and Tommie Smith stood on the medal stand in Mexico City and thrust their black gloved fists into the Mexico City sky, while the person who plays second to gentleman from Australia named Peter Norman, a white guy from Australia, stood in solidarity wearing a button that said, OK, Air Olympic project for human rights.

Archival: There were some boos in the stadium last night. ABC Sports Editor Howard Cosell spoke to Tommie Smith after he accepted his gold medal.

Tommie Smith: The right glove that I wore on my right hand signifies the power within Black America, the left glove. My teammate, John Carlos, who on his left hand made an arc, my right hand to his left hand also signify black unity.

Nick Capodice: Yes, I know this moment very well. Carlos and Smith gave the black power salute. Smith later said that for him, it was the human rights salute. And it turned out that despite not giving the same salute, Peter Norman from Australia was in full support of their demonstration,

Hannah McCarthy: And this is still considered one of the most overtly political moments of modern Olympic history. And it really damaged Carlos and Smith's careers.

Jules Boykoff: And so, of course, the International Olympic Committee was in freakout mode after that happened, and they put loads of pressure on the United States Olympic Committee to give Carlos and Smith the boot from the Olympic Village, which is exactly what happened.

Hannah McCarthy: This highlights, by the way, the dissonance between the way that nations use the games and the expectations that the games themselves will be nonpolitical, that sports are inherently neutral, an insistence that the IOC eventually put on the books. So you had the Carlos and Smith moment in 1968, and then in 1972, Wayne Vincent Matthews and Wayne Collette stood on the medal stand and sort of disinterestedly spun their medals around on their fingers.

Jules Boykoff: The point is, after those two outbursts by U.S. African-American athletes in comradeship with other athletes, the IOC decided to put this rule on the books.

Hannah McCarthy: This is Rule 50 of the Olympic Charter. It bans any form of political demonstration during the games.

Jules Boykoff: And athletes are more and more aware of it, especially today, because I think it's fair to say we're living in what could be called the athlete empowerment era, where more athletes are standing up and socially conscious, politically motivated ways. And so the International Olympic Committee is certainly aware of that and is continuing to stand by this rule, even as it has made minor minor modifications along the way, which is what we saw in Tokyo, for example, when it allowed a little bit more space for athletes to express themselves. And what I mean by that is they adjusted the rule whereby athletes could speak out on issues or take a political stand before their competition began. And that's why you saw with some of the women's soccer games at the Tokyo Olympics, all the athletes taking a knee before the game. Now, you still couldn't do it during the game and you still couldn't do it on the medal stand.

Hannah McCarthy: Jules made this point near the end of our conversation, and for me, this really gets to the heart of, you know, how do we use the Olympics? What are they? Are they a celebration of athleticism, a deep commitment and sacrifice? Yes, absolutely. Do I drive an inimitable sense of awe when watching the world's greatest athletes do their thing? I do. Many of us do. And the Olympics are a platform participating nations find a way to use this platform. And some of the athletes at the heart of these games do the same thing or try to even if they're not really allowed,

Jules Boykoff: Even that didn't stop an amazing and I think epic act of political dissent from happening in Tokyo when the U.S. athlete Raven Saunders put her arms in a shape of an X on the medal stand to represent oppressed people across the world.

Raven Saunders: We kind of decided that the X was going to be like a sign of our sign of, you know, and what it stood for for us. And leading up to that podium standoff I was like, ehhh, all right I was like, all right, it's time.

Jules Boykoff: And it was a powerful, powerful moment. And fortunately, the International Olympic Committee did not crack down on Raven Saunders, in part because her mother was very ill at that time and they decided not to lash out with a penalty. It would have been even uncouth for them. And but the point is, you really can't put athlete activism into the bottle despite these kind of rules against it. It is not going to stop some athletes from taking a stand.

Nick Capodice: The IOC's position here sounds not totally dissimilar to what's happening in the U.S. right now with the intersection between sports and politics. You've got the people in power, which are politicians, sports league elites, franchise owners predominantly insisting that political demonstration or affiliation has no place on the field or the court. And then, on the other hand, you have athletes using their platform to take a stand. And specifically, in the U.S., these are athletes of color, and they're drawing attention to racial injustice.

Hannah McCarthy: Right? It's a raging debate. On the one hand, athletes are vilified for taking a knee during the national anthem at an NFL game. On the other hand, the NFL insists that the national anthem be played. On the one hand, the IOC demands athletes keep politics off the medal stand. On the other, the Olympics are a series of political decisions from beginning to end. And just a reminder, by the way, that other nations around the world make no buts about the connection between politics and sports.

Jules Boykoff: Let's not forget, despite everything I've been talking about with you here, Hannah. The Olympics are tremendously popular in the public sphere. So long as they are not happening in your city, then big questions tend to get raised, but otherwise they still are popular. Billions of people will tune in to watch them, which means that's a stage of billions of people that could see your political message if you're an athlete willing to share it on that big stage.

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 Ketsa, Metre, Xylo Zico, Mello-C and the inimitable John Williams. You can check out all of our episodes and more at Civics101podcast.org and make sure to never miss an update on how our democracy and government works. Follow our podcast on iTunes, Spotify or wherever you get your podcasts. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Kamala Harris will be the nominee. What now?

You have questions about the future of the democratic ticket, and Civics 101's favorite explainer, Dan Cassino, has the answers. What happens to Biden's fundraising money? What will the delegates at the DNC do? Will there be any legal challenges? And finally, what does it mean for a party when they nominate a candidate different than the one that won the primary?

Dan Cassino is a professor of political science at Fairleigh Dickinson University. 

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Archival: Just a stunning announcement from President Joe Biden that he intends to step down as a candidate in the 2024 election.

Archival: After the president announced that he was going to step aside in this race. Was who exactly was going to step in, Rachel? The president, in a tweet just announcing that he is offering his full support and endorsement for Kamala Harris to be the nominee of the party.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we [00:00:30] are talking about, well, this last weekend, what are the systems and processes and the historical precedents for when a presidential candidate steps down a scant few months before the election.

Hannah McCarthy: And just for a super quick catch up in case anyone threw their phone into the ocean on Sunday. Uh, Nick. What happened?

Dan Cassino: So yesterday afternoon, uh, President Biden announced that he would not be running for reelection. He would not seek reelection.

Nick Capodice: This is Dan Cassino, professor of political science [00:01:00] at Fairleigh Dickinson University and guest on our show. Maybe 19 times over, I called Dan Monday, July 22nd. And because the world of politics moves so fast these days, we are recording these words on Tuesday, July 23rd.

Dan Cassino: And shortly afterwards he endorsed Vice President Kamala Harris for the Democratic nomination for president. We then saw a tidal wave of endorsements for Kamala Harris, and it looks like today, a day later, looks like it's [00:01:30] almost sewn up. In addition to all the elected officials who have, you know, either endorsed her or at least not endorsed anyone else. We've also seen that none of the other people who are thought to be the major challengers for the Democratic nomination have thrown their hat in the ring. In fact, several of them have actually endorsed Kamala Harris. So if they were going to have some sort of open contest, it's not clear who that contest would be between because nobody seems to want to run. Add on top of that is that Kamala Harris seems to have had the best fundraising day in the history of the Democratic Party over the last [00:02:00] 24 hours, which are kind of just getting over now.

Archival: Jeff, what did we learn in this first full day of the Harris campaign?

Archival: Well, we learned that she can raise a lot of money in a very short amount of time.

Nick Capodice: Quick update to that. At the end of that first 24 hours, the total was $81 million raised for Kamala Harris's campaign, which is the most money ever raised by a presidential campaign in 24 hours, not to mention another $90 million [00:02:30] in donations to Actblue, which is a website for donations to members of the Democratic Party. Up and down the ballot. Okay.

Hannah McCarthy: And is this in addition to the millions of dollars that the Biden-Harris campaign had already raised, the the money that's in the quote unquote, war chest?

Nick Capodice: Yeah. And I'm going to get more into the war chest a little bit later. Uh, but prior to Sunday's announcement, the Biden-Harris campaign had already raised $96 million.

Hannah McCarthy: That is, it's just remarkable [00:03:00] that they had raised $96 million. And then in one day they raised like, I know we're talking about millions of dollars, so it's whatever another 81, like almost as much. They practically doubled. It's just that's really interesting. Okay. So I want to know the history of this, Nick and the systems of delegates and the convention and the nomination. But first, what does this mean? Like what does this tell us about the parties? If a candidate is chosen after the primary,

Dan Cassino: This sort of [00:03:30]thing is very much what we call the party deciding. So this is actually one of the big debates in political science is do parties still really matter at all? And, you know, we've got all these primary elections. So if it's just primary elections, it doesn't matter what the party wants. The party can't dictate things to the to the electorate. And we've seen some cases, the electorate dictating things to the party.

Hannah McCarthy: I imagine you're going to come back to it a few times. Primaries are relatively new. They started in the late 1960s to prevent backroom [00:04:00] deals and allow the people, not the party, ostensibly, to choose a candidate. Did Dan have an example of a time that the party and the people split?

Nick Capodice: He sure did.

Dan Cassino: So our best example of this is in 2016, when the Republican electorate very much wanted Donald Trump. The leaders in the Republican Party did not want Donald Trump. But it didn't matter. The party wasn't able to coalesce. Now, on the flip side of that, we have what happened with Joe Biden in 2020. Joe Biden was [00:04:30] basically nobody's first choice in the 2020 Democratic nomination race, but he was pretty much everyone's second or third choice, thought to be a pretty safe choice. And what happened was over basically one weekend around the South Carolina primary, the entire Democratic Party got behind him and said, this is our guy, pressured some other candidates to drop out and endorse him, and he became the guy almost overnight. So the party, at least the Democratic Party, has still shown some capacity to unite and to push their candidate forward. And that's basically what we saw over the last 24 hours. [00:05:00]

Hannah McCarthy: Okay, so now I just have to know, uh, has this happened before? Has a party's candidate ever switched so close to the election?

Nick Capodice: Not like this exactly. We are in rather uncharted waters here, but there are two examples in modern history.

Dan Cassino: So we all talk about 1960 with Richard Nixon or even 68. 68 is actually a similar election to this, in that the sitting president, Lyndon Johnson, who was like a term and a half into because he took over after [00:05:30] Kennedy was shot, decided not to run for reelection. Now, Johnson decided not to run for reelection very early on. It was, in fact, after the New Hampshire primary, where he didn't lose. He actually won the New Hampshire primary, but only won it by 10 or 15 points. And he said, oh my God, if I'm only winning New Hampshire by 10 or 15 points as an incumbent president, I'm out.

Archival: I shall not seek and I will not accept the nomination of my party for another term as your president.

Nick Capodice: Now the 1968 Democratic National Convention [00:06:00] was bonkers.

Archival: That's Wisconsin is not recognized for that purpose. I did not listen to Wisconsin.

Archival: Is the call of the role of the state or balloting on candidates?

Nick Capodice: We've talked about it in several episodes, but the important thing for today is that Lyndon Johnson dropped out of the race in March of 1968. Now, if we're going to contrast this to President Biden, this is four months earlier than he did [00:06:30] the same. However, we do have an example that's just a little bit closer to what happened this week.

Dan Cassino: The closest we have to this is in 1972. So this is Richard Nixon running for reelection, and he's running against George McGovern. And George McGovern, uh, he's well behind in all the polling, right? Nobody thinks he has much of a chance of winning. And so he decides he's going to at the convention, he's got to pick his VP candidate so he doesn't vet any of these VP candidates beforehand. He just going, well, these are [00:07:00] all senators or governors. They're all people he trusts, all people that are well known. He's not worried about them. So it goes in the last minute. He picks Thomas Eagleton, right. Eagleton center. Okay, this guy is going to be fine. We're not worried about him. And they ask Eagleton. Oh, is there anything we need to know? Any reason we shouldn't be picking you? He says no, no, no, it's all fine. There's nothing you need to worry about. And of course, we find out over the course of the next two weeks is not only had Eagleton suffer from depression, which in 1972 was considered to be somewhat disqualifying, but he'd also had electroshock [00:07:30] treatment to treat his depression.

Hannah McCarthy: The fact that someone had suffered from depression and was treated for it was enough to make a candidate unelectable. Yeah, it.

Nick Capodice: Was like this was before the movie One Flew Over the Cuckoo's Nest was made. But the book by Ken Kesey and the very successful Broadway play based on it painted a very dark picture of electroshock therapy

Dan Cassino: And worse it just kind of dribbled out over the course of weeks. Now, how did it dribble out? Well, the [00:08:00] there's a strong suspicion that the Nixon campaign actually was doing some of their dirty tricks. The Nixon campaign had a different term for it that we will not say on the air.

Archival: Rat fink, rat fink. Yay yay.

Dan Cassino: Nixon campaign dirty tricks that they might have been leaking this out. And so Eagleton first is denying it, then saying, well, it's not that bad ahead depression. But nothing else happened. And then said, well, I didn't get electroshock, but then admitted they did. And then after two weeks, two weeks after the convention, he was forced to drop out. So even after he'd been formally nominated, he was forced [00:08:30] to drop out and was replaced by the new Guy McGovern pick, Sergeant Shriver, who is up there with the name that sounds most like a G.I. Joe character in American political history. And the DNC just said, okay, cool. Sergeant Shriver's our guy. We're going for it.

Hannah McCarthy: And McGovern lost in a landslide, didn't he?

Nick Capodice: Oh he did did, uh, one of the biggest landslides in US history. McGovern won one state and one state only. Not even his home state, the grand state of Massachusetts.

Hannah McCarthy: Oh, that's my home state.

Dan Cassino: So that's similar in that it's [00:09:00] a last minute pick and it's actually worse than the snare we have right now for the Democrats in that the convention had already happened. And the difference there is the convention was much earlier. So this year the Democrats have gotten themselves into a spot of trouble because they pushed their convention back. Now, if they had good reason to push their convention back, the reason they pushed the convention back, the convention this year is going to be what it's going to be August 19th through 22nd. The reason they pushed it back is because of the Olympics. You know how like if you're [00:09:30] watching a show on Fox, it always gets pushed back because the World Series, it's the same thing. Like nobody's going to pay attention to the DNC as long as the Olympics are on, because I've got, I don't know, judo or the four by 100 to watch. So they said, we're going to do it after that. And again, for political perspective, this makes some sense because there's generally a convention bounce right after convention you do a little better. And so if I'm going to get a bounce, I'd rather have a bounce closer to the election day rather than after the election day. So Democrats push their convention all [00:10:00] the way back. So they weren't going to officially nominate someone until August 21st. The problem with that is that a bunch of states have deadlines for who's going to be on the ballot in the beginning of August.

Hannah McCarthy: Okay, the Democratic National Convention is in Chicago. And as Dan said, it starts on August 19th. Can we just do a little refresher on conventions and delegates and how it all works?

Dan Cassino: All right, so let's talk a little about delegates of the convention. So this is a lot like the Electoral College. [00:10:30] And remember the Electoral College we vote for president. You are not really voting for the president. You are voting for a list of people that you've never heard of, many of whom are local used car dealers, and they are people who are pledged to vote for the candidate. You say. So if you go into the election booth and you vote, you know, it was 1980 and darn it, you're voting for Ronald Reagan. You're not actually voting for Ronald Reagan. Depending on which state you're in, you're voting for a list of delegates of people who pledge that electoral college they will vote for Ronald Reagan. All right. At the convention, Republican [00:11:00] National Convention, we are doing approximately the same thing. It'll say Joe Biden or Donald Trump on the ballot in the primary, but you're not actually voting for Donald Trump or Joe Biden. You're actually voting for a list of names of people who pledge that they will vote for that candidate at the convention on the first ballot. So hasn't happened in a long time, But in theory, if nobody gets a majority on that first ballot, then you have a second ballot. You vote again. And in most states after the first [00:11:30] ballot, those delegates can vote for whoever the heck they want again. Hasn't happened a long time. Political observers are desperate for it to happen just once in their lifetimes. They just really want to see this, and right now they're actually a little upset.

Hannah McCarthy: When was the last time that we had a contested convention?

Nick Capodice: Not for a long time. Like we sort of had 1 in 1984, but not really. Walter Mondale was a few dozen delegates short before the convention, but by the first vote he had the clear majority. [00:12:00] But the longest and most brutal convention was the DNC in 1924, where John Davis was finally, after days picked as a nominee.

Hannah McCarthy: How many ballots did it take? 103 whoo-hoo-hoo-hoo.

Nick Capodice: Yeah, and he lost. He lost to Coolidge real bad.

Hannah McCarthy: So how many delegates are going to be at the upcoming DNC in August?

Nick Capodice: 4600.

Hannah McCarthy: And some of them are super delegates, right. Can we just break that down real quick?

Nick Capodice: Absolutely.

Dan Cassino: So of those 4600 [00:12:30] delegates, about 3900 delegates are pledged and 700 are we call unpledged or super delegates. So 3900 delegates are people who have picked in primaries or by some other nominating process, and they're pledged to vote for one candidate or the other. 700 of them are not pledged to vote for anybody. They're mostly elected officials who kind of get an automatic seat. Right. So Bill Clinton is a super delegate, right? Because he doesn't have to run for any particular state. He's Bill Clinton. We're just going to let him do it. The Republicans have this, too, but in smaller numbers, right. Republican, the RNC are going to have about 2300 delegates, and only about 100 of them are [00:13:00] superdelegates. So on the first ballot, 3900 delegates after 2016, those superdelegates don't get to vote in the first round.

Hannah McCarthy: Why don't the superdelegates get to vote in the first round?

Nick Capodice: Because it can really throw a wrench into the works. For example, in 2016, the Democratic Party had put their support behind Hillary Clinton like, hey, we're doing this. And they were terrified of what would happen if the superdelegates who hadn't pledged their support to her picked Bernie Sanders. So the Democratic Party changed the rules to prevent [00:13:30] that.

Hannah McCarthy: But this year, all of those pledged delegates vowed to cast their vote for Joe Biden.

Nick Capodice: They did.

Dan Cassino: Now, do those delegates actually have to vote for Joe Biden because they've already been pledged for Joe Biden? But Joe Biden is not running now. So what is supposed to happen in the when this happens? The Electoral College, almost every time we get at least one person who says, I'm going to vote for somebody else, we don't normally get that in the parties. The reason you don't get that is because, well, how do you pick the people who are going to be your delegates? And the answer is you pick the most [00:14:00] loyal party members, you have the people who are going to follow orders. So you're not going to pick someone who's going to be faithless. You pick the most loyal guy you've got. The people are most excited about the candidate, and so they generally do what they're supposed to do. Also, it's exciting to say, I'm going to cast our votes for this guy, the next president of United States, not say, I'm going to cast my vote for this other guy over here who's not going to win. Nobody wants that. You don't get any. Cheers. That guy doesn't have any balloons at all. Why would you do that?

Nick Capodice: And last night, Monday, the 22nd, Kamala Harris [00:14:30] announced she had secured more than enough delegates to win the nomination on first vote at the convention.

Hannah McCarthy: Uh, can I can I just read to you something from the New York Times that, like, describes how Kamala Harris secured those delegates? Yeah, because it's, like, really interesting. Miss Harris's most immediate task had been to secure the support of enough Democratic delegates to lock down the nomination. A Google form asking delegates to endorse her had circulated among those key Democrats who include party [00:15:00] officials, lawmakers, local activists and volunteers.

Nick Capodice: This is like, are you going to nominate me? Yes. No, maybe is what it sounds like. Well, that Google form worked. She is the presumptive nominee. And all those political scientists who want to see a knock down, drag out, contested convention are probably going to have to wait.

Hannah McCarthy: This brings me to a talking point I have heard in the past 48 hours, what are the various state rules when it comes to who the delegates vote for, or who gets [00:15:30] put on the ballot? Will there be any legal challenges?

Nick Capodice: There might be some legal challenges have been threatened, and I'm going to get into all that right after the break.

Hannah McCarthy: But before that break, Civics 101 is listener supported and we don't even have a Google form. Make a gift at our website civics101podcast.org and we will keep making episodes with a 48 hour turnaround.

Nick Capodice: Sometimes

Hannah McCarthy: Which is fast because we have a small team.

Nick Capodice: I know it is fast sometimes. Not all the time.

Hannah McCarthy: We're [00:16:00] back. We're talking about President Joe Biden stepping out of the race and endorsing Kamala Harris as the potential Democratic nominee for the 2024 election. And, Nick, you were going to talk about how this shakes out on a state by state level.

Nick Capodice: I was indeed speaker of the House Mike Johnson said on Monday that he foresees legal difficulties to the candidate change in.

Archival: Accordance to some of these states [00:16:30] rules. For a handful of people to go in a back room and switch it out because they don't like the candidate any longer. That's not how this is supposed to work. So I think they would run into some legal impediments in at least a few of these jurisdictions.

Dan Cassino: There's only five states and maybe six depending. I read the law where those delegates look like they're still going to have to vote for Joe Biden.

Nick Capodice: Again. This is Dan Cassino, professor of political science at Fairleigh Dickinson University.

Dan Cassino: Right. Where the law in the state says the delegates have to vote for the person who won the primary. There's 14 [00:17:00] states that say they have to do it, but nine of those 14 states, there's a little waiver says if the person dies or drops out, you don't have to vote for them. It's only in five states, and maybe six that the state law says you still have to vote for the person basically, no matter what. Uh, that's Virginia, Tennessee, Oregon, New Mexico, Indiana, right? You have to vote for that person on least the first ballot. So unless they change the law, which is still possible in some of these states, I suppose, uh, those delegates would still have to vote for Joe Biden, even though Kamala Harris [00:17:30] is the presumptive nominee. The one maybe is Florida because Florida says they have to vote. I'm going to quote here, uh, in a way that reasonably reflects the results of the primary. Does that mean that they have to vote for Biden even though he's dropping out? The answer is, I don't know, and neither do you. Do we know if he's ever found out? Uh, Connecticut actually also says they have to vote for Joe Biden unless Joe Biden sends a note home.

Hannah McCarthy: Sends a note home? Like mom says, I can go on this field trip kind of thing. Yeah.

Nick Capodice: And [00:18:00] part of the reason that Dan says this litigation likely won't go anywhere is because while Kamala Harris has pledged delegates, she is not yet the nominee.

Dan Cassino: Someone becomes the nominee of the party after the convention, right? We do the roll call and then the person on the floor gavels in and says, we are officially announcing that this person is the winner. Up until then, the Democrats and Republicans don't have a nominee. So there are people. This is mostly the Heritage Foundation. The Heritage Foundation is a right wing think tank, and the Heritage Foundation has already said [00:18:30] we're going to file lawsuits. We think there's 31 states where there could be some sort of, you know, some sort of thing where we could challenge it. And maybe the judge will throw Kamala Harris off the ballot or say, Joe Biden has to be on the ballot. And then they narrow it down and say, well, okay, really realistically, there's like three that are swing states that we're going to spend. They promise to spend millions of dollars challenging any change. Now note they announce they're going to do this well before the shift. So they were basically assuming that any shift from [00:19:00] Joe Biden was going to happen after the convention. So if it's after the convention, yeah, changing the changing it is tough because remember, these states have these deadlines in the middle of August. So if you have a deadline in August and you're changing your thing after that, that could run afoul of state laws. However, the DNC didn't happen yet. They didn't officially nominate anybody yet. And so Joe Biden was not the official nominee. And so there's really not much of a place, uh, to have anyone challenge saying, well, Kamala Harris can't be on there because in theory, [00:19:30] the DNC can nominate whoever they want. It's according to their own rules.

Hannah McCarthy: What about on the ballot, though? Is this late enough in the process that some states could argue that there is not enough time to put a new candidate on the paper or on the screen?

Nick Capodice: That is a very good question, Hannah, and it is one that was answered quite recently by the Supreme Court.

Archival: The Colorado Supreme Court held that President Donald J. Trump is constitutionally disqualified from serving as president under section three of the 14th Amendment. [00:20:00] The Colorado Supreme Court's decision is wrong...

Dan Cassino: You might have remembered this decision from Colorado, where we had a judge in Colorado say former President Trump can't appear on the ballot in Colorado because he is an insurrectionist. Well, the US Supreme Court took that up and said, you can't just have a difference in state rules that say that a major party candidates on the ballot in some states and not on the ballot in others, that would be awful. That would be a derogation of democracy. So there's not really there's not really a legal leg to stand on here. Uh, however, this is politically there's a play [00:20:30] here, which is to basically claim that Kamala Harris is an illegitimate candidate. Uh, you've already seen former President Trump saying this on his social medias, saying that, you know, she's illegitimate. They shouldn't be allowed to switch her out. And so to make the case, we're suing to keep her off the ballot. Illegitimate also for the Heritage Foundation. This is nice for fundraising, right? We are doing our best to do this. So it's a political move. It's a fundraising move. I don't think anyone takes this seriously as a legal move.

Hannah McCarthy: All right. I want to go back to the quote unquote war chest for a second. This is another thing [00:21:00] that has come up. The Republican chairman of the Federal Elections Commission, Sean Cooksey, has stated that Harris does not have access to the money raised for the Biden-Harris campaign. So how does this work?

Nick Capodice: Yeah, I asked Dan, uh, you know, for folks out there who don't know how campaign contributions work, can you just break it down for them? And here's what he said.

Dan Cassino: Oh, uh, you know who else doesn't know? The FEC doesn't know exactly how this is supposed to work. Um, nobody knows how this is supposed to work. Imagine. [00:21:30] This is not imagine that Joe Biden drops out and instead he endorses, I don't know, uh, Hunter Biden. He says, no, Hunter Biden's going to take over for me. All right. Seems unlikely, but let's roll with it. Right at that point, he wants to turn over his campaign chest to Hunter Biden. Can he do that? And the answer is we don't know because you can't just give $100 million to another candidate. There are strict limits on how much one campaign can give another campaign. This is why we have leadership PACs, right? Because you can't give that much near the campaign. Are you allowed [00:22:00] to do it? We don't know. I guess he could try and transfer the money to the DNC, and the DNC could try and transfer it over. It'd be tricky. And I wouldn't to worry too much about the FEC, because the FEC is basically toothless Because you have to have Democrats and Republicans agree for the FTC to do anything, and Democrats and Republicans agree about as much as cats and dogs do. So this is not going to be a big issue. The fact that Harris was already on the ticket, right. This is the Biden Harris reelection fund, and Harris is now taking over. So it's the Harris whoever reelection [00:22:30] fund. Now, there is some other weirdness, though. So if this is the same campaign because basically saying this is just a continuation, the Biden campaign, that's why I get to keep the money. So let's suppose I am someone who already maxed out my contributions to the Biden campaign. Can I now give more money? Because now it's the Harris campaign. And the answer is probably not, because if I could, that would mean it's actually a different campaign. And they're saying it's the same campaign. So you'd probably have to tell those donors who already gave the $1,200 per cycle, okay, never mind. Just go give [00:23:00] to a superPAC now.

Nick Capodice: I also was curious about what would happen if, after the convention, say, Joe Biden didn't just step out of the race, but resigned entirely? So I asked Dan, would this in effect make Kamala Harris the president.

Dan Cassino: Not in effect? Whoa, whoa, whoa, we worked this out in the 19th century, my man. Like, no, he is he she would absolutely be the president. I don't want to have any of this stuff about Whigs fighting over whether the vice president who takes over is actually [00:23:30] president, or just assumes the powers of the president. We worked all this out. Thank you. We don't have to have this fight. Um, I think that is probably spectacularly unlikely. Um, this is actually an attack we're getting we're seeing, uh, from the Republican Party saying that, well, if Joe Biden is not fit to run for office, he's not fit to be in office. So therefore he should resign. And, you know, it's certainly up to the president if he resigns. And, of course, we do have a way to deal with this, because we have in the past had Woodrow Wilson. We've [00:24:00] had people who were disabled and should not have been in office and weren't going to resign. And we have a technique to deal with this. And technique is the 25th amendment. The vice president of the cabinet can say, this president is disabled, and they send it to Congress for ratification. And while they're waiting, you know, the vice president assumes the office of the presidency is a Democratic cabinet. And Kamala Harris can say that Joe Biden is not fit to be president. No.

Hannah McCarthy: Last thing, Nick, our show is [00:24:30] about democracy. It's about how our democracy works. Primaries are democratic. Does Dan think that this situation where a candidate will be on the ballot, who is different than the one that the people voted for in the primaries is, for lack of a better word, fair?

Nick Capodice: Yes and no.

Dan Cassino: I think it's absolutely the case that party leaders and party donors, for that matter, [00:25:00] picking a candidate after the primary is over is very much less small d Democratic than having an open, fair, competitive primary. However, we didn't really have an open, fair, competitive primary, right? It's not like Joe Biden was running against six other Democrats. And this hard fought race with all these debates and such, and Joe Biden wound up winning. If almost every state you went, if you were a Democrat, you vote in the primary, you got to vote for Joe Biden or maybe nobody.

Hannah McCarthy: Yeah, in New Hampshire, Joe Biden wasn't even on the ballot in [00:25:30] the primary due to the DNC not recognizing New Hampshire's demand that their primary be held before South Carolina's.

Nick Capodice: Yeah. And even then, he won with 70% of the vote as a write in.

Dan Cassino: on the Republican side, you had more of a democratic process. And we can imagine if the, you know, Donald Trump won the primaries. It was hard fought, right? Nikki Haley was staying in there till the end. And if the Republican National Committee then said, you know what, forget it. We're getting rid of Donald Trump. We're going to put Nikki Haley in there. There'd be a lot of Trump voters who would say, hey, that's not right. [00:26:00] You know, we voted for this person. We had a choice. This is not Democratic. And I think they'd have a stronger point. The fact that you didn't really have a democratic, small d democratic process on the Democratic side convention this year says, yeah, it's not very democratic, but neither was the primary in this case.

