The Grievances in the Declaration (part 1)

"He" has done bad things. Twenty seven of them. And these things were so bad that the colonists used them to demonstrate that they had no choice but to become an independent nation. King George III was, in their eyes, a despot. So what did he do?

Today we talk about grievances 1-12 in the Declaration of Independence. We will cover the rest, as well as modern-day parallels, in a few weeks. Our guest is Craig Gallagher, professor at Colby-Sawyer College.

To hear about the entire Declaration of Independence, please listen to our episode on it here.

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Transcript

C101_Grievances pt1.mp3

1776: Uh, he is affected. He's combined. He's abdicated. He's plundered, he's constrained. He's excited, he's incited. He's waged cruel war. Here it is.

1776: If you have grievances, and I'm sure you have, our present system must provide a gentler means of addressing them. Short of revolution than we dared stand up like men. They have stopped our trade, seized our ships, blockaded our ports, [00:00:30] burned our towns, and spilled our blood.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're throwing a rider onto our foundational document series. We are deep diving into a chunk of the Declaration of Independence. The grievances.

Hannah McCarthy: The airing of the grievances. Nick, it's not December 23rd, and we don't have an unadorned aluminum pole.

Archival: The tradition of Festivus begins with the airing of grievances. [00:01:00] I got a lot of problems with you people.

Hannah McCarthy: I warmly encourage our listeners to check out our entire episode on the declaration link in the show notes. But if I could summarize the greatest breakup letter ever written. The Declaration of Independence was adopted on July 2nd, 1776, and printed two days later. It's got four parts a preamble.

Nick Capodice: This is the whole when in the course of human events part. [00:01:30]

Hannah McCarthy: Then a statement on human rights.

Nick Capodice: We hold these truths to be self-evident, etc..

Hannah McCarthy: Then we get a long list of grievances.

Nick Capodice: Yeah, 27 to be exact. It is the bulk of the declaration, and that's what we're talking about today.

Hannah McCarthy: And finally, an action. Because of all of the things we've talked about so far, we are dissolving our allegiance to the British Crown.

Nick Capodice: Well done.

Hannah McCarthy: Thank you.

Nick Capodice: So I realized if we did all 27 of these in one hunk, it'd be a very long show. So [00:02:00] today is going to be the first half. And then in a couple of weeks we're going to do the second half. But we will also address how these grievances can be viewed in light of the Trump administration.

Hannah McCarthy: So, Nick, these grievances, these indictments, they're aimed right at King George the Third, aren't they? Not England, per se, or even Parliament, but the King.

Craig Gallagher: I'll just say briefly that it's worth noting the antagonism towards [00:02:30] George the Third is actually pretty new at this point.

Nick Capodice: This is Craig Gallagher, professor of American history at Colby College, and a friend of mine who just happens to be a scholar of the colonial period.

Craig Gallagher: It's really something that emerges in the last six months before the declaration, thanks to the success of Thomas Paine's Common Sense, where he specifically linked independence to the abuses of the king and the need for a republic. Prior to this, there was actually a lot of support for George the Third as this kind of bloc against Parliament. [00:03:00] And so in this last six months, you start to see the shift towards very antagonistic language towards the king. Um, and so this is where Jefferson laid out as much as he could what he thought the specific grievances against the king were that the colonists could use to justify declaring independence.

Nick Capodice: Again, there's 27 total. So I'm going to move quickly. But if you're someone like me who didn't know what the specifics were of the charges against the King after hearing these episodes, you're gonna go to bed knowing them all. So you ready?

Hannah McCarthy: Let's go.

Nick Capodice: Oh, [00:03:30] wait wait, wait. Hold on. My favorite part. Teeing up the grievances Jefferson writes, quote, the history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. And here's my favorite part.

Archival: To prove this. Let facts be submitted to a candid world.

Hannah McCarthy: All right, give me number one.

Craig Gallagher: So the first listed indictment is he has refused [00:04:00] his Assent to Laws, the most wholesome and necessary for the public good. So essentially, what they're complaining about here is that the Royal assent, which is essentially the last stage of a legislative bill being approved, roughly equivalent today to the president's signature. The president has to sign the bill after both houses pass. It is being denied.

Hannah McCarthy: So it's like a veto.

Nick Capodice: Yeah. But without like the formal statement, I am vetoing this bill. So the King could opt to just not give his royal assent. And [00:04:30] the bill dies in Kingmittee

Hannah McCarthy: Kingmittee.

Nick Capodice: Kingmittee.

Hannah McCarthy: You're proud of that one.

Nick Capodice: Oh I am not.

Craig Gallagher: It's important to note here, and I'll talk a little bit about this with some of the other examples that in 18th century, uh, legal and sort of enlightened thinking, the king having the power to veto or delay or suspend laws is a despotic power. There have been a couple of instances where King still did it. And actually George the Third was known to abuse this ability. But the understanding was Parliament passes a bill out of the [00:05:00] House of Commons and the House of Lords, the King will will give a dissent. And so the fact that he was holding up colonial bills, which don't have the same protection, was a major concern of the colonists, because they look at this and they go, we're dealing with a despotic monarch here who is using effectively a veto power to prevent things that were passing out of our elected legislatures.

Hannah McCarthy: Did Parliament have an override like Congress does with a veto? Nope. All right.

Nick Capodice: Okay. Number two, he has forbidden his governors to pass laws of immediate and pressing importance [00:05:30] unless suspended in their operation, till his assent should be obtained. And when so suspended, he has utterly neglected to attend to them.

Hannah McCarthy: Assent again, but this time with governors.

Nick Capodice: Right. So at this point many of the governors of the 13 colonies were not elected by the people. They were appointed by the King. And this indictment, number two, is that the King was stopping those governors from passing laws.

Craig Gallagher: The grievance here is worded as the immediate and pressing importance of these laws. [00:06:00] The governor could hypothetically confirm this because their royally appointed, but the governors are being forbidden from doing so in order to send it across the ocean to the king, which ends up being a kind of virtual suspension because it takes months when it could be handled locally. And as a result, there's this delay in pressing matters not being resolved relative to the actual severity of the issue.

Hannah McCarthy: Does Craig have an example of the kinds of things that were being held [00:06:30] up?

Craig Gallagher: An example might be the sale of land bills. So like a lot of the founders are very interested in speculating on future land out in the hinterland. And they might pass a law saying, we're going to regulate the Ohio country this way. Right. And as far as the colonists are concerned, that's a local issue, right? Like, the king doesn't actually care about this because we are talking about our own material interests, but the process is so laborious, they still have to get that bill Royal assent in London. And [00:07:00] sometimes what would happen is the colonies would pass a law. The governor would sign it and they would act like it was fine. And then later the monarchy would come in and go, wait a minute, you know, we don't want this. And that had been increasingly happening in the 18th century. So this is both a reference to something happening immediately and also a longer term trend away from local legislatures having the power to handle local issues without sort of royal oversight.

Nick Capodice: Okay. Ready for three?

Hannah McCarthy: Yeah.

Craig Gallagher: He has refused to pass other laws for the accommodation of large districts of people, unless those people would relinquish [00:07:30] the right of representation in the legislature, a right inestimable to them and formidable to tyrants only.

Hannah McCarthy: Is this the first time they call him a tyrant, albeit kind of indirectly?

Nick Capodice: Yeah it is. Tyranny has been mentioned in like the teeing up part. But this is our first tyrant.

1776: Why do you refer to King George as a tyrant?

1776: Because he is a tyrant. I remind you, Mr. Jefferson, that this tyrant is still your king. When [00:08:00] a king becomes a tyrant, he thereby breaks the contract, binding his subjects to him.

Nick Capodice: By the way, all these clips you are hearing in this episode are from the same movie. The only movie I could recite to you word for word, wearing a blindfold.

Hannah McCarthy: 1776 for Nick, the finest if to our knowledge, the only musical about the framers singing and dancing their way toward the signing of the Declaration of Independence.

Nick Capodice: Highest recommendation for me. All right. Hannah. Grieving on.

Craig Gallagher: So this is a really big picture. [00:08:30] One in the aftermath of the Seven Years War that ended in 1763, and the British now acquiring huge tracts of land in what had previously been Quebec, and also in places like Florida. It was very much royal policy to not allow those new colonies to develop the same way. The 13 colonies had developed, specifically to not allow them to develop their own tradition of local self-government. And so historians have shown over the last few years that there's this push in the 1760s [00:09:00] to deny Quebec, for example, the right to a legislature, and that there would be an empowered royal governor who would have a significant amount of control over the events of the colony without being subject to, for example, a salary paid out of local legislative taxes. Instead, he would get his salary from London directly, and also any sense that local towns or provinces within these larger colonies had a right to self-determination [00:09:30] over their own issues. Essentially, what the Crown had tried to do in these places was centralize everything back to London. So Quebec doesn't get a legislature when it's founded as a province, right? From the point of view of the Americans, this is the act of a despot, right? This is a decision aimed squarely at undermining the rights of true Englishmen to represent themselves, basically.

Hannah McCarthy: New places should have their own legislature and not just be run by a guy 3000 miles away. [00:10:00]

Nick Capodice: Yeah. Okay. Number four.

Craig Gallagher: He has called together legislative bodies at places unusual, uncomfortable and distant from the depository of their public records for the sole purpose of fatiguing them into compliance with his measures.

Nick Capodice: This one is fun. Hannah. And it's tied to your neck of the woods. Stuff was getting heated in Massachusetts, and the people in Boston were getting all riled up in the streets. So the royal governor made the legislature meet in Salem instead.

Hannah McCarthy: Famously never heated up.

Craig Gallagher: So [00:10:30] the thinking here is we can remove ourselves from the center of government in order to avoid having to deal with loud crowds yelling at us for our decisions, which in theory would free up the man of the representatives in the legislature to vote according to their conscience rather than fear of the mob.

Hannah McCarthy: If you don't want to hear the complaints of the mob, maybe you're in the wrong line of business.

Nick Capodice: Yeah, and this is an old trick. During the French Revolution, the parliament was forced to meet in Versailles instead of Paris and Charles, the first in [00:11:00] England, had Parliament go to Oxford instead of London. Run away from the people. Uh, anyways, number five.

Craig Gallagher: He has dissolved representative houses repeatedly for opposing with manly firmness his invasions on the rights of the people.

Hannah McCarthy: Manly firmness.

Nick Capodice: Yeah. Jefferson's really working the pen there.