Hannah McCarthy: One of the most interesting things to me working on this show is, you know, we get to hear how things change in the US over the years, how the parties change with the populace. The parties stand for one thing, then they stand for another. Then [00:26:30] there are these periods where the parties are criticized for being too similar, and then there are other periods, like right now, when they're criticized for being too polarized.

Nick Capodice: Yeah. And what Dan told me was so important about this moment, it's not like what one party or another stands for. It's about the power that political parties, all political parties, have right now.

Dan Cassino: So we always talk about the American political parties in decline. And it's absolutely true that American political parties don't have nearly the power that they used to. What this shows [00:27:00] is that at least on at least on the Democratic side, the party can still enforce its will. The party can still say, we're doing it. This is happening. And as much as we talk about Democrats being disarray, this is Democrats in full array. Right. And in last 4 to 5 years, honestly, Democrats have shown a greater capacity to get in line than the Republican Party under Donald Trump has. So this is the party saying we still matter and elite cues still matter. And honestly, this does make it easier for voters. Right. So [00:27:30] what happened with Kamala Harris, especially with Joe Biden endorsing Kamala Harris, is what we call a Schelling point.

Hannah McCarthy: A Schelling point. What is a Schelling point?

Nick Capodice: A Schelling point. It's named after Thomas Schelling. He was a political economist. He wrote about how when you have a bunch of people trying to coordinate on something like trying to pick something and And communication is, as it so often is, an utter mess. If in this situation you have a focal point, spoken or unspoken, everybody will gravitate [00:28:00] and agree with that point immediately. His famous example is he asked a group of students to name a point in New York City, any point at all for a large group to meet, and the vast majority, said Grand Central Station without even thinking about it. And then everybody else in the group immediately agreed.

Dan Cassino: If one person says we're doing this, especially early on, then crowds start to form up around that, everyone goes, oh, okay, that's what we're doing. We go there, we go there, we go there, and everyone clusters around that. One solution. If you didn't have that endorsement [00:28:30] in the beginning, it's possible you wouldn't have had an obvious Schelling point. You would have had other people making endorsements and going all over the place. So even if the parties don't have we call hard power, they're not spending all the money. They're not in the back rooms picking who the candidates are outside of new Jersey. We know they still do in new Jersey, but even if they're not doing that, they still have the soft power to dictate the terms. And that's what we're seeing here, is that the Democrats seem by saying, hey, we picked Kamala Harris. The voters went, oh, oh, that's what we're doing. Oh, okay. Cool. Right. Maybe you would have heard Pete Buttigieg, right. I [00:29:00] can't spell his name, but maybe you can. And maybe you would prefer that. But he's not one of the options presented to you. So you go. Okay, well, I guess we're going with Kamala Harris then. So the party still matter. But they have had to adapt.

Nick Capodice: Well, that is the best analysis we could come up with for what happened this weekend. And I guess that's the way it is. The way it was, [00:29:30] the way it shall be.This episode was made by me Nick Capodice with Hannah McCarthy. Christina Phillips is our senior producer and Rebecca Lavoie, our executive producer. Huge shout out to Dan. Big shout out to Dan. He helps us out a lot. But man, this was a tight pickle. And the guy broke it down and nobody.Breaks.It down.Like. Dan Cassino. Nobody breaks it down better. Music in this episode. By Epidemic Sound. Asura, and that man who makes a war rage in my chest Chris [00:30:00] Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Why was the documents case against Donald Trump dismissed?

You may have been surprised (or maybe not) when judge Aileen Cannon abruptly dismissed the classified documents case against former President Donald Trump. We dig into how and why that happened. 

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Transcript

[00:00:00] Hannah McCarthy: Christina. Hello.

[00:00:02] Christina Phillips: Hello, Hannah.

[00:00:05] Hannah McCarthy: Uh, so we are here today to share a quick update with our listeners. This is about a major case involving former President Donald Trump, which, at least for now, is not a case at all because it was dismissed by Judge Aileen Cannon.

[00:00:20] News Footage: Breaking news on the classified documents case. Let's get right to Ken Dilanian. Ken? Jose, in a remarkable development, Judge Aileen Cannon in Florida has dismissed dismissed the indictment against Donald Trump in this classified documents case and his co-defendants on the grounds...

[00:00:37] Hannah McCarthy: And I'm going to get into that dismissal in just a moment. But first, this is Civics 101. I'm Hannah McCarthy.

[00:00:42] Christina Phillips: I'm Christina Phillips.

[00:00:42] Hannah McCarthy: Okay. So, Christina, can you please remind our listeners what was at stake here? What is this case that we're talking about that basically doesn't exist right now?

[00:00:53] Christina Phillips: So essentially, really quickly, what Trump has been charged with is holding on to willfully documents he shouldn't have that had sensitive national security information in them. Um, 31 counts of willful retention of national defense information, as well as conspiracy to obstruct justice, corrupt concealing of documents, scheming to conceal documents, and making false statements all when the federal government tried to get those documents back. And this case was brought by the special counsel, Jack Smith, on behalf of the Justice Department.

[00:01:26] Hannah McCarthy: Okay, that was actually great. I feel like that was a really good breakdown. Thank you. And, you know, I did refer to it as something that was at stake, right. Because I'm talking about the case being dismissed. Uh, it may well be at stake again soon. I will get to that. But just two days after the former president survived an assassination attempt at a campaign rally in Pennsylvania, the judge presiding over this case issued a 93 page ruling that rests on the following statement. "The superseding indictment is DISMISSED" - that's in all caps - "because Special Counsel Smith's appointment violates the Appointments Clause of the United States Constitution."

[00:02:08] Hannah McCarthy: And Christina, you know me. I see Constitutional clause and my little civics heart just has to at least try to make an episode about it. Um, so, Christina, do you know what happened here with the dismissal?

[00:02:23] Christina Phillips: Uh, no. Absolutely not, I have to say. And when we were talking about this in our morning meeting yesterday, I had a moment like I had seen this and hadn't had time to read about it, and I was trying to read about it as we were talking about it as a team. And I was like, wait, what? What? Hold on. What about his appointment? Jack Smith's appointment? I don't remember this part. There's been so many motions over the pretrial for this case, you know, motions to dismiss on behalf of Trump's legal team. And there had been so many different reasons why they said the case should be dismissed or delayed, that Jack Smith not being properly appointed was not even a reason that really registered to me. So I was like, hang on, that - that's the thing we're talking about right now?

[00:03:09] Hannah McCarthy: Yeah. And okay, so the other thing is that the the defense team here that did raise this idea of, uh, basically challenging the constitutionality of Jack Smith's appointment. They didn't even really push that particular defense until they were encouraged to do so by some conservative groups.

[00:03:30] Hannah McCarthy: So the dismissal is really interesting. Christina. It has been described at various times as stunning by members of the press. Um, because it is one of many things, one of many things that Trump's defense attorneys kind of threw at the wall, and that was not necessarily expected to stick, at least by, you know, many members of the press, by a lot of legal scholars, by the prosecutorial team. So the defense team, they challenged, essentially, Jack Smith's appointment as illegal. Now, Christina, can you just clarify, like, who Jack Smith is? I know we're saying that he did the investigation, but, like, who is he?

[00:04:09] Christina Phillips: Okay, I do have to say just I feel a little bit better about me being like, hang on, what was this? If you're saying that a lot of other people did not really think that this particular reason raised by Trump's defense attorneys was going to stick. Um, but so to the question of who Jack Smith is, what is the special counsel -  so when the Justice Department is concerned that they will have a conflict of interest if they investigate something, or if the Justice Department decides that it's in the public's best interest to have someone outside of the government conduct an investigation, they hire a special counsel to do it for them.

[00:04:46] Hannah McCarthy: So a special counsel is like a third party and it's a lawyer.

[00:04:50] Christina Phillips: Yeah, right.

[00:04:50] Christina Phillips: So when federal agents found classified documents in President Joe Biden's garage, for example, Attorney General Merrick Garland decided to appoint a special counsel, someone who doesn't actually already work for the Justice Department, to investigate whether Biden mishandled those documents.

[00:05:09] Hannah McCarthy: And I do know that in that case, that special counsel, his name is Robert Hur, decided that Biden had not committed the kind of wrongdoing that warranted criminal charges.

[00:05:21] Christina Phillips: Which is not, by the way, what Trump's special counsel investigation found.

[00:05:24] Hannah McCarthy: Right. And the biggest difference there is that, I mean, like super broadly, Biden cooperated, Biden handed things over. And Trump, as you kind of outlined, did not. So, you know, there was sort of resistance on Trump's end. Biden didn't really resist it.

[00:05:40] Christina Phillips: And Trump is actually accused of, uh, doing the opposite, trying to withhold this information, knowingly keeping things from the federal government.

[00:05:48] Hannah McCarthy: Right, right. Um, but again, right now that is irrelevant because Judge Cannon, the US district court judge in Florida who is in charge of the Trump documents case, says Jack Smith never actually had the authority to investigate. So this is not a ruling about the merits of the case at all. It's a ruling about whether or not the investigation alone was basically done in the proper way. Right. So why like what is the reasoning here? Judge Cannon concluded that there is no legal basis for the Attorney General appointing Jack Smith.

[00:06:26] Christina Phillips: Yeah. So I guess my big question here is if that is true, how was he appointed? What is her argument? To say that there was no legal basis for his appointment? Um, and the bigger question, I guess, is how are any special counsels appointed?

[00:06:46] Hannah McCarthy: Okay, so I'll answer the last question first. So the Justice Department says essentially that their ability to do this comes from the United States Code and from their own regulations. And, Christina, we still have not done an episode on United States Code. But essentially the code is the law. It's the stuff that Congress passes. It is the big book full of general and permanent US laws.

[00:07:11] Christina Phillips: So there's our episode on on the US code. It's the Big Book of Rules. So there are actual laws on the books. This is what you're saying, is that there are actual laws that allow the AG to appoint a special counsel.

[00:07:25] Hannah McCarthy: Well, um, Judge Cannon says that these laws do not actually allow the AG to do this. So what the statutes say, right. The statutes in the code say in brief, is this the attorney general has broad supervisory powers. The attorney general can delegate those powers to subordinates, and the Attorney General can authorize a special assistant to conduct any kind of legal proceeding.

[00:07:56] Christina Phillips: All right, so, uh, you just said special assistant, right? Not special counsel.

[00:08:03] Hannah McCarthy: I did say that. And you know that that lack of specificity, while the Justice Department and several courts have interpreted it one way, Judge Cannon is, you know, seeming to interpret it another. And Judge Cannon says that these statutes do not give the attorney general - and this is from Judge Cannon's actual opinion - quote, "broad inferior officer appointing power or the ability to appoint the kind of officer with the kind of prosecutorial power that was wielded by Jack Smith." Cannon says that we have an appointments clause for a reason.

[00:08:40] News Footage: She says the bottom line is this the appointments clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The government's position...

[00:08:55] Hannah McCarthy: So, Christina, do you know the appointments clause?

[00:08:59] Christina Phillips: Uh, is that the one that says that the president can appoint people with the consent of the Senate?

[00:09:04] Hannah McCarthy: That is the one. Judge Cannon says that Jack Smith's appointment violated that constitutional clause. Basically, if the government had wanted to appoint Jack Smith the special counsel, they would have had to do it in the same way that other U.S. attorneys are appointed, and that way is the president nominates them and the Senate confirms or Congress would have to pass a specific law. So this gets to the specificity question, right. Specifically, a law consistent with the Appointments Clause that creates exactly that kind of appointment authority.

[00:09:46] Christina Phillips: Has this ever happened before? Like, has a judge ever issued a ruling specifically about special counsels and whether they're allowed to be appointed?

[00:09:56] Hannah McCarthy: So this is actually a really important question because the answer is yes on several levels. So the Supreme Court is largely believed to have upheld the appointment of a special prosecutor to deal with the Watergate scandal. Um, and that is often what is referenced when questions about a special prosecutor or a special counsel come up before a court. So Judge Cannon called that particular ruling, which I'm going to talk about a little bit more in just a second here, unpersuasive. Cannon also rejected the precedent set by appeals courts that upheld the appointments of a special prosecutor in the Iran-Contra affair, and the special counsel who investigated Russian interference in the 2016 election.

[00:10:45] Christina Phillips: So Judge Cannon says all of this precedent is bad precedent.

[00:10:49] Hannah McCarthy: When it comes to the Supreme Court case, which, by the way, is US v Nixon, cannon says that actually it is not precedent really at all. And the big sticking point here, Christina, is dicta.

[00:11:05] Christina Phillips: I'm sorry. What-a?

[00:11:07] Hannah McCarthy: Um, dicta, or the singular dictum, means something that a judge writes in an opinion or a statement that is quite literally beside the point of the case, something that they say in passing. So the example that we care about here is in an opinion back in 1974, in US v Nixon, referencing the statutes that allow the A.G. to appoint a subordinate officer with prosecutorial powers. Both the Justice Department and appeals courts have taken that reference to mean, indeed, that special prosecutors or counsels can legally be appointed and do have prosecutorial power.

[00:11:57] SCOTUS Archival Sound : Prosecution for the government was commenced by a special prosecutor who had been appointed by the Attorney General pursuant to federal regulations. The special prosecutor had been given broad authority. By a By regulation of the Attorney General, the Special prosecutor was given unique authority and tenure concerning specific investigations and prosecutions. His authority is to represent the United States as a sovereign, and it includes express authority to contest any privilege asserted by the executive branch.

[00:12:43] Hannah McCarthy: But, you know, Cannon says no, no, no, that is dictum. That is beside the point of this Watergate case. It is not the law.

[00:12:52] Christina Phillips: Now, I don't know if this actually matters, but, uh, what are people saying about Cannon's ruling?

[00:13:00] Hannah McCarthy: People are saying a lot. Um, some people are really surprised, as you are. Some say that they absolutely did see this coming, given how canon has, in their eyes, favored Donald Trump in rulings already. Uh, Donald Trump is unsurprisingly thrilled and considers this the first step in a fight against a department that he says he sees as having been weaponized against him. Uh, Republican Trump supporters have made it clear that they are thrilled, notably Congressman Matt Gaetz, who posted, quote, future Supreme Court Justice Cannon with a picture of the judge on X. One critic replied to this post with, are you admitting quid pro quo?

[00:13:44] Christina Phillips: Meaning are you revealing that Judge Cannon did this in order to one day get appointed to the SCOTUS bench?

[00:13:50] Hannah McCarthy: That is the implication here. On the other side, Democrats slammed Cannon. They said this decision was politically motivated. Legal scholars are debating about this. They are pointing out that, in his opinion on the recent presidential immunity case, Clarence Thomas actually suggested that Jack Smith was illegally appointed. So, you know, kind of put down a playbook that could be picked up. And some are calling Cannon's decision a Clarence Thomas concurring opinion.

[00:14:24] Christina Phillips: Okay, I just have to say, there are so many layers to this, and this is already a very, very complicated case or really pretrial to a case. It's - this is so complex.

[00:14:37] Hannah McCarthy: I know, it's so interesting because the dismissal itself is, on its face, kind of simple, right? And the reasoning seems really straightforward. But there are so many layers here and there's so much pushback, you know, and people are pointing out so many elements to it. There's a lot going on. And then, you know, that doesn't even take into account what a lot of people consider a major layer, the several instances, actually, of Judge Cannon, you know, issuing certain decisions, making certain rulings, having to do with this case in particular that have been overturned, overruled by other courts. So there has been quite a bit of, you know, doubt thrown Judge Cannon's way, a lot of questions as to whether or not Cannon is the right judge for this, etc.. But Christina, you know, at the end of the day, there are three big things that you need to take away from what has happened here.

[00:15:34] Christina Phillips: Okay. Yes. Please hit me. Give me the three things I can take away from what seems to be a very, very complicated situation.

[00:15:44] Hannah McCarthy: Okay, at number one: this is unequivocally a major victory for Trump. Everyone, including Trump's lawyers, considered this particular case to be of the biggest concern for the former president. Having it dismissed is a boon. Two: the Justice Department has already authorized an appeal, and this case could someday end up at the Supreme Court. Three: If Donald Trump wins the election, he will be restored to power over the Justice Department and the department has said it will continue to pursue cases against Trump until Inauguration Day. But after that, the chances of prosecuting the president could very well and probably will if he is elected, go out the window.

[00:16:34] Christina Phillips: I do feel like every new development these days, pretty much every day, sparks a whole new list of Civics 101 stuff we need to come back to in November and beyond.

[00:16:47] Hannah McCarthy: And so we will. Christina. So we will. All right, let's go to our jobs.

[00:16:54] Christina Phillips: I'll see you out there.

[00:17:05] Hannah McCarthy: This episode was produced by me, Hannah McCarthy, with help from Rebecca Lavoie, our executive producer, and Christina Phillips, our senior producer. Nick Capodice is my co-host. He is currently out sick. Nick feel better. Catherine Hurley is our intern and she's crushing it. Music in this episode comes from Epidemic Sound, and you can find all of the rest of everything we have ever done at our website, civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

Where History and Love Collide: Doris Kearns Goodwin on the 1960s and Today

Doris Kearns Goodwin is one of the country’s most beloved presidential historians and authors, having written books about the Roosevelts, the Kennedys, and Lincoln, among many others. 

Her latest book is An Unfinished Love Story: A Personal History of the 1960s. The book is part memoir, part in-depth journey through the Kennedy and Johnson administrations, and part love letter to her husband Dick Goodwin, a presidential speechwriter and policy advisor who played a vital role in shaping the very history Goodwin recounts.

Today on the podcast, we’ll hear a conversation between our executive producer Rebecca Lavoie and Doris Kearns Goodwin recorded at the Music Hall in Portsmouth, New Hampshire. 

One note - this event took place just a few days after a New York jury found former president Donald Trump guilty on 34 charges related to an illegal hush money payment scheme to influence the outcome of the 2016 election.

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Transcript

Nick Capodice: You're listening to Civics 101. I'm Nick Capodice. Doris Kearns Goodwin is one of the country's most beloved presidential historians and authors, having written books about the Roosevelts, the Kennedys, and Lincoln, among many others. Her latest book is An Unfinished Love Story A Personal History of the 1960s. This book is part memoir, part in-depth journey through the Kennedy and Johnson administrations, and part love letter to her husband, Dick Goodwin, a presidential speechwriter and policy adviser who played a vital role in shaping the very history Goodwin recounts today on the podcast. We're going to hear a conversation between our executive producer, Rebecca Lavoie and Doris Kearns Goodwin. Recorded at the Music Hall in Portsmouth, New Hampshire, Rebecca hosted writers on a New England Stage to talk with Goodwin about her book and her role as an historian, exploring these different eras of American history and history that is much, much more recent. One note this event took place just a few days after a New York jury found former President Donald Trump guilty on 34 charges related to an illegal hush money payment scheme to influence the outcome of the 2016 election. Glad we got that out of the way. All right, without further ado, let's listen in to Rebecca's conversation with Doris Kearns Goodwin.

Rebecca Lavoie: Wow, what a week to be a presidential historian, right?

Doris Kearns Goodwin: What a week to be a citizen of the United States.

Rebecca Lavoie: So let's talk about your book, An Unfinished Love Story A Personal History of the 60s. How did this book come about? How what was the idea? What was the germ of it?

Doris Kearns Goodwin: It really began on a summer morning, not long after my husband, Richard Goodwin, had turned 80 years old. And he comes running down the stairs, shaving cream still on his face, and says, I've got an idea. Something's going to happen. And I said, what's going on? You look so happy. He said, well, I finally decided it's now or never, and I knew what that meant. He was finally going to open these 300 boxes. We had slept around for our entire married life. They were in attics and basements and storage and I had peeked in them. I knew they represented a real time capsule of the 1960s, because he was sort of everywhere you wanted somebody to be. We were talking about the fact that he's sort of like a Zelig figure. He's with the Kennedys and he's with the Johnsons, he's with Martin Luther King, he's with Senator Eugene McCarthy in New Hampshire, he's with Bobby Kennedy and with him when he died. And he kept everything letters and diaries and journals and newspaper clippings. But he wanted to not look at them for all those years because the decade had ended so sadly, with the death of Robert Kennedy, who had become one of his closest friends, and Martin Luther King, and the riots in the streets and the campus violence.

Doris Kearns Goodwin: But finally he realized as he came down the stairs, he said, well, I guess if I have any wisdom to dispense, I better start dispensing. Now. I don't know who else talks like that, but my husband. So we made a pact that we would go through the boxes every weekend, but we would do it chronologically. And that meant that by starting at the beginning of the 60s, we would pretend we didn't know what was going to happen. We didn't know the sorrows that would happen later, because that's the way you live life. Yeah. Barbara Tuchman, who was such a mentor and historian for me, said, even if you're writing about a war as a narrative historian, you cannot let the readers know how that war ended, even if it's a World War Two, so your readers can just follow you every longer step along the way, just as the people of the time knew that. So it meant that we relived the glory of the early days of the 60s, and it was just an adventure to be the greatest adventure, really we shared together in the last years of his life.

Rebecca Lavoie: This is such an intensely personal book. You know, you did the research with the love of your life. It was researched in your home. You write about your home, you write about your garden. You write about your favorite restaurants. How did you think about bringing the reader inside of your personal spaces?

Doris Kearns Goodwin: Well, it's interesting, you know, when you write about presidents, which I've done most of my life before writing about my husband Dick, you want to make the reader feel like they know the details of their family lives, of where they lived, who their friends were, what the houses looked like. I'd often go visit the homes of the presidents and stay in them for days at a time, just sort of absorbing what it might have been like in 1850, 1860, 1900, 1930. So now the guy and he used to call my presidents, my guys, just because I felt so comfortable with them. I took me so long to write about them that I really did feel like I knew them. It took me longer to write about Lincoln and the Civil War than the war to be fought. It took me twice as long to write about World War Two as Franklin and Eleanor. So I would say, my guys, I know you, but now this is my guy sitting across the room from me and he could answer me. I used to talk to my guys and they never answered me. I would talk to Lincoln, talk to Eleanor and Franklin, but now he could answer me. He could argue with me. So I realized that I wanted to give the reader what I hoped to give the people who lived before me a sense of place, a sense of context, and a sense of what it looked like when we was talking there together, what the room looked like, just as I tried to do with the people who were long dead before I wrote about them.

Rebecca Lavoie: Historian Arthur Schlesinger gave Dick the moniker the supreme generalist, and, you know, the way that you described him earlier. To be fair, I described him as Forrest Gump. I will admit it, because he did do so many things and was so many places. I mean, if he had just done one of these things, he would have been considered extraordinary. The 21 case extraordinary right, being the speechwriter for Kennedy. Extraordinary. When you were going through all of these boxes, what was revealed to you that surprised you?

Doris Kearns Goodwin: One thing was that when I read the letters to George and to his parents, I saw him as a really happy person. When he was young. He wrote a letter when he was in the army, and he'd gone out with some Swiss girls to a beautiful restaurant in France, and the wine decanter was upside down and the food was delicious. And he said, I'll never forget this night as long as I live, I'm happy. The man I met was not that way. He had a melancholy streak, possibly because his first wife had died and he had to bring up his little kid, who then became my son, John Kennedy dying, Robert Kennedy dying. All of what had happened to him in life had left him with enormous vitality, but not that sense of just cheerfulness every day. So I saw I saw where that had come from in a certain sense that it was something different than I knew. I think the other surprise was when we were going through the, the, the same letters to George from Harvard Law School. He was so arrogant in a certain way. He was first in his class. He was the president of the Harvard Law Review, and he's writing to George saying, you know, I can get any law job I want. They just travel you around the country like a college athlete, and I can choose which law firm, or I can have a stipend, or I can go work for a Supreme Court justice, as he did for Frankfurter. The burden of choice is the problem. And right after I read that letter, I found a picture of the law review. And in this picture were 60 white guys. And then there were two women.

Doris Kearns Goodwin: One was Ruth Bader Ginsburg, and the other one was another woman named Nancy Boxley. And I said, I brought the picture into my I said, this is maddening. She couldn't even get an interview for a job. And you're talking about your burden of choice, you know? And then he just sort of smiled up at me. He said, you know, it's not my fault, right. And but then the interesting thing was that the other woman, I decided, why don't I find out who she is? And she was still alive. Her name was Nancy Boxley. And I went out to California and I interviewed her. She was in her 80s at the time, still looking incredibly well, and she was a real character. And so she told me that she actually did get a job that first summer with Simpson Thatcher. After that, she'd been made the law review. And because the difference was that Ruth had a child, not only was she Jewish, one mark against her at the time and a woman, but she had a child and Nancy did not, even though she too was Jewish. But then what happened? Once she got married, she was no longer. And when she got pregnant in the law firm, they came to her and they say, we're not embarrassed by your state. You know, what is your state? Your stomach is sticking out. But our clients might be. So she lost her job, but then eventually she finally got back into the law and she went to her 30th Harvard reunion. And her professor that she went in to see was a young woman wearing boots, wearing a short dress, and very pregnant. So progress had been made.

Rebecca Lavoie: So you just described young Dick a couple of different ways. You described his happiness, but you also described his arrogance and his opportunity. How would you describe yourself as a young person?

Doris Kearns Goodwin: I think I was lucky to have been given a gift of having an optimistic temperament. I think back on it because a lot of sad things happened. My mother died when I was 15, my father died when I was in my 20s, and somehow I just came through feeling like I'd been lucky to have been loved for so long by both of those people. My father is the one that taught me to love baseball by teaching me when I was six years old, how to keep score. So when he went to work during the day, I could record for him the history of that afternoon's Brooklyn Dodger game. And so when he came home for two hours, he would listen to me as I went on in excruciating detail. But it was it was the way I learned to love history.

Archive: Throws to Hodges Brooklyn wins and the Badgers go wild as they mob pitcher Podres, who hurls Brooklyn to its first world championship.

Doris Kearns Goodwin: Because I was my father, my beloved father was listening to me tell him history, even if it was only five hours old. So that was my father. I had a teacher in high school, like so many people, that made a huge difference. Miss Austen, when she taught us about the presidents and Lincoln in particular, whom she loved. When he died, she actually cried. And I thought she must have known him. She cried. And then I went to graduate school thinking I would be a high school teacher, just like Miss Austin. And then it turned out that I when I was at graduate school at Harvard, I ended up being a white House fellow, working for President Johnson in the end, although that was lucky too. We had a big dance in the white House when we were selected. Johnson did dance with me. It wasn't peculiar. There were only three women out of the 16 white House fellows. But as he twirled me around, he whispered that he wanted me to be assigned directly to him in the white House. But it wasn't to be so simple, because in the months leading up to that, I'd been active in the anti-Vietnam War movement, and a friend of mine and I had written an article against Lyndon Johnson, which turned out not to be published until two days after the dance in the white House. And the title of the article was How to Remove Lyndon Johnson in 1968.

Rebecca Lavoie: And he never forgot you when, after they sent you away from the white House, he kept the fellowship. But he remembered you.

Doris Kearns Goodwin: He did indeed.

Rebecca Lavoie: And he brought you back. It was like a movie.

Doris Kearns Goodwin: Maybe that's where your optimistic temperament comes. These things crazily work out. I think you're right. I mean, he did bring me back into the white House, and then I went to help him on his memoirs in the last years of his life. And that experience, which was an extraordinary experience of listening to him talk hour after hour. He loved to talk and I was a good listener. And at any rate, finally, that's where I got the foundation to become a presidential historian, writing my first book about those conversations with Lyndon Johnson, So sad at the end of his life, and then so willing to talk about it all that I'll always be grateful to him. So I guess that's what I was like as a young girl. It was very lucky to have those experiences.

Rebecca Lavoie: Yeah.

Rebecca Lavoie: So how did Dick come to work for JFK?

Doris Kearns Goodwin: So what happened is he had been, as I said, the clerk for Justice Frankfurter. And afterward he then went to work in a House Commerce committee. He didn't want to start a law firm, yet he kept waiting and waiting to go into the practice of law. And while he was at the House Commerce Committee, he's the one who discovered that the quiz shows were corrupt. Some of you may remember the $64,000 question or 21.

Archive: What if we would ask you questions that you know?

Archive: Well, I think I'd really rather try to beat him. Honestly.

Archive: Just an idea.

Doris Kearns Goodwin: And he's the one who discovered that the questions had been given ahead of time to the contestants.

Rebecca Lavoie: Marty. Right.

Doris Kearns Goodwin: Exactly. Which was? That's what this Herb Stempel guy knew the answer to the question, but they decided he wasn't popular enough. They made him lose to Charles Van Doren, this Brahmin guy. So he started telling everybody. And then Dick subpoenaed him and other people. Anyway, while he was doing that, he got a call from Ted Sorensen, the chief speechwriter for JFK, and Ted asked him if he'd work his hand at writing a speech for Senator Kennedy. He was still Senator Kennedy, but he was thinking of running for president in 1960. This would have been in 1958 or 59. And so Dick wrote a speech. He was asked to write another one and another one, and he was finally chosen to be the second speechwriter. He had no idea that it was actually a contest that 30 other people had been asked to write speeches to, and somehow he was chosen. So he became this young man, still in his 20s, on the plane with JFK, the Caroline plane. It was a prop plane that was very intimate. There were chairs that could become beds for Ted and Dick. There were some other people who had chairs that became beds, and JFK had his own section in the back of the cabin. They had a desk, they had typewriters, they had communications. And it really was for that entire campaign. That was the flying vessel that carried them together across the country.