Hannah McCarthy: So the King dissolved houses. As in ended Congress.

Nick Capodice: Yep. So, unlike in the United States today, in the colonies, we didn't have a firm [00:11:30] congressional calendar.

Craig Gallagher: Under the British system. It was essentially at the pleasure of, in Britain, the monarch and in the colonies, the royal governor. They could have an election on the first day. Not like what they here and dissolve it. The problem would be then that they would be subject to a new election, and sometimes governors would use this tactic to return a chamber that was more suitable to their interests.

Hannah McCarthy: So if they didn't like how an election turned out, they could just dissolve it and [00:12:00] hold another one until things turned out a little more to their liking.

Nick Capodice: Exactly. But most of the time, the next Congress was even worse for them. So here's what happened again in merry old Massachusetts.

Speaker2: And what is this independence of yours except the private grievance of Massachusetts? Why is it always Boston that breaks the King's peace?

Nick Capodice: So mass folk were boycotting England by not buying stuff from them, though they were getting it from smugglers instead. Boy howdy, were they getting it from smugglers. [00:12:30] And the royal governor said, hey, if you guys bring up this boycott at all, I'm gonna dissolve this Congress immediately.

Hannah McCarthy: Taking my ball and going home.

Nick Capodice: Boston people call the governor's bluff. The governor said. That's it. And he dissolved the house. And this happened a lot.

Craig Gallagher: And so this idea that you do this, that you dissolve chambers rather than hear them out or let them speak freely again, has this kind of reputation of a despotic act. It's something that you do when you're trying to crush Political discussion.

Nick Capodice: All [00:13:00] right, we got to take a break. More airing of the grievances in a little bit.

Hannah McCarthy: But before that break, just a reminder that if you want more Civics 101, there is so much more at our website, civics101podcast.org. Like, a lot more.

Nick Capodice: Hundreds of things. We're back. You're listening to Civics 101. We are going through the grievances in the Declaration of Independence. Where were we, Hannah?

Hannah McCarthy: Six [00:13:30] I believe.

Nick Capodice: Six. It is.

Craig Gallagher: He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the legislative powers, incapable of annihilation, have returned to the people at large for their exercise, the state remaining in the meantime, exposed to all the dangers of invasion from without, and convulsions within.

Hannah McCarthy: That one is kind of tough to parse.

Nick Capodice: Yeah, I felt the same way. But really it's just a continuation of the last one, the dissolving of legislative bodies willy [00:14:00] nilly. But then the next step is taking their sweet time to create another legislature.

Hannah McCarthy: What was meant by the dangers of invasion part?

Craig Gallagher: There's some debate about what they're alluding to. I tend to think that invasions from without refers to native peoples, right? Legislatures are often the institutions that muster militia, muster defenses of their colonies. And so by not having one in session, you run the risk of an attack by a native people, and you're in a situation where you can't [00:14:30] respond immediately to defend yourselves. Convulsions within almost certainly means slave rebellions, right? An uprising internally by enslaved peoples against their enslavement, which happens frequently. Right?

Nick Capodice: Hannah, have you ever heard of the Dunmore Proclamation?

Hannah McCarthy: I have, this was when the governor of Virginia said any enslaved person could enlist in the British Army, and they would be freed from their bondage.

Nick Capodice: Right.

Craig Gallagher: A huge number do. Why wouldn't you? Right. You're being offered the right to go fight [00:15:00] for your freedom under British auspices. And so this idea that the legislature not being in session endangers us because we don't have the capacity to respond to these external and internal threats.

Nick Capodice: Seven.

Craig Gallagher: He has endeavored to prevent the population of these states for that purpose, obstructing the laws of naturalization of foreigners, refusing to pass others to encourage their migrations hither, and raising the conditions of new appropriations of land. Um. This [00:15:30] one is one that I have listed as a little exaggerated. So unlike most of the other empires in this period, the British were actually really open to naturalization. So the position of the British government was from 1740 onwards. If you were a foreign Protestant, you had to be a Protestant. That is, if you were from France, Germany, Switzerland, Sweden, Ireland, and you travel to the American colonies and you lived there for seven years and you mostly didn't leave, you were entitled to be a naturalized subject of the British monarchy. The period between 1770 and 1776 [00:16:00] has the highest uptick of immigration into the American colonies of any period in the 18th century. Right. So this is just a huge number of people going to the colonies. Um, and so this idea that the king prevented that is a little bit overheated. It's based on a couple of reported parliamentary debates, and Jefferson has taken a little creative license.

Speaker2: Just another literary.

Speaker8: License, then, if you like. I don't like at all, Mr. Jefferson.

Nick Capodice: All right. Moving at a good clip. Now, here is indictment number eight. [00:16:30]

Craig Gallagher: He has obstructed the Administration of Justice by refusing his assent to laws for establishing judiciary powers.

Hannah McCarthy: I'm guessing this is about appointing judges.

Nick Capodice: It is. Massachusetts elected their judges. But in 1774, Parliament forced the colony to have judges appointed instead.

Hannah McCarthy: Appointed at the King's pleasure.

Nick Capodice: Yeah.

Hannah McCarthy: How much water did you let Craig have during this?

Nick Capodice: By this point, we were at two Coffees and two waters, but he was a champ.

Craig Gallagher: Oh, please. [00:17:00] It's fun.

Nick Capodice: Are you ready for number nine? Pre-revolution number nine.

Craig Gallagher: He has made judges dependent on his will alone for the tenure of their offices and the amount and payment of their salaries. So here again, it's just doubling down on the independent judiciary problem, in particular, the fact that the King and the government has specifically attempted to make royally appointed judges paid from London rather than by local legislatures. Very briefly, I'll say the office holding in the British Empire traditionally depended on locally raised taxes [00:17:30] for salaries, especially for governors. After 1763, you start to see the British government try to claw this back and try to allow for more London paid salaries, with the idea being that the judges would be loyal to the Crown rather than to the colonies.

Hannah McCarthy: You'd think the colonies wouldn't mind not having to pay a bunch of salaries, but I can see it. You're worried the judges are going to feel beholden to the person who writes their checks?

Nick Capodice: Ain't that always the way? Here is ten.

Craig Gallagher: He has erected a multitude [00:18:00] of new offices, and sent hither swarms of officers to harass our people and eat out their substance.

Hannah McCarthy: Jefferson is laying it on pretty thick there.

Craig Gallagher: Oh, yeah. He's he's he's really feeling himself when he gets to this point. I think this is probably a reference to the number of new officials appointed to collect taxes. So the new taxes imposed on the colonies involved creating new officers.

Hannah McCarthy: Why would the colonies be so upset about new officers? Are these military officers?

Nick Capodice: Yeah. I wonder the same thing. They are [00:18:30] not military. They are just people who work in the government. So I wanted to know why this really passionate language on this particular grievance, which seems sort of mundane compared to some of the other ones. And Craig said to me that King George was appointing a continuous stream of British employees who added a bunch of red tape to everything, and these were people who had no interest in making things better for the colonies.

Craig Gallagher: It's a little bit overheated and sort of a conspiracy theory, but one that [00:19:00] Jefferson mentions and not only this document, but in the notes on the state of Virginia. It's sort of a particular fixation of his that somehow the Crown has been adding just levels of bureaucracy to, to crush us. And for the most part, there's also a little bit of a complaint about the fact that officers who come from the British mainland are only in the colonies to advance their careers. They're not there to actually help or make things more efficient. Right. It's a stepping stone. And so this idea that all [00:19:30] they do is they come here, harass us, eat our substance, and then leave is sort of implied, right? They're appointees from abroad. They're not local people. They don't care about local issues.

Nick Capodice: And now the last two for today, Hannah, both tied to a very real, very visceral dread felt by those in the colonies. Having British soldiers everywhere watching your every move. Here is number 11.

Craig Gallagher: He has kept among us in times of peace, standing armies without the consent of our legislatures. [00:20:00] So just to compare here. You know, most colonial legislatures in the 18th century have militias which are mustered amongst the able bodied men of the colony, but they do not stand in military readiness at all times. The soldiers are not professional. They're not paid to be soldiers. The British Army, of course, is a professional army. Right. The British Army is something that you join. You go live in a barracks. You do all your training. You're maybe called out to do battle. You're maybe called out to do exercises. But it's a job, right? [00:20:30] The important thing to note here is that, historically speaking, standing armies were used as a way to get around the need for a legislature to muster a militia.

Hannah McCarthy: Ah, okay. So a king would much rather have folks in the colony say, hey, we need help. Can you send your Redcoats over then for them to form their own militia to do whatever they needed?

Nick Capodice: Precisely. England had just come off of the Seven Years War, and George did not want independent militias to mess with any relationships [00:21:00] or agreements with native communities around them. Now, folks in England were used to having a standing army around due to a Jacobite uprising in the early 1700s, but I'm not going to get into. But the colonists were not used to it. And after the Seven Years War in 1763, England stationed a ton of British soldiers over here. And it was frankly unsettling, like, say, tanks in the streets.

Craig Gallagher: And they're seeing the presence of the redcoats in the colonies [00:21:30] as potentially a threat and a warning. Kind of a tool of the Crown to keep them in line.

Nick Capodice: And tied to this, our last grievance for today, and one you hear in the movie 1776, when the declaration draft is being read to Congress.

1776: They're reading the declaration.

1776: Good God. How far have they gotten.

1776: To render the military independent of and superior to the civil power.

1776: Independent of and superior to...

Craig Gallagher: He has affected to render the military independent of and superior to [00:22:00] the civil power. So this is again the idea that civilian control or civilian oversight of the military is something that Parliament or a legislature should have, right? If the civilian authority is subordinated to the military authority, then the military can act without civil oversight. And the idea here is that kings use this tactic to undermine legislatures which are more representative of the people. And it's a sign of a despotic monarch. Right. And in the case of the [00:22:30] British Army in North America, they did not have to answer to local legislatures in a way that a militia would.

Hannah McCarthy: Jefferson is saying here, when the King orders a military to oversee your people and enforce the law instead of your locally elected legislature, your legislature, in essence, loses its power.

Nick Capodice: Yeah. Look, I know the parallels to what's going on in 2025 are coming in the next grievance episode. But as I am speaking these words, Hannah, [00:23:00] the National Guard has been deployed in Los Angeles and Washington, D.C., and President Trump has threatened to send them to Chicago expressly against the wishes of Illinois Governor JB Pritzker. So Governor Pritzker, in response, gave scores of briefings and interviews, saying this action was unconstitutional and he rallied support around this.

Archival: And to have people, you know, roaming the streets wearing uniforms, um, arresting people off [00:23:30] the streets, you know, wearing masks and driving their military like vehicles, uh, and tossing people in. And, I mean, that's incredibly disruptive. And if they would just let us know, Chicago police.

Nick Capodice: And just this week citing, quote, legal headaches, end quote, the Trump administration said that it was moving its focus from Chicago to Memphis, Tennessee.

Hannah McCarthy: It sounds like Pritzker successfully aired a grievance there. Nick. Anyway, I am looking forward to part two.

Nick Capodice: Me [00:24:00] too. Hannah. So keep us in your feed for the rest of the grievances, including one that did not make it into the final edit of the declaration. And be careful out there. That's enough grieving for now at least. This episode was made by me, Nick Capodice and Hannah McCarthy. Thank you. Hannah. Our staff includes producer Marina Henke and executive producer Rebecca Lavoie, who hears our grievances on a [00:24:30] weekly basis. She would even say daily. Music in this episode from Epidemic Sound. Kilo, Kaz and Chris Zabriskie. Civics 101 is and of right ought to be a production of Nhpr New Hampshire Public Radio.

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Why does the government fund things, and what happens when it stops?

Congress appropriates funds, the executive branch ensures those funds are spent and spent wisely. That is how it works. It is not, however, how it is working right now. The Trump Administration has, in recent months, repeatedly and often successfully frozen the funds that Congress assigned to certain departments and agencies. Jobs have been lost, research shelved, life-saving care ended, budgets and plans thrown into disarray.

So why and how has this happened? Why were we funding education, science, medicine and foreign aid in the first place? Our guide to this tumult is Samuel Bagenstos, professor of law at the University of Michigan and former Chief Counsel at both the Office of Management and Budget and the Department of Health and Human Services.

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Transcript

Hannah McCarthy: [00:00:00] Nick.

Nick Capodice: [00:00:01] Yes, Hannah.

Hannah McCarthy: [00:00:02] Don't it always seem to go that you don't know what you got till it's gone?

Nick Capodice: [00:00:08] Are we doing an episode about paving [00:00:10] the Rose Garden?

Hannah McCarthy: [00:00:11] We are not.

Nick Capodice: [00:00:11] I'm just checking. Do you think Joni Mitchell would let us play Big Yellow Taxi on the show?

Hannah McCarthy: [00:00:17] Tell you what. I'll have my people get in touch with her. People? [00:00:20]

Nick Capodice: [00:00:20] Who are your people?

Hannah McCarthy: [00:00:22] Me? I'm my people.

Nick Capodice: [00:00:24] Yeah.

Hannah McCarthy: [00:00:27] But the reason I quote Miss Mitchell here is because her [00:00:30] words are a truism that has applied a whole lot lately. Things have gone away. Things that make a lot of people realize just what we had. Things [00:00:40] that made me ask. Wait a minute. Why did we have that?

Nick Capodice: [00:00:45] Why do we have what exactly?

Archival: [00:00:47] Thousands of staff and contractors were fired. While [00:00:50] humanitarian aid to some of the world's most vulnerable populations was stopped.

Archival: [00:00:54] At the end of the day. What really impacts are the kids and the families. They're the ones that are depending on childcare.

Archival: [00:00:59] Not [00:01:00] just in Gaza, but around the world. A series of decisions that could have profound consequences on the well-being of so many.

Archival: [00:01:06] UCLA is losing hundreds of millions of dollars in federal research [00:01:10] funding.

Archival: [00:01:10] The cuts come from the National Science Foundation, the National Institute of Health, a whole host of federal grants.

Archival: [00:01:16] Back now, with outrage this afternoon, after the Trump administration's decision [00:01:20] to freeze billions of dollars in education grants.

Archival: [00:01:22] Congress approved these investments. They are not optional. They are the law.

Hannah McCarthy: [00:01:33] This [00:01:30] is Civics 101. I'm Hannah McCarthy.

Nick Capodice: [00:01:35] I'm Nick Capodice.

Hannah McCarthy: [00:01:36] And today we're talking about federal funds or the lack [00:01:40] thereof. Why does the federal government fund all sorts of things? And what happens when it doesn't?

Nick Capodice: [00:01:47] Huh?

Hannah McCarthy: [00:01:48] What?

Nick Capodice: [00:01:49] Why does the government [00:01:50] fund things? Is a strange question.

Hannah McCarthy: [00:01:53] Because you've taken it for granted your whole life.

Nick Capodice: [00:01:55] Yes.

Hannah McCarthy: [00:01:56] Yeah. Okay, so to better understand this, I spoke with someone [00:02:00] who really, really understands this world. Someone who has worked both at the office that helps to manage these funds, and one of the agencies that receives them. Meet Samuel [00:02:10] Bagenstos.

Samuel Bagenstos: [00:02:11] You can call me a professor at the University of Michigan, or a professor of law and public policy at the University of Michigan, whichever you prefer.

Hannah McCarthy: [00:02:19] Samuel is that. [00:02:20] And before he was that he was the general counsel for the Department of Health and Human Services, and before that, the general counsel for the Office of Management and Budget.

Nick Capodice: [00:02:29] General [00:02:30] counsel, as in the in office lawyer.

Hannah McCarthy: [00:02:32] Yeah. The person who gives legal advice and manages legal services. Now, the Office of Management and Budget is [00:02:40] what Nick.

Nick Capodice: [00:02:41] All right, the OMB. I am pretty sure it's the largest office in the executive branch. Yep. And the OMB essentially helps the president get [00:02:50] done what they want to get done. So it prepares the budget proposal. It oversees executive branch agencies. It helps with the president's policy and agenda. [00:03:00]

Hannah McCarthy: [00:03:00] Correct. And the Department of Health and Human Services, super broadly speaking, is there to implement programs that support public health. So Samuel worked for two big [00:03:10] and very important pieces of the executive branch. I mean, it's all important, but you get the picture.

Nick Capodice: [00:03:16] All right. Now, I know we're going to talk about things being funded or not funded. [00:03:20] But before we get into the details, Hannah, can you give me a very basic primer here? How does the money get from A to Z?

Hannah McCarthy: [00:03:28] All right, let's follow it. We've [00:03:30] talked about the budget quite a bit in various episodes, but the basics are this. There are two kinds of spending [00:03:40] discretionary and mandatory. Mandatory is set by a formula. It's stuff like Medicare and Social Security. I am not going to get into the current administration's approach to these [00:03:50] what we call entitlements. That is for another day. Discretionary spending is the stuff that Congress has to make decisions about.

Nick Capodice: [00:03:58] So stuff like education, [00:04:00] national defense, agriculture. All the department stuff.

Hannah McCarthy: [00:04:03] Bingo. It goes like this. And I am going to skip a few steps. Okay. Because I do want to get back to Samuel. [00:04:10]

Nick Capodice: [00:04:10] Understood.

Hannah McCarthy: [00:04:11] All right. The president drafts a budget proposal with the help of the OMB. A lot goes into that.

Nick Capodice: [00:04:18] Gotcha. But it's basically like [00:04:20] this is how the president wants to achieve their agenda and policies, basically.

Hannah McCarthy: [00:04:25] And the budget also likely has things that departments need, [00:04:30] the requests that they have made. And that proposal goes to Congress.

Nick Capodice: [00:04:34] Because Congress has the power of the purse.

Hannah McCarthy: [00:04:37] Chet Ching. And Congress doesn't have to do exactly [00:04:40] what the president suggests, and they often make changes. Okay. So Congress splits up into committees and drafts appropriations bills for the various [00:04:50] departments.

Nick Capodice: [00:04:51] The money they get and how they can spend.

Hannah McCarthy: [00:04:54] It, and for what period of time. Very broad strokes. Okay, then [00:05:00] Congress passes an omnibus bill with all of the spending laid out. Or they pass multiple minibus bills where they smush several departments together.

Nick Capodice: [00:05:09] Minibus? [00:05:10]

Hannah McCarthy: [00:05:11] Yeah. Cute word. Extremely serious process. In August, for example, after the Senate failed to agree on an omnibus, they passed three minibuses. The [00:05:20] House will have to decide on those when they get back from their recess.

Nick Capodice: [00:05:23] I passed three minibuses on my way to work this morning. And to be clear here, Congress is not constitutionally mandated [00:05:30] to pass a budget.

Hannah McCarthy: [00:05:31] They are not, which is why we get stuff like continuing resolutions and short term spending bills and government shutdowns. Right. Okay. So let's [00:05:40] say we have a budget. That tells departments how much for what and for how long. It [00:05:50] also allows for some wiggle room, like you aren't likely to read that Congress is legally mandating that HHS has to spend $10 million on a specific ply of toilet paper. Unless [00:06:00] there is already a law that requires that.

Nick Capodice: [00:06:02] Is that it?

Hannah McCarthy: [00:06:03] That is so not it. But that is it for now. Now, Nick, why [00:06:10] do we fund things?

Nick Capodice: [00:06:13] Because things cost money.

Hannah McCarthy: [00:06:16] Round and round we go. The government used to fund a [00:06:20] whole lot less stuff like defense, the mail. Big, big infrastructure projects. Now, at a point, the government decided it should fund more stuff [00:06:30] like research. Let's get back to Samuel.

Samuel Bagenstos: [00:06:33] You know, so one of the major ways in which the federal government gives money to states and [00:06:40] other organizations is to support basic scientific research. That is a function that really started during World War two, when [00:06:50] we found as a country, we needed to make dramatic scientific developments on things like medical care. You know how to manufacture [00:07:00] penicillin in a mass way. On things like developing radar, um, for our defense effort, the Manhattan Project. Obviously a big part of this. And one [00:07:10] of the things that our country learned was we as a market system, will under-produce basic scientific research. We need to [00:07:20] have a public function that's going to be financing basic scientific research. The market's really good at financing research. You know, in the last little bit [00:07:30] when when it's very close to market, when, you know, when a profit making enterprise knows that it can earn money off of it. But the basic research [00:07:40] that all of that subsequent stuff relies on won't get produced unless the government kicks in.

Nick Capodice: [00:07:46] Huh? So to get the big developments that help your country [00:07:50] establish itself as a major power, you got to get things off the ground.

Hannah McCarthy: [00:07:55] Yeah, and not just scientific research. A lot goes into building [00:08:00] the wealthiest, most powerful nation on planet Earth.