Nick Capodice: We'll be right back with more of Doris Kearns Goodwin from writers on a New England Stage. This is Civics 101 from New Hampshire Public Radio.

Nick Capodice: This is Civics 101. I'm Nick Capodice, and today we're listening to a conversation between our executive producer, Rebecca Lavoie, and historian and author Doris Kearns Goodwin. This was recorded at the Music Hall in Portsmouth, New Hampshire, for writers on a New England Stage there, discussing Goodwin's book An Unfinished Love Story A Personal History of the 1960s.

Rebecca Lavoie: So one thing that you say in your book a few times is that there was this occasional recurring conflict in your marriage with Dick that arose because he was a Kennedy loyalist and you were an LBJ person, but you never quite say how that conflict. Like, would it manifest itself? Are we talking about like, arguments over dinner? What was this conflict like?

Doris Kearns Goodwin: It was really was a sort of irritating conflict.

Rebecca Lavoie: Hmmm.

Doris Kearns Goodwin: Because Dick was so loyal to the Kennedys, he was loyal to Jack Kennedy. That was his youthful hero in many ways. He had become very close to Jackie Kennedy, worked with her on a number of projects during the white House years, and was greatly friendly with her afterwards. And Bobby did become probably his closest friend in public life. And he had loved Lyndon Johnson had worked for Lyndon Johnson. His best work had been with Lyndon Johnson, but he had broken the two of them had broken apart because of the war in Vietnam, and Dick was still filled with resentments about what the war had done. He thought to the Great Society. So I would argue with him constantly, you know, that all the great programs of the Great Society Medicare, Medicaid, aid to education, civil rights, voting rights, they were ones that were passed by LBJ. None of them got through under JFK, I would say. And then he would say, but JFK is the one that inspired the nation before they got to the Hill. And then we'd argue about the war in Vietnam would have ended earlier if it had been JFK. And it was not fun. The arguments, in a funny way, because because we both had such loyalties to our people, it wasn't just a sort of an academic argument. Sometimes they'd be at dinner, sometimes they'd be when people would come over. And he was. If it had just been a sort of fun argument, it would have been fine.

Doris Kearns Goodwin: But he was still filled with resentments, and that's what made me sad. I didn't want him to be filled with grievances. It never helps you. And so one of the wonderful things that happened in the opening of the boxes was when we finally got to 64 and 65, when when he was with LBJ and he remembered all the great things they did together. He began to remember it emotionally and it softened the grievances. It took them away, really. I remember one night after we were going through the boxes that had to do with the Great Society and voting rights, and he came upstairs and he said, oh my God, I'm feeling affection for the old guy. Again, this is terrible. But I honestly think in the years before he died that never, never do grievances help. I remember one of the things that was so extraordinary about Abraham Lincoln, he would he would, he would say that if you allowed grievances or resentments to fester, they'll poison a part of you that that it just envy and jealousy and anger. Those emotions are terrible. And and those emotions really, I think, had taken a part of him away. And they were all softened before he died. So the box is really had a huge role in, in making those last years a happier one's for him.

Rebecca Lavoie: You mentioned Jackie Kennedy. Dick worked closely with the first Lady when she was the first lady, Jacqueline Kennedy, and a number of projects, and then they had the relationship afterward. Is there something that he viewed as their crowning achievement together?

Doris Kearns Goodwin: I think the one that they both remembered was was something that was called a dinner in Camelot. It was Dick's idea. He wrote in a memo to Jackie. How about having a dinner for the Nobel Prize winners to make people realize that science and and and whatever you win a Nobel Prize for is something that a kid should, should strive for. And they ended up bringing Pulitzer Prize winners to. And it was a really glittering night, and all the people were so happy to meet each other from one field to another. And John Kennedy said at that dinner, when he when he said, there's more talent assembled here in the white House than any time since Thomas Jefferson dined alone. That was the way he was able to speak. But because Dick had come up with the idea, he was able to escort Jackie to that dinner. And there's a picture that was on his wall forever. Did he love it? Of him looking so proud in his tuxedo, escorting Jackie looking beautiful to that dinner?

Rebecca Lavoie: Yeah, one of the interesting stories for me about that dinner was that there was one woman Nobel Prize winner. There was a Pearl Buck.

Speaker4: Oh, yes.

Rebecca Lavoie: Yes. And that she had to wear the name tag that said Mrs.. And her husband's name.

Doris Kearns Goodwin: Was that crazy, the only woman who had won the Nobel Prize and she was called Mrs. Richard something or other. I know, because that was the way you did it in those days. The women were all Mrs.. Blank, blank. Well, that.

Rebecca Lavoie: That brings me to something I wanted to ask you about, because there's so much, like, big historical stuff in this book. But then there's also these, like little details, this minutia, these stories that I find myself telling other people, one of my favorite ones. And I'm hoping that you can share it, is the story behind the Eternal Flame at JFK's grave site, which I have always imagined was this very planned, very, um, let's say formal, very built thing. And that turns out not to be the case. Can you talk about that?

Doris Kearns Goodwin: Yeah. I mean, what happened is that Jackie wanted the East Room to look like it had when Lincoln was there. So they had to go to the Library of Congress in the middle of the night and find a magazine that described how it was for Lincoln. And then a team put all the the crape on the, on the ceilings, as it had been for Lincoln. They got a catafalque like Lincoln that was part of Dic's responsibility. But then somehow he was responsible for getting this eternal flame. Jackie wrote and said she wanted an eternal flame at the grave site, as if she wanted to have a light for a little kid who didn't ever want to be without a light. So first they heard that the only people that knew about an eternal flame she'd seen one in Paris. So he called the generals in Paris, and he said, you've got to get one over here. They said, we can't get it over there that quickly. We can't. And then he said to them, you mean you can blow up the world and you can't get an eternal flame here? So that didn't work and somehow that wasn't going to work. So finally, they didn't know what to do. They had to make it up. So they went to an electrical supply store. That was a close. They found one that was open. It was on a Sunday, and they found these luau lamps that you would put on at parties sometimes, and they hooked up propane gas tanks to it underneath the ground right before the grave. They are doing this hours before the funeral occurs. And the question is, will it light? Will it really light? What will happen if she turns it on and it doesn't light, or will it blow the whole place up? And so that was really just just as you say, it was a jiggered thing. Somehow when she turned it on, it lit. Nothing bad happened. And they eventually made it a little more stable than that. That. But the answer, the answer was it had to be eternal, which meant it couldn't go out. And somehow this thing continued to work.

Rebecca Lavoie: Yeah, I love the conversation that the Army folks had, like, what does eternal mean? And Dick was like, it means forever. Like.

Doris Kearns Goodwin: Oh yeah, you're right. At first they said, well, what if it just works for ten hours? Would that be okay? No. Eternal means something different, right?

Rebecca Lavoie: So John F Kennedy is assassinated. LBJ is sworn in. How did Dick feel about going to work for LBJ?

Doris Kearns Goodwin: Well, he was having conversations with the Kennedys, actually, with Bobby and Ethel and and Eunice and Shriver because there were some hints that maybe he might be asked to go over there. And everybody was saying, I don't know, you know, this is us, and that's him. There was a real fault line between the Kennedys and the Johnsons, and you can read in his diary that he's talking to them about it. And Bobby finally says to him, well, you know, anything you do that will make him look better will make Jack look less. I mean, Bobby felt that way. He couldn't. It was so hard for him to see John Kennedys no longer there and to see LBJ as the president. Bobby finally said in the diary entry. But if he can make it can help the country, then you should probably do it. But nevertheless, the only way he. Finally, we finally found out what really triggered him. Being asked by LBJ to go to the white House was a tape conversation with Bill Moyers, and we listened to the tape, and now we knew this was the origin of how he got there. In the tape, Johnson is talking to Bill Moyers. I need a speechwriter. I need a really good speechwriter. I need someone who can put sex into my speeches. Whatever he meant by that. Who could put rhythm into my speeches, who can write great Churchillian phrases? And Moyer says, well, the only one I know, because he'd known Dick from the work on the Peace Corps is Dick Goodwin. But he's not one of us. It was that same thing. He's on that other side. But finally Johnson said, well, let's see. Let's him try. He was a poverty message to write. Dick wrote it and did well. Then he brought him over and he became eventually his chief speechwriter. And as I say, that was probably the most rewarding part of his public life.

Rebecca Lavoie: Can you talk about his role in creating the phrase and then actually shaping the Great Society?

Doris Kearns Goodwin: This is one of my favorite stories. So what happens is about a month after Dick gets to the white House, Johnson calls Bill Moyers and says, I want you and Dick to come and talk to me about a Johnson program. The civil rights bill was getting through the tax cut, which was JFK's was getting through, and he wanted to have a Johnson program. That was his own program. So Dick said, are we meeting him in the Oval Office? He said, no. And the white House pool, we've got to go over there. They go over there. Johnson's stark naked, is swimming in the pool, up and down, up and down, side stroking. Dick said he looked like a whale going up and down, and they're standing there on the side in their suits and their ties. And Johnson says, come on in, boys. So they have no choice but to strip on. They didn't have bathing suits strip on the spot. So now you sort of have three naked guys swimming in the pool up and down. Finally, Johnson pulls over to the side and he starts talking to them about what he wants to do. And amazingly, he knew all the things he wanted. He wanted Medicare. He wanted aid to education. He wanted civil rights. He wanted voting rights.

Doris Kearns Goodwin: He wanted immigration reform. It was extraordinary. So they decided they'd make a speech where he would lay out his program, which still had no name. The speech would be at the University of Michigan, which meant a certain chutzpah, since that's where the birth of the Peace Corps was. So he was competing in a certain sense with John Kennedy. And that speech gives you a deadline to come up with the programs and to have an idea of what you're going to say and to come up with a name. So they all had a debate about what to call this new Johnson program. Some people wanted to call it a better deal instead of a new deal. Some wanted a glorious society. But Dick tried out several names, and he tried out a great society, meaning a society that was affluent but would share its resources with the people, with people who were poor, with people who were being prejudiced against, with people who needed to have part of the government's largesse. And it worked. And then they tried another one, and the press caught on. And suddenly, instead of becoming, in small letters, a great society, it became the Great Society. And that was LBJ's program. All started with these three naked guys in the pool.

Rebecca Lavoie: What was it like going through this with Dick, you know, realizing that he was the one who had, you know, coined that phrase and then helped shape the policy. You know, we're 20, 24 now, but looking back at a time where you can coin a phrase, the Great Society and then a president can actually follow through on policies that actually create a better society. What was it like reliving that?

Doris Kearns Goodwin: Oh, it just made you, in a sense, sad because it was a time when when you really did feel maybe somewhat naively, but it was pretty profound that a change was being made for the better in the country. I actually was in the white House, not in the white House. I was in Washington, actually, just as an intern in Congress that summer of 1965, when everything passed, and each time a new bill would pass, we'd all go out and have a glass of wine or beer to celebrate. We knew that we were part of something bigger than ourselves. I'd been at the March on Washington in 63. I'd also been an intern in Washington that summer, and I remember that's one of the first places that Dick and I knew. There were a whole series of places where we knew we had been together, but we never had met until much later, he used to say. Which made me so happy. I was looking for you my whole life, and it took forever for us to get together. But there was a good reason why we didn't meet at the March on Washington, because there were 250,000 other people there with us. But anyway, I was carrying a sign Catholics and Jews and Protestants unite for civil rights. And I remember feeling that I was really part of something larger than myself. I felt it then, at that March, I felt at that summer in the 89th Congress. And Dick certainly felt it. I think that's why later that the war became such a heartbreak, because it was so thrilling to be a young man and be a part of the most progressive legislation that had happened since the New Deal. So it was a pretty thrilling thing to relive it and just remember what it was like at that time.

Rebecca Lavoie: So the Civil Rights Act, the Voting Rights Act, LBJ was able to get the Fair Housing Act passed a week after Martin Luther King's assassination, which is amazing to think about. What drove LBJ to connect and listen to the civil rights community and get this stuff done.

Doris Kearns Goodwin: Yeah, this is something I talked to LBJ in the last years of his life. There was something he had even before he came to the presidency, that made him want to do something about civil rights. In the middle of the 1950s, when he was a majority leader of the Senate, he'd had a nearly fatal heart attack. And he was so depressed afterwards they couldn't even get him to move around in the bed. Finally, he just came out alive one morning and he said, okay, get me shaved, I'm back. And people said, well, what happened? He said, well, I was lying here thinking, what if I died now? What would I be remembered for? I've gotten power, I've gotten money, but have I done anything that makes a difference that will be remembered after I die?

Doris Kearns Goodwin: And then he went back to the Congress and he got the first civil rights bill in 1957, a very moderate bill through the Senate and then Civil Rights Summit. When you get that first thing through, it's a fulfillment. You feel good about it. And that first night when he became president, he made the decision that he would make the passage of the Civil Rights Act, John Kennedy's act, um, first priority. And his fellow friends said, you can't do that. It'll never get through the Senate filibuster. You'll be a failed president when you go for the election. 11 months from now. A president has only a certain amount of currency to expend. They cannot you can't expend it on this. And then he famously said, then what the hell is the presidency for? So it was in him. It was in him. But then the big moment that came for, for Dick and for LBJ was when the Selma incident took place. I'd been listening on television to Bloody Sunday, as it was called, when the peaceful marchers were coming across the bridge and they were met by the Alabama State troopers, who went after them with whips and clubs and horses, then went into the crowd and over the fallen bodies. And it was all captured on television. And Johnson understood that night, and I could see it when I was watching it, too. I just couldn't believe this was my country.

Doris Kearns Goodwin: And he understood that something was fired. The conscience of the country was fired. So he decided that the very next day he would make a speech to a joint session of Congress calling for a federal Voting Rights Act. A very bold thing to do. And that was the speech that Dick worked on that I think he was proudest of for the rest of his life.

Rebecca Lavoie: Can you talk about that speech?

Doris Kearns Goodwin: And it only took Dick nine hours to write it. Somehow it would take you weeks to write a joint session of Congress speech, but he only had from Monday morning until Monday night at 6:00 to write that speech. And they asked him, what can we do to help you with the pressure? He said, nobody can come in here, I need serenity. I will hand the pages out little by little to Johnson. He can edit them. They'll come back in, but otherwise my secretary will give them. And I have to be by myself. And somehow sitting there by himself. I couldn't have done this. I think if I had to. He knew he had to come up with a good first line. He always liked a first line that was good, and he came up with a beautiful one. I speak tonight for the dignity of man and the destiny of democracy. How incredible is something like that? Right. And, um. And then I don't know how he was.

Doris Kearns Goodwin: There was something about Dick. I mean, other people can write poetry. Other people can write politics. He wrote public poetry, essentially. I think that's what he was able to do to compress emotions of the country into sentences. The next part said, at times, history and fate meet at a certain place in a certain time, in man's unending search for freedom. So it was in Lexington and Concord. So it was at Appomattox. So it was in Selma, Alabama. This is not a Negro problem, not a white problem, not a northern problem, not a southern problem, not a constitutional problem. The command of the Constitution is plain. It is not a moral problem. It is simply wrong to deny your fellow Americans the right to vote. And I mean incredible. It's just so clear. Right? And and then he then he said, but even if we get the right to vote for the just blessings to be to, to be given to, to the Negro Americans, we have to overcome a century of bigotry and prejudice. But if we work together. And then he paused for a second, and he said, we shall overcome.

Rebecca Lavoie: So this is a thing that you write about, about how much of the progress and the things that happened and the Kennedy and the Johnson administration especially. It was achieved by compromise, and it was achieved in large part by people who, whether they were on the right side or the wrong side or the left or the right, got things done because they loved America. Does it feel like escapism to look back at a time where people are working together to forward things because they love America?

Doris Kearns Goodwin: You know, people sometimes say it's naive to look back at that time and feel that way, but I think it's really important for history to be able to remind us that there was a time, for example, when the Civil Rights Act was facing the filibuster in the Senate and the Democratic Party was split into, Johnson knew it would never pass unless the Republicans could go with him. And that meant he needed Everett Dirksen, the minority leader. So he told all of his lieutenants, you just do anything Dirksen wants. You drink with Dirksen, you eat with Dirksen, you sleep with Dirksen. We're going to get Dirksen to come with us on this bill. And then in the tapes, you hear all the deals that he's going to make with Dirksen. If he'll help bring Republicans to join the Democrats in breaking the filibuster. You know, you want a dam, you want a public works project. Those days, you things didn't have to be transparent. It was much better. You know, you want schools, you want me to come to Peoria. But finally he says to him, Everett, if you come with me on this bill and you bring Republicans, 200 years from now, school children will know only two names Abraham Lincoln and Everett Dirksen.

Doris Kearns Goodwin: How could Dirksen resist? He brings 22 Republicans to join the 44 northern Democrats. They break the filibuster. The bill comes to the floor, changes the face of the country as a result. But people did understand that you needed to make deals, you needed to compromise. And and we have to get back to that. There's no question that we need to get people in Washington who see it the same way. Now, I know it's more complicated. It used to be that they stayed in the Congress on the weekends. They didn't run home to raise these ridiculous funds. They have to have now to stay in office. Their children knew one another as a result of that. They knew each other as people, and that helped them to make the kind of deals they needed to compromise. So somehow we've got to change. Now they're there from Tuesdays to Fridays. They go home. They hardly know each other. They don't even speak to each other in the corridors. They talk about each other with such hateful terms. Somehow we just got to let those people go and get a whole new crop in. Of young people, maybe.

Nick Capodice: More of Doris Kearns Goodwin from writers on a New England stage after a quick break.

Rebecca Lavoie: So I don't think a lot of people know that. Dick Goodwin wrote Al Gore's concession speech after the vote count stopped during the 2000 election. How did he feel about being asked to write that speech?

Doris Kearns Goodwin: Well, what happened is that al Gore had called him up, and when the vote was going on, first in Florida and then going on and on and on and said, would you write and help me write or craft for me, with me a concession speech or a victory speech? Well, Dick knew the victory speech wouldn't really matter. So he worked on the concession speech. And I remember saying to him, you've got to send it down to him. He'd finished it before the decision was made by the Supreme Court. And Dick said, he'll never want to see this until the Supreme Court has decided against him. He's going to want to think it's going to go for him until it does. So he finally sent it down. Al Gore worked on it, and it really was something so important, today's world, because it was the peaceful transition of power. What he started out saying was that right? Um. He talked about the very thing we're talking about today, the rule of law. He mentioned that above. He and al Gore says in the speech that the Supreme Court had made a decision. It was the law of the land. He didn't agree with it, but it was the law of the land. And this was a country ruled by the rule of law. And then he talked about the fact and invention. Eventually he said, so I'm going to give my blessings to the to our president elect, and I wish him all the best.

Doris Kearns Goodwin: Every other president except for 2020, except for 1860 and 2020. In 1860, Lincoln said when he took office that he thought it was one of the central points of the war. That was about that was that had just started, was that if you could allow the southern states to secede simply because they lost an election, then democracy would be an absurdity. And that's what we saw in 2020, the first time that any president did not accept a peaceful transition of power. It was hard for Gore to do that. Many people thought he shouldn't have that. He should have still fought it, but he felt it was important for the country to do so. Every other president, Hillary Clinton, when she lost, she said how hard it was to lose. But on the other hand, she not only respected the rule of law and the peaceful transition of power, Americans cherished it. And so I think Dick felt proud to be part of that moment when that rule of law was brought to the highest level of power by a person who felt he should have won that election, but was willing to let it go to the next president because of that rule of law had been passed.

Rebecca Lavoie: I know you think about leadership a lot. You and Dick both worked for charismatic leaders, one of whom is, I think, revered tremendously, in no small part because he was cut down in his prime. Really charismatic. Really revered. I'm wondering if the events of the past few years have shifted the way that you think we should be looking at very charismatic leaders.

Doris Kearns Goodwin: That's a really good question, because one of the things Dick said in in one of the pieces that he wrote in the last, last months of his life, really had to do with the fact that it was no longer for him. A search for heroes, that what he was looking for were people who would stand up as citizens for their arguments and their rights and come together as, as collective energy. And that's one of the speeches he worked on for Bobby Kennedy, who was who delivered it in Cape Town on his grave. Actually, the words of that speech, part of it in which he had gone to Cape Town, and the kids who were there at University of Cape Town in South Africa were fighting against the oppressive apartheid regime, and they felt like they were not making any difference. The regime was at such a terribly powerful moment of his power. So he said to them that, you know, you may not think you can make a difference, but if individuals make a difference and they come together, large things can happen. And the speech talked about. Every time a man steps up for an ideal, he sends forth a tiny ripple of hope. And then those ripples come together and they can form a current that will break down the mightiest walls of oppression. And that's what Dick came to believe, that when he looked back at history. And I believe this as well, when Lincoln was called a liberator, he said, don't call me a liberator because of the Emancipation Proclamation.

Doris Kearns Goodwin: It was the anti-slavery movement and the Union soldiers that did it all. At the turn of the 20th century, when things were in such turmoil with the Industrial Revolution, and Teddy Roosevelt warned that we were at such a state of turmoil with the new factories and the slums, and in agricultural era was giving way to this new era. We didn't know how to deal with it. The growing gap between the rich and the poor. There were anarchists bombings. There was a nationwide strike, things seemed to be coming apart, and people in cities felt different from people in countries. And he warned that if you started seeing each other as the other rather than as common American citizens because you were in different regions or sections, then democracy would be in peril. But how was that solved? It wasn't just Teddy Roosevelt. It was a progressive movement that grew in the cities. Settlement houses, a social gospel and religion to soften the industrial revolution. To get workers rights to do minimum wage and maximum hours. Same thing happened with the civil rights movement and Lyndon Johnson with the women's movement, the gay rights movement. So at the end, what Dick was writing is that we don't have to just depend on heroes. We have to depend on us to take up the responsibilities of citizenship. And he ended it by saying, we've been through really hard times before. America is not as fragile as we think. Hmm.

Rebecca Lavoie: Can you choose one event in the 1960s that you considered to be the most consequential to the 1970s and beyond?

Doris Kearns Goodwin: I think I'd have to say that not one event, but I think the passage of the Civil Rights Act ending segregation in the South. Think of the fact that, you know, in 1964, blacks still couldn't before the Civil Rights Act go into a movie theater or go into a department store or go into a white only motel or hotel. I mean, to think that we'd gone that long without that being taken away, that stain on our life, and similarly, that blacks couldn't register to vote in the South, that if they tried to register, they were asked to make all sorts of of things that nobody could do. What's the 13th amendment? What's the 17th amendment? What's the 18th amendment? How many seeds are there in a watermelon? How many seeds in a bar of soap? And then they'd be denied registration. And in Selma, Alabama, when they were 3/5 of the of the city was black, only 2% were registered. That's a that's a stain on our country in the sense that, as Lyndon Johnson said, voting rights is the most important right on which all the others depend. And democracy depends on ability to for people to vote their leaders in or throw them out. And they were not allowed to do that. And I think those two acts together, being able to do something to to make America closer to the ideals we have, are the events that I would choose.

Rebecca Lavoie: You know, you wrote about another consequential event that Johnson deceiving the American people about Vietnam was a key moment that seeded distrust of the federal government. But the bottom line was it was a thing that he did that, you know, earned that mistrust. I'm wondering if you think there is a right amount that we should be trusting the federal government.

Doris Kearns Goodwin: Yeah, one of the I mean, in fact, I was we went through the boxes again and I saw the anguish that it felt not only about the war in Vietnam, but about the fact that because Johnson wasn't straightforward about the war, he was so hopeful that he could keep the Great Society alive. And so he didn't bring up the reserves in the beginning, he didn't have a war tax. He never told people the full extent of the war. When you were a commander in chief, and you're sending men and women into combat, you have to be straight to the people about why they're going and what it means and how the war is going. And when that credibility gap emerged, when the gap between what he was saying that the war is going well and then the Tet Offensive happened, showing it wasn't going well. That gap, I think, has produced the beginning of that loss of trust in government, which means a lost in trust in us in a way. And then it was exacerbated by Watergate. It's certainly been exacerbated in these decades to come. And that's one of the things that is so important right now is how to restore somehow that trust. It means we're going to have to believe that we can change things. We need to make a lot of changes. There may be changes in the Electoral College. There may be changes in campaign finance, there may be changes in gerrymandering. But these problems we created, these problems. We made these things happen. We can we can change them. I think if there's one thing I'm sort of rambling on right now, but it's something that's important to me. There's one thing if I could do, there's so many things that need to be done to to heal this beleaguered nation, but I would love to see, because of Teddy Roosevelt's warning that democracy is in peril if people see each other as the other, rather than common American citizens.

Doris Kearns Goodwin: That's where we're at today. The anger of people who who feel like the other is hateful and they call them names. It's not like we're feeling like they're people that are our neighbors. Perhaps if we lived near them, what if we allowed every college, every high school student to go into some sort of national service program so the kid from the city goes to the country. The kid from the the kid from the east goes to the west. And they have a common mission. I mean, the Army instills that sense of mission in young people. My youngest son, Joey, who graduated from. He would hate it if I'm still calling him Joey Joseph, my youngest son. Um, no, he wouldn't really hate it. He went into the Army right after nine over 11. He had graduated from Harvard that June, and he was a combat leader in Iraq, and he was in Afghanistan. He earned a Bronze Star, came home. But he said that he would never feel any prouder than bringing a team of people in his combat unit, a platoon who were from all parts of the country, different classes, different religions, different races together in a common mission. And if these kids were in a national program and they did some sort of mission together for a two years or something like that. Maybe then they would know that the other is not the other, that there's somebody you're dealing with on a daily basis. And I'd love to see that happen.

Rebecca Lavoie: What do you think the job of a presidential historian will look like in 60 years?

Speaker4: Oh, wow.

Doris Kearns Goodwin: You know, I've been dreaming, actually, of imagining a presidential historian writing about this week and this verdict, actually. And what I'm hoping that presidential historian says is that never again was a president convicted of a felon as never before. I mean, I just keep wishing if I could close my eyes and see that they say that this didn't become a recurring thing, that never before had there been a convicted felon who was a presidential candidate or a former president, and that never again, 60 years from now, had it happened. I think what's going to be interesting for presidential historians, on a lighter note, 60 years from now is that they'll have much more stuff about us. They'll see us walking and talking. They'll look at videos of the presidents. They'll know what their voice was like. They'll know how they turned around and how they seen. When we were working on the movie on Lincoln, which was based in part with Steven Spielberg on Team of Rivals. The only way we knew that Lincoln had a high pitched voice was because somebody wrote about it. So when when Daniel Day-Lewis spoke with a high pitched voice, people said, that can't be. It must be a baritone voice.

Archive: I can't end this war until we cure ourselves of slavery. This amendment is that cure. We need to get the hell out of here and get them. But how? I am the president of the United States, clothed in immense power.

Doris Kearns Goodwin: But in fact, the high pitched voice was better for a crowd of 10,000 people would be at those debates then, and it would go over the crowd so people could hear in the back, where Stephen Douglas had a very baritone voice that was great for the front. And we, of course, never saw him walking or talking. We only knew that he walked like a laborer who came home at the end of a hard day because someone said he did. So we're going to know 360 degrees of our people much more, but we won't have the kind of letters and journals and diaries that allows you an intimate knowledge of what they felt like, what they were emotionally feeling like. Maybe we'll have emails if people save them, but there's so much more staccato. We'll have tweets that will help us. Not very much, I think. So I'm very glad to be in historian that had that kind of primary source for the people that I've written about in the past, and but it's been a great profession. I sometimes think it's an odd thing to have spent 50 years of my life writing about dead presidents, waking up with them in the morning, thinking about them when I go to bed at night, I wouldn't change it for anything. The only fear I have is that in the afterlife, there'll be a panel of all the presidents that I've ever studied, and everyone will tell me everything I missed about them. And of course, the first person to speak out will be Lyndon Johnson. How come those books on the Roosevelts and the Kennedys were twice as long as the book you wrote about me?

Rebecca Lavoie: I got a question for you from Twitter. Boston writer Megan Johnson asked. I like to think Doris Kearns Goodwin runs her own female fight club. Do you?

Doris Kearns Goodwin: If she will teach me how to Do it, tell her I'd be glad to do it. I will write her back.

Rebecca Lavoie: A bunch of people want to know what it is that you enjoy reading. I'm assuming you don't read your own books in your free time.

Doris Kearns Goodwin: No. In fact, when I at night I for many, many years would read mysteries. I don't know why. For some reason, reading about people and not knowing how the thing was going to end would keep me up too long at night. It wasn't always a good thing, but I've loved reading mysteries. But lately when I started to write this book, my publisher came to me and he said, you're going to be changing time zones. You're going to have to go back from the 60s to earlier times. You're going to be talking with Dick when it was present time. So read novels that do that. So I, I started reading novels as a result of that. Prince of Tides and beloved all sorts of novels where the narrator was telling a story, but it skipped back and forth in time. So now I'm on to reading novels. But either way, it's not reading history at night, or it's not reading. Certainly not reading my books at night. There was a woman who told me that she was. Especially my books that are fat. When she was reading Bully Pulpit in hardback, she fell asleep and it broke her nose. So I'm reading paperbacks at night.

Rebecca Lavoie: Near the end of the book, you talk about this idea. Johnson, after signing the 1964 Civil Rights Act, said that we'd be entering this great testing time. You know, essentially after big progressive change, there's big pushback. I think six decades later, it's fair to say we're in a big testing time. How does this one compare with the testing times that have come before it in the United States?

Doris Kearns Goodwin: Yeah, I mean, I think that's one of the reasons why I think history really can give us perspective, because the important thing to remember about what it was like to be in the Civil War generation as the Civil War was beginning, or to be at that turn of the 20th century, or to be in the depression or the early days of World War two, is that the people living then, they didn't know how it was going to end. They had all the anxieties we had. So we look back on those periods, which were really dire, I think more more troubling than this one. This is the most troubling time in my lifetime, I think. But there were more troubling times before and in the early days of World War two, just I think about 1940 and what it was like for the people living there in that in the space of almost a week or several weeks, Hitler was able to conquer all of Western Europe. Tens of thousands of people dying, cities left and burned. Only Britain standing alone against Germany. France had fallen and America wanted to help so badly. And we were so far behind. We were only 18th in military power. We became 17th when Holland surrendered, and there was little chance that we could do anything to help England if if Russia had not been attacked by Germany, if they'd gone right after England, as they almost did and conquered Britain, then they would have come after us, and we would have been unprepared for that war.

Doris Kearns Goodwin: As it was, Britain held out for that year and a half before Pearl Harbor. And then what happened is the assembly line started to get going. By 1943, we were able to produce a plane every four minutes, a tank every seven minutes, and a ship was launched every single day. And so there we come to D-Day and we've got 170,000 troops there. The Churchill and Roosevelt have finally come to an agreement that this is the time where we can do this, and they've got every weapon they need for the finally for the soldiers. They've got the landing craft, they've got the aircraft. And yet everything will depend on those individual soldiers. That means the leaders can't do it anymore. It's going to be whether the soldiers, what's going to happen when they come off those landing craft. And they have to climb up those cliffs and the bullets will be raining down on them. The bravery and the resistance and the and the resilience of those soldiers. And the night before D-Day. Hardly anyone could sleep. Eleanor Roosevelt was unable to sleep.

Doris Kearns Goodwin: Churchill said he couldn't sleep. He woke up Clementine. And he said, do you realize tomorrow morning this would be tonight? Tomorrow morning, June 6th, 20,000 of our troops may be dead. Eisenhower walked amidst the troops, and he knew that maybe one out of 2 or 3 might not make it through there. Only FDR could sleep, in part because of his polio. He knew that when there were situations that you couldn't control, that you just had to let it go. So he was asleep when the call came from General Marshall at 2 a.m., telling him, the troops have landed, they are moving forward. And he immediately called his cabinet together. Get everybody here, get all the white House staff here. And then that morning, the news came out to the American people that the troops have landed and they're moving forward. Church bells rang, synagogues opened, everybody went to pray. And Roosevelt gave a speech that night, which would be tomorrow night 80 years ago, to the people in the form of a prayer. Let us pray for our soldiers. And that was the moment of the beginning of the end of that war that finally destroyed fascism and allowed democracy to prevail. We've got to believe we did it then, and we can somehow do it again.

Rebecca Lavoie: Reading this book, listening to you riffle through Dick Goodwin's boxes, you know, going through all this material with the love of your life, it sounded like a pretty great date. Um, is this what you'd recommend that we do with the person we love? Just go through their stuff.

Doris Kearns Goodwin: You know? You know I actually would. I think what happens you often hear about people whose parents or grandparents have died, and they're left to go through the scrapbooks or go through the pictures themselves after it's over. I think if we can start talking to our parents or grandparents now and and be able to get their stories and go through the scrapbooks with them and just be able for for me, for Dick, I was so worried after he died of whether I could continue working on this project, because I was afraid it would just make me sad to to have to remember him dying in that last year of his life. But instead I realized, this is what I've done my whole life is, as I said, trying to bring these people back to life. And it doesn't have to mean bringing people back to life who will be on Mount Rushmore or will be on currency, or will be in movies. It's bringing your parents or your grandparents back to life, and you can do that through the stories that they tell you, that you then tell your children. That's how that's how people live on. So I would say, if you've got a chance to share those stories with anybody, if you're younger and with your parents or your grandparents, share them now, because then you'll want to tell those stories to your children, your friends and your colleagues so that the people you love can live on food.

Rebecca Lavoie: Thank you so much, Doris Kearns Goodwin. Thank you for joining me.

Doris Kearns Goodwin: Thank you.

Nick Capodice: That is it for Civics 101 this week. If you loved this conversation and you want to hear more of it, you can get a longer version of this interview with Doris Kearns Goodwin. Just check out NPR's Writers on New England Stage podcast feed. The Music Hall's executive director is Tina Sawtell. NHPR's event producer is Zoe Kay. The music hall's production manager is Janna Morris. Live sound and recording by Ian Martin. Literary producer is Brittany Wasson. This edition of writers on a New England Stage was hosted by Rebecca Lavoie. Music. In the episode by Blue Dot Sessions I'm Nick Capodice and this is Civics 101 from NHPR. New Hampshire Public Radio.

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Moyle v U.S.: Why did SCOTUS punt an abortion case?

The Emergency Medical Treatment and Labor Act, or EMTALA, says certain hospitals have to provide stabilizing care to patients. Until the Dobbs decision in 2022, that care included abortion if necessary. After Dobbs, though, states with strict abortion laws make it difficult if not impossible to abide by EMTALA. Idaho is one such state, the United States sued, and that case made its way to the Supreme Court. In June of 2024, however, the Court said it made a mistake. It never should have taken the case. So what happened? Hannah is inside the courtroom, Nick's waiting outside.

Listen to our episodes on federalism, Roe v Wade and precedent for some extra context on what we talk about here. Finally, listen to Hannah's episode on what it was like to spend a day in the Supreme Court. 

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Transcript

Hannah McCarthy: A note to listeners. In this episode, we're discussing legal issues with contextual references to sexual assault and other content that might not be appropriate for all. Just a heads up. All right, here we go.

Nick Capodice: Sounds like Chameleon. It is Chameleon. I love this song. Herbie Hancock made this famous on his album Headhunter. You know, Nick, maybe. Have you ever considered just reporting instead of just talking about fun little trivia facts.

Hannah McCarthy: On April [00:00:30] 24th, 2024, when Civics 101 was in Washington, D.C., Nick and I went to the Supreme Court. I had acquired a press pass to go inside and hear the arguments.

Archival: We will hear argument this morning in case 23 726, Moyle versus United States and the consolidated case. Mr. Turner.

Hannah McCarthy: And Nick stayed outside.

Archival: What do we want? When do we want it? Now. What do we want.

Hannah McCarthy: And this [00:01:00] case? And actually, it's two consolidated cases, Idaho and Moyle et al v United States. I'm going to refer to it as Moyle. The court was looking at a strict abortion restriction in Idaho, and trying to figure out whether or not it conflicted with a federal law. And on June 27th, 2024, the court announced its opinion, and we will get into that in detail later.

Nick Capodice: By the by, the opinion was known. A day before it was released. The court had accidentally posted it [00:01:30] to its own website. Sort of a self-inflicted leak. And there are a lot of pieces to this case. It is tied to the recent Dobbs decision that overturned Roe v Wade. It's tied to questions about federal power versus state power, and it's tied to something called Impala, the Emergency Medical Treatment and Labor Act.

Hannah McCarthy: All right, let's do it. You're listening to Civics 101. By the way, I am Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Hannah McCarthy: And today we are talking about abortion. EMTALA [00:02:00] and Moyle v US.

Nick Capodice: I'd like to start with like a really 101 facts of the case here. You know who is Moyle? What is EMTALA? What are we talking about here?

Hannah McCarthy: Sure, I'll do EMTALA first. Again. It stands for the Emergency Medical Treatment and Labor Act. It was passed by Congress and signed into law by Ronald Reagan in 1986. Now people refer to it as the patient Antidumping law. Basically, in the mid 80s there were reports [00:02:30] of hospital emergency departments refusing to treat people who were uninsured, weren't U.S. citizens, or who didn't have the money to cover hospital costs. The law and I'm going broad here, says that if a hospital participates in Medicare, as in if they get the federal health insurance plan, if they receive federal funds and nearly all hospitals do. That hospital has to provide emergency care to someone, regardless of their ability to pay [00:03:00] the bill. Are you with me so far?

Nick Capodice: I think so. It's like if you show up to an emergency room and you're bleeding from a head wound, say they can't turn you away, right?

Hannah McCarthy: They cannot turn you away. They have to first take a look at you, give you a medical screening, and secondly, if that medical screening tells a doctor that you're experiencing an emergency medical condition, they have to provide stabilizing care. If that hospital does not have the staff or the facilities for that care, they have to transfer you somewhere that does. [00:03:30]

Nick Capodice: Now, what counts as an emergency medical condition?

Hannah McCarthy: This is an important question. So EMTALA says acute symptoms of sufficient severity, including pain wherein if that person did not get immediate treatment, their health or the health of their unborn child would be in serious jeopardy. Uh, or their bodily functions or their organs would be impaired or experience dysfunction.

Nick Capodice: All right. So EMTALA is specifically [00:04:00] about health. It doesn't say you must give this person the necessary care if and only if they are going to die if you don't.

Hannah McCarthy: Yeah, and I know where you're going with this because as we have mentioned, we are talking about abortion here. Idaho's abortion law is specific to saving the life of the mother. The state also allows for abortions in the case of rape and incest. They passed the law in 2020, and then it went into effect in 2022 after the Dobbs v Jackson [00:04:30] decision overturned Roe v Wade and the constitutional right to abortion. The criminal penalties for anyone who performs or attempts to perform an abortion are up to five years in prison, and for doctors, their first offense will mean a license suspension and their second means they lose their license.

Nick Capodice: So there's a federal law that mandates stabilizing care. Which, and correct me if I'm wrong here, could very well be abortion to protect someone's health. Correct. And then there's [00:05:00] a state law that bans most abortions. But in the case of medical emergencies, it allows them to protect someone's life.

Hannah McCarthy: Yeah. Long and short of it.

Nick Capodice: So this is a federalism issue, Hannah.

Hannah McCarthy: It sure is. Nick. And what do we know about federalism? You remember the three helpful principles. We've got a whole episode on this one, folks.

Nick Capodice: Okay, I know that federal law trumps state law. That is the Supremacy Clause in the Constitution. If a state law is in conflict [00:05:30] with a federal law, federal wins. But then I think that states are allowed to push back on that.

Hannah McCarthy: They are totally allowed to push back. And those are principles two and three. The US recognizes that state governments are important, that they have a degree of autonomy, and that there are plenty of places where the federal government does not or cannot regulate what states do. So when a state, for example, thinks a federal law is unconstitutional and does not want to follow it, [00:06:00] that is allowed. But and this is an important but unless the court system agrees with that state that a federal law is unconstitutional, that state cannot stop the federal government from trying to enforce that federal law. Nor can they stop the government from prosecuting people who violate it.

Nick Capodice: And I know that the federal government does not always choose to enforce federal law. But with the Moyle case, the federal government did.

Hannah McCarthy: The federal [00:06:30] government did.

Archival: Almost immediately, the Department of Justice filed a lawsuit because that exception, the life of the mother, wasn't enough and it went against EMTALA. Emergency care is emergency care, and a patient should not be denied care because, well, they aren't dying yet. A federal judge immediately put an injunction in place so that wouldn't be the case.

Hannah McCarthy: And then Mike Moyle, the Republican speaker of the House in Idaho, petitioned the Supreme Court to take up the case.

Archival: That injunction was suspended [00:07:00] by a three judge panel of the Ninth Circuit Court of Appeals said Idaho could enforce all of its abortion law while the lawsuit worked its way through the courts, which is what it is doing now, because in January, the Supreme Court agreed to hear arguments in the United States versus Idaho and Moyle.

Nick Capodice: So that's how we got Moyle v US.

Hannah McCarthy: That is how we got it.

Nick Capodice: So at that moment, Hannah, when you and I were at the Supreme Court, that ban was still in place.

Hannah McCarthy: It was. [00:07:30]

Nick Capodice: All right. So let's move on to that day when you and I were there in person.

Hannah McCarthy: Oh, yeah. And if anyone wants to hear about what it was like to spend a day in the Supreme Court, there's a link to that episode in the show. Notes. Um, but, Nick, first, what was it like outside?

Nick Capodice: It was very, very noisy.

Nick Capodice: A lot of people are protesting. There are about 5 or 6 people who seem to be, uh, in the pro-life camp and maybe like 1 to 200 [00:08:00] in the what we now refer to as the pro-choice camp. There are two competing podiums, one on the left and one on the right with speakers, and they're shouting at the same time.

Archival: Typical pro-choice person. Eight out of ten people names. No they're not.

Archival: Eight. Eight out of ten. No, no, not in healthcare. That's not true. We want women to win.

Archival: No you don't. We want to live in a free democracy. Abortion kills. Kills. Planned Parenthood's founder. [00:08:30] Do you support Margaret Sanger? Margaret Sanger was a racist.

Nick Capodice: And real quick, before anybody calls me out, I did make a linguistic error while taping in the field there.

Hannah McCarthy: Um, you mean you said pro-choice and pro-life?

Nick Capodice: Yeah, I did. Look, I understand if people get frustrated when words we are supposed to use change, sometimes seemingly overnight, the sheer amount of expressions I've been told aren't the appropriate ones over the last six years is staggering, [00:09:00] but I always come around to understanding that words do matter and the reasoning is right. Words evolve and so do we. Many news agencies no longer say pro-life and pro-choice because they're recognized as politically charged, advocacy based terms like slogans each side uses to describe themselves. So instead we in the news world say what these sides truly are. Abortion rights supporters and abortion rights [00:09:30] opponents.

Hannah McCarthy: So there were people on both sides of the barricades. Did you talk to anyone who was there?

Nick Capodice: I did, I'm going to share three short interviews with you today. First, I spoke to Jessica.

Jessica Baskerville: My name is Jessica Baskerville. Spelled b a s k e r v I l l e. And I work with the National Women's Law Center. I am a media associate. I'm not even sure I'm going to spit out my gum. No, I don't, I don't, you know, chomp into your microphone.

Nick Capodice: I like a good microphone. Chomp. [00:10:00] We like a lot of good scene tape. Okay.

Jessica Baskerville: I don't know, gum is part of the scene but is now. All right. So what are we going to be talking about?

Nick Capodice: I wanted to ask you from sort of. So our show is about systems and civics, right? It's schoolhouse Rock for adults.

Jessica Baskerville: I love it.

Nick Capodice: From a civics constitutional perspective. What do you guys think is going on in there today?

Jessica Baskerville: Learning a lot about like the 14th amendment and how it has been at one point stretched to protect reproductive freedom, but it is now being used to restrict reproductive freedom based on how [00:10:30] justices have interpreted it over the years. And now it's it's being interpreted differently. Differently. Um, and at that, there is the expense of so many things reproductive freedom, just general bodily autonomy, um, racial protections, interracial marriage. There's so many things because of how this amendment has been interpreted by different courts. Um, yeah. I think that there are so many things and interference of how the government well, not even [00:11:00] the government, how the judicial branch is choosing to, um, police people's bodies and decide what health care is.

Hannah McCarthy: So what Jessica is talking about here, at least to my ear, um, is that the Supreme Court in Roe v Wade said that the 14th Amendment's implied right to privacy protected abortion as a constitutional right, and that in Planned Parenthood v Casey, the court said that [00:11:30] the right to abortion stems from the 14th Amendment's right to liberty. And then in Dobbs v Jackson Womens Health Organization, uh, the court said, actually, the Constitution doesn't mention abortion. And the reasoning in Roe and Casey was bad. So perhaps unsurprisingly, the 14th amendment didn't show up in oral arguments or in the court's opinions or dissents.

Nick Capodice: And that's because Dobbs pretty much just took it out of the abortion conversation.

Hannah McCarthy: I'm assuming here. But yeah, I mean, given Dobbs, that argument would not have been much [00:12:00] help in Moyle.

Nick Capodice: Do you want to do an interview?

Felipe Avila: I'm happy to.

Nick Capodice: All right, tell me, who are you and what are you doing here today?

Felipe Avila: My name is Felipe Avila. I'm director of communications with the National Association of Pro-Life nurses, and we are here to stand up for all of the health care providers throughout the country who believe that their conscience protection should be protected. We. We are deeply concerned that the Biden administration is weaponizing and EMTALA to essentially force providers to perform abortions. But essentially what [00:12:30] this case is about is a 1980s era law called EMTALA that essentially was introduced by the government to make sure that patients that are low income or who do not have insurance, that they are able to receive emergency medical care. But what the Biden administration is now looking to do is expand EMTALA to force health care providers to turn the emergency room into an abortion facility, and we are deeply opposed to that.

Nick Capodice: Uh, do you think if you could have a conversation with [00:13:00] anybody on the other side of the of the other side of the barriers there? Uh, do you think there's any common ground that you two could come together with?

Felipe Avila: I think the biggest common ground is that we both care about patients, and we both care about our patients that we serve and that we represent. And I would say where we differ is that they believe incorrectly that we are risking women's health. But I would say the opposite. We are deeply concerned that EMTALA is forcing professional health care professionals to perform abortions [00:13:30] that are not medically indicated.

Nick Capodice: And what's that pin you have there?

Felipe Avila: So this is the caduceus, and this is just the universal symbol for health care. And we believe that abortion is not health care. And we are here to say that.

Hannah McCarthy: Okay. Got it. Um, so this is really interesting. Felipe has got some serious concerns here that I think I can address his point about conscience, conscientious objection by a medical [00:14:00] practitioner that does have federal protection, at least when it comes to facilities or doctors that receive federal funds. And the federal funds. Thing is, in part, what makes EMTALA enforceable.

Nick Capodice: Because they participate in Medicare.

Hannah McCarthy: Yeah. And the lawyer for the United States, actually, in these oral arguments, argued that conscience objections are permitted under EMTALA.

Nick Capodice: So, like, what if an entire hospital's medical staff claimed conscientious objection to abortion?

Hannah McCarthy: According to the Solicitor General of the United States, their conscientious [00:14:30] objection would be honored by Health and Human Services. Okay. One other thing. Nick Philippe's view that the Biden administration is expanding EMTALA to include abortions. I just want to address that. The Biden administration did send out a memorandum after Dobbs came down, and it affirmed that a pregnant patient with an emergency medical condition as defined by EMTALA, who requires an abortion to be stabilized, must be offered that abortion regardless [00:15:00] of state laws prohibiting abortion.

Nick Capodice: So basically, the Biden administration wasn't expanding. It was reminding. It was reminding hospitals that EMTALA a federal law supersedes state laws.

Hannah McCarthy: Yeah, it's really clear about that. So to Philippe's concern that EMTALA forces physicians to provide abortions when they are not medically indicated. It's actually quite the opposite. Metalla mandates an abortion when it is determined to be medically necessary treatment to stabilize [00:15:30] a patient, because it mandates the necessary treatment for stabilizing a patient full stop.

Nick Capodice: All right, I got it. My last interview was with a practicing physician who had flown from Idaho to say what she had seen on the ground in her state in the wake of the recent abortion bans, which were in effect when I spoke to her.

Caitlin Gustafson: Caitlin Gustafson I'm a family physician in McCall, Idaho. Yeah, the case today is about life saving emergency abortion care. It's really about our ability [00:16:00] right now in Idaho and states like ours to provide the care when folks walk in with pregnancy complications, which are not, unfortunately, not all that uncommon, um, that they can receive the care that they need that preserves their health right there at home with their doctor, their health care community and their state. That's what's at stake. I grew up with in Tulsa. All doctors practicing grew up within toilets. A 40 year old law that really says that we need to [00:16:30] provide stabilizing medical care to anyone that comes to an emergency room, whether they're pregnant or not. Pregnant applies to any person. It was originally put in place so that hospitals didn't what we call dumping not take care of patients who didn't have insurance or they didn't want to take care of. And it really ensured that everyone receives the same level of safe health care. What we're seeing in Idaho right now, and states like ours isn't an exception is being made [00:17:00] that if that stabilizing, health saving, life saving care is an abortion, we can't provide that. And we're in the untenable situation of shipping by life, flight by whatever means necessary to get a patient out of state to get the care that they need.

Nick Capodice: What can you foresee being the ripple effects if this doesn't go the way that you hope it does today?

Caitlin Gustafson: Yeah, we're living the ripple effect in Idaho, in Idaho right now. Um, we're living it because we had this life [00:17:30] saving protection in place, and we were able to provide this care up until January, when the Supreme Court decided to hear this case, um, and for the time being, sided with the state of Idaho, saying that our state abortion law, one of the strictest in the country, could override that federal protection that we all know and that we've all learned and grew up in and provided care in for years and years during our career. So we're we're an example of it, because right now, if you have one of these [00:18:00] emergencies, you're leaving the state. Um, and to to the detriment of our patients health. Um, and it's causing distress across the medical system, the health care system as well. Because this isn't just about abortion care. Um, it's about access to emergency care. And in this case, uh, we're going to see if this doesn't come to an end either at the Supreme Court or the people, um, [00:18:30] coming together to say it's unacceptable. Um, we're going to continue to see health care complications. A worsening maternal health care crisis. Um, and a much deepening physician shortage in Idaho and other states like ours.

Nick Capodice: We're going to take a quick break, after which we're going to hear about what went on inside the court, as well as how the court decided.

Hannah McCarthy: But before that break, we can only make this show because [00:19:00] of listener support. Make a donation in any amount at our website civics101podcast.org.

Nick Capodice: We're back. You're listening to Civics 101. We're talking about Moyle v US. And, Hannah, before the break, you said you were going to take us inside.

Hannah McCarthy: All right, here we go. Okc um, this is the point where I would play tape of me walking into the Supreme Court and [00:19:30] going through the metal detectors and trying to play it cool in the press room, like I wasn't experiencing the most exquisitely joyous day of my entire career as a journalist and marveling at the still kicking facilitation of free press in a shared national obligation to provide people with information about what is going on in government institutions. But I don't have that tape.

Nick Capodice: You don't have that tape because you weren't allowed to have that tape, Hannah, because the Supreme Court does not allow recording of any kind except their own. But you did have a pen and paper, right?

Hannah McCarthy: I sure did. I will post pictures [00:20:00] of my scribbles on the episode page for this one. So again, go and listen to my mile a minute walking down the D.C. sidewalk with Nick rant if you want the details of the experience. But today I got to talk about the argument.

Archival: States and the consolidated case, Mr. Turner.

Archival: Thank you, Mr. Chief Justice, and may it please the court.

Nick Capodice: All right. But tell me you weren't over the moon to be in that room when this was happening.

Hannah McCarthy: I was orbiting the moon, Nick. The [00:20:30] court sketch from this day. I watched it sketched in real time. The sketch artist was sitting to my left eye like I watched it happen. Um. All right. So Joshua Turner is the advocate for Idaho.

Archival: First section 1395. The Medicare Act's opening provision forbids the federal government from controlling the practice of medicine. That's the role of state regulation. Second subdivision F Enamtila codifies [00:21:00] a statutory presumption against preemption of state medical regulations, and third, EMTALAs stabilization provision is limited to available treatments, which depends on the scope of the hospital staff's medical license. Illegal treatments are not available treatments.

Hannah McCarthy: Okay, so going into this case, I want you to keep in mind that as is so often the case, there are people who are disagreeing about what the law actually means. Turner [00:21:30] is not arguing that Impala is inherently unconstitutional, but he is arguing that the way the government is trying to enforce it is wrong. And his big sticking point here is this state law limits medical practice. The federal government cannot force a state to violate that law. That's not how preemption works.

Nick Capodice: Preemption. Meaning federal law trumping state law.

Hannah McCarthy: Yeah. Turner says that [00:22:00] EMTALA requires states to provide available stabilizing treatment. So if abortion by law is mostly not available, EMTALA does not require doctors to offer or provide it.

Nick Capodice: Contrary to what the federal government is saying, which is where he's getting the federal government is wrong thing.

Hannah McCarthy: Yeah. So the liberal justices on the court took issue with this because Metalurh does talk about preemption. It says, quote, the [00:22:30] provisions of this section do not preempt any state or local law requirement except to the extent that the requirement directly conflicts with a requirement of this section. Here's Justice Sonia Sotomayor.

Archival: You can't preempt unless there's a direct conflict. If objective medical care requires you to treat women who are who present the potential of serious medical complications, and [00:23:00] the abortion is the only thing that can prevent that. You have to do it. Idaho law says the doctor has to determine not that there's merely a serious medical condition, but that the person will die. Yeah, that's a huge difference, counsel.

Nick Capodice: Okay, so Sotomayor here is seeing a conflict. She's like, when it comes to an abortion, federal law says protect their health. Idaho law says nope, you can only protect their life.

Hannah McCarthy: Yeah. And [00:23:30] Justices Sotomayor, Elena Kagan and Ketanji Brown Jackson asked a lot of questions along the lines of, all right, wait, so you're telling me that if this was happening to a pregnant woman or this or this, and she's not facing immediate death, but she could lose organs or seriously damage her health or ability to get pregnant in the future. And abortion is the only medical answer. Ohio wouldn't provide it.

Archival: Sepsis [00:24:00] an uncontrolled hemorrhage. There is likely to be a very serious medical condition, like a hysterectomy. Based on the. Let me go to another one. This particular patient they tried had to deliver her baby. The baby died. She had a hysterectomy, and she can no longer have children.

Hannah McCarthy: Sotomayor is rapid firing these scenarios, and Turner answers.

Archival: And Idaho law does not require that doctors [00:24:30] wait until a patient is on the verge of death. There is no emergency requirement. There is no medical certainty requirement.

Nick Capodice: Hannah, I thought death was the thing. Isn't that the thing? A doctor in Idaho can't perform an abortion to prevent death.

Hannah McCarthy: The law says, and I quote, only when it is necessary to prevent the death of the pregnant woman. Turner says that it's about good faith, medical judgment. It varies case by case. Justice Amy Coney Barrett has a problem [00:25:00] with this.

Archival: I'm kind of shocked, actually, because I thought your own expert had said below that these kinds of cases were covered, and you're now saying they're not.

Archival: No, I'm not saying that. That's just my point, Your Honor.

Archival: Is that, well, you're hedging. I mean, Justice Sotomayor is asking you, would this be covered or not? And it was my understanding that the legislature's witnesses said that these would be covered.

Nick Capodice: Wait. Explain this. Who said what would be covered?

Hannah McCarthy: Yeah. Okay, so Barrett is referencing legal briefs. So before oral arguments actually happen at the Supreme Court, both sides submit [00:25:30] lots and lots of information to the justices to try to make their case. Petitioners from Idaho sent the court some briefs that said, you know, just to be clear, when it comes to certain cases, the cases that the Biden administration raised, even if death isn't imminent, abortion is a permissible treatment.

Nick Capodice: All right, so Barrett is asking Turner why he's not just saying, don't worry, Justice Sotomayor, with these hypotheticals, you're raising a doctor would be [00:26:00] allowed to provide an abortion. Yeah, that's.

Hannah McCarthy: What he's being asked, essentially. And Justice Brett Kavanaugh kind of says the same thing. You know, he's like the United States says that you, Idaho, would deny women abortions in these cases. But you, Idaho, have said that no, in these cases, we wouldn't.

Archival: Just want to focus on the actual dispute as it exists now, today, between the government's view of EMTALA and Idaho law, because Idaho law has changed since [00:26:30] the time of the district court's injunction, both with the Idaho Supreme Court and with a clarifying change by the Idaho Legislature, you say in your reply brief. And so to the the moil reply brief says that for each of the conditions identified by the Solicitor General, where under their view of EMTALA, an abortion must be available. You say in the reply brief that Idaho law in fact [00:27:00] allows an abortion in each of those circumstances, and you go through them on pages eight and nine of the reply, brief each of the conditions.

Nick Capodice: It sounds a little bit like Barrett and Kavanaugh are saying, you know, based on the information you gave us, you don't have a problem here.

Hannah McCarthy: Yeah. They're asking, you know, whether there is a dispute at all. But then the liberal justices are like, there's another issue here, Idaho. You're telling us federal law does not preempt state law? [00:27:30] And we just don't get that. Here's Kagan.

Archival: Your theory of EMTALA is that EMTALA preempts none of it, that a state tomorrow could say, even if death is around the corner, a state tomorrow could say even if there's an ectopic pregnancy, that's still that's a that's a choice of the state. And EMTALA has nothing to say about it.

Archival: And that understanding is a humble one with respect to the federalism role of states. That's the primary care providers [00:28:00] for their citizens, not the federal.

Archival: It may be too humble for women's health. You know.

Nick Capodice: There's that word federalism.

Hannah McCarthy: That's what it's all about. Nick Idaho is saying we are allowed to set certain standards. That is how federalism works. And the liberal justices are saying, hang on. Federal law. Preempting state law is also how federalism works. And then Barrett and Kavanaugh, two conservative justices, are saying, what problem are we actually practically having here? [00:28:30] So, okay, the United States is the other side of this case. The advocate for the United States is Elizabeth Prelogar.

Archival: Today, doctors in Idaho and the women in Idaho are in an impossible position. If a woman comes to an emergency room facing a grave threat to her health, but she isn't yet facing death, doctors either have to delay treatment and allow [00:29:00] her condition to material to materially deteriorate, or they're airlifting her out of the state so she can get the emergency care that she needs. One hospital system in Idaho says that right now, it's having to transfer pregnant women and medical crisis out of the state about once every other week.

Hannah McCarthy: So right out of the gate, Justices Clarence Thomas and Samuel Alito asked Prelogar about the spending clause.

Nick Capodice: What now?

Hannah McCarthy: EMTALA is Spending spending clause legislation. It requires [00:29:30] hospitals that receive federal funds to abide by the care standards it establishes. The spending clause, by the way, is in the Constitution. So here's Thomas.

Archival: Uh, general, uh, are you aware of any other, uh, spending clause legislation, uh, that, uh, preempts criminal law.