Samuel Bagenstos: [00:08:04] You know, there's also financing of education programs [00:08:10] again after World War two. People came back on the GI Bill. We had this explosion of people attending college, and the GI Bill enabled [00:08:20] folks who had served in World War Two to be able to afford college for the first time. That became an expectation that people would be able to go to college. [00:08:30] And so we started beginning in 1965, to have very significant federal aid for students who were going to college for tuition [00:08:40] assistance. Um, similarly, uh, we have significant federal aid to elementary and secondary education. And one of the lessons [00:08:50] there was that, you know, education is something that's in all of our interests. It's in all of our interests to have an educated populace.

Hannah McCarthy: [00:08:59] So if you're thinking, [00:09:00] you know, why not just leave this kind of education funding up to the states? Samuel says it's about taxes. How do you pay for education taxes? How [00:09:10] do you get more money for education? You raise taxes, but states don't want to do that. If they raise taxes, the worry is that residents and [00:09:20] industry will flee to another state. It turns into what Samuel calls a race to the bottom. So instead, the federal government collects taxes across the [00:09:30] country and distributes that money to the states. It allows states to keep local control while keeping their education systems strong.

Archival: [00:09:39] New at six. More [00:09:40] than 20 states sued the Trump administration today over billions of dollars in frozen education funding.

Nick Capodice: [00:09:46] Hannah, this reminds me a little bit of the shift from the Articles of Confederation [00:09:50] to the Constitution we have today. Under the articles, Because government was small, kind of passive. The states were doing their own thing, including not paying [00:10:00] taxes. And it was a big, big problem. So we gave the government a much bigger role.

Hannah McCarthy: [00:10:05] Yeah. Something I had never considered before was the fact that our federalist system, [00:10:10] if left only to the semi-sovereign states, would not be doing big, amazing things, or maybe even small, basic and necessary things. [00:10:20]

Samuel Bagenstos: [00:10:20] It's a story that's a little bit different in every area, but the basic idea is these are things that we can't expect the market or [00:10:30] the federalist system to do on its own. So we need the federal government to come in and provide financing for stuff that we really rely on as a society. The [00:10:40] federal government has taken a great deal of responsibility, you know, since 1965 for financing schools, paying for assistance for schools [00:10:50] where there are a lot of people who experience social disadvantages Inches increasing the payments and programs for students who have disabilities, which [00:11:00] can impose significant costs on particular school districts. And we don't want to create an incentive for school districts to drive disabled kids [00:11:10] out of the schools. And so what we want to do is make sure that they are adequately paid for the special and important services that people with disabilities may need in school [00:11:20] to benefit from education.

Archival: [00:11:21] You know, Jeremy, educators and families are concerned about the impact dismantling the department could have on all students, but especially on students who are in special [00:11:30] education classes.

Samuel Bagenstos: [00:11:31] And so we've seen a series of these programs that have developed through the years. And yeah, I mean, I think, you know, if you were to do [00:11:40] a graph, you would find the federal contribution education going up very significantly.

Nick Capodice: [00:11:45] Yeah. Isn't the Department of Education relatively new?

Samuel Bagenstos: [00:11:48] A hallmark moment [00:11:50] here was in 1979 when Congress created, under President Carter a Department of Education for the first time, which was a big deal because education [00:12:00] had been, you know, primarily a state function. It's still initially a state function. It's the states that choose curricula. It's the states that run [00:12:10] schools. But increasingly, financing education has been a federal function.

Archival: [00:12:14] Officials say Connecticut has lost $53 million that are already built [00:12:20] into school budgets.

Archival: [00:12:21] Billions of dollars for California schools held back by the Trump administration.

Archival: [00:12:25] A federal funding freeze quietly handed down from Washington, D.C., put the brakes on billions [00:12:30] of dollars meant for after school programs. Teacher training.

Archival: [00:12:33] $26 million in funding for Vermont schools is not currently available.

Archival: [00:12:39] Billion dollars [00:12:40] in grant funding for schools all across the nation is now under review.

Archival: [00:12:43] Might be saying, hey, we're going to freeze these funds and we'll see if we release them in October. We start school in less than a month [00:12:50] and our fiscal year has already started.

Hannah McCarthy: [00:12:57] So if you look at, for example, the ways the federal government [00:13:00] funds scientific research and public health initiatives and programs and education, Samuel explained, you can see how it helped to skyrocket the United States to its place [00:13:10] in the world.

Samuel Bagenstos: [00:13:11] All of the pharmaceutical advances that you've seen are initially derived from financing from the federal [00:13:20] government, from the NIH, from the from the National Science Foundation and otherwise. And that is super important for people's health. I mean, we have saved thousands and [00:13:30] thousands and thousands of lives and made even more lives much better because of those developments. We've also stimulated the economy in significant ways in [00:13:40] the areas where there are significant research facilities, including places where you'd had other parts of the economy sort of fall behind. I mean, think about a place like Pittsburgh [00:13:50] that was really revived because of its connection to research and medicine and education.

Archival: [00:13:57] The threat of National Institutes of Health funding cuts is [00:14:00] already having a ripple effect at the University of Pittsburgh. Union members met with local lawmakers to discuss how the cuts could impact jobs. Progress on critical medical [00:14:10] research and the local economy.

Samuel Bagenstos: [00:14:12] Also, I think you see that when the federal government has supported the research enterprise [00:14:20] and the academic enterprise more generally, that has been a beacon to the world. I mean, so we have seen people all over the world want to come to the United States, [00:14:30] want to pay full freight for education in the United States institutions.

Archival: [00:14:35] In the wake of President Trump's efforts to limit the number of international students at universities here in the U.S., [00:14:40] some foreign students are looking outside the U.S. to study.

Samuel Bagenstos: [00:14:44] So, yeah, I mean, I think this has redounded to our benefit. It's redounded to the benefit of individual human beings, [00:14:50] of humanity at large and of the United States.

Nick Capodice: [00:14:56] Okay. So can we talk a little bit about what's going on today, [00:15:00] Hannah, right now, because there's a lot of talk and a lot of action that is about not funding a lot of what Samuel has laid out.

Hannah McCarthy: [00:15:07] We sure can talk about it after a quick break. [00:15:10]

Nick Capodice: [00:15:10] But before that break, a reminder that Hannah and I wrote a book called A User's Guide to Democracy How America Works. And though, yes, things in America are changing, there [00:15:20] is still a whole legal system under our feet that is important to understand. So you can know when someone starts to, let's say, hop over and around what is under our feet. So [00:15:30] keep our user's guide in your backpack, at your kitchen table, in your car, in every room of your house. Give it away to friends and family. Spread the good word. You can get it wherever you get your books.

Hannah McCarthy: [00:15:39] We have [00:15:40] an audiobook too, because of course we do.

Nick Capodice: [00:15:42] Of course we do. It was so fun to make.

Nick Capodice: [00:15:44] That it was.

Hannah McCarthy: [00:15:55] We're [00:15:50] back. We're talking about federal funding, how it happens, where it goes, [00:16:00] what it's done for us and what's happening to it now. Before the break, Nick, you asked me about today. Today being a day when we are funding [00:16:10] less.

Nick Capodice: [00:16:11] Yeah. I feel like you can't swing a cat without hitting a funding freeze. Hannah and I don't even really know what a funding freeze means. Except for that the money stops.

Hannah McCarthy: [00:16:19] Yes. [00:16:20] And we do not advocate for swinging cats around here. So we talked about how Congress writes the budget. It says departments and agencies get money. But there is a very, very [00:16:30] important and very powerful middleman between that money and those establishments. Some say the most powerful thing in [00:16:40] the executive branch, the president kind of I'm talking about once again, the. Oh, I'm.

Samuel Bagenstos: [00:16:51] Before [00:16:50] I worked at the Department of Health and Human Services, I was at the Office of Management and Budget as the general counsel for a year and a half, [00:17:00] and so I worked on this a lot, and it is a really arcane process and a complex process that people don't know a lot about, but it's really important. So when Congress [00:17:10] passes a law saying that here's an amount of money we're spending, that money goes into the Treasury, but it's not available to be spent by an agency, [00:17:20] usually, unless the Office of Management and Budget does something called an apportionment apportions the money to the agency in [00:17:30] apportionment.

Nick Capodice: [00:17:31] So this is not an appropriation?

Hannah McCarthy: [00:17:34] No, the appropriation has already happened. Congress did that.

Nick Capodice: [00:17:38] Okay. So Congress says, for example, [00:17:40] the Department of Health and Human Services is getting X amount of dollars and they have to use it for Y things in Z period of time. But the money doesn't go directly [00:17:50] to the department.

Hannah McCarthy: [00:17:52] No, it's. It's like you're long lost. Great uncle left you $1 million, and that is your million dollars. But there's some money manager who isn't [00:18:00] going to give it to you unless you spend it wisely. So you don't spoil the family name.

Samuel Bagenstos: [00:18:04] So basically just issues a directive saying, okay, now you can spend this money and [00:18:10] OMB is supposed to do that in a way to make sure that an agency is spending the money prudently, doesn't overspend in the first quarter, and then have to go [00:18:20] back to Congress after that and say, oh my God, we spent all our money. We need more money. So the idea is we want to make sure that they're acting in a way that's reasonable and prudent and [00:18:30] appropriate.

Nick Capodice: [00:18:30] That makes sense. The OMB is supposed to be the level headed money manager.

Samuel Bagenstos: [00:18:36] But the problem is that we've seen [00:18:40] both in the first Trump administration and in this administration, we've seen the Office of Management and Budget not just use that authority For making [00:18:50] sure that things are carried out prudently, but using that authority to second guess the policy judgments made by Congress in laws [00:19:00] that were signed by the president. And, you know, that is something that under our constitutional system, the president and the executive branch are not allowed to do.

Hannah McCarthy: [00:19:12] Technically, [00:19:10] constitutionally not allowed to do. But it's happening anyway. [00:19:20]

Nick Capodice: [00:19:21] Is this the freezing?

Hannah McCarthy: [00:19:22] This is the freezing. Congress gave departments money and told them what to do with it. The OMB is not [00:19:30] letting them do what Congress told them to do.