Hannah McCarthy: So Prelogar answers no, none that come to mind. But there are a bunch of other cases where courts, including this one, have upheld [00:30:00] preemption when it comes to spending clause legislation. So that extends to this case. But Thomas is asking in part because the US sued Idaho. It did not sue the hospitals.

Archival: In this case, you are bringing an action against the state and the states not regulated. Uh, are there other examples of these types of suits?

Archival: Sure. I mean, there are numerous examples where the United States [00:30:30] has sought to protect its sovereign interests in situations where a state has done what Idaho has done here and interposed a law that conflicts. So I'd point to Arizona versus United States.

Hannah McCarthy: As Prelogar says, the U.S. sued Idaho because Idaho is preventing its hospitals from complying with Impala. And Thomas asks, essentially, well, can't the hospitals just tell the state that Impala preempts state law? And Prelogar says, sure, they could, but I'm.

Archival: Not aware of any principle or precedent [00:31:00] in this court's case law to suggest that that's the only way for the government to protect its sovereignty.

Archival: That is the normal way, though.

Archival: I think that that's often the fact pattern of particular cases.

Hannah McCarthy: Now, Alito is not convinced.

Archival: How can you impose restrictions on what Idaho can criminalize, simply because hospitals in Idaho have chosen to participate in Medicare? I don't understand how this squares with the whole theory of the spending clause.

Archival: Well, I think that it squares with this court's long line of precedents cited at page 46. Well, I've [00:31:30] looked at that.

Archival: I've looked at those cases. I haven't found any square discussion of this particular issue, but I'm interested in the theory. Can you just explain how it works in theory?

Archival: Sure. So spending clause legislation is federal law. It's passed by both houses of Congress. It's signed by the president. It qualifies as law within the meaning of the Supremacy Clause.

Archival: Absolutely, absolutely.

Archival: And so I think the Supremacy Clause dictates the relevant principle here, that what the law where. [00:32:00]

Archival: I'll let you finish. Yes. Go ahead.

Archival: In a situation where Congress has enacted law, it has full force and effect under the Supremacy Clause. And what a state can do is interpose its own law as a direct obstacle to being able to fulfill the federal funding conditions.

Nick Capodice: Hannah. Did Elizabeth Prelogar just Civics 101 Justice Samuel Alito.

Hannah McCarthy: I mean, honestly, um, it did kind of feel like that, but I'm also, uh, predisposed to hear such things. And he did ask her how it worked. [00:32:30] Uh, but anyway, after Prelogar explained her theory, Alito responded with, basically, all right, I just don't understand it. And by the way, Nick, there have been other cases where states have argued that a federal spending law is unconstitutionally coercive.

Nick Capodice: Because Congress can say, you can have all this pretty money, but you have to follow our rules. And states are like, we need that pretty money, and your rules go [00:33:00] too far.

Hannah McCarthy: Yeah. And Prelogar basically said that in this case, federal supremacy rules supreme. But it did seem like Alito and Thomas were not so sure about this, which is a potentially really big deal. Or it would have been if this case really went anywhere at this level. Um, but before I get to that one last really big.

Nick Capodice: Deal.

Archival: We've now heard, let's see, uh, an hour and a half of argument on [00:33:30] this case. And one potentially very important phrase in EMTALA has hardly been mentioned. Maybe it hasn't even been mentioned at all. And that is my reference to the woman's, quote unquote, unborn child. Uh, isn't that an odd phrase to put in a statute that imposes a mandate to perform abortions? Have you ever seen an abortion statute that uses the phrase unborn child? [00:34:00]

Nick Capodice: Well, I'm glad this came up because that's really the argument for abortion opponents. This is all about saving the life of an unborn child. Yeah.

Hannah McCarthy: And Alito is saying, essentially, how can EMTALA include abortions as necessary care if the law says you have to care for the health of the "unborn child.

Archival: If Congress had wanted to displace protections for pregnant women who are in danger of losing their own lives or their health, then it could have redefined the statute so that the fetus [00:34:30] itself is an individual with an emergency medical condition. But that's not how Congress structured this. Instead, it put the protection in to expand protection for the pregnant woman. The duties still run to her.

Hannah McCarthy: Now, Congress added, quote unquote, unborn child to the act in 1989. So just a little reminder. EMTALA was passed in 1986 to prevent patients in emergencies from being turned away from hospitals. Congress added the 1989 provision to clarify that an unborn child [00:35:00] also counted in terms of stabilization. At that time, abortion was a constitutional right, so there wasn't a question of whether one would be provided to stabilize a mother. The question was whether a woman would be turned away if her unborn child needed help. Congress clarified. You know, no, the mother gets the care if she's in trouble or if her pregnancy is in trouble.

Archival: The statute makes clear that's the pregnant woman. And of course, Congress wanted to be able to protect her in situations [00:35:30] where she's suffering some kind of emergency in her own health isn't at risk, but the fetus might die. That includes common things like a prolapse of the umbilical cord into the cervix where the fetus is engraved distress. But the woman is not at all affected. Hospitals otherwise wouldn't have an obligation to treat her, and Congress wanted to fix that, but to suggest that in doing so, Congress suggested that the woman herself isn't an individual, that she doesn't deserve stabilization. I think that that is an erroneous reading of this.

Archival: Nobody's suggesting that the woman is not an individual, and she doesn't, [00:36:00] uh, she doesn't deserve stabilization. Well, that.

Archival: The premise of the question would be that the state of Idaho can declare that she cannot get to the stabilizing treatment, even if she's about to die. That is their theory of this case and this statute. And it's wrong.

Hannah McCarthy: Can I just tell you, Nick, that watching this, it felt like it was happening a million miles a minute. And it felt to me, [00:36:30] tense. But listening to this again, I'm like, you know, I don't know. They seem pretty calm.

Hannah McCarthy: These are the Uber professionals here. But also I do believe in the power of body language and being an animal in a room with other animals. And I am just saying, sitting in the Supreme Court, this felt high stakes and contentious and well, again, it might have been. But you know, this case did not go where [00:37:00] it might have gone right.

Nick Capodice: June 27th, after making the mistake of accidentally publishing it a day early, the court issues its opinion.

Hannah McCarthy: It's a 6-3 decision. They say the writ of certiorari, which is what a court grants when a petitioner asks them to hear a case, was improvidently granted and that the stays they ordered on the abortion ban in Idaho would be vacated.

Nick Capodice: So what exactly does [00:37:30] that mean?

Hannah McCarthy: It means, first, that the court believes it should not have accepted this case for review in the first place, and that the stay, the order of the court to continue the Idaho ban is removed, and that lower courts can now go forth and work on this case.

Nick Capodice: So basically, this is not a ruling on abortion. It's not.

Hannah McCarthy: But at least for now, unless and until the lower courts do more, the abortion [00:38:00] ban is lifted in Idaho. Okay. So, Nick, there are four opinions, two concurring with the majority, one dissenting and one partially concurring. Partially dissenting.

Hannah McCarthy: Now, the concurring opinions agree that the case should not have been taken up, but for totally different reasons, and the dissent and partial dissent agree that the court should have issued some kind of ruling, but also for totally different reasons. So [00:38:30] Justice Elena Kagan wrote that the court never should have stepped in in the first place. That EMTALA absolutely applies to abortions, even in situations where the life of the mother is not immediately at risk, she said, quote, what falls in the gap between them are cases in which continuing a pregnancy does not put a woman's life in danger, but still places her at risk of grave health consequences, including loss of fertility, unquote. And then later, quote, that is why [00:39:00] hospitals in Idaho have had to airlift medically fragile women to other states to receive abortions needed to prevent serious harms to their health. Justice Barrett's concurring opinion said, well, we shouldn't have taken up this case because both parties changed their tune before they could come before the court. Quote, the United States has clarified that Impalas reach is far more modest than it appeared when we granted certiorari and a stay. Idaho law has materially changed since the district [00:39:30] court entered the preliminary injunction, and based on the parties arguments before us, it seems that the framing of these cases has not had sufficient opportunity to catch up, unquote.

Nick Capodice: All right. So what about the dissent and the partial dissent? Partial concur. Yeah.

Hannah McCarthy: Okay. So Justice Alito wrote a dissent. Justice Gorsuch and Thomas joined him, and Justice Jackson wrote the partial dissent. Partial concurrence. Both Jackson and Alito felt that this [00:40:00] was an opportunity to make a decision with way more impact, and took issue with the court passing on that opportunity. Alito said that the ruling was, quote, puzzling and that, quote, the court decides it does not want to tackle this case, after all, and thus returns the appeal to the Ninth Circuit, which will have to decide the issue that this court now ducks, unquote. And Jackson said that the ruling was not a victory for pregnant women in Idaho, that it was, in fact, [00:40:30] a delay, that the court quote, had a chance to bring clarity and certainty to this tragic situation. And we have squandered it, unquote. Justice Jackson implied that this issue is going to keep coming before the court, and she asked if they would ever make a clear decision or, quote, maybe we will keep punting on this issue altogether, allowing chaos to reign wherever lower courts enable states to flagrantly undercut federal law, facilitating the suffering of people [00:41:00] in need of urgent medical treatment, unquote.

Nick Capodice: I'm thinking about that word that Justice Jackson used. She used the word punt. And you and I, we've seen this a lot in our episodes about various Supreme Court rulings. There are different reasons for kicking the ball away. So sometimes a punt is a punt back to a lower court, and the justices know how that lower court is going to rule. They get what they want, but the blame is not on them. And sometimes a punt is just a stall for time, [00:41:30] right? Like we're going to get back to this when we have more information kind of thing. But this punt, Hannah, this punt, which deals with two very important issues abortion access and the ability of a state law to preempt a federal law. It seems that at least Jackson and Alito are looking at this as kind of a dereliction of duty.

Hannah McCarthy: Their issues, though, that, you know, if history and Justice Jackson have anything to teach us, the Supreme Court may very well have [00:42:00] the opportunity to address again someday.

Nick Capodice: Well, if they do, do you want to go?

Hannah McCarthy: Do I want to go? Yeah. Nick, I think I want to go. Obviously, I want to go. Whatever the public opinion of that joint, it is still the Supreme Court for now. I mean, yeah, come on. Do I want to go? That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer [00:42:30] and Rebecca LaVoy is our executive producer. Music in this episode by Hanu Dixit, Konrad Oldmoney, Ikimashoo Aoi, Hyperfun, HoliznaCo, Brendon Moeller, Up the Wall, Marten Moses, El Flaco Collective, Cushy, Real Heroes, Gerhard Feng, Howard Harper Barnes, The New Fools, HATAMITSUNAMI, Society and Chris Zabriskie. If you liked this episode, or if you didn't, or if you have questions about American democracy or just questions for [00:43:00] us, you can tell us about it. You can ask us all of that at our website, civics101podcast.org. And if you don't want to miss another episode of Civics 101, make sure to follow us on Apple Podcasts or wherever you get your podcasts. Civics 101 is a production of NHPR New Hampshire Public Radio.

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The CPB and the Politics of Public Media

What is the Corporation for Public Broadcasting, or the CPB? How does it all work? And why is it SO political?

In this episode, senior producer Christina Phillips explains it all. She first spoke with the CPB's Anne Brachman, and then did a deep dive to learn more. 

In the episode, Christina mentions 2024 legislation called the Defund NPR Act. You can read that bill right here. Since we taped the episode, there's a new effort afoot to defund the CPB. More on that here. 

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Transcript

Christina Phillips: Go for it.

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy, I'm.

Nick Capodice: I'm Nick Capodice

Rebecca Lavoie: I am Rebecca Lavoie.

Christina Phillips: And I'm Christina Phillips.

Hannah McCarthy: And we're doing something a little different today instead of Hannah Mansplains senior producer Christina Phillips is going to explain stuff to us today.

Rebecca Lavoie: A Philaplain.

Nick Capodice: A what Splain,

Rebecca Lavoie: Philaplain, Christina Phillips. She's gonna Philsplain Splain.

Christina Phillips: I don't know how I feel about that. Doesn't work. Mhm.

Hannah McCarthy: We'll keep working. We'll work it out.

Nick Capodice: Yeah. It sounds like something like a waterway. Like a spill. Get it by the Phil Splain.

Hannah McCarthy: Uh, Christina, why did you gather all of us here today?

Christina Phillips: Um, well, as you remember, we were recently in Washington, DC, and while we were there, I decided to go talk to some people who are, I would say, our closest connection to the federal government. And I say our meaning, this podcast, the radio station we work at, which is to say that I went to the offices of the Corporation for Public Broadcasting. Yes, they distribute government funding to public media organizations like ours. And there are several reasons I did this interview. One, the Corporation for Public Broadcasting was created by the federal government, which naturally makes it a civics topic. Two its history and function are embedded in this very democratic idea of a free press that, to quote the Supreme Court in 1971, serves the governed, not the governors. And three, because the idea of the government using taxpayer dollars to fund public media is a political issue.

Hannah McCarthy: It is. Yeah, it's super political. I mean, there are plenty of politicians and voters alike who do not necessarily think that the government should give taxpayer dollars to public media organizations, especially if those organizations are not covering certain issues the way that perhaps they feel those issues should be covered.

Christina Phillips: Usually with an episode that I work on, I'll interview people, I'll write a script for you to record. And this time I wanted to break the format, because I feel like it's worth talking through this as a group because unlike other topics, we're going to be talking about ourselves. And I think that it would be weird to do a traditional episode where we explain a subject that is essentially about our work without acknowledging that.

Nick Capodice: To that end, can we start with just sort of a big old disclaimer? Christina. Okay, everybody. Hi, I'm Nick. Uh Civics 101 is a show made at a public media organization, NPR, New Hampshire Public Radio. And to be clear, NHPR gets money from the federal government through the Corporation for Public Broadcasting.

Rebecca Lavoie: A small amount of money.

Hannah McCarthy: So basically, like what Nick is saying is that some tax dollars go to helping our station run, and we receive those dollars in the form of a grant.

Nick Capodice: And to be very clear, when Civics 101 first started way back in 2017, we got an additional grant on top of, like NHPR's station grant from the CPB to fund the creation of this, this show. And then we got another grant, I think a year later or two years later to continue funding the show. But that was a while back.

Rebecca Lavoie: And we're no longer running on CPB money with this show as of today. So we're no longer a grant-funded show from the CPB, to be clear. Except for the grant that our station gets - the tiny portion of our budget.

Hannah McCarthy: And we're here to talk about the government's role in public media, specifically in relation to the Corporation for Public Broadcasting. Right. I think it would be disingenuous to imply that we do not have some professional stake in government policies having to do with public media, like, do all of us here love and value public media and want to keep our jobs and want our work to be trusted and useful for our listeners? Yes we do. Like so that is our perspective.

Christina Phillips: Yeah. And and also the perspective of the person I talked to for this episode from the Corporation for Public Broadcasting.

Anne Brachman: Maybe one day with technology.

Christina Phillips: This is Anne Brachman. She's the senior vice president of external affairs at the CPB. And basically her job is to spend every day on the Hill talking to legislators about how public media works and why it matters.

Anne Brachman: We try to get to the Hill every single day to talk to members or their staff, and we really bring in a couple pieces of paper. One is the amount of money from CPB to all the stations in their state or district. And then we have what we call a state story. So here's all the things that CPB support enables services wise or content creation in the state. So they can really see the value of the appropriation locally serving their constituents. Okay.

Christina Phillips: So I'm wondering, um, does this sound like any other kind of job that you're familiar with?

Nick Capodice: Yeah. So my question was, is she registered as a lobbyist or is that is it not lobbying? What she's doing?

Christina Phillips: Yeah. Do you want to just define what a lobbyist is? And then I can tell you why she's not.

Nick Capodice: Oh, fascinating. Of course. So a lobbyist is somebody who spends a certain amount of time, and I think also a certain amount of money talking to people in Washington, DC, talking to politicians to not necessarily convince them to do what they want, but just to provide them with as much information as possible to benefit their industry that they represent. One thing that kind of shocked me from another episode that I did is that lobbyists don't change your mind. They just provide information. They help you write a bill. They help you get something through legislation that usually never happens. So a lot of members of Congress really depend on lobbyists. And lobbyists will tell you that they are right to lobby is enshrined in the Constitution in the First Amendment. Yeah. So lobbyists are fascinating, but I'm desperate to know why she's not a lobbyist even though that's what she's doing.

Christina Phillips: Yeah. So the difference here is that so her salary and the salary of her colleague who go to the Hill that comes out of CPB funding and that funding comes from the government, they are not paid by any sort of outside interest. They, like our station, couldn't donate a bunch of money to the CPB to help the CPB advocate on our behalf or on behalf of public media.

Anne Brachman: Sometimes we'll go up and we'll host briefings with congressional caucuses. There's a Congressional Public Broadcasting Caucus, the Congressional Rural Caucus, the Congressional Fire Fighting Caucus, public safety caucuses, because public media touches all these different aspects of our nation. And so it's a lot of educating. We are allowed to do technical advice. So sometimes a committee, when they're writing or drafting legislation, they will reach out to CPB and say, how would this impact public broadcasting or CPB. And in that regard, we do have a statutory recognized role to engage with and provide feedback.

Christina Phillips: And I do feel like we've been saying this phrase, public media, public broadcasting a lot. And that definition didn't really come from nowhere. And so we're going to talk about all the things a station would have to do to get the CPB funding later. But is there any sort of definition, like how would you guys define the difference between public media and, say, commercial media?

Rebecca Lavoie: Well, for one, public media is, generally speaking, a not-for-profit organization that isn't funded by commercial interests, nor does it exist to make a profit at the end of the year on its balance sheet. So that's a big, important component of it. And public media has to abide by certain federal communications guidelines in order to retain its status as, quote, public media. So those are those are some of the fundamentals. Yeah.

Christina Phillips: I think the the key thing here is that public media is not serving any sort of investors or stakeholders. I think there are three words that I see kind of all over government regulation that I want you to keep in mind when we talk about public media. And those are noncommercial, informational and educational. And that you see a lot, especially in regulations from the FCC, which is the Federal Communications Commission, which is the agency that regulates radio, television, wire, satellite and now cable communications. And despite the fact that the FCC was created in the 1930s, Congress didn't actually establish the CPB until 1967, which I think is kind of interesting. And I want to talk a little bit about the history of how we got from there to here. And so I think the first thing that stood out to me is that the FCC decided back in the 1940s to reserve certain frequencies on radio broadcast for this public programming. So specifically, you're listening to an FM radio, you know, you can usually find a public radio station in like the lower end.

Rebecca Lavoie: Or down at the top.

Christina Phillips: Yeah. Yeah, exactly.

Hannah McCarthy: Most people who are listening to this are going to hear ads.

Christina Phillips: Yeah.

Rebecca Lavoie: Right. Yeah.

Hannah McCarthy: So we I think we have to talk about why Civics 101 and tons of other public media podcasts do run commercial ads. We have to talk about it.

Rebecca Lavoie: Not all public radio podcasts run ads. To be clear, it's a choice that we've made here at New Hampshire Public Radio as part of our business model. What you hear on public radio stations, when you hear companies mentioned, those are not advertisements. It's called corporate underwriting. And essentially the difference between those messages and advertisements is that they are not allowed to have, quote, calls to action, and they're not allowed to have value statements in them, such as so and so. Law firm is the very best law firm at doing wills and estates or whatever. They're not allowed to have those kinds of value statements, and they're not allowed to say things like, go to our website in order to get a sale on blank. So those that would be a call to action. Those ads are not allowed to do that. Well, you hear instead is so and so. Law firm is proud to support this public radio station and its journalism since 1985. Uh, for more information go to so and so law firm.com.

Nick Capodice: That is if you want - you know you don't have to.

Rebecca Lavoie: It's not a value statement and it's not a call to action. So that is what is allowed. And it's basically um, it's being sold to the company as you are supporting our work and your brand is associated with our work. So it's sort of being sold like an ad, but it does not present like an ad. That's an FCC rule on demand. Audio made by public radio stations is not bound by the same FCC rules as our broadcast. So we are allowed to monetize our on-demand or podcast audio with ads. We're allowed to and it does not fall within those guidelines. So here at NPR and at some other stations, we have made the decision that in order to be able to do what we do, we are operating in a commercial podcast space, that we should participate in an economy that allows us to make a little bit of money just to fund some of what we do through commercial advertisements. So that's why you hear ads on our podcast.

Christina Phillips: Okay, so that's commercials not okay on public radio or television broadcast unless they're following those rules you just laid out, Rebecca. And one other thing I'll mention is that on broadcast and on-demand, we do not endorse political candidates or run any political advertising of any kind. Now, back to the history the FCC has codified into law the difference between public broadcasting and commercial media, and it has set aside space on the radio dial for public broadcasting, specifically that noncommercial, educational informational programming. And then a little thing called television came along.

Archive: The Tonight Show Starring Johnny Carson.

Christina Phillips: By the 1950s, more than half of Americans have TVs in their home. We've got I Love Lucy, Bonanza, The Tonight Show. We've got commercials.

Archive: Salads tastes so much better with Best Foods, real mayonnaise because of best foods, superb ingredients.

Christina Phillips: And we've got the chair of the FCC, Newton Minow, calling the television landscape a vast wasteland.

Archive: Keep your eyes blue to that set until the station signs off. I can assure you that what you will observe is a vast wasteland. You will see a procession of game shows, formula comedies about totally unbelievable families, blood and thunder, mayhem, violence, sadism, murder.

Christina Phillips: Then in 1952, the FCC sets aside certain television channels for noncommercial educational television. And one thing that Anne talked a lot about was the idea was to have television channels that children could watch, that families could watch, like there's something that you can kind of set on and not worry about it.

Anne Brachman: And Chairman Minow at the time was instrumental in really pushing and advocating for educational television. In 1962, Congress recognized educational television. But we're still five years before the Public Broadcasting Act came along. But they said, yeah, there should be this thing for expanding educational television. So they set aside about $32 million in matching funds to really help construct these new stations across America. They more than doubled the number of educational stations from about 80 to about 190.

Christina Phillips: And this is when we start seeing the kind of programming that defines public media. Today. We've got the documentaries, the national educational shows, including the first American broadcasting of Mister Rogers Neighborhood, the kind of programs that you think of when you think of PBS nowadays.

Rebecca Lavoie: These are a lot of local programming, a ton of local like puppet programming and like local hosts doing like interactive stuff with kids and stuff like that. Right?

Christina Phillips: Yeah, yeah. And I'm actually this is just a random trivia question. Do any of, you know, the longest continually running television show in America? It is not public media, is it?

Rebecca Lavoie: General Hospital?

Nick Capodice: Is it a soap opera or is it like.

Christina Phillips: It's not a soap opera? It's not.

Nick Capodice: But it's not public media.

Christina Phillips: No, it's not public media.

Hannah McCarthy: Is it that weird show?

Christina Phillips: Probably not.

Hannah McCarthy: Okay. Never mind. Okay.

Nick Capodice: A news show, like 60 minutes.

Christina Phillips: It's Meet the Press. It's not C-Span, it's. It's Meet the Press on NBC.

Archive: Welcome to Sunday. It's Meet the Press. From NBC News in Washington, the longest-running show in television history. This is Meet the Press with Kristen Welker.

Christina Phillips: That was started in 1947, and CBS Evening News was a close second in 1948. But that has like over 16,000 episodes, whereas Meet the Press only has 3600. So eventually we get to 1967. This is when the federal government passed the Public Broadcasting Act, which establishes this government appropriation for public broadcasting.

Anne Brachman: So specifically, the Public Broadcasting Act authorized the creation of the Corporation for Public Broadcasting. And we are a private, nonprofit, nonpartisan corporation. And our purpose really is to facilitate the development of a public telecommunications system, providing universal access to programs of high quality diversity, creativity, excellence, innovation, um, but also with a really strict adherence to objectivity and balance.

Christina Phillips: And shortly after the CPB was created, it established NPR and PBS, National Public Radio and the Public Broadcasting Service. These are independent nonprofit media organizations that are not in any way owned or operated by the government. Um, they have their own newsrooms. They make their own national programming that then can be purchased and distributed by local public media stations. And NPR and PBS are not the only nationally focused public media organizations that do this. But I do think of this as kind of like the consolidation and rebranding of some of those big existing national public media institutions that were already in place before the CPB was created.

Rebecca Lavoie: But they don't exclusively get their funding from the CPB anymore, right? No. They also raise money through philanthropy, other grants. Yes.

Christina Phillips: NPR, for example, they say that they get less than 1% of their operational funding from CPB. It's a little bit more complicated. We'll talk about that. So I asked Anne how much money the CPB gets and how that money is spent, how it's distributed among stations. And this is what she said.

Anne Brachman: Currently in fiscal year 2024, our appropriation is $525 million. CPB is capped at 5% for our administrative costs, which is our building rent or salaries. Um, just basic, you know, operational expenses. Uh, Congress says we have to spend at least 6% on system support, and in that we pay for all the music, royalties, copyright, licensing fees, research on behalf of the system. Most of our funding, more than 70% of our funds go right out the door to all the stations across the country 1500 locally owned and operated, and so stations can decide how best to use them to support their community. Um, that could be local content creation, educational outreach, local journalism and news, or to buy national content as well. Congress does provide CPB with a separate appropriation $60 million each year to provide for the satellites, the fiber and the ground to distribute all this content. Our stations also most people don't know are part of our nation's public alert and warning system. Um, and so when a alert, you know, we think about it, we get it on our cell phones today. But how did that alert get to your cell phone? And it's through public media's, um, satellites in the sky and the transmitters on the ground as well, sending that to your local service provider. We've also been major investors in early childhood education programs, both for the broadcast, but all the streaming and the games and where kids are these days and those shows, I would say they're not inexpensive to make.

Christina Phillips: I think this is something that's really important. There was a lot of debate about the government's role in this media that it was now funding. There's a difference between government run media and public media, which we alluded to earlier. There's there's this idea that like, if you're funding this media, like will you have ownership of it? Um, so I'm wondering, can can someone give me a definition of government-run media?

Hannah McCarthy: So government-run media, I think pretty broadly, you could say is considered any media that is owned and operated by or extraordinarily influenced and controlled by the federal government. I think that the sort of insidious, scary embedded element of that is government run media is almost de facto propaganda. Government-run media is basically a government arm, right. And the government's going to represent itself within its best interests. Right?

Nick Capodice: So when we did our episode on Is America the freest, you know, the freest country in the world? We talked about the freedom of the press. I learned about some countries that do have state-controlled or government-controlled media. And what's interesting is it's always the radio. The radio is the form of media that the government always tries to control, because it's free and because it's cheap and it's most accessible. Like you can be working and listening to a radio. You can't be working maybe in watching a TV at the same time.

Anne Brachman: CPB has no role in content or editorial decision making. And Congress was very clear, and it was a big, intense debate during the making of the Public Broadcasting Act. You know, someone asked during the 67 debate, how can the federal government provide a source of funds to pay part of the cost of educational broadcasting and not control the final product? And their answer to that was CPB. Congress said that one of the fundamental reasons for establishing the corporation is to remove the programming activity from governmental supervision. So CPB was set up to be that heat shield, that firewall. We do have the objectivity and balance requirements within the act, but at the same time, we are told we cannot get involved in any editorial decision-making or control of stations or content. So there's tension between those two requirements.

Christina Phillips: Now, just because CPB does not get involved in any editorial decision-making, that doesn't mean it has no oversight on what kind of programming IT funds at all. The CPB is required to maintain this objectivity and balance requirement that Anne referenced, which basically means that it sets strategic goals for public media and lays out the kind of projects it will fund, and keeps an eye on how public media organizations that get funding are living up to those goals. And those goals are set and overseen by CPB management and a board of nine people appointed by the president, approved by Congress. That's required to have no more than five people from the same political party. They're made up of people who work in public media or have some sort of media background. And Anne gave me a summary of some of those strategic goals right now.

Anne Brachman: They came up working with CPB management with the Three D's Digital Diversity and Dialog, and the Three D's Guide. CPB's investments in all of our grant-making and digital is the innovation, making sure we're reaching Americans on every platform and how they want to consume content and, um, just being more cutting edge, diversity, age, geographic viewpoint, gender, ability, disability, race, ethnicity and then dialog. How are we engaging with our community?

Christina Phillips: Thoughts?

Nick Capodice: Can I relate to you all? You know, the process from which our show got started? Absolutely. I would love that. Yeah. So I was one of three people who went to Washington, D.C. to talk about Civics 101. And this was in order to like, secure further funding to make sure the show could exist. The people from the CPB that I met with and two others met with, they did say, you know, this is the kind of thing that would get support. You know, this is the kind of program, but you have to defend it. You have to like, say what you're going to do as a show, and then we will decide whether or not that meets all our criteria. But initially you can say there's no, you know, editorial process. But we were advised like, this is what's going to fly and this is what's not. But once that was done to a much broader point, since I've started working on the show, I have not once for a second had anybody communicate with me to be like, hey, you're still doing X, y, Z, or like, you know, are you following up with blah blah blah? Like, it's our show, we make it and nobody tells us anything, right?

Hannah McCarthy: Yeah. And I like I want to talk about this a little bit if I may like. So this idea of okay, so the CPB is being described as like this firewall between the government and the public radio station. And I think also like there is a firewall between the CPB and the radio station itself. Right. So the like the driving force of that is the understanding that the proliferation of information to the American people is a very powerful thing, and that if the government is allowed to control that, that is not the free flow of information, truth and the press. Right. And so what I think is kind of remarkable about the creation of the CPB is that it's one of these instances of American history in which it's like there's something very ideological about it, writing down a law that, yes, we're going to support the free press because the free flow of information that is not influenced by the government, by anyone in charge is really, really important. Because, Nick, you know, you're describing this experience of not being influenced, not being told what to say and what not to say.

Hannah McCarthy: The whole democratic project. Right? Like what keeps happening in America is that the government tells us we have something. And so we say we have this, this is ours, right? You told us we have it. And like I defy you to show me a journalist who does not firmly believe in that. Right. Like there's nobody on staff here. There's no like. And I know Rebecca, our executive producer, stands behind this very much like the protection that the media yields over the ability to find the truth and report the truth without anyone telling them they can't. That's right, is so vital to us that the stink that we would make, right? Yeah. Like, yeah. Like the you would hear about it because we're reporters. Like it would be in the news and you do on occasion come across a story where reporters like, I didn't like this and I'm going to put it in the news, you know, like I'm going to make sure the American people know if anyone tries to influence me.

Christina Phillips: This is a conversation that's literally happening around us right now. We have an NPR media reporter who shared, like recently, David Folkenflik, about an experience he had with an executive at The Washington Post who was trying to pressure him to not do a story that would make him look bad. And David Folkenflik is like, okay, no, this happened to me. This is an experience I had, um, where this person was compromising the ethics of journalism, and I'm not okay with it.

Archive: So you're saying that in a conversation that wasn't off the record, he made a quid pro quo offer to you. Drop your story that I don't like, and I will give you a story, an exclusive interview that I do like. Is that it?

Archive: To misquote The Godfather, he gave me an offer I had to refuse. Okay.

Archive: And you did refuse this. You went ahead with the...

Nick Capodice: Can you even imagine if any journalist that we know and work with, like, got an email from the Corporation for Public Broadcasting was like, hey, can you make sure to cover this story? Like, it would be like Watergate? Like nobody would shut up about it.

Christina Phillips: Well, actually, I do have an example of a time when the CPB did try to weaken that firewall or sort of stepped over that firewall. Is anyone familiar with this? It was in the early 2000.

Rebecca Lavoie: Rang a bell. Keep going.

Christina Phillips: Okay, so Kenneth Tomlinson was the chairman of the CPB board in the early 2000. He was appointed in 2003 by George W Bush. And he was pretty outspoken about the fact that he found certain programming on NPR and PBS, uh, to be too liberal. And so without permission, he used over $10,000 in CPB funds to commission a conservative consultant to write reports about Partizan bias on public media programs, including a show called now with Bill Moyers on PBS and The Diane Rehm Show, which was a public radio program. And one thing that this consultant was doing was tracking things like how often the president was criticized on the show, for example. And then the other thing he did is that he pushed for Counter-programming to Bill Moyers on PBS in the form of a talk show with conservative columnists from The Wall Street Journal. So two big problems here. He used CPB funds without permission to hire a consultant with a political agenda to study programs to determine whether or not they had political agendas. And then he tried to have an editorial role in PBS by telling them what kind of programs they should have, down to the specific hosts he wanted in the seats. And he did end up resigning from the board after he was investigated by CPB's inspector general. So that is one example of how the idea of nonpartisanship and a strict firewall isn't always impervious to political influence, and then how that played out. And after a quick break, we're going to talk about what stations like ours must do to get funding from the federal government and how that money is used. We'll also talk about the difference between us and NPR, because yes, we are different.

Hannah McCarthy: All right, we're back. This is Civics 101 from New Hampshire Public Radio. I am Hannah McCarthy. I'm here in the studio today with Nick Capodice, Rebecca Lavoie, Christina Phillips, of course, and Catherine Hurley, who is joining us for the summer. And we are delighted to have. And Christina, you are walking us right now through how public media works, and you're going to tell us what a place like us, like NPR needs to do to receive government money.

Christina Phillips: Yeah. And first, I want to answer one of the biggest questions any of us gets at any time. Um, when we say we work at NPR, which is are we NPR? Do you work for NPR? Do you know Terry Gross?

Rebecca Lavoie: Terry Gross doesn't work for NPR?

Nick Capodice: No, no, WHYY.

Christina Phillips: Another member station, is anyone does anyone want to take a crack at the like what is NHPR compared to NPR? How are we connected?

Rebecca Lavoie: Yeah, I answer this question all the time. Okay. Uh, so NPR is essentially a big vendor of ours. I mean, that's the best way to describe it. They're not like a parent company. We are an independent nonprofit. We buy programming from NPR to license and play on our airwaves. So basically we are buying programming from NPR, All Things Considered, uh, Morning Edition, you know, other programs, and we sort of have a co-branding agreement with them, a licensing co-branding agreement, but we pay them for that. Like we pay them a big pile of change for that. So they're basically like a giant vendor for us. It's sort of how it works. And we have a like a loose relationship with them. And, you know, station leadership, our station leader is not at this point in this position, but station heads like ours are actually on the board of NPR. So they actually have a little bit of control of like how NPR operates and so forth. But yeah, now we're actually independent but associated with buy content. Yeah.

Christina Phillips: And I will say that the big thing there is that we have our own newsroom, we've got our own journalists, we make our own stuff, and we can also purchase programming from other affiliate stations like ours. They're called member stations.

Rebecca Lavoie: And other networks. We purchase programming from APM, PRX, which is another independent nonprofit. There's other organizations like that from which you can buy programming. Wdiy distributes Fresh Air. There's other distributors, other networks that actually sell stuff to stations like ours as well.

Rebecca Lavoie: Music swell. Next topic.

Christina Phillips: I want to talk through some of the things that you need to do in order to qualify for CPB funding. So you could be a public media organization and still not qualify for CPB funding. There's like an additional layer of things you need to do in order to like get that money. And so there are half a dozen big ones. We already set a couple, which you have to be a nonprofit or affiliated with a university school or even a local government. And then another thing that we alluded to is that we cannot run political advertisements or endorse political candidates. So unlike, you know, The New York Times being like, we have endorsed whoever for president, none of that. And we will never run like a political ad, right?

Nick Capodice: It's so weird when I listen to other radio stations, you just driving around and all of a sudden it's like a presidential candidate being like, vote for me, Donald Trump. Like what? This doesn't happen on the radio. Yeah sure does.

Christina Phillips: It says a lot about your listening habits that you're like, wait a minute.

Anne Brachman: You also have to have a certain number of employees. You have to have for certain stations, a community advisory board in your community.

Christina Phillips: It has to report its finances transparently to the public, in our case, our nonprofit 990. Like there's other forms that we share basically saying like, here's where all our money is going. You can look at those all the time. I love looking at nonprofit 990. So like one of my favorite things, um, it has to be overseen by a board of directors that are invested in the community that the programming is serving and don't own or profit from their board service. So NPR's board has a mix of people who are living in New Hampshire. The board is beholden to the public that this station is serving. And then the other thing that I thought was interesting is that in order to get CPB funding, you have to have money in the bank already.

Panel: Hmm mhm hmm hmm hmm hmm.

Anne Brachman: For a public television station, for example, you have to have at least $800,000 in private, non, um, federal support, which means viewers like you, it means local foundations, local businesses, maybe state support, because CPB is determined over the years that you need at least $800,000 to offer a really strong public broadcasting service for public television, um, public radio. We also have certain minimums you have to have financially. So the most is $300,000 if you're a larger station, if you're a rural station minority station, it's $100,000.

Christina Phillips: The CPB is not just going to go out and be like, I think there should be a public radio station here. We're just going to dump a bunch of money and hire people. Like, there has to be somebody in a place with some capital saying, we want to start a station or we're already a station. We're doing all these things you need us to do.

Nick Capodice: That makes sense. You know, you don't want to back a bad pony. That's right, that's right. Yeah, yeah.

Christina Phillips: As I had mentioned earlier, NPR has reported that it only gets about 1% of its budget from the CPB. But that's also acknowledging that NPR, a lot of its budget comes from money that stations like ours spend to purchase NPR programming. So NPR would not get a lot of its money if there weren't stations like us who get funding from the government to buy NPR. programming is sort of the circle. And it's also worth pointing out that there are a lot of incentives and tax breaks on the federal, state and local level for public broadcasting, public media. I say that because the idea of public media only existing because of this government funding through the CPB, it's not a complete picture. And the idea of the government creating a space for public broadcasting has existed for a really long time, way before the government was like, okay, we're allocating this money to these stations, right?

Rebecca Lavoie: Can I just clarify something? So what you just basically said is NPR claims don't get less than 1% of its funding from the CPB. However, a station like ours that gives hundreds of thousands of dollars to NPR every year, no small portion of that is from the grant we get from the CPB. So we're essentially giving the money we got from the CPB back to NPR. So they actually get a lot of CPB funding just from other stations.

Christina Phillips: Yes. And this I think, is relevant when we talk about some of the legislation that has been proposed to defund CPB or defund NPR.

Rebecca Lavoie: Got it.

Nick Capodice: Let me just ask. A station like ours. NHPR. What percentage of our budget is money that comes from the CPB?

Christina Phillips: Do you guys have a guess?

Hannah McCarthy: I've looked it up.

Christina Phillips: Okay, so it's 6.3% for the fiscal year of 2023.

Hannah McCarthy: Yeah, it's like surprisingly low.

Christina Phillips: Yeah. And if you wanted to by the way, go to Nhpr.org. Or you can just Google NHPR 990. You can look at our 990 and it will break down how much money we got from federal grants.

Rebecca Lavoie: So it's it's more than half a million dollars. And I know that that's about what we pay NPR for our programming?

Christina Phillips: Yeah. Yeah. I mean I could look it up and do a it's a pretty close match. Like it's it's a lot.

Christina Phillips: Hello Christina from the future breaking in here. So listen I went back and looked this up. And in the last fiscal year that's July 2022 through June 2023, we actually spent more money buying content from NPR than we got from the CPB. I'm rounding here for simplicity's sake, but we got $580,000 from the CPB. That's money from taxpayers, the federal government through the CPB, and we spent around $739,000 on NPR programming. Overall, we spent about $900,000 on what's called affiliate program acquisition fees. That includes the NPR programming and then also programming we purchased from other public media organizations. But yeah, most of the money we spent acquiring national programming went directly to NPR, and it was more money than we got from the CPB. And that programming includes national and international news that you hear in the morning, in the evening, throughout the day, from shows like Morning Edition, All Things Considered and Weekend Edition.

Christina Phillips: The other thing is, I'll say is I asked Anne. The average public television station gets 18% of its funding from the CPB. The average public radio station gets about 8%, but rural stations, including tribal stations, might get 80, 90, 100% of their budget from the CPB. In the last thing is that a public media organization does not have to be affiliated with NPR or PBS in order to get funding from the CPB.

Anne Brachman: You know, people think that to get CPB money, you have to be a PBS member. You have to be a PBS NPR member. And that's not the case. There's nothing in the Public Broadcasting Act that says CPB can only give dollars to those stations who belong. We have about a handful of public television stations. I call them hyperlocal, meaning they're not PBS members, but they do independent programming, local programming. And on the NPR side, about a third of our stations are not, you know, NPR member stations, but they're doing music and content, you know, music programming and jazz and classical and local talk. Some tribal stations are keeping their local native languages alive. We have one tribal station that's 100%, and it's also a soul soul service station, meaning there's no other broadcaster within a 50 mile radius of that station. And so rural stations, typically, um, are about 19% of a rural station's budget and more than half of all of our rural grantees, which is about 135 stations, rely on CPB for at least 25% of their revenue. And we have 50 rural stations, many on Native American reservations, who rely on CPB funding for at least 50% of their revenue. And rural stations have more challenges as well. I mean, they have more infrastructure to maintain and operate over a larger geographic area with fewer viewers or listeners there to help financially support the station. And if it weren't for CPB and the federal investment, those Americans would not have access to news or informational educational content or even cultural programming.

Christina Phillips: So now we need to get to the thing. The political thing. Are you ready for the political thing? Yeah. Okay.

Archive: From 480 million to 0, that's the Trump administration's budget proposal for the Corporation for Public Broadcasting, the organization behind the GOP.

Archive: Sponsor of the bill says a government trillions of dollars in debt should not pay for non-essential services. Indiana Congressman Jim Banks, among a growing list of conservative lawmakers to push to defund NPR with a new bill that would outright block federal funding for the news organization, accusing Congress of spending taxpayer money on, quote, low-grade propaganda.

Christina Phillips: So there was a piece of legislation that was introduced during this legislative calendar from Representative Jim Banks. He's a Republican from Indiana called the defund NPR act. And.

Rebecca Lavoie: Okay.

Christina Phillips: And so this is, I think, interesting because it gets back to that idea of like NPR only getting quote unquote, 1% or less from the CPB, but then actually getting a lot of money from stations like ours that use the money that we earn and get in grants to buy their programming. The demand in that bill, which is has been introduced, is that no federal funds may directly or indirectly be made available to use or support an organization named in subsection B. In subsection B, it was NPR, um, including the payment of dues or the purchase of programming from such an organization by a public broadcast station using federal funds received by such station. So that's a little bit confusing. Essentially, what they're saying is that NPR cannot get funding from the federal government, and anyone that gets money from the federal government is not allowed to use federal funds to buy NPR programming.

Rebecca Lavoie: Wow.

Nick Capodice: Yeah. You know what's interesting, I've heard in my whole life, ever since I was a kid, this call to defund NPR and PBS, too, at times, what I think is kind of funny is that everybody who is in the camp of let's defund it always says the same thing, which is, well, we can't because they're just going to say, you're going after Cookie Monster and Big Bird and wow, we can't do that. You know that some people look at the acquisition and creation of Sesame Street as like, a nefarious way to make sure that you never lose funding from the government.

Archive: Bernie Madoff, Ken Lay, Dennis Kozlowski, criminals, gluttons of greed, and the evil genius who towered over them. One man has the guts to speak his name. Big bird. Big bird, big bird. It's me, big bird. Big yellow, a menace to our economy. Mitt Romney knows it's not Wall Street you have to worry about. It's Sesame Street. I'm going to stop the subsidy to PBS. Mitt Romney taking on our enemies no matter where they nest.

Christina Phillips: And I will say, I did go and look through the funding history of the CPB, like over years. And there are certainly years where you see the funding appropriation, like, not go up for a while or maybe go down a little bit and it is apportioned. Is that the word like appropriated appropriated um two years in advance. So CPB funding for, you know, 2026 I guess would be decided in the 2024 year. The CPB has never been defunded, but there have been fluctuations that you can kind of trace across eras of Congress, most typically when there is a Republican-led Congress. That just seems to be how it is.

Rebecca Lavoie: So one thing that I've always heard is that one of the reasons why these bills ultimately fail is that even conservative lawmakers ultimately, who come from very rural districts, know that their constituency would be very upset if public media were to go away, because in some places that's the media, like public media is the TV because there's no broadband, there's no other stuff. That's the media. So that that's something that I have heard every time this conversation happens.

Christina Phillips: Yeah, I don't have a straight answer on that. But one thing I will say I think is interesting and maybe it's just my gut instinct, um, is that public media is sort of super entrenched already. Uh, for example, the CPB works with FEMA and has received funding from FEMA to help implement emergency broadcast infrastructure across the United States, which, if you've seen the news lately, about 911 systems going down for several hours in Massachusetts or patchy emergency service communications all over the country in the past few years, this is an essential service, and the CPB is essential in helping to build and maintain that kind of infrastructure. Now, that bill that Jim Banks proposed wouldn't necessarily impact that kind of funding, but it's still a good reminder that federal funding for public broadcasting goes far beyond funding individual media organizations like NPR and all of those individual public stations. The 1500 plus out there, with the exception of just a few, don't get most or even half or even a quarter of their money from the federal government.

Hannah McCarthy: Okay. But very, very importantly, right. If we go back to the reason that NPR exists, if we think about the original idea behind the Corporation for Public Broadcasting, behind National Public Radio, the idea is to bring in that firewalled like closest thing to the truth that you can national news to all of these communities around the country. Right. And so if you say you can no longer acquire and not only can you no longer acquire, but like the institution does not exist, that has the most money, has bureaus all around the world, is able to pay for reporters absolutely everywhere and gather national and international news in a way that a local radio station is not capable of doing. What that would mean is that these communities no longer have access to this noncommercial, national and international news. You know, I know that there are a lot of people out there who want something different, right? And who are in total support of that. I'm just saying that that's what it means, right? Like that you lose that access.

Rebecca Lavoie: Hmm.

Nick Capodice: Quick question, Christina, how much money does the CPB get every year? Like how much of my taxes are going towards the CPB?

Anne Brachman: Funding for CPB each year is less than a cup of black, a large cup of black coffee at McDonald's per person per year. And I think a lot of Americans, they will say, oh my gosh, we're paying so much money for our nation's public media service. I'm like, actually, if you go to McDonald's, you get a better bargain with all the services you're getting from CPB.

Nick Capodice: I have final thoughts, but I've talked too much lately, so I'll let someone else talk.

Christina Phillips: So I don't have any final...you can.

Rebecca Lavoie: You can sum it up.

Nick Capodice: Yeah, yeah. Let me just say to anybody out there we, you know, the five of us in this room work at a public radio station. So trust me when I say this in terms of, like, what is objective? Christina, before you worked with us, what show did you work on?

Christina Phillips: The Exchange.

Nick Capodice: What's the Exchange?

Christina Phillips: It was a live call-in news talk program.

Nick Capodice: Okay. And you worked on that show for a while, and you helped book guests on that show? Um, let me just give you a hypothetical. Let's say you had a guest on in the morning who was going to talk about climate change and how, like, a glacier is melting and people are going to what, someone's going to come up to you and say, who should the other guest be on the show?

Christina Phillips: Yeah. If we were, it would be, you know, well, what other perspectives do we need to bring in? And if it's not going to be the expert in the room, we have open phones.

Nick Capodice: Yeah. So we at public radio stations, more than anyone self-police to try to find objectivity, to make sure that we're giving it a fair shake. I think sometimes to a fault.

Rebecca Lavoie: That's right. And I will say working with the two of you, sometimes you worry too much about the perception of bias when you're just telling the truth.

Nick Capodice: Yeah.

Rebecca Lavoie: And this is a kind of editorial conversation we have all the time. And I'm like, guys, just let your truth flag fly.

Nick Capodice: Oh, did you have to use a flag?

Hannah McCarthy: And I also I just want to say really quick because like this conversation about like objectivity versus subjectivity. And I will just I am speaking only for myself. Hannah McCarthy, the individual, not for Civics 101 and like not for this station. Objectivity does not exist like no human being is capable of it. Like that would be so interesting if we were like, I would love to do a story about. I'll just say for me, what I am doing on a daily basis is genuinely trying to find the closest thing to the truth, which, by the way, is a lot harder than it seems because we talked to a lot of people who have different perspectives, who are scholars, who are politicians, etc., who are like either intentionally or not, representing their own bias, their own subjectivity. And so sometimes we try to triangulate or sometimes we just like, read everything we possibly can. Often the closest thing we can get to the truth is like finding the law and like saying like, okay, so like the law says this, and if that person says this and it conflicts with the law, then we like we know which one is true because one thing is like written down, right? Um, by Congress. But my point is just like it's it's less that we believe that we are like, like wholly capable of presenting objectivity. I don't think it's possible, but every single day of our lives is committed fully to trying not to listen to the parts of ourselves that are subjective, and trying to seek out the closest thing to the truth and give that to people. Because, like, my subjectivity doesn't help you. Like my personal perspective does not help you at all. The truth will help you do what you will with the truth. Apply your subjectivity to the to the truth. I will just try to find it and give it to you.

Rebecca Lavoie: I think it's important to understand too, that you don't always like the truth, right?

Hannah McCarthy: No you don't.

Rebecca Lavoie: And I would say we love getting part of our funding from an organization that, you know, doesn't interfere, but we also would do what we would do without it. Let's be real.

Christina Phillips: Yeah. And to Hannah's point about trying every day to get as close to the truth as we possibly can, um, I'll just say there's absolutely an argument that the federal government should not give money to public media organizations. You listener may feel that way. You may have felt that way before you listened to this episode. And whether you come down on the side of yes, the federal government should pay for public media or no, it shouldn't. If this episode helped you feel more informed in that opinion. If you learn something, then I've kind of done my job right.

Hannah McCarthy: That is it, right?

Rebecca Lavoie: That's it, that's it.

Christina Phillips: Hey, it's me again. Just me and this good 'ol microphone alone by myself. Here are our credits.

Christina Phillips: This episode was produced by me, Christina Phillips, and edited by our executive producer Rebecca Lavoie, with help from our host Nick Capodice and Hannah McCarthy and our summer intern, Catherine Hurley. Catherine, we are so happy to have you here. And, uh, by the way, since we recorded this episode, originally, there has been more legislation introduced to defund the Corporation for Public Broadcasting. You can find links to more information about all of this legislation in our show. Notes. Music in this episode from Epidemic Sound and Chris Zabriskie Civics 101 is a production of NHPR, New Hampshire Public radio. I'm out.

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Made possible in part by the Corporation for Public Broadcasting.

What does the Supreme Court's immunity decision mean?

On this special bonus episode of Civics 101, we talk about the Supreme Court’s decision on July 1st in the case of Trump v United States. The court ruled along ideological lines; it was a 6-3 decision that granted former president Donald Trump - and any president - some degree of immunity.  But it's a long opinion, and a  complicated one. 

To explain all of it, we reached out to Dr. Claire Wofford, an Associate Professor of Political Science at College of Charleston.

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Nick Capodice: [00:00:03] You're listening to Civics 101. I'm Nick Capodice. And we are doing a super quick turnaround bonus episode on the Supreme Court's decision today, July 1st, in the case of Trump v United States, the court ruled along, as we so often say, ideological lines, it was a 6 to 3 decision that granted former President Donald Trump and any president some degree of immunity. And we'll get to that level of immunity a little bit later. [00:00:30] The opinion is long. It was written by Chief Justice John Roberts, with concurring opinions by Justice Clarence Thomas and Justice Amy Coney Barrett, and dissenting opinions by Justice Sonia Sotomayor and Justice Ketanji Brown Jackson. I'm really quickly just going to read the most relevant paragraph from Chief Justice Roberts opinion here. Quote, under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute [00:01:00] immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority, and he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. To explain all of this today, I am speaking with Doctor Claire Wofford. She's an associate professor of political science at the College of Charleston. Doctor Wofford, thank you so [00:01:30] much for being on Civics 101. Welcome.

Claire Wofford: [00:01:32] Thank you. Happy to be here.

Nick Capodice: [00:01:34] It's great because we don't usually do it this way. We usually record things in advance. So we're on a strange, fast journey together, you and I.

Claire Wofford: [00:01:42] Well, I look forward to making as much sense of it as we can.

Nick Capodice: [00:01:46] So first off, can you give us, like, a quick, fast recap of how we got here? Like what is the case or the cases about which the court was weighing presidential immunity?

Claire Wofford: [00:01:57] Right. So President Trump has had multiple cases [00:02:00] proceeding in various courts. This case centered around the prosecution of Donald Trump by Special Counsel Jack Smith for actions that he took related to the 2020 election, and he was alleged to have committed four violations of federal law in his attempt to, in some be some people's view, overturn the 2020 election. And Trump had argued that he could not be prosecuted for any of those alleged crimes because, [00:02:30] as a former president, he was immune from prosecution, which basically means he was sort of outside the legal system when it comes to those alleged acts. And the government had countered, of course, that a president is not above the law and that he was subject to prosecution. And so what the Supreme Court was deciding today was whether or not the prosecution of Donald Trump for what he did in and around the 2020 election and January 6th could go forward. [00:03:00]

Nick Capodice: [00:03:00] And more about that word immunity, like in a legal term. What does it mean? Like, is somebody just protected from their consequences in the judicial system, or are they like outside the law? Are they above the law?

Claire Wofford: [00:03:11] I think Justice Jackson actually had a good word for it in her dissent. In today's opinion. She talked about it as an exemption. So you're not completely outside the legal system writ large. You're not above the law in all manner and in all days and times. But you are in, in a in a certain instance, [00:03:30] you are exempt from that criminal statute. So everyone else would be subject to prosecution under that particular, uh, criminal law. You therefore are not.

Nick Capodice: [00:03:41] So on to the actual decision. Onto the opinion. What does it say? Like does it say that presidents have total immunity or not?

Claire Wofford: [00:03:53] Here's a classic lawyer answer. Sort of. And it depends. So it's it basically [00:04:00] breaks down immunity into three, two to three different levels. And what the court first says, which they actually didn't have to say, but they were, as we've talked about, writing a rule for the ages, so I'm sure they felt compelled to answer this question. But they first say that when it comes to what they call core presidential actions, these are things that the Constitution explicitly gives to the president and nobody else. Right? Those are called core executive [00:04:30] functions. A president in that case does enjoy absolute immunity. And in the opinion they mentioned specifically, which I think is interesting, the pardon power and the removal power. So if the president's exercising the pardon power or exercising his appointment or removal power in a way that potentially would violate criminal law, as of today, those can no longer violate criminal law, and he will be exemption for any prosecution for what falls [00:05:00] within his core executive duties. That, of course, leaves the question about, well, what about things that aren't considered part of his core duties? He has a lot of powers that aren't explicitly listed in the Constitution, and he shares a lot of powers with Congress. And that's where the court got into the nuances. And it's in those non-core powers that the court said today. The president has, and they literally use this word some immunity in very great, [00:05:30] precise legal language. President Trump has some immunity over these non-core powers. And when you're in that realm, the extent of that immunity to make it even more complicated depends on whether or not what he did in an exercise of his non-core power was official or unofficial. You sticking with me?

Nick Capodice: [00:05:53] I'm with you. So who determines whether something is official or unofficial?

Claire Wofford: [00:05:58] That's an excellent question. [00:06:00] The main takeaway from this case is that it's going to be remanded back to Judge Chutkan, at the district court level, and she will make a determination whether or not what he did was official or unofficial. And what the court declared today is that if what he is alleged to have done is an official act, he has, at a minimum, presumptive immunity, meaning he's probably immune. But the government can rebut [00:06:30] that presumption by making a certain, uh, legal showing. I'm trying to not get in the weeds, but that's going to be the key distinction whether or not what he did was considered official or non official.

Nick Capodice: [00:06:42] I don't know if you've even had time to read the whole thing. It's massive 110 pages.

Claire Wofford: [00:06:47] Yeah, I've made it through most of it. Maybe not every footnote, but most of it.

Nick Capodice: [00:06:52] So what was the legal reasoning of the court like? What was their justification and granting this immunity?

Claire Wofford: [00:06:59] So [00:07:00] the court was is very concerned. The court majority is very concerned with the ability of the executive to act in their words, vigorously. And they seem really worried that were they not to give the president at least a significant amount of immunity, that the president would not be able to take the actions he or she needs to take because he or she would constantly be worried about the threat of prosecution. And so they go through [00:07:30] a lot of discussion about the way the framers set up the government and the the framers hope that the president would be not a total, uh, dictator, but certainly a very powerful actor. And so they spent a lot of time working through how the needs of the presidency outweighed, um, any potential, um, risks that he would consider himself above the law and pursue criminal activity, which, of course, is what the dissent [00:08:00] says they set up here. So I was a little bit surprised that there was not much more of a discussion of legal precedent. This didn't really seem to turn on legal precedent. It seemed to turn on broader concerns that the majority had. And I'm especially the opinion was written by Justice Justice Roberts. But I'm hearing echoes of Kavanaugh, um, from the oral argument, because if the oral argument, Justice Kavanaugh was really hammering home this idea that presidents are going to be too afraid to take any action because they're going to be subject to prosecution. [00:08:30] And that was a real linchpin of today's opinion. They want the president to feel free to take the actions he or she thinks is necessary, and not worry about being prosecuted by a political enemy.

Nick Capodice: [00:08:43] Can you speak to sort of like the narrowness versus the broadness of this opinion, like we've talked on our show in the past about, you know, opinions like Bush v Gore, which were decided so strangely and quickly that they were like, never look at this again. Nobody ever look at [00:09:00] this again. Um, reading this opinion, does this feel like something that will last through the ages, or is this another like super narrow Donald Trump 2024 opinion?

Claire Wofford: [00:09:11] No, this is a sweeping opinion. This is an opinion that law students are going to read for the next 20, 30, 40, 50 years. The court did what it said it was going to do. It set out to make a fundamental statement about the balance of power between the president and the legal system, and they use really [00:09:30] sweeping language here. They are clearly not. And in fact, there's a paragraph in the opinion where they say, look, we really can't be concerned with what happened in this particular case. We have to think more broadly about our constitutional structure, the proper functioning of the executive, the stability of the American republic. And so they see themselves as really writing probably one of the most important decisions about executive power and separation of powers that we certainly [00:10:00] seen in a long, long time. This one's going to last, for better or worse. For better or worse.

Nick Capodice: [00:10:30] I [00:10:30] do want to talk a little more about the dissent. There was a line I read this morning. Justice Sotomayor wrote, quote, it makes a mockery of the principle foundational to our Constitution and system of government, that no man is above the law. So what was the reasoning of the justices who wrote the dissent?

Claire Wofford: [00:10:49] So the dissent is a how can I put this extremely passionate repudiation of the majority's reasoning? [00:11:00] And there's a dissent by Justice Sotomayor. And then there's another dissent by Justice Jackson. They joined each other. And basically what Sotomayor says is she says it much more, um, intelligently than this. But her basic sense is, are you kidding me? Court majority what you have now done. And this is another line she has that I love. She says you've created a law free zone around the president. And she argues that in its in its [00:11:30] concern about the president being able to operate effectively without fear of prosecution, what they've done is placed the president and the president alone, in a unique position, such that as long as he is able to argue that what he has done is an official act, he is immune from criminal prosecution, and that is what leads her to conclude he is above the law. In her separate dissent, Justice Jackson, [00:12:00] of course, agrees with all that and makes the argument that the um, in a more theoretical way, what the court has done has changed the nature of legal accountability. And rather than having the president as every other citizen, is subject to what she calls individual accountability, that the court has now invented this what she calls presidential accountability model, in which prosecutors will have to one run through what she calls a gantlet before [00:12:30] they're able to prosecute the president. So, in both Justice's view, what the court majority has done is pluck out the presidency and give him a level of legal protection that no other individual in the American government or the American population enjoys.