Samuel Bagenstos: [00:19:33] What's happened in a lot of these cases is OMB has either issued a memo across the board to [00:19:40] to the federal government, to the executive branch saying, don't spend any of the money on this wide swath of programs until we can do a review and tell you it's okay. [00:19:50] So that happened with grant programs at the very beginning of this administration and immediately triggered lawsuits, or they've [00:20:00] gone to individual agency appropriations and in the apportionments in the orders saying to agencies, you can spend money or you can't spend money. [00:20:10] They've attached footnotes to those apportionments saying things like, you can't spend any money for this account until we tell you it's okay. [00:20:20] So as we're speaking just in the past week, OMB did this with grant programs from the National [00:20:30] Institutes of Health, said no more spending on grant programs until the end of the year.

Archival: [00:20:35] President Trump's sweeping federal budget cuts could literally mean the difference between life and death. The Trump [00:20:40] administration has so far terminated more than $1 billion in grants for the National Institutes of Health. Now, the NIH is responsible for more than 80% [00:20:50] of the world's investment in biomedical research.

Samuel Bagenstos: [00:20:55] This led to an outcry from both parties in Congress. [00:21:00]

Archival: [00:21:00] These actions threaten an entire generation of scientists. They threaten our future as a global leader in biomedical research.

Samuel Bagenstos: [00:21:09] And was immediately reversed. [00:21:10]

Archival: [00:21:10] Tonight, those affected by President Trump's federal funding freeze have a little longer to clear up. Confusion over the order of federal judge has temporarily halted it.

Hannah McCarthy: [00:21:18] And that reversal was reversed, [00:21:20] this time by the Supreme Court, which said that Trump was in fact permitted to terminate that grant funding.

Archival: [00:21:26] And the Supreme Court is allowing the Trump administration to slash hundreds [00:21:30] of millions of dollars in research funding. The court lifted a judge's order, blocking $783 million worth of cuts made by the National Institutes of Health.

Samuel Bagenstos: [00:21:38] News reports are [00:21:40] that OMB has recently done the same thing with grant programs from the centers for Disease Control and Prevention issued an apportionment footnote saying CDC, [00:21:50] you may not spend the money in these grants programs until we tell you so. And the way the process works within the executive branch is that [00:22:00] an agency cannot spend money. If OMB tells them they they can't spend money. Um, it actually would would violate federal law [00:22:10] to spend money that has not been apportioned. So this gives, you know, this is a power that's designed for efficient management of the executive branch, but [00:22:20] it can give actors who may have other ulterior motives a tool to achieve their [00:22:30] goals that may be illicit goals or goals that are inconsistent with the law.

Nick Capodice: [00:22:36] So the OMB is allowed to do this to stop the money from being [00:22:40] spent, but they're supposed to use that power to stop money from being spent in an inefficient or imprudent way, and instead they're [00:22:50] using that power to just stop the money. And Samuel was saying, they're not allowed to do this, but they are doing this.

Hannah McCarthy: [00:22:59] Well, [00:23:00] my understanding is that they're using a power they have in a way that the power was not designed for. In fact, they're using it to do the opposite [00:23:10] of what the president is tasked with doing. Congress makes the laws. The president enforces them. That is our system. The OMB has created a kind [00:23:20] of loophole.

Samuel Bagenstos: [00:23:24] This can be a tool for bad faith actors who want to defy the policy [00:23:30] judgments of Congress, to substitute the president's policy judgments for those of Congress. Our system has a pathway for a president who wants to [00:23:40] do that, you know, which is you can veto the law when it comes up the first time. You can go to Congress and get Congress to repeal [00:23:50] the law if you don't like it. But absent one of those two things, it's the president's responsibility to carry out the law. So, you know, NIH has [00:24:00] certain appropriations passed by Congress that say you should finance studies into minority health or [00:24:10] into health care disparities. This president believes that that is inappropriately woke. So this president and this administration have [00:24:20] said, we're going to stop NIH from spending the money on those grants. Well, that's not legal, but [00:24:30] they have this tool that they can use to carry out an illegal withholding of funds, which we call an impoundment of funds, by saying [00:24:40] in an apportionment, we are not going to allow you to spend this money. And that's, you know, what they have done at various points. That's led to litigation. They've been ordered [00:24:50] at various points to actually let the grants go out. Um, sometimes they've complied, sometimes they've not. But but yeah, I mean, so so it's basically [00:25:00] we, we have this procedure that's designed for efficient management of, you know, a giant executive branch, even the Department of [00:25:10] Health and Human Services, when I was there, had a $1.7 trillion budget every year. Now you want to make sure that money is spent efficiently. [00:25:20] It makes sense to have somebody who's watching to to do that. But if they're acting in bad faith and using the tools [00:25:30] they have for efficient management instead to defy the constitutional system, then that becomes something approaching a constitutional crisis.

Nick Capodice: [00:25:45] By [00:25:40] the way, everyone listen to our episode on constitutional crisis and what that means for more [00:25:50] information. All right, Hannah, what exactly happens when the OMB stops or freezes money?

Samuel Bagenstos: [00:25:58] Usaid. That is sort [00:26:00] of the classic example.

Hannah McCarthy: [00:26:01] Nick, you might remember that day one was gonna be big for President Trump.

Nick Capodice: [00:26:07] I do. You made a whole episode about it.

Hannah McCarthy: [00:26:09] And one of his [00:26:10] day one actions was an executive order freezing funding for foreign aid. So it could be evaluated and the administration could decide whether it aligned with American [00:26:20] values.

Nick Capodice: [00:26:21] And look, I know this is relevant now because it was done, but was that legal?

Hannah McCarthy: [00:26:26] As with so many things that we have seen recently, it's kind [00:26:30] of up to the courts to tell us, right? So this was challenged in court. There was a temporary restraining order. Ultimately, the administration was allowed to continue. [00:26:40] So to sum it up, Nick, what happens when an agency doesn't have the money it needs, it shuts down.

Samuel Bagenstos: [00:26:46] The fact that the United States has gone around the [00:26:50] world supporting development projects, providing, uh, health care and medical services for people who really need it, providing all sorts of other [00:27:00] services for people who really need them around the world. That has been good for the people who received the services, and it's also been good for the influence of the United [00:27:10] States. And, you know, for those who think that the United States is sort of engaged in a battle of influence with other countries around the world, it's been a really important [00:27:20] tool of ours.

Hannah McCarthy: [00:27:21] The administration says that USAID had misspent billions of dollars and had, quote, little to show since the Cold War. But [00:27:30] a recent study in the medical journal The Lancet estimated that USAID saved just over 90 million lives, including [00:27:40] the lives of 30 million kids under the age of five from programs that address HIV, Aids, malaria, and other tropical [00:27:50] diseases. A lot of countries have already closed community kitchens designed to prevent starvation and malnutrition, and have closed health centers for life saving [00:28:00] care.

Nick Capodice: [00:28:01] Hannah, has a president ever acted this way before? Frozen funds ended programs that Congress had already [00:28:10] approved money for.

Samuel Bagenstos: [00:28:12] The closest we've come is in the Nixon administration, where President Nixon, in a number [00:28:20] of programs that he thought were inappropriate, um, decided not to spend the money on those programs that had been appropriated by Congress. There [00:28:30] were a series of lawsuits that all went against President Nixon. But even there, you know, it was a particular program here, a particular program [00:28:40] there. Um, what we've seen In in the last, you know, six and a half, seven months with this new administration has been across [00:28:50] the board, basically a refusal to accept any obligation to spend money that Congress has appropriated unless this president [00:29:00] agrees with the policy underlying that appropriation, which is a fundamental shift in our constitutional system. [00:29:10]

Hannah McCarthy: [00:29:10] In fact, what came out of this fight with Nixon was Congress reminding everyone that they are the people in charge of the money.

Samuel Bagenstos: [00:29:17] The Impoundment Control Act was adopted in 1974. [00:29:20] Um, you know, part of a wave of legislation in the wake of Watergate and other Nixonian abuses designed to rein in the executive [00:29:30] branch, reassert congressional control.

Hannah McCarthy: [00:29:32] The Impoundment Control Act was in response to Nixon's refusal to spend money in certain circumstances, and there were a lot of [00:29:40] lawsuits and a lot of court cases, at least one of which went to the Supreme Court. Nixon lost all of them.

Samuel Bagenstos: [00:29:47] What the Impoundment Control Act does is it just reasserts [00:29:50] the basic constitutional order of business, which is that it's Congress that decides what money should be spent and the [00:30:00] purposes it should be spent for. And when it should be spent. And the president has to carry that out, president may have, you know, certain discretion granted to him by Congress, but he [00:30:10] doesn't get to second guess Congress's policy judgments. If you look at the reason that was given for the across the board grants freeze at the beginning [00:30:20] of the administration, um, it was, you know, in in the words of the OMB memo, it was to make sure that the that the grants were [00:30:30] consistent with the president's priorities. Well, I mean, the grants were issued pursuant to priorities set by Congress. That's you know, that's not something [00:30:40] that the president gets to second guess.

Nick Capodice: [00:30:42] So Samuel is saying that the president and the OMB are not allowed to do this, but they are doing it. And I [00:30:50] am reminded of the thing that we have said for years on this show that the rules and the laws and the Constitution, they are only as good as their enforcement. [00:31:00] They're just words. You need people to make those words real. And look, I know there have been lawsuits and I know [00:31:10] some of them have been effective, but, uh, but but but what is going on here? What has broken down? Why isn't Congress? [00:31:20] I don't know. Why isn't Congress mad?

Samuel Bagenstos: [00:31:23] You know, if you go back and read the Federalist Papers, Madison is particularly [00:31:30] adamant on this point that in our system, with separate executive, judicial, and legislative powers, each branch will check each [00:31:40] other, as he says, ambition will counteract ambition. Right. So there's this assumption that people within each branch will defend the prerogatives of their branch [00:31:50] of government. And I think the problem is that's broken down. Um, you know, when Madison wrote that, it was before we had the [00:32:00] rise of a political party system in the United States. Um, you know, and I think one of the most important changes in the last several [00:32:10] decades as the parties have become more ideologically sorted post the civil rights era, um, is that we don't really have [00:32:20] a separation of powers in the same way anymore as an effective matter. One of the most well cited [00:32:30] law review articles of the last 2025 years is one that's entitled Separation of Parties, not powers. And that's really what we have now. What we have is when [00:32:40] the The legislative branch is controlled by the same party as the executive branch. We don't see the legislative branch standing up for its institutional prerogatives.