Nick Capodice: [00:12:48] There was one part of the opinion that stuck out to me, and it had to do with evidence. Yes. Justice Roberts said that if it was something was deemed an official act, he wrote testimony [00:13:00] or private records of the president or his advisers probing such conduct may not be admitted as evidence at trial. So what does that mean for the case going forward?

Claire Wofford: [00:13:10] So big picture the case going forward. It is possible that Trump will still be prosecuted when is a separate question, but it is now a very narrow path forward on that prosecution. It's going to take me a while to circle back to answer your question, because the district court, as I said before, is now going to need to make this determination [00:13:30] whether or not the actions that Trump took were official or unofficial. Now, both sides agreed at oral argument that Trump can be prosecuted for private acts, right, for things he did that were private. And Trump's attorney at oral argument admitted that when Trump reached out to whomever who everyone thinks is Rudy Giuliani and called him up and came up with this idea about fake electors, that that was private, that was private acts and subject to prosecution. So the trial can go forward on that. [00:14:00] What the court did, in the opinion today is imply, however, that if some of the evidence you need to prove the the motive or intent behind the private activities, touches on official acts or official duties can't be included as evidence proving the nature of that private act. So the court not only narrowed what acts the president can be prosecuted for. It narrowed what evidence [00:14:30] can be used at trial to prove that private i.e. potentially criminal, activity. The court says in this opinion that it's only giving him some immunity and that it's limited immunity. But then when you really get into the nuances of how this immunity is going to operate, there's language in the opinion that really is not 100% in Trump's favor. But it's it's it's in the 90s to [00:15:00] be sure.

Nick Capodice: [00:15:01] So very broadly you said this is going to be read by people in law school for centuries to come. What does this mean for the future? Like not just Trump and not just Biden, but all the presidents yet to be? How has their power and how has the job changed in light of this opinion?

Claire Wofford: [00:15:21] So it's a really interesting question and -- and we actually don't know potentially the president now has [00:15:30] a much broader sphere in which he or she can act than they did before, because, of course, under the court's ruling, so much of what a president might do is now at least arguably subject to immunity. The real impact of the decision on the ground, I think, is going to depend on who the president is. If this case is, as the government's argued [00:16:00] at trial, they called it, a once in history prosecution. If we never see another president take the kind of actions that Donald Trump took, then even though this case will be read by law students, it's not going to operate as a real constraint on a president, because you won't have a president continually trying to break the law. If, however, as the as the dissent fears, and as many people fear for those who are afraid that President Trump is not the last of this kind, and we are [00:16:30] going to have a pattern of presidents trying to seize more and more authority and transform our country from a democratic Republican to some kind of authoritarian regime. Then those future Trumps, as it were, are going to have a lot more leeway than they did yesterday to behave in potentially unlawful ways. And at that point, it would be up to the court again, were, for example, a president to order the assassination of his political rival. It would be [00:17:00] up to the Supreme Court again to make the decision whether or not they wanted to walk back the very broad protection they've given the president today.

Nick Capodice: [00:17:11] I saw a tweet today by House Representative Alexandria Ocasio-Cortez, and she wrote today's ruling represents an assault on American democracy. It is up to Congress to defend our nation from this authoritarian capture. I intend on filing articles of impeachment upon our return. [00:17:30] How would that work? Or would that even.

Claire Wofford: [00:17:34] I mean, the justices are subject to impeachment. Uh, that's under the Constitution. They are subject to impeachment. Her passion and intensity aside, I don't see much of a future for that.

Nick Capodice: [00:17:45] So you teach political science, and your students are very lucky, by the way, if I may say so.

Claire Wofford: [00:17:51] I don't know if they would agree with that, but thank you.

Nick Capodice: [00:17:54] What do you foresee the conversation going to be like in your classroom come September about this? [00:18:00]

Claire Wofford: [00:18:00] You know, honestly, Nick, so much is going to depend on the election. Um, and who gets elected because of course, that's another great unknown. Right? I've been thinking about, well, what will happen now and could there be a potential trial, etc., etc. you know, it looks fairly likely that Donald Trump is going to be reelected president, in which case I think we see a dismissal of these charges. Um, there's the potentiality for them being brought after he's out of office. My hope is that this will not cause [00:18:30] them to shut down and give up on American politics. I do think that what the court did today is not going to help the public's view of it as a legitimate, legally grounded institution. And that's part of why I'm disappointed in what the court did today. I thought they could have drawn a more legally sound, legally nuanced line in this instance, and the way not only the content of the opinion, but, [00:19:00] of course, the lineup of the justices I don't think is going to help their standing in the public. And so I don't want my students to become even more discouraged than they are about the nature of American politics, because at the very least, we have to have them be involved. And so my hope is that whatever passion they feel about what's happened here with Donald Trump and what's happened here with the Supreme Court, that that doesn't cause them to turn away from politics, but causes them [00:19:30] to turn toward politics. Because if our country needs to get on a better course, it's going to be that generation that does it.

Nick Capodice: [00:19:43] Doctor Wofford, an absolute pleasure.

Claire Wofford: [00:19:46] Oh, good.

Nick Capodice: [00:19:47] Thank you so much for talking with us. So [00:20:00] if you found this episode helpful in your understanding of this landmark for the ages Supreme Court decision, please let us know. We here at Civics 101 are here to help you better understand what's happening at the court, and we'd always be happy to produce more of these bonus episodes if you like them. This episode is produced by me Nick Capodice and edited by our executive producer [00:20:30] Rebecca LaVoie. Music is from Epidemic Sound. Our team also includes my co-host Hannah McCarthy, senior producer Christina Phillips, and our summer intern, Catherine Hurley. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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What is the Smithsonian?

The Smithsonian is a heck of a lot more than its 21 museums. Today on Civics 101 Richard Kurin tells us all about about an institution that interacts with all three branches of government,  has a budget of over a billion dollars, and is dedicated to "the increase and diffusion of knowledge" among all.  

So how did it start? How does it run? What does the Chief Justice have to do with all this? And, finally, why do we collect items in the first place?

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Transcript

Hannah McCarthy: There was this point a few months before we were headed to Washington, D.C., and we were talking about which museums to visit, etc., etc. when I realized something, and I am ashamed to admit that it took me as long as it did. I had no idea what the quote unquote Smithsonian was.

Nick Capodice: Well, not no idea. Hannah.

Hannah McCarthy: Yeah. Okay. Not. [00:00:30] No idea. Like it is museums. They are museums. I, uh, like a museum spread across a bunch of different places. And then, of course, I got to thinking about the sheer number of times that I have seen that Smithsonian logo on things. You know, the one I'm talking about.

Nick Capodice: Yeah, like that blue circle with the yellow thing inside. It's everywhere in D.C..

Hannah McCarthy: Not just D.C. all over the country. And that yellow thing, Nick, is [00:01:00] the sun, which has a lot to do with the whole point of the Smithsonian. Um, but it is everywhere. I was recently checking out the USS Constitution in the Charlestown Navy Yard, and I was walking into the museum, and there it was. And while we are on the subject of my home state, I have seen it in Cambridge, Massachusetts, on an observatory. I have seen it in Springfield, I've seen it in Plymouth, I've seen it in Lowell.

Nick Capodice: And for those of you not afflicted with the myopia [00:01:30] that is being from Massachusetts.

Hannah McCarthy: Yeah, uh, it's true. I cannot be the one to make an episode about the Kennedy family. I have found in my own family's archives a Christmas card that has the Pope on one side and JFK on the other.

Nick Capodice: Camelot aside, I'm pretty sure if you wanted to find a Smithsonian something in whatever state you're listening to this episode, you sure can.

Hannah McCarthy: You sure can. The Smithsonian is in every state in the nation via [00:02:00] its quote unquote, affiliates. Uh, many of those states several times over. It is also in Puerto Rico and Panama. And we are not just talking about museums. It is also a research institution, an educational institution. And, Nick, it is the biggest one.

Nick Capodice: The biggest one...what?

Hannah McCarthy: The biggest museum, research and education complex in the world.

Nick Capodice: Now, I feel this [00:02:30] is a good time to remind our listeners that we are Civics 101. And in trying to address something that is the biggest in the world, we really are going to have to stick to the 101.

Hannah McCarthy: Are you reminding our listeners or are you reminding someone else?

Nick Capodice: I think that question says more about you than it does about me. Hannah.

Hannah McCarthy: All right. One on one it is so to take us through it, let's meet Richard.

Richard Kurin: Uh, so I'm Richard Kurin, I'm the distinguished scholar and ambassador at large at the Smithsonian. [00:03:00]

Nick Capodice: We should just go ahead and get this out there right now. We really like Richard.

Hannah McCarthy: Yeah, we really do. I walked out of that interview and I was like, oh, no, Nick, did I just get dazzled? And then I was like, never mind, I don't care.

Nick Capodice: Which is important to note, because nothing that big can be without issues.

Hannah McCarthy: Nothing that big. That is also about the preservation of natural and cultural history and science and the storytelling thereof. I mean, yeah, you better bet that the Smithsonian has 170 plus years [00:03:30] of controversy, and I will talk about that a bit, and I encourage you to follow your own rabbit holes. But as promised, I am sticking to the 101 with a person who very much believes in this institution.

Richard Kurin: Well, I've worked at the Smithsonian. I started working at the Smithsonian in 1976 for the bicentennial of the United States. Now we're heading to the two 50th. So I've had almost 50 years at the Smithsonian. I've been the undersecretary of the Smithsonian. I've run several of the museums. I've run various programs, [00:04:00] and now I do a lot of special projects and a lot of my own research. I have a bunch of books to write, so that's what I do.

Nick Capodice: Richard is also an author many times over, including a book about the Hope diamond, which was particularly delightful to us that afternoon, as the night before Hannah had fallen down the tunnels of Hope Diamond lore after watching Titanic.

Hannah McCarthy: That was the same night that I learned the best floating position for conserving body heat. When waiting for rescue in the water. You can just email me if you want to talk about [00:04:30] that. But yeah, Richard has studied and written about many objects that tell the history of the United States and the world, and objects are certainly in the Smithsonian's wheelhouse.

Nick Capodice: And real quick, the Smithsonian is what you know. I know it's like museums and research education, but what is it like? Which museums, which research institutions, etc.?

Hannah McCarthy: Okay. The museums, there are 21 of them, including the [00:05:00] national museums of natural History, Asian art, air and space, African American history and culture, many more, and the National Zoo.

Richard Kurin: A lot of people don't realize like, wait, this Smithsonian has a zoo. We operate the National Zoo. Well, how did that happen? Well, the zoo happened because we had this taxidermist in the 1870s and 1880s who had to figure out how to stuff buffalo skins, and [00:05:30] he never seen a buffalo. He was a guy from the East. He never seen a live buffalo. He goes out west, finds that the buffalo are being disseminated. There's very few buffalo. It goes out again, later ends up bringing Buffalo back to the National Mall of the United States. And that starts the division of living animals or the National Zoo. And people want more animals. And over the years we start getting involved. He was at the beginning, but others following him in the conservation [00:06:00] of species. So the irony that you start off with a taxidermist, you know, figuring out how to stuff dead skin and the institution, you know, well, over 100 years later and more still going interested in the conservation of species around the planet. And that's one of the things the Smithsonian does.

Nick Capodice: You know what I find poetic about this story? A lot of people ask, why do we have zoos in the first place? Right? And a big part of the answer is, well, people mess things up.

Hannah McCarthy: And not [00:06:30] just zoos. Why do we have institutions to preserve things? Well, because we destroy things. I mean, even with the buffalo, we weren't just killing the buffalo. We were doing it in part to starve indigenous people in America. Also, a note on the taxidermist who helped to establish the National Zoo. He went on to be the director of the Bronx Zoo, where he unapologetically exhibited a human, a Congolese man. And you can learn more about that story [00:07:00] in our episode on why we have a National Zoo. All right, so there are 21 museums. There's the zoo, several environmental research centers, and astrophysical observatory archives, research programs, cultural institutions, educational initiatives. The Smithsonian is just so many things.

Nick Capodice: Well, so many things. Takes a lot of money and a lot of people. Mccarthy so let's get that part out of the way.

Richard Kurin: Okay, great. Well, you think that's a simple [00:07:30] question. There's been lawsuits about that. So this actually a statute that founds the Smithsonian. Now where is the Smithsonian kind of in the federal government? Well, there's there's something called the Board of Regents that was formed. And the Board of Regents, to some minds, violates the Constitution of the United States. So who's on the Board of Regents of the Smithsonian, which is our governing body, the fiduciary body where where the authority is is [00:08:00] established? Well, the ex-officio members are the vice president of the United States, the Chief Justice of the United States, three senators, three representatives and nine citizens. So you have nine citizens and eight from the government and the government. People represent all three branches, which probably violates the Constitution.

Nick Capodice: All right. So Richard told us twice that the way the Smithsonian is run probably [00:08:30] violates the Constitution.

Hannah McCarthy: Which is not something that people volunteer all too often when it comes to their own organizations.

Richard Kurin: Well, just think about it. I mean, you have all three branches of government represented. So just on the face, it seems like there's an issue, right? I'm not a legal scholar on that.

Nick Capodice: A separation of powers issue.

Hannah McCarthy: which is not, by the way, gone unnoticed over the years.

Richard Kurin: The Smithsonian doesn't, you know, it's like its own thing. It's technically called a public trust establishment. [00:09:00] And there's been all sorts of things. You know, there was a point back in the early 1900s, Taft, who had been president, then became head of the Supreme Court, right. Chief justice. He was the chancellor of the Smithsonian. And they asked Taft, like, what's the what the heck is the Smithsonian? And he thought it was a public foundation. That was his kind of interpretation. Now we go back and forth. [00:09:30] If you look at laws where, for example, oftentimes with federal laws, they'll say this applies to the Smithsonian, and other times they'll say, this law does not apply to the Smithsonian because of its particular characteristic. And there's been a lot of court cases over the nature of the Smithsonian and what kind of agency it is and what kind of power it has.

Nick Capodice: I did, by the way, ask about the current Board of Regents. It is chief Judge. Justice [00:10:00] John Roberts and our Vice President, Kamala Harris, both by the Smithsonian charter. Also three senators, three reps.

Richard Kurin: And then you have nine citizen members. And the citizen members have gravitated between Nobel Prize winners, college presidents and billionaires. The last head of the citizen, the executive committee is was a Steve Case who just left that post. You know, one of the founders of America [00:10:30] Online before him, David Rubenstein. Carlyle Group. David just bought the Baltimore Orioles. You know, David's contributed hundreds of millions of dollars to everything from the Washington Monument, Lincoln Memorial to Mount Vernon, Monticello, the Smithsonian Library of Congress, and on and on and on.

Hannah McCarthy: In case you didn't catch that, three citizen members. Yeah, but not exactly ordinary citizens. The board works together to oversee the Smithsonian's priorities, plans, budget, [00:11:00] fundraising, legal and ethical obligations, and establishes policies, among other things.

Richard Kurin: A very mixed group, totally nonpartisan. I've been, you know, over the years, over decades, you know, part of the, you know, deliberations and discussions. And yet people are just care about the institution. They recognize that what they hold in trust is this really precious icon that's accomplished so much. It doesn't mean there's not frustration and it doesn't [00:11:30] mean you don't have. We've had our controversies over the years from, you know, the exhibit of the Enola Gay dropped the atom bomb on Hiroshima, big issue over that exhibit to, oh, about ten years ago, we had one over a homoerotic art in America hide, seek people on different sides of the issues. We've had contention over, uh, displays and exhibits on evolution, on various forms of artistry. You [00:12:00] know, I mean, look, we Americans like to argue that is part of Civics 101 arguing and disagreeing. And and the Smithsonian is not immune from that.

Hannah McCarthy: We will come back to arguing and issues when it comes to the Smithsonian. But in terms of what our listeners might ask when it comes to the Smithsonian's legal status, uh, this is what Richard had to say.

Richard Kurin: Your your listeners might have a question of what its legal status is. My answer to that is, but don't mess around with [00:12:30] it. It works.

Hannah McCarthy: And of course, Richard has some skin in the game here. But you know, you can make up your own mind. But if you're still wondering, I will post some links to the court cases that have attempted to address the Smithsonian over time. Basically, the answer is it has a unique legal status. It was established by Congress. The Chief Justice is a part of the Board of Regents, but it's not run by the judiciary. Uh, various presidents have issued executive [00:13:00] orders about it. Congress has passed hundreds of resolutions about it. It's funded in large part by the federal government. But it is no one thing. And if you are confused, then you are on the right track. Okay, money.

Richard Kurin: We get about a billion, $1.1 billion from the US Congress as an appropriation. And that's really largely to take care of the collections, the buildings, the the physical plant. It's a lot of the the workforce, [00:13:30] particularly administrative workforce at the Smithsonian. So we have about 4500 federal employees paid out of that money. And that pays the utilities, it pays for guarding the place, security and everything else. Um, but then we have our own trust funds. Remember that guy James Smithson, who gave us that $508,000 when he wrote his will in 1826?

Nick Capodice: They don't.

Hannah McCarthy: Don't worry, he's coming.

Richard Kurin: That amounts to a few billion dollars today. [00:14:00] And so that still pays out an endowment. And that's something that, again, the Regents and the secretary then decide how we're going to spend that. In addition, the Smithsonian raises about $300 million a year in philanthropy. That's more than any museum by far in the planet. And we get money from some of the wealthiest people in the planet. Jeff Bezos gave the Smithsonian $200 million, uh, for education and to help with our Air and Space Museum. But [00:14:30] I remember when we were building the African American Museum, and there were kids in new Jersey that, you know, did fundraising and handed over a check to the Smithsonian of, you know, very small amount of money, but very significant. We raised over $300 million a year. And then we, um, we get grants. As I said, the biggest unit of the Smithsonian is the Astrophysical Observatory. Uh, NASA has traditionally given the Smithsonian over $100 million a year to run. Spaceships [00:15:00] and telescopes and projects for NASA. But we get money from the Department of Education. We get money from Department of State. Uh, you know, we have all sorts of partnerships that help do that.

Nick Capodice: All right. So that was a lot of numbers.

Hannah McCarthy: Wasn't it, though?

Nick Capodice: Can I just get a like how much money in total did the federal government appropriate for the Smithsonian in 2024?

Hannah McCarthy: That would be 1.09 billion a year after year. The appropriation [00:15:30] shifts, but it typically amounts to like 60 something percent of the Smithsonian's annual funds. The rest come from those many other sources that Richard mentioned.

Nick Capodice: One very important source, Hannah, is that guy, James Smithson.

Hannah McCarthy: Oh, yeah, this one is very interesting. And we're going to get to that guy, James Smithson, right after the break.

Nick Capodice: But before that break, just a quick reminder. Civics 101 is a listener supported show and you are the listener. [00:16:00] We are so grateful for your support. If you're able to contribute, you can do that at our website, civics101podcast.org or just click the link in the show notes. And thank you so much.

Hannah McCarthy: We're back. We're talking about the history and operations of the Smithsonian here on Civics 101. And just before the break, we were about to get to the whole reason why the Smithsonian exists to begin with. [00:16:30] It goes back to an Englishman who never visited the United States.

Richard Kurin: The Smithsonian, you know, was founded by a guy named James Smithson. So he was a Brit born in the late 1700s, went to Oxford, never visited the United States, never came here. He was the illegitimate child of an aristocrat. He didn't really like the aristocratic system. He kind of believed in [00:17:00] democracy, invested in the French Revolution a little, didn't turn out so well. And but he believed in knowledge above all. Went to Oxford. Was an amateur scientist, explorer, mineralogist, chemist in his own right, and he had great faith in the United States. He made a lot of money in steam engines and canals. Development. Early industrial revolution. And he was writing his will in 1826, in London. And like, he didn't have any, he didn't have any [00:17:30] family, he didn't have any kids. And so he leaves his money to the United States of America to found in Washington, an institution dedicated to the increase in diffusion of knowledge among all. And it had to bear his name Smithsonian.

Hannah McCarthy: Quick caveat Smithson actually left most of his estate to his nephew with the provision that should the nephew die without heirs. And I do appreciate this interstitial legitimate or illegitimate read between the lines like [00:18:00] me, James Smithson, the money would be given to the US to found the Smithsonian Institution in Washington, DC. It is a short will.

Nick Capodice: Can you even imagine being at that? Will reading am I say now this is highly irregular.

Hannah McCarthy: Why the man is never even been to America. Uh, sorry for the accents everyone. And actually, Nick, people really were flummoxed. There were news articles about it in Europe and in the US. It was not rare for a man [00:18:30] of science to leave a bunch of money to the pursuit of knowledge, but leaving it to the pursuit of knowledge in the very country that successfully cast Britain aside. Bold move. But then he was enamored of a country where public science might actually be a thing.

Nick Capodice: And his nephew did, in fact, die without heirs.

Hannah McCarthy: In fact, he did.

Richard Kurin: So Smithson left his money. At that time it was $508,000. That was a lot of money. When it came to the United States, it was equivalent to about 1/50 [00:19:00] of the US budget. That would be $100 billion today.

Nick Capodice: That number is just astonishing.

Hannah McCarthy: You know, I love this stuff. This is one of my many sticking points.

Nick Capodice: How much money is that in today's dollars? That question drives you nuts, Hannah.

Hannah McCarthy: Because it is all about context. Half a million bucks in the mid 19th century. Well, you know, gee, I don't know. Between paying off the War of 1812, dealing with the 1837 financial crash, gearing up for war with Mexico and being, you know, a still relatively [00:19:30] new country, uh, what is that worth? Often has a lot to do with what you've got. So for us, at the time, Smithson's cash was a windfall, a windfall that went super mismanaged for a while.

Richard Kurin: People in Congress fought over it. Nothing's changed. People wanted it for their own, their own pet projects. And Congress ended up debating about nine years before it finally came to the United States, I think in 1835. [00:20:00] And there was legislation in 1846 to establish the Smithsonian, and it was an institution dedicated, just as James Smithson said, to the increase and diffusion of knowledge. That's what we do.

Nick Capodice: 1846 is this like Jcpp we talk in James K Polk?

Hannah McCarthy: Yeah, that's right. Polk uh, he signed the rather wordy act that established the Board of Regents, which we talked about. And the same act said that there should be a building, quote of plain and durable materials and structure without unnecessary ornament, unquote, with enough room [00:20:30] for a big collection of natural history objects, a chemistry lab, a library, an art gallery and lecture rooms. And not everyone was thrilled with what they decided to do with the money.

Richard Kurin: Some people wanted a library. There was a library men, as opposed to the museum men. And then the first secretary of the Smithsonian, a guy named Joseph Henry. He was really a scientist. He didn't want the Smithsonian Castle. He didn't want museums. He wanted pure research.

Nick Capodice: And just a minute here, Hannah, because there is a [00:21:00] castle. If you've been to DC and you've walked the National Mall, it's halfway between the Lincoln Memorial and the Capitol building. And I'm not so sure I'd call a castle, quote unquote, without unnecessary ornament.

Hannah McCarthy: And notably, Nick, it does not look like the rest of the buildings in DC, actually. Does it remind you of anything?

Nick Capodice: Well, um, okay, if most of the buildings in DC are meant to evoke ancient Rome or Greece, then [00:21:30] I would say the Smithsonian Castle evokes like medieval England.

Hannah McCarthy: That is exactly it. It is a kind of Gothic Revival building supposed to remind you of the academic tradition. We were imitating the English one, just like our government buildings are supposed to remind you of the governments of ancient Rome and Greece. Fun fact by the way, Nick, the Gothic style is named after the Goths. And what did the Goths famously do? Nick. [00:22:00]

Nick Capodice: Oh, uh, they sacked Rome. Okay, well, that is a little funny. A Gothic castle in America's Rome.

Hannah McCarthy: Yeah, and the Smithsonian was supposed to kind of stand apart from the government.

Richard Kurin: The Smithsonian has always been a kind of scientific and scholarly endeavor, because that's what we have to base it on rather than, let's say, ideology or politics or everything else. And it has a kind of arm's length relationship with the government. It gets government money. It is an arm [00:22:30] of the federal government, but a lot of people aren't federal employees. And we have the freedom, academic and scholarly freedom to to pursue our interests and pursue the truths.

Hannah McCarthy: So we'll talk more about what the Smithsonian does. But the actual building, the castle it goes up, opens to the public in 1855, and they stock it with all sorts of things. Uh, also, James Smithson himself became a part of those all sorts of things. His crypt [00:23:00] is in the castle. That is a whole other story. Anyway, the first exhibits included a German steam machine, a library stocked with scientific books, engravings, maps, music, a huge collection of taxidermy and minerals, a meteorite, uh, and importantly, over 150 portraits of the, quote unquote, North American Indian.

Nick Capodice: Wait, really?

Hannah McCarthy: Yeah, really. They were done by an artist named John Mix Stanley. And you probably don't [00:23:30] know about these paintings. You might not even know about Stanley, because most of them were lost in a fire ten years later at the Smithsonian. Now, these images were considered accurate depictions of tribal life, and also very much fed by and into the American political propaganda that tribes were vanishing with westward expansion. It was this kind of natural and necessary destiny of assimilation or disappearance in the service of white American colonialism, which, of course, is a [00:24:00] myth that belies the forced exodus and genocide that was actually going on.

Nick Capodice: I feel like this is actually a pretty useful example of the distinction between a representative object and the story that an institution or museum actually tells about that object. And boy oh boy, does the Smithsonian have objects.

Richard Kurin: In 1876, you had the 100th anniversary of the United States. The Philadelphia Exposition was like a world's [00:24:30] fair. Countries had pavilions. All the states send stuff. All these artifacts were on display, including the Star Spangled Banner, including presidential memorabilia, all sorts of inventions, steam engines, the whole the whole shebang. And this guy Baird, who was then the assistant secretary of the Smithsonian, he loved collecting. He really liked he wanted the cases, he wanted the museums. And so he made a deal. And after the Philadelphia Exposition was over in 1876, [00:25:00] he filled up something like 60 boxcars, railroad boxcars of stuff, and sent them to Washington.

Nick Capodice: Okay. So pretty quickly, the Smithsonian becomes the place where American stuff ends up.

Richard Kurin: And then the Smithsonian became the repository for US collections. So all the patent models, for example, came to the Smithsonian. A lot of the collections of the State Department and other government departments, the US Navy [00:25:30] did expeditions around the world. Those collections came to the Smithsonian. So, you know, we ended up with George Washington's sword and Benjamin Franklin's staff and printing press and stamps and coins. And, you know, you remember, remember the Maine, remember the Maine. Yeah. Well, that ended up at the Smithsonian, some of it anyway. So so we became kind of a repository of that [00:26:00] national memory. And I think that later gave way to that notion of the Smithsonian as the nation's attic. You know, where all this stuff goes. Well, it doesn't just go there. It becomes the object of study, of reflection, of exhibition and so on. And it continues to do that to this day. But, you know, we've become a repository of the world's art world's culture.

Hannah McCarthy: So when it comes to what the Smithsonian does, remember that man, James Smithson, [00:26:30] who gave the money that established the Smithsonian? He didn't tell America what to do with that money, aside from establishing an institution for the increase and diffusion of knowledge among men.

Richard Kurin: It wasn't a set thing. It's not like Smithson said, okay, I'm leaving my money and they're going to build a fancy museum with my name on it, and they're going to have pretty cases and a lot of cabinets of curiosities. It was an idea, the pursuit of knowledge, and that's what we've done.

Nick Capodice: The [00:27:00] thing that did strike me repeatedly when we were talking to Richard was that everything they collected was supposed to be studied, not just put on display and looked at. It was supposed to be used essentially to get somewhere scientifically or culturally, like the bird thing.

Hannah McCarthy: Oh, yeah. The bird thing. Yeah.

Richard Kurin: One [00:27:30] of the great collections we have is all these birds, millions of birds at the Smithsonian. We have a unit at the Smithsonian called Forensic Ornithology. What the heck is forensic ornithology? So basically, whenever there's a bird strike in the United States, the FAA takes the remains of the bird strike, scrapes it off the windows of the plane or out of the, you know, the jet engines sends it to the Smithsonian, and there's a unit, the Smithsonian, [00:28:00] that has to identify it to figure out what birds caused the bird strike. So we did the work on who was it, Sully and the miracle on the Hudson. Yeah, that flight that came to the Smithsonian, it was the Smithsonian scientist that then used our collections as a basis for identifying, oh, let's blame it on the Canadians. It's Canadian geese that did this. And then you can divide. Then you could devise, um, interventions so that those birds don't strike planes. You know, I don't know what it is. We play rock music [00:28:30] at LaGuardia or something, but but the whole idea is understanding the world around us and how these collections can come into play in ways that you would never expect when they were first made. But given scientific advances can be very important.

Hannah McCarthy: Or the mosquito thing.

Richard Kurin: Well, all sorts of collections at the Smithsonian, including the National Mosquito Collection, the Smithsonian ended up collecting mosquitoes because, um, the nation with the building of the Panama [00:29:00] Canal and the notion of spread of disease by mosquitoes, that became very important. And the Smithsonian, in acquiring other collections, national health collections, got the National mosquito collection, 25,000 mosquitoes from, you know, over 100 years old. Well, you could think of that as some curiosity, but then you start thinking about diseases that are spread by mosquitoes. You think about viral vectors of disease, think about Aids, think about Ebola, bird flu, you know, all [00:29:30] these kind of things. Covid. So you start thinking about, gee, we have these collections and we could think of them as a bunch of mosquitoes on pins, or we have thousands and thousands of bats. And you could just think of it as so much stuff. But on the other hand, they could be the source of new scientific knowledge. All right.