Samuel Bagenstos: [00:32:49] In [00:32:50] my lifetime, we did. But that's really fallen apart now, because what we're seeing right now is the president and the executive [00:33:00] branch completely disregarding multiple aspects of Congress's constitutional power of the purse. Power of the purse is probably [00:33:10] the one consensus piece of the constitutional system for the framers of our Constitution. And [00:33:20] yet we have an administration that has really been taking that away on multiple fronts, and a Congress that hasn't been standing up for its prerogatives. It's not that they don't [00:33:30] have tools. They do have tools. They're just not really using them. And and I think that's because we don't we don't have a willingness anymore for [00:33:40] people to stand up to a president of their own party on behalf of the interests of their branch of government. And so that creates [00:33:50] a major problem for the constitutional system. That's kind of laid out on paper. And that we have been, you know, we've understood in [00:34:00] civics classes when we take civics 101 like this podcast is about. So maybe, maybe we should be saying this is Civics 101 today. You know, what does it really look like? [00:34:10]

Hannah McCarthy: [00:34:19] This is Civics 101. [00:34:20] I'm Hannah McCarthy.

Nick Capodice: [00:34:23] I'm Nick Capodice.

Hannah McCarthy: [00:34:26] And today, what happens when what's supposed to happen stops happening? [00:34:30]

Nick Capodice: [00:34:30] And tomorrow and tomorrow and tomorrow.

Hannah McCarthy: [00:34:33] One last thing here, Nick. We are mostly talking about two branches, the executive and the legislative. We talked a little bit about how [00:34:40] the third branch, the courts, can and have gotten involved to a certain extent. But I also asked Samuel about the other people involved in this country, we [00:34:50] the people and what the people actually want.

Samuel Bagenstos: [00:34:55] These decisions are not popular. They are, in fact, [00:35:00] you know, very much underwater in the polling when you when you look at them and, you know, usually we have expected that in our democratic system, [00:35:10] public opinion would be a check on decisions like this. Um, it's really hard to think of a set of legislative [00:35:20] decisions and executive decisions that have been so inconsistent with majority preferences, as expressed in all sorts of ways.

Archival: [00:35:30] Into [00:35:30] the streets.

Archival: [00:35:32] They are scientists turned activists.

Archival: [00:35:36] Not corporate greed.

Archival: [00:35:37] Anytime a worker or now [00:35:40] a former worker of USAID, comes out of the building with their belongings. This crowd is cheering them on.

Archival: [00:35:47] Funding freezing and chaos has to stop [00:35:50] now.

Archival: [00:35:51] Research, careers, education and lives on the line with massive funding cuts to medical research.

Samuel Bagenstos: [00:35:56] But I think part of what's going on here, too, is in [00:36:00] the elite constitutional culture in Washington, there's this sort of rise of the idea of the unitary executive that [00:36:10] the president is the only nationally elected official, and therefore we will sort of take [00:36:20] the president's election as a validation by the people of whatever the president wants to do, you [00:36:30] know. And we see that reflected in all sorts of legal decisions, and we see that reflected in the way that people talk about presidential power now. And the thing is, it's not realistic.

Archival: [00:36:39] We [00:36:40] all need a good paddling from the principal to to set our life on the right track.

Archival: [00:36:47] I'd like to see the repeal of the Roosevelt law [00:36:50] so that he can be a president for a lot more than four years. But we this country, needs a dictator. I hate to say that, but it's the truth.

Archival: [00:36:57] And they say we don't need him. Freedom. Freedom. He's [00:37:00] a dictator. He's a dictator. A lot of people are saying maybe we like a dictator.

Samuel Bagenstos: [00:37:08] I think, you know, this [00:37:10] president won a majority of of the votes. You know, he is the legitimately elected president. That doesn't mean people agreed with every one of these things. [00:37:20] And in fact, you know, I think what you'd say is people voted for him because they thought inflation was too high. They wanted to lower prices. People were concerned about issues [00:37:30] like immigration, not necessarily that they wanted to do all the things he's doing on immigration, but they were concerned about immigration. Did anyone vote? I mean, some people may have voted for, [00:37:40] for for this president because they wanted to cut public radio or public television. But, you know, is that anywhere close to a majority [00:37:50] of the people who voted, much less who voted for this president? Almost certainly not. Did people want to cut, you know, life saving Aids treatments for people in Africa? [00:38:00] Is that something people voted for? You know, that's that's the kind of thing where I think people are taking this. People within our DC based [00:38:10] elite constitutional culture are taking this unitary executive idea and Plebiscitary presidency idea too far. You know, yes, [00:38:20] people vote for the president. It is important to understand he has a Democratic warrant for significant aspects of his policy program. [00:38:30] Um, but, you know, all the laws passed by Congress have democratic legitimacy as well. And he needs to follow those. And I think we're kind of [00:38:40] losing that thread a little bit.

Nick Capodice: [00:38:42] Well, if you want to destroy my sweater, hold this thread as I walk away.

Hannah McCarthy: [00:38:48] You think Weezer would let us play Undone [00:38:50] the Sweater Song on the podcast?

Nick Capodice: [00:38:52] Tell you what, Hannah, I'll have my people get in touch with their people.

Hannah McCarthy: [00:39:18] This [00:39:10] episode was produced by me, Hannah McCarthy [00:39:20] with Nick Capodice. Our producer is Marina Henke. Rebecca Lavoie is our executive producer. Music in this episode comes from Epidemic Sound. A reminder that your representatives are [00:39:30] not required by the Constitution or other laws to attend town hall meetings and hear from you, their constituent, but you are allowed by Constitution [00:39:40] and other laws to petition them to hear you if you want to. For example, ask your representatives why they're sitting on their power of the purse hands. You can call them, email them, [00:39:50] show up to town halls. They show up to tell them what you, the people who hired them, need from them. Tell them what their nation requires to thrive. You can find information about [00:40:00] how to contact your congressional representatives and about their upcoming events on their individual websites, Facebook pages, blue sky accounts in your local newspaper, if it still exists, etc.. [00:40:10] Remember, we hired them. We can fire them and they know that and typically they want to keep their jobs. Civics 101 is a production of NHPR, New [00:40:20] Hampshire Public Radio.

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Civics Trivia: Taxes, terrifying birds, and The West Wing

It's another edition of Civics 101 Trivia! This time, it's also the swan song for one of our own.

Senior Producer Christina Phillips, our mastermind of minutiae and all things related to taxes, joins us to convene a final round of her trademark trivia.

Here is the link to the FOIA documents about the government's involvement in Hollywood productions. 

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Transcript

Christina Phillips: Hi, this is Civics 101. I'm Christina Phillips,

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice,

Rebecca Lavoie: And I am Rebecca Lavoie.

Christina Phillips: And I'm realizing it's awkward for me to introduce while we're here.

Rebecca Lavoie: But I'll say it.

Christina Phillips: Okay.

Rebecca Lavoie: Christina, you are moving over to the newsroom at NHPR. You got a big promotion, and this is your final episode that you are writing and producing and being in on the Civics 101 team, and we will miss you so much. But we are also so happy for you.

Hannah McCarthy: We are so happy to start playing Bittersweet Symphony.

Nick Capodice: We're so happy for you.

Rebecca Lavoie: I want to get sued by the rolling Stone.

Nick Capodice: That's right.

Christina Phillips: A good way to go out. Yeah, I decided that I would finish us off with a trivia. Ooh. And I tried to pick a bunch of things that were my favorite things, and then a couple of things that were that you guys know really well that I don't know. And then there's some. It's all fun.

Rebecca Lavoie: And there's dumb questions for Rebecca.

Nick Capodice: About taxes and the CIA and other things. Things that nobody else can understand.

Christina Phillips: Well, it's funny you should mention that, Nick, because our first round is taxes.

Nick Capodice: Do you know, like, do you have the (sound)

Christina Phillips: Can't do anything.

Nick Capodice: The fail horn effect.

Hannah McCarthy: I want to know why excise taxes exist

Rebecca Lavoie: Oh, God.

Christina Phillips: Don't ask me that.

Nick Capodice: Okay, well, that's. You brought it up in a way.

Christina Phillips: Okay, well, no, I'm. Maybe I do know what that is.

Hannah McCarthy: No, I know what it is. I just don't know why it exists. I don't know why we have them.

Christina Phillips: I think it's just another way to get money.

Nick Capodice: Yeah.

Christina Phillips: Okay. So taxes. I've done a number of episodes on taxes.

Rebecca Lavoie: And we know.

Christina Phillips: I was like, well, where do I start? I googled tax trivia, and a fun thing I learned is that the IRS has its own tax trivia. What? Yeah. You can take a little quiz. Well, it's. I mean, it's a government website, so, like, you have to click on each question and then you have to click the answer and then it reveals it. And then you have to click back back back to go.

Rebecca Lavoie: Doesn't work on mobile probably.

Christina Phillips: I didn't even try.

Nick Capodice: Yeah. Compatible and Netscape and Opera.

Christina Phillips: I did take it and I got 100%.

Nick Capodice: So good for you.

Christina Phillips: If there's one thing I'm taking away from the show, it's that I can get 100% on the IRS trivia. But there were some fun questions. So this is not for points. Here's a question. Uh, which ancient civilization revered tax professionals as the most noble profession in society?

Nick Capodice: Ancient Greeks?

Christina Phillips: Yes, it is ancient Greeks. All right, well, now I'm going to destroy you with these trivia questions, so I hope you're ready.

Nick Capodice: All right.

Christina Phillips: In 1959, Florida passed a tax policy known as the Green Belt law, which had to do with taxation of land in order to preserve agricultural land. The state gave a tax break to land that was zoned for agricultural use, so farming, etc.. Creative minds found a loophole that allowed them to exploit this tax policy, and that loophole became known as the rent a what loophole? All right, you get Hannah.

Nick Capodice: Yeah.

Christina Phillips: Well, I'm going to start with you.

Hannah McCarthy: I wrote Petting Zoo.

Christina Phillips: So that is a very interesting answer. It's not correct, but it's like so close on so many different levels.

Hannah McCarthy: Okay.

Christina Phillips: Okay. So, Nick.

Nick Capodice: I wrote Rent a Cow.

Christina Phillips: Yes, that is the correct answer.

Christina Phillips: Rebecca, what was your guess?

Rebecca Lavoie: I wrote Rent an Orchard because that's what Florida is known for. But I'm just gonna throw that away.

Nick Capodice: Okay. Nice crumple foleyy there.

Hannah McCarthy: Okay, so. So being a dairy farm is not the same thing as being an agricultural thing.

Christina Phillips: Let me explain the policy. So and then you'll understand why your guess was so close to good and not quite so. The idea was that if you buy a bunch of land as a developer, for example, it's going to take some time before you can actually start developing that land. You got to get permits. You get to do zoning. Uh, maybe it's going to be a number of years, but you've scooped up the land when it was for sale with big dreams ahead. Well, in order to take advantage of that tax loophole, you lease out the land very cheaply to maybe 1 or 2 farmers who get way more acres for the thing they want to do. So a commercial real estate developer might lease out an entire plot of land to one farmer who has maybe three cows. This loophole was just adjusted, sort of revised in the most recent tax bill in 2025.

Nick Capodice: So it's been a while.

Christina Phillips: Yeah. So that was it was a big push to sort of close that loophole. We'll see how successful that is because, you know, how trying to close tax loopholes works. Its you sort of like put a finger in one hole and then another one pops up ten feet down the road. So lawmakers in Kentucky, Tennessee and Texas passed a law that exempted self-employed artists from paying income taxes for Social Security and Medicaid and provided them lower taxes when selling their publishing rights. So one of the biggest benefactors of this law was this artist, whose songs have been used in soundtracks for One Tree Hill, crossroads, Dawson's Creek and Sex and the city, Erin Brockovich and one poorly advised Neutrogena sunscreen commercial.

Hannah McCarthy: Garth Brooks.

Christina Phillips: No.

Nick Capodice: Reba mcEntire.

Christina Phillips: No. It is a woman. Some of her songs include. Every day is a Winding Road.

Rebecca Lavoie: Sheryl Crow. Yes. Oh! Oh, yeah. Oh. It's awesome. Oh, yeah, yeah, yeah. It's the feelin.

Christina Phillips: So.

Nick Capodice: Good.

Christina Phillips: A big tax break.

Nick Capodice: What's her like, sun song.

Christina Phillips: Soak up the sun. We have one more loophole question. Before a company goes public, it has the option to divvy up its stock among investors and employees. And then those employees and investors can profit directly off the stock growth without it being considered income. And this tech CEO, who apparently is obsessed with Settlers of Catan and never loses, that's air quotes and recently got into jujitsu, used this policy to value his own stock at $0.06 before his company went public, and then got massive gains on the orders of billions of dollars when the stock debuted and the price went up.

Rebecca Lavoie: Mark Zuckerberg.

Nick Capodice: Yes. Nicely done.

Rebecca Lavoie: I knew that because the jiu jitsu thing.

Nick Capodice: That's right, he was going to fight Elon Musk. Or something like that. They were gonna have a little a little donnybrook and they never did it.

Christina Phillips: So over the years, there have been a number of attempts in different countries to tax the wealthy by applying taxes to things that presumably only wealthy people buy or use. Sometimes they work and sometimes they don't. So we're going to talk about luxury taxes in the modern era in a minute. But I have a couple of questions about poorly executed wealth taxes in the days of yore. So first, a shout it out. For about 30 years, at the turn of the 19th century, Britain tried to impose a tax on which article of clothing that was seen as a wealthy fashion choice.

Rebecca Lavoie: Was it a waistcoat?

Nick Capodice: What is that?

Nick Capodice: It's a waistcoat. Oh, no.

Christina Phillips: No, but I like that.

Nick Capodice: It's an article of clothing.

Christina Phillips: Yeah, it's an accessory. I would say.

Nick Capodice: A Beaver - like that fancy hat.

Nick Capodice: It's fascinating. Yeah.

Nick Capodice: A beaver is a hat.

Nick Capodice: Maybe a beaver.

Christina Phillips: Oh, okay.

Rebecca Lavoie: Yeah, that's me too, Nick.

Christina Phillips: Yeah, just broadly hats, but I'm gonna assume including those hats.

Nick Capodice: This is, I'll say this really fast. The reason that hats are so luxury is that it takes beaver. Beaver fur as part of felt production, and felt was in hats. And New York City had a ton of beavers because it was an island, basically Manhattan. So it was like, you know, the rich beaver town. That should be our show name - Beaver town. Beaver town.

Christina Phillips: Here's another attempt in England to tax the wealthy. For about 200 years, starting in the 1600s, there was a tax on what feature of a building that was seen as valuable.

Hannah McCarthy: Windows?

Christina Phillips: Yes.

Nick Capodice: Oh. Well done.

Christina Phillips: So the more windows you had, the higher the taxes.

Hannah McCarthy: I have to say, I learned that from playing a board game with Nick. Oh, really?

Nick Capodice: In the game, John Company windows are how you measure how much money you. Because people, if they didn't want to pay taxes would like brick up windows.

Christina Phillips: Wow. Yeah.

Christina Phillips: So have you guys ever seen the movie tenet?

Nick Capodice: Yes, I've seen the first half of it.

Nick Capodice: What? Yeah, I never finished. You can't not see that. I thought.

Nick Capodice: I saw it next month.

Hannah McCarthy: I also fell asleep during midsummer. I have weird experiences with movies.

Christina Phillips: This is a Christopher Nolan movie that is about what he calls reverse entropy. So basically, the idea that you can go forwards and backwards through time, it's completely ridiculous. I highly recommend it. But for the purposes of this trivia, it takes place in what's known as a free port. Are you guys familiar with freeports?

Rebecca Lavoie: Are those tax havens.

Christina Phillips: Basically a free port? Often they're at airports or at ports of entry. They are sort of locations that are not bound by sales tad.

Rebecca Lavoie: Oh like duty free.

Christina Phillips: Yeah.

Christina Phillips: So they're not bound by the taxes of the actual physical location where they are. So in the United States, they're also known as foreign trade zones. And they were really became popular during the Great Depression. It was a way to allow the United States to recover and be competitive in global markets. Like if you could sort of store things and like wait for the market to improve before you sort of transport it across lines. So over the past century or so they have become tax havens for. Extremely valuable property. So the Louvre president once described them as the greatest museums nobody can see. So the ultra wealthy will store some of the most expensive art gold, jewels, whatever, until they're ready to sell it. They don't want to display the Renoir in their house. They want to own it, and they keep it in this area where they're not having to pay taxes on it. Sometimes when you purchase it, the auctioneer will even transport it for you, so you're not necessarily moving it across state lines. So they're basically just like these zones where where there's all of these collections of art and valuables that are stored all around the world. So the following questions are about freeports and the kinds of things in them. So, Nick, this question is for you.

Nick Capodice: Sure.

Christina Phillips: The largest Freeport in the world with more than 1 million works of art, is located in this city, which is also home to the most international organizations in the world and is the location of Goldfinger Warehouse from James Bond.

Nick Capodice: Oh dear.

Nick Capodice: My brain is saying Switzerland or Sweden. I'm going to say Switzerland.

Nick Capodice: Yes. So it's in Geneva. I'll give it to you.

Nick Capodice: Oh, that's generous of you.

Nick Capodice: What is that?

Rebecca Lavoie: It says Geneva. I wrote it down.

Christina Phillips: Well, the question wasn't for you.

Rebecca Lavoie: I know, I'm just so proud.

Nick Capodice: I'm proud for you for guessing.

Christina Phillips: Rebecca. Everyone. Rebecca is smart.

Rebecca Lavoie: Usually.

Hannah McCarthy: Or perhaps she's fabulously wealthy.

Christina Phillips: The Geneva Freeport, as I said, has over 1 million works of art. By comparison, the Louvre in Paris, which is considered it's the largest art museum by square footage but also considered to have one of the largest collections, has about 380,000 works of art.

Nick Capodice: Wow.

Christina Phillips: So there's just entire collections that are stored in Geneva at this Freeport that nobody else can see.

Nick Capodice: Did you know that the real Mona Lisa is not in the Louvre.

Christina Phillips: Really?

Nick Capodice: No. Apparently it's just a picture of her.

Hannah McCarthy: Oh my gosh. Nick, I know Nick got me with that.

Christina Phillips: We're going to talk more broadly about luxury taxes. The United States tried to have a luxury tax. Now of course, luxury taxes are taxes on goods. It's usually an additional tax on top of a sales tax for certain items that are worth a certain amount. So for example, boats, cars, aircraft, furs and jewelry over a certain amount of money. The United States tried this. So Rebecca, this question is for you. Congress enacted a luxury tax in this year. It was the same year Jeffrey Dahmer was captured. A spoof interview on Soviet television claim that Lenin ate so many magic mushrooms that he turned into one and the Soviet Union fell. 1989 know. 1991 Congress eliminated the luxury tax in this year under pressure from the yacht industry. This is the same.

Hannah McCarthy: Yachts make me laugh.

Christina Phillips: Those yachts.

Hannah McCarthy: Come on.

Christina Phillips: Okay.

Rebecca Lavoie: We apologize to all the yacht owners out there.

Christina Phillips: I don't apologize. This year was the same year that Ted Danson wore blackface on TV. 76 Branch Davidians were killed in a siege in Waco, Texas, and Jurassic Park came out.

Archive: I'm simply saying that life finds a way.

Nick Capodice: 1994.

Christina Phillips: Oh you were so close. 93. 93.

Rebecca Lavoie: So two years of a luxury tax?

Christina Phillips: Yes so put in place by H.W. Bush and undone by Clinton.

Nick Capodice: Wow.

Hannah McCarthy: Wow.

Hannah McCarthy: Capitalism didn't last.

Christina Phillips: All right, so we've reached the end of the taxes round. Nick has three. Hannah has one. Rebecca has two.

Christina Phillips: And we will have more trivia after a quick break.

Hannah McCarthy: We're back. This is Civics 101. This is Christina's trivia extravaganza. Our next round is presidential memoirs. You guys may know this about me, but I went to graduate school for nonfiction writing, and one did. Yeah, and one of the things that we focused on a lot was memoir. And I love memoirs because I think unlike a biography or a nonfiction book about something, the memoir is really telling because how a person chooses to tell their own story often tells you more about them than the actual contents of that story. And so many of the memoirs we're going to talk about also involved ghostwriters, but it's so much about putting it in your own voice. So. So how does a person tell the story of their life? So I have some questions about presidents who wrote memoirs. And what I'm going to do is I'm going to give you the title of the memoir, and then I'm going to start reading you clues, and then you shout out when you have a guess about who the president is. And even if you guessed it right away, I'm still going to read the clues because they're funny. At least some of them are. Okay. So our first memoir, the title is An American Life. So this president's first marriage only appears in one paragraph of the book with the line quote, it didn't work out.