Hannah McCarthy: So collecting remains in the pursuit of scientific knowledge. The pursuit of scientific knowledge has not always been fully scientific or ethical, and in fact has repeatedly [00:30:00] been destructive to people and detrimental to truth. And the Smithsonian, again, as that 170 year old plus institution dedicated to science and knowledge, is, perhaps unsurprisingly, a major inheritor of that legacy.

Nick Capodice: So you've already mentioned that the Smithsonian has dealt with controversies, and I'm assuming this is the part where we try a one on one as possible treatment.

Hannah McCarthy: Yeah. Okay. So in addition to the birds and the mosquitoes and the many, many animals, the Smithsonian also has the [00:30:30] human remains of 30,000 people from around the world. They were collected mostly in the 19th and 20th century, with the express purpose of proving white superiority. And a huge portion of the collection comprises people of color and specifically North American tribal peoples.

Nick Capodice: The Washington Post did a huge investigation on that collection in 2023. By the way. We're going to link to that in the show notes.

Hannah McCarthy: And many people who worked at the Smithsonian claimed that they were unaware of [00:31:00] the extent of the collection until reporters told them, including Lonnie Bunch, the secretary of the Smithsonian, who issued an apology as that Washington Post article was being reported. Now, the museum does now have a task force recommending the repatriation of remains, with a process for contacting living descendants or communities of origin and ensuring the Smithsonian is meaningfully holding itself accountable for this violation. And I'll post a link to their web page about the collection in the show notes. [00:31:30] We should also note that it is not just the Smithsonian. Universities across the US, including Dartmouth College and UC Berkeley, have similar collections that were developed with the same white supremacist pseudoscience. But for the Smithsonian in particular. Again, the largest museum on the planet, cataloging and telling the story of America when so much of our past has been in and at the hands of often [00:32:00] racist, often white people. It's a constant reevaluation, a constant conversation about how the story has been told in the past and who gets to tell the story now. Richard mentioned some of the most recent pressure points earlier, and I will link to some of those issues in the show notes as well. But again, this is Civics 101.

Nick Capodice: The best laid plans. Hannah.

Hannah McCarthy: All right. I'm gonna wrap this up because I did tell you at the [00:32:30] beginning of this episode, when I first introduced Richard, that we were talking to someone who really is committed to the Smithsonian, its mission, the way it functions. And I just want to come back to that, like, what is this Smithsonian for?

Richard Kurin: I think what drives it is that sense of mission and purpose. You know that there's good things to be done. There's important things to be done. You know, we're not going to feed the hungry. We're not going to cure the sick. [00:33:00] But we can provide a lot in terms of knowledge and understanding, maybe even in some cases, wisdom to the country and the world. And so that that keeps you going. And then you deal with the frustration of the paperwork of, you need this form, the appropriation isn't done. You can't spend money out of this fund. You need that agreement. And so it's really having to put that together in some kind of cogent way. And I've always, um, [00:33:30] relied on a lot of people in the institution who kind of get the mission. It's not just paperwork. It's not just filling this out, it's not just checking off the boxes, but a real sense of mission.

Nick Capodice: One thing that really did stick with me talking to Richard is that this mission, which comes back to James Smithson's marching orders, the increase and diffusion of knowledge. It is interpreted extremely broadly.

Richard Kurin: I know when I was got involved after [00:34:00] the Haiti earthquake in 2010, we sent 80 people to Haiti. We took over UN building. We helped Haitians save their culture at a time they needed the most. When things had collapsed. Artwork was in the ruins, archives, libraries, everything and and it meant so much to them because it was the culture that would give them strength to survive. We made amazing things happen even before Congress acted, before we even had money in the bank. Somehow we made things [00:34:30] happen. People pulled together. Same thing after the hurricanes in Puerto Rico back in 2017. Remember awful flooding. There was no power in Puerto Rico. The biggest museum in Puerto Rico became a region of refuge for all the archives, artwork, artifacts of Puerto Rico over 500 years of history in a building with no air conditioning flooded on the ground floor with water in the building and mold. And somehow, as the last few days of the fiscal [00:35:00] year, last few days of the fiscal year in Washington, talk about how things work. You cannot buy a cup of coffee in Washington because we're trying to close the books. And somehow in those last few days, the Smithsonian ended up doing cash transfers of over $100,000 down to Puerto Rico, to that museum to be able to buy fuel for generators, to power up the air conditioning system, to stop the mold and save over 500 [00:35:30] years of Puerto Rican culture. That happened because of the women. Tina Jones in contracting at the Smithsonian who made it happen, who said, I'll take, you know, responsibility. We're going to get that contract through. We're going to process that money. We're going to help where it's needed most. So you have people like that around the institution that just step up.

Hannah McCarthy: You know, I said earlier [00:36:00] that the reason we have institutions to preserve things is because often we humans destroy things. But I have to admit, Nick, that that really is only part of the picture, because yes, we do destroy things, but there are a lot of us who understand that destroying the evidence of culture, of nature, of history is perhaps cosmically wrong. And if you want to debate right and [00:36:30] wrong and what's good and what's not, I'll go ahead and launch my philosophy podcast. But maintenance and distribution of what is and what has been is foundational to human progress, to our survival. And like, yes, the history of the Smithsonian itself contains erasure and regression in the name of progress. It does have a lot to answer for and a lot to fix. [00:37:00] And also, it seems to me at least, that there are people there who believe in preserving and sharing the actual truth so that we at least have the option of learning the real story.

Richard Kurin: So yeah, it takes an act of Congress to make a national museum, and it takes a good bit of consensus. And and then it doesn't mean that, you know, the debate or arguments stop. You know, how do we represent this culture? How do how do we [00:37:30] represent this aspect of our lives? How do we do that? And, you know, somebody's going to say, I don't like naked people in museums, you know, well, don't go there, but you can go see the guns in the other museum, you know? So, uh, you know, I often jokingly have talked to members of Congress and say, you know, not everybody has to like everything. Not everything has. But but but to subscribe to the the tremendous variety and the depth of life and experience in the United States. It's a big picture, [00:38:00] and it usually transcends any one person's particular interests or or likes or dislikes.

Hannah McCarthy: That does it for this episode. It was produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoi is our executive producer. Music. In this episode by David Celeste [00:38:30] Beigel Roy, Edwin Williams, LM styles, Andreas Dahlback, Ryan James, Car Ott, Sven Lindvall, flyin Don, Don Don and rhymed clang soundtracks. If you have questions for Civics 101, we've either got answers or we will do our best to find them for you. You can ask us at our website, civics101podcast.org, where you can find every single episode we have ever made and if you are so inclined, make a contribution to the show. Civics 101 [00:39:00] is a production of NPR, New Hampshire Public Radio.

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Made possible in part by the Corporation for Public Broadcasting.

The Second Amendment

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

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

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

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Transcript

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: I'm Hannah McCarthy.

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

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

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

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

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

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

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

Hannah McCarthy: An ablative absolute.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: Did the program work?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: And that was illegal at the time.

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

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

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

Hannah McCarthy: What was the decision?

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

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

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

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

Hannah McCarthy: What was the result of the investigation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: How did they rule for Heller?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

What's up with those flags?

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

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

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

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

Listen:

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Transcript

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

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

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

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

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

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we are talking about flags.

Hannah McCarthy: You do love talking about flags.

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

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

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

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

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

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

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

Hannah McCarthy: Another day.

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

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

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

Hannah McCarthy: Yep.

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

Nick Capodice: Have you been following this story?

Hannah McCarthy: I have a little bit.

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

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

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

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

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

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

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

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

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

Hannah McCarthy: Oh, there you go.

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

Hannah McCarthy: This is our first flag. Yes?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: Every single day.

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

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

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

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

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

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

Nick Capodice: I did indeed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Speaker14: The turkey.

Speaker15: The turkey is the truly noble bird.

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

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

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

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

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

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

Archive: Hell no.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hannah McCarthy: Yeah, happy Pride babies.

All right. Cool.

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

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Strikes, Unions and Workers' Rights

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

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Transcript

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[00:02:04]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Speaker14: [00:51:31] Okay.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Why do we have the National Zoo?

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

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

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

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

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Transcript

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

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

Felix Poon: So this is where all the magic happens

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

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

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

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

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

Hannah McCarthy: And they’re conscious about protein

Bill Clements: Those are pinky mice.

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

Bill Clements: Like your pinky tip.

[MUX SWELL]

<<NUTGRAPH>>

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

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

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

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

Stay tuned!

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

Felix Poon: Oh my!

Zoey Knox: Exactly.

__________________

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

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

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

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

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

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

Young woman: [laughter]

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

Young woman: alright, c’mon, let’s go

Young man: but have a blessed day sir.

Felix Poon: Okay you too.

[CROSSFADE]

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

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

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

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

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

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

Felix Poon: What was your favorite animal?

Teacher 1: So she talks with her communication device.

Teacher 2: Exactly.

Teacher 1: So, Did you like the elephants?

Student via device: No

Teacher 1: Was they stinky?

Student via device: Yes

Teacher 2: Mmhmm, there you go.

Nate Hegyi: That’s great.

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

Nate Hegyi: Wow.

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

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

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

Felix Poon: Yeah.

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

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

Nate Hegyi: Okay.

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

Nate Hegyi: Is it really free?

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

Nate Hegyi: I didn’t realize that.

Felix Poon: Plus international diplomacy gets a stage here.

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

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

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

First lady Pat Nixon was a huge fan.

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

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

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

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

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

Felix Poon: A million dollars for two pandas.

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

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

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

Nate Hegyi: Kinda like right now? Yeah.

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

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

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

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

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

Nate Hegyi: Okay. Panda diplomacy?

Felix Poon: Exactly.

[MUX SWELL]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

She furnished a fine skeleton, however.

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

[MUX IN]

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

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

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

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

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

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

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

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

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

Felix Poon: Right it’s the federal DOLA.

Nate Hegyi: The DOLA.

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

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

Zoey Knox: I don’t know

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

[obnoxious trash carts ambi]

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

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

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

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

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

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

Anyways, as for Hornaday…

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

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

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

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

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

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

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

Nate Hegyi: Jesus. That’s horrible.

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

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

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

[MUX]

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

_________

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

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

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

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

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

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

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

Like, do you remember Tiger King Nate?

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

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

Trainer: Bosie, foot. Good girl!

Felix Poon: Is she getting a pedicure right now?

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

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

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

Nate Hegyi: Is she clicker training?

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

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

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

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

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

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

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

Archie, target. Good.

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

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

Louie, target. Good boy.

Nate Hegyi: Is this a public show?

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

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

Felix Poon: When do they get the worms?

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

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

[meerkats eating worms ambi]

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

[MUX IN]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Felix Poon: That's depressing.

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

Felix Poon: Now, there you go.

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

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

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

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

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

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

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

Felix Poon: You're thinking of Harambe.

Nate Hegyi: Yeah.

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

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

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

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

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

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

Nate Hegyi: Did not know that.

[MUX]

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

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

Kids: Oh oh! Ah ah!

Parent: Okay, alright alright

Kid: Its diet is fruit from–

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

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

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

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

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

Zoey Knox: It’s better than I remembered

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

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

[MUX]

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

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

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

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

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

<<CREDITS>>

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

The Outside/In team also includes Justine Paradise.

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

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

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

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

Theme music by Breakmaster Cylinder.

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

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What's it like to report on Congress?

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

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

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

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Transcript

Civics 101_NPR final.mp3

Speaker1: Hey.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Archival: You want answers? I want The truth.

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

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

Nick Capodice: Nick here alone today.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Made possible in part by the Corporation for Public Broadcasting.

Why ballot design matters

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

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

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

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Transcript:

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

Rebecca Lavoie: Hey, Nick.

Nick Capodice: Yes, Rebecca.

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

Nick Capodice: No, right.

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

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

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

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

Archive: You take this lever.

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

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

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

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

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

Rebecca Lavoie: I'm Rebecca Lavoie.

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

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

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

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

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

Rebecca Lavoie: Uh, that was Archimedes.

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

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

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

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

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

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

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

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

Rebecca Lavoie: Really?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rebecca Lavoie: Really.

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

Rebecca Lavoie: Box drama.

Nick Capodice: Box drama.

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

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

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

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

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

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

Rebecca Lavoie: Whisker vote? No.

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

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

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

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

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

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

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

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

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

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

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

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

Rebecca Lavoie: Landslide Lyndon.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nick Capodice: Yeah, those offices.

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

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

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

Nick Capodice: How do you do it?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rebecca Lavoie: That is massive.

Nick Capodice: Absolutely.

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

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

Rebecca Lavoie: When is the new Jersey primary?

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

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

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

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

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

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What is Money?

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

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

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

Episode Resources and Lesson Plans

Graphic Organizer for episode

Parts of a Coin: from the US Mint

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

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

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

TRANSCRIPT 

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

Civics 101: Money

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

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

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

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

Stephen Mihm: [00:00:21] (laughs) Do you really want me to try to answer that?

Nick Capodice: [00:00:48] This is Civics 101, the podcast refresher course on the basics of how our democracy works. I'm Nick Capodice.

Hannah McCarthy: [00:00:53] I'm Hannah McCarthy.

Nick Capodice: [00:00:55] And yeah, today we're talking about it. Talking about money. American money [00:01:00]. Its history, bills, coins, the Mint, you name it.

Hannah McCarthy: [00:01:06] Did you get an answer from him?

Nick Capodice: [00:01:08] I did. That is Stephen Mihm, by the way, he's a professor of history at the University of Georgia, and he wrote a book called A Nation of Counterfeiters, Capitalists, Con Men and the Making of the United States. And he is the first guest on Civics 101 to deal with natural disaster.

Stephen Mihm: [00:01:24] I don't mean to be trouble here, but Athens, Clark County is under a tornado warning. Tornado warning for us means that there is a likelihood there is a tornado in our area...

Nick Capodice: [00:01:34] And Stephen stuck it out through a tornado warning so he could tell me about money. And sometimes in this episode, you're going to hear him talking and you'll hear a little siren in the background. But back to my broad question. So money is this thing we all have or we want to have. It's something we need to carry out our daily life. But have you ever just wondered what it is?

Nick Capodice: [00:01:56] Stephen told me that money, in its classic sense, consists of three [00:02:00] things. Number one, it has to store value. It has to hold its value over time. It can't rot like a banana. Two, unit of account. That means its value is measurable. It's countable and it's the same everywhere, right. No dollars worth more than any other dollar. And three medium of exchange. That means it is something that is generally accepted to be exchanged for goods and services.

Hannah McCarthy: [00:02:23] All right. Gotcha.

Nick Capodice: [00:02:24] But Stephen also said.

Stephen Mihm: [00:02:25] That question, what is money, the answer will tell you a great deal about the person answering it and less about what money actually is. Anthropologists might invest money with cultural significance. That money originated not to meet economic needs, but rather originated out of something like either religious ritual or kinship relations or some way of creating reciprocity between social groups. Money, in other words, is is is [00:03:00] what you make of it. And what you make of it depends very much if you're asking an academic on your academic training.

Nick Capodice: [00:03:07] And I asked that same question to Ellen Feingold. She is the curator of the National Numismatic Collection at Smithsonian.

Hannah McCarthy: [00:03:13] And what does numismatic mean?

Nick Capodice: [00:03:15] A numismatist is somebody who collects and studies money.

Ellen Feingold: [00:03:18] I prefer a simpler definition of money, and that is money is anything that can be used to make a payment. And really, any object can serve that purpose as long as it has an agreed upon value and is trusted for use in transactions.

Nick Capodice: [00:03:32] And in the past in world history, that's been shells, beads, giant stones with holes in them. And in America today, we're talking about coins, bills, credit cards, cryptocurrency and any of the myriad ways that banks electronically handle our accounts.

Hannah McCarthy: [00:03:46] How did we start using money in America? Was a dollar always this green thing with George Washington on it?

Nick Capodice: [00:03:53] No. Oh, not by a long shot.

Stephen Mihm: [00:03:55] Before the United States was created as an actual bonafide independent nation, [00:04:00] America and the colonies that would become the United States experimented with monetary substitutes in ways that actually marked the United States, or what became the United States, as very unusual. In other words, one of the first and really arguably the first state issued paper currencies in the Western world at least came in Massachusetts.

Nick Capodice: [00:04:23] So Massachusetts had no way to pay its soldiers.

Stephen Mihm: [00:04:27] And ultimately hit upon this very interesting idea of issuing what were effectively IOUs that would derive their value, interestingly enough, from the fact that they could be used down the line to pay taxes.

Nick Capodice: [00:04:42] But when we just started out as a nation, we used other people's money.

Stephen Mihm: [00:04:48] A motley assortment of coins made in other countries, either Spain or more likely Spanish colonies like Mexico or Bolivia, [00:05:00] what have you. To compound this confusion from our modern day perspective, if you were in Massachusetts, a Massachusetts pound might not be the same as a British pound.

Hannah McCarthy: [00:05:16] This sounds impossible.

Nick Capodice: [00:05:17] It does. And it was. And that's why we started to make some changes in 1776.

Stephen Mihm: [00:05:22] During the American Revolution, though, there was there was a desire to create a new currency. So that's really where it dates to. And this was a currency known as the dollar. But again, this dollar was not a truly novel creation. It was a dollar pegged to the Spanish peso. That is one reason why the American dollar is divided in the way that it's divided say, in quarters and originally also in 8ths and in halves, because the Spanish peso is divided into 8ths. And this made total sense. I mean, it was. Basically, we were lazy [00:06:00] and we're like, look, there's already a currency out there, most of us handle these silver coins. Let's just roll with this.

Nick Capodice: [00:06:06] The peso.

Hannah McCarthy: [00:06:09] I never knew the peso was to thank for the dollar.

Nick Capodice: [00:06:12] Right. But speaking of the dollar, let's get back to the paper currency. It caught on really quickly with merchants because there wasn't a lot of money around.

Stephen Mihm: [00:06:22] It's hard for us to understand now this problem which bedeviled the colonies. And that problem was that there was literally a shortage of money. Not a shortage of wealth, but a shortage of things that could be used as tokens to move between people and economic transactions. So people might have huge amounts of silver in the form of, say, plates and teapots and the like sitting on their mantel. But they had no money. The paper money solved this problem. It was a way [00:07:00] of making economic transactions move smoothly and operate, you know, with less friction than they would when you have to engage in barter or try to pay for a cow with a teapot. In which case, you know, there's a problem making change and and so on and so forth.

Nick Capodice: [00:07:18] But the biggest problem with all these paper bills at the time was forgery.

Ellen Feingold: [00:07:23] The colonial notes were, were were were often targets for counterfeiting. And that could be by American colonists. That could be by British troops, that could be by anyone who had an interest in taking advantage of those banknotes. Many of the notes had a statement on them that stated the legal penalty for counterfeiting, they said "to counterfeit is death." Many states went to, well, early colonies, went to great lengths to try to make their notes hard to copy. And one of the most famous examples of this comes from Benjamin Franklin.

Stephen Mihm: [00:07:54] Ben Franklin, who is the kind of where's Waldo of colonial America, he's everywhere, he devised [00:08:00] these paper notes that used a very kind of proprietary process to take a leaf and turn it into an engraving. And every leaf's veins are unique. So it was kind of this nature looking like a nature print on the back of his currency.

Hannah McCarthy: [00:08:19] Were counterfeiters actually killed?

Nick Capodice: [00:08:22] No. I mean, it was the technical penalty in a lot of states. But Stephen said it very rarely happened. Sometimes colonial authorities later hired counterfeiters to make bills for them. And the Secret Service, which today we think of their primary function as protecting the president, that agency was created specifically to deal with forgeries. It was that massive of a threat to our economy.

Hannah McCarthy: [00:08:43] Do they still do that?

Nick Capodice: [00:08:44] They do. If you're making some funny money, the Secret Service just might show up at your door. But it's harder today than it was even in Franklin's time. We've got color changing ink, watermarks, thread that glows in ultraviolet light. It's very sophisticated.

Hannah McCarthy: [00:09:05] All [00:09:00] right, when did we start to print a federal greenback dollar?

Nick Capodice: [00:09:11]  Civil war.

Ellen Feingold: [00:09:16] So in 1861, beginning of the Civil War, the federal government decides to get into the business of printing money mainly to pay for the war. So, they produce what are called demand notes. And they have this vibrant greenback. And they have an intricate design, though not nearly as intricate as the designs become over time. And that quickly evolves into a variety of types of notes, over the decades that follow. And what really unites the design of these notes is a consistent use of... Of green ink.

Nick Capodice: [00:09:51] And Ellen told me an interesting story about George Washington's face being printed on these.

Ellen Feingold: [00:09:56] George Washington is currently on the $1 bill. And the predecessor [00:10:00] of that bill is a $1 silver certificate. George Washington, when he first appears on that note, does not appear by himself. He actually appears alongside Martha Washington in 1896. And in fact, 10 years earlier, that same denomination, the 1886 silver certificate, actually featured Martha Washington by herself. It's the only example of a... Of a historic American woman being featured on a federal banknote in a portrait on her own.

Nick Capodice: [00:10:31] That's the last time there was a woman on our paper currency. But in 2016, then Secretary of the Treasury Jack Lew announced that Harriet Tubman was going to replace Andrew Jackson, a slave owner, on the front of the $20 bill. It actually initially was going to replace Hamilton on the $10 bill but after the musical his popularity skyrocketed and they put an end to that. Today, Steven Mnuchin, our current Secretary of the Treasury, has not yet committed to the Harriet [00:11:00] Tubman change.

Ellen Feingold: [00:11:00] Something I collected recently, that's now on display in our gallery The Value of Money, is a 3-D stamp produced by a man named Dano Wall. And it is a stamp of Harriet Tubman. And individuals can use this stamp to stamp Harriet's portrait on $20 bills, thereby replacing Andrew Jackson with Harriet Tubman.

Hannah McCarthy: [00:11:27] Is that legal?

Nick Capodice: [00:11:28] Good question. Did you grew up hearing that it's illegal to deface money? Like you're not allowed to mess with money.

Hannah McCarthy: [00:11:34] Yeah, I always had a sense that you like...You shouldn't rip a dollar bill in half or something like that.

Nick Capodice: [00:11:38] Right. Right. It's not legal to rip a dollar bill in half because that's defacing or destroying currency. It's it's in the U.S. code that you're not allowed to do that.But to Ellen's knowledge, nobody has been reprimanded for stamping money or writing on money because scholars are currently debating what defacing means.

Hannah McCarthy: [00:11:56]  And who is actually making our money today?

Nick Capodice: [00:11:59] Starting [00:12:00] in 1913, the Congress put the Federal Reserve in charge of money production and the value of the bills produced was tied to a specific amount of gold. This is called the gold standard. We don't do this anymore. I'll talk more about that a little bit. The Federal Reserve is in charge of money, but the bills are printed by the Bureau of Engraving and Printing. Whose web site is the delightfully named moneyfactory. gov. Do you have any dollars on you?

Hannah McCarthy: [00:12:25]  I can go get one.

Nick Capodice: [00:12:25] I don't have any cash on me! We're a cashless society. Oh, thank you. What's this?

Hannah McCarthy: [00:12:30] A nice fresh dollar bill.

Nick Capodice: [00:12:30] Look at this dollar bill.`I've never been to either a place that prints bills or a Mint.Have you visited one of these?

Hannah McCarthy: [00:12:39] I think I have.

Nick Capodice: [00:12:41] Where?

Hannah McCarthy: [00:12:41] In Massachusetts.

Nick Capodice: [00:12:43] So the Bureau of Engraving and Printing has two locations that print money, those are in DC and Fort Knox. They send that money to 12 federal banks. If you were in Boton, that’s the A bank. So if you look at this dollar bill on the left side, to the left of George Washington, it has a big A on it. That says which of the 12 banks it came from. [00:13:00]

Hannah McCarthy: [00:12:59] No way!

[00:13:00] Yeah, so A is Boston. B is New York. C is Philadelphia. You could look up the whole list online. And when it comes to the Mint, I spoke with Todd Martin. He's the Chief of Corporate Communications at the U.S. Mint. He told me the six things that are on every coin-.

Todd Martin: [00:13:14] Which are liberty, in God we trust, United States of America, E Pluribus Unum- which is Latin for " out of many, one"-the domination, and the year that the coin was produced.

Nick Capodice: [00:13:29] And there's one more feature to look for. It's the Mint mark. This is like that letter on the dollar bill. It's a tiny letter on the head side that tells you where it was made-.

Todd Martin: [00:13:37] P for Philadelphia and D for Denver.

Nick Capodice: [00:13:42] The Federal Reserve, our National Bank, decides how many bills and coins to make every year. That's what puts money into circulation so you can have it in your wallet and your back pocket. But far and away, the most fascinating thing I learned about the Mint from Todd- and this doesn't happen with the Bureau of Engraving and Printing, by [00:14:00] the way- is that the Mint makes coins and they shipped them to the Federal Reserve. The Federal Reserve buys them from the U.S. Mint at the rate of a penny for a penny. Five cents for a nickel. Twenty five cents for a quarter. Do you understand what I'm saying?

Hannah McCarthy: [00:14:19] No. They make a penny.

Nick Capodice: [00:14:22] Yeah.

Hannah McCarthy: [00:14:23] And then they sell it for a penny?

Nick Capodice: [00:14:25] Right. They sell the Federal Reserve a copper-ish piece of metal. That's a penny. And the Federal Reserve pays them a cent for it. So- and that's how the Mint pays for itself.

Hannah McCarthy: [00:14:37] Ok. I want to get back to this. Right? This dollar bill in my hand here. Does it represent anything? Is there like a piece of gold in a vault somewhere? Do you know what I mean- like what does this mean?

Ellen Feingold: [00:14:52] It means that you trust the federal government.So it's fiduciary or fiat currency, which [00:15:00] means that it's money because the law says it is. And because you choose to trust the federal government and trust the law that establishes our national currency system.

Hannah McCarthy: [00:15:09] When did that change happen? When did we stop using notes to represent silver or gold, and start using fiat currency, and just trust that this dollar is what it says it is? Who did that?

Stephen Mihm: [00:15:21] FDR did- Franklin Delano Roosevelt.

Franklin Delano Roosevelt: [00:15:24] Therefore, the United States must take firmly in it's own hands the control of the gold value of our dollar.

Stephen Mihm: [00:15:32] You know, when people think about FDR and the New Deal, they always think about like Civilian Conservation Corps, you know, public works projects and WPA or what have you. But one of the most momentous revolutionary things he did was to sever and put an end to the gold standard. And he did that quite dramatically. It became illegal to own gold. In order for a currency that  [00:16:00]is a fiat currency to work you've got to stamp out other- the competition. And in this case, holding gold would have been a very potent way of competing with the nation's currency. So it became illegal. There was a executive order. Gold was confiscated. And you got paper money in return at a fixed rate.

Nick Capodice: [00:16:20] But we kept using gold to represent the value of the dollar internationally until-.

[00:16:26] I directed Secretary Connally to suspend temporarily the convertibility of the dollar into gold or other reserve assets-

Nick Capodice: [00:16:33] President Richard Nixon.In 1971, he announced that the U.S. would no longer convert dollars to gold at a fixed value. And that ended all official ties to the gold standard. Now, we have to be careful with fiat currency, because now that our money isn't tied to a gold standard, inflation- which means our money is worth less- can happen if you print too much of it. If you're making too much money. And finally, in 1975, it became legal to own [00:17:00] gold again.

Hannah McCarthy: [00:17:00] So this dollar only means a dollar because I believe that it does?

Nick Capodice: [00:17:08] You got it right on the money. So the next time you look at the number in your bank account remember that it only has value because everyone else agrees that it does. Are the levels okay? They seem fine they seem fine.

Hannah McCarthy: [00:17:19] They seem fine to me.

Nick Capodice: [00:17:19] Alright let's go! Let's go! Five, six, seven, eight Put it in the bank. Today's episode is produced by me, Nick Capodice, with you Hannah McCarthy, thank you.

Hannah McCarthy: [00:17:29] You're welcome.

Nick Capodice: [00:17:29] Our staff includes Jacqui Fulton, who asked if blue jeans are used to make our dollars and we all laughed and it turns out it was TRUE.

Hannah McCarthy: [00:17:29] Erika Janik is our Executive Producer and has been waiting to do an episode on the Mint for two years.

Nick Capodice: [00:17:34] Maureen McMurray is a hip hip hip hip lady.

Hannah McCarthy: [00:17:38] Music in this episode by South London, Hi Fi, Broke for Free, Blue Dot Sessions, Matt Harris, Sara the Instrumentalist- no-.

Nick Capodice: [00:17:44] Sarah the Illstrumentalist.

Hannah McCarthy: [00:17:45] Yep. Sarah the Illstrumentalist. Rachel Collier, RKVC, and that wonderful 1910s band, the Weems.

Nick Capodice: [00:17:52] There is just so much, good heavens, to learn about our bills and our coins. What is on them and why it's addictive. And now I can't stop [00:18:00] looking at serial numbers on my dollars. To join my newfound obsession visit our website Civic101podcast.org where we put links to our favorite explainers on money.

Hannah McCarthy: [00:18:10] Civics 101 is supported in part by the Corporation for Public Broadcasting. And it is a production of NHPR, New Hampshire Public Radio.