Rebecca Lavoie: Ronald Reagan, Ronald Reagan.

Nick Capodice: Well done.

Christina Phillips: That's all you needed.

Nick Capodice: Didn't work out.

Christina Phillips: I'm gonna give you a couple more facts from An American Life, which was one of Reagan's memoirs. So chapter titles include A New Beginning. Staying the course. The Middle East and Lebanon. The first sentence of the summary on Amazon is, quote, few presidents have accomplished more have been so effective in changing the direction of government in ways that are both fundamental and lasting than Ronald Reagan, which I tend to agree with.

Hannah McCarthy: Yeah, I also agree with that.

Christina Phillips: Totally, yes. Next question. The title of the memoir is At Ease: Stories I Tell to Friends. Some of the titles for chapters are: Sauce for the gander. The key to the Closet and lost in the Pentagon.

Nick Capodice: Eisenhower.

Christina Phillips: It is Eisenhower.

Christina Phillips: What gave it away.

Nick Capodice: The title.

Rebecca Lavoie: Yeah, I was going to say. Military title.

Christina Phillips: At Ease stories I tell to friends.

So I don't think anybody was at ease talking to Dwight Eisenhower.

Christina Phillips: So he was, of course, the supreme commander of the Allied forces in Europe during World War II. Before becoming president, I actually was able to access quite a bit of this book on Google Books and look through it, and it's very entertaining. There is an entire he talks a lot about his childhood, and there's an entire chapter about being like five years old. And I just want to share an excerpt. So he's talking about being a five year old encountering geese. And there was one goose in particular who was a nemesis of his. And he describes the experience this way. Quote. Thus the war began in the early parts of the campaign. I lost a skirmish every half hour and invariably had to flee ignominiously and weeping from the battlefield without support and lacking arms of any kind. It was only by resorting to distressing retreat after retreat to the kitchen door that I kept myself from disaster.

Hannah McCarthy: This is very interesting because for someone who would go on to be so incredibly like such a force in the military to start your book with, like, it all started with the goose. It's almost like it's an odd choice to make. I know everyone doesn it.

Rebecca Lavoie: You are totally displaying your lack of experience with geese right now.

Hannah McCarthy: No, no, that's not true they are so terrifying. There were whole sections of my college campus that were off limits for like, for a whole season every year because the baby geese had come. And you don't you don't get near Mother Goose. The fact that the rhymes are called Mother Goose doesn't make any sense, because a mother goose is the most terrifying bird.

Christina Phillips: Okay. So our last one is called a Charge to Keep. This was written before this person became president. Some of the titles of chapters include Yale in the National Guard, Harvard, and Moving Home reading The New Civil Right. An early ghostwriter was fired because he was seen as overemphasizing early failures and challenges, including in business, and the title of the book comes from a painting called A Charge to Keep by Charles Wesley, and it depicts a man on horseback charging up a muddy mountain. This president displayed this painting in the governor's office when they were governor of their state, and then in the Oval Office.

Nick Capodice: George W Bush.

Nick Capodice: Yes. George W Bush.

Christina Phillips: Yeah. So this was published in 1999. I love the fact that he fired an early ghostwriter because he was like, no, no, we don't talk about my oil business. Yeah, this is about my accomplishments. The end of that round. The score is. Nick five. Hannah one. Rebecca three.

Christina Phillips: Our next round. A category. I've just called Hollywood. Because i didn't bother making hollywood any more creative.

Nick Capodice: Everybody has a dream.

Christina Phillips: So we have been doing some episodes recently about our favorite movies, about the government. I have always been fascinated with the government's relationship to Hollywood, which has been apparent in some of the movies we've talked about, perhaps will be apparent in some of the future movies. So this is all about the relationship between Hollywood and the federal government. And then at some time, state governments as well. So in a few circumstances, the government has helped fund directly fund some aspects of different movies or TV shows, but in reality, government support means something different. It usually means giving filmmakers access to shooting locations or consultants or supplies in exchange for oversight or some sort of editorial control. We'll let you film in the CIA building if you let the CIA edit your script. So a classic example is 1994 is Clear and Present Danger, which is a Jack Ryan movie. The CIA wanted a scene that showed a conflict between two people in the agency removed. So it came out, and there were parts of that movie that were filmed using CIA headquarters and CIA technology. Also, in a clear and present danger, the FBI had a note that the president was not allowed to be racist. And so there were script modifications for that. So this next round is going to be all about movies that were made with, quote, support by government agencies. Support meaning in exchange for locations, equipment consultation.

Nick Capodice: Cool.

Christina Phillips: I had so much fun reading about this. There's so many FOIA documents that are just emails back and forth between the government and different sets, and Hollywood producers at the CIA. There was a person known as the Entertainment Industry Liaison. These different agencies literally have offices that are working with Hollywood, and this includes movies, TV shows, reality TV. There's a lot of government involvement in reality TV, which is fascinating, including like cooking shows.

Hannah McCarthy: Why?

Christina Phillips: Why I didn't go down the rabbit hole of cooking shows, but I can. I'll post the link to the website that has all of these FOIA requests, and I spent hours on it. So I'm going to give you a couple of clues. Just random clues about a movie. Maybe it's actors, maybe it's topic. And then I want you to guess which movie I'm talking about. So here are my clues. Ben Affleck.

Rebecca Lavoie: Argo.

Christina Phillips: No. War. Air force.

Rebecca Lavoie: Pearl Harbor.

Nick Capodice: Yes, yes.

Archive: Yeah. Well, you don't have to explain anything to me.

Archive: I do. Because you're acting like I didn't love you.

Archive: Loving you kept me alive.

Hannah McCarthy: It's Liv Tyler, right? Liv Tyler in that one.

Christina Phillips: Un I thought it was like Kate Beckinsale.

Rebecca Lavoie: Kate. I think it's Kate Beckinsale.

Christina Phillips: Let's look it up.

Rebecca Lavoie: Up. It could be. Or it could be Liv Tyler.

Nick Capodice: Do you say say Kate Beckinstale.

Rebecca Lavoie: Kate Beckinsale.

Nick Capodice: I just thought that would be a funny put down.

Hannah McCarthy: I love Kate Beckinsale.

Nick Capodice: Like Kate Beckinstale.

Hannah McCarthy: She seems like a cool chick.

Rebecca Lavoie: She was in all those vampire movies with Scott Speedman.

Christina Phillips: Uh, underworld? Yes, it's Kate Beckinsale and Josh Hartnett.

Christina Phillips: Um, he's got a wonderful revival of his career.

Rebecca Lavoie: He's so great.

Christina Phillips: Okay, so Pearl Harbor used naval facilities in Hawaii, and then members of the military were extras, and they actually created a large scale replica of the USS Oklahoma using military guidance. And that was, of course, one of the ships that sank in the harbor. Okay. Next clue. Ben Affleck.

Rebecca Lavoie: Argo.

Christina Phillips: No.

Hannah McCarthy: Batman.

Christina Phillips: Oil drilling. Nuclear.

Nick Capodice: Armageddon.

Christina Phillips: Yes!

Archive: It's my job! You go take care of my little girl now. That's your job.

Nick Capodice: The movie they show to NASA to see how many mistakes they can find.

Rebecca Lavoie: Have you ever seen that Ben Affleck director's cut? Like when he does the commentary over. It's in the best.

Archive: Like eight whole months? As if that's not enough time to learn how to drill a hole. But in a week, we're gonna learn how to be astronauts. Oh, one whole week. Now you know how to fly into space. I need my guys.

Christina Phillips: Nick, would you just give us really quickly the plot of Armageddon.

Nick Capodice: An asteroid is hurtling to the earth.

Hannah McCarthy: That's Liv Tyler. That is lifted my hand on the screen.

Christina Phillips: Yeah.

Nick Capodice: So an asteroid is falling to the Earth, and NASA just can't figure out how to blow it up. But there's a bunch of wacky drilling people headed by Bruce Willis, who the only people on the planet who know how to blow up an asteroid. And it's easier to train a bunch of miners to fly in space than a bunch of people in space to drill a hole.

Christina Phillips: So there was NASA cooperation, but there's a really great disclaimer in the credits of this film. I'm going to read it to you. Quote. The National Aeronautics and Space Administration's cooperation and assistance does not reflect an endorsement of the contents of this film or the treatment of the characters depicted therein.

Rebecca Lavoie: Oh, the treatment.

Christina Phillips: So, yes. So, Nick, you got that point. So the next one, Tom cruise, New York, US military tripods.

Rebecca Lavoie: War of the worlds.

Christina Phillips: Yes.

Archive: What do you got? Many. Many, many. Nothing crazy. That guy's gonna come back. He's not gonna go. Many, many. I don't have time to explain. Busting my chops here. I got a shop to run. How many people? No way. Get out of here! Get in, Manny, or you're gonna die!

Nick Capodice: What a terrible movie that was.

Christina Phillips: Oh, I liked that movie.

Nick Capodice: And at the end, it's like an. They died of a cold.

Nick Capodice: Okay. Yeah. I mean, the plot. That's what.

Nick Capodice: H.G. Wells is.

Christina Phillips: Yeah, yeah.

Nick Capodice: What a terrible book.

Christina Phillips: There's a couple of interesting things about the Department of Defense involvement. So they wanted to remove scenes where soldiers retreated, um, where they wanted to modify them so it didn't look as much like the military was running away from the tripod aliens. And then they also rewrote and made suggestions for the battle scenes, including reducing the number of aircraft that were lost in the fight.

Rebecca Lavoie: Wow. So they just did a little polishing of the US military propaganda machine.

Hannah McCarthy: When this happens, we're gonna stick to our guns. Literally.

Christina Phillips: Okay. Next one. Robert De Niro. The CIA. Lie detector test. Ben Stiller.

Nick Capodice: NO. Meet the Parents?

Christina Phillips: Yes.

Nick Capodice: What?

Archive: He told me he grew up on a farm. Mm. Do they have many farms in Detroit?

Archive: No dina. No, no. In fact, Jack, I should clarify this. I didn't actually grow up in a farm. Per se. And the house that we grew up in was originally erected in the early Dutch farm, colonial style. So that. Plus we had a lot of pets.

Christina Phillips: De Niro has a very long and storied history of of making movies and TV shows that are in cooperation with the government.

Nick Capodice: Wag the dog, I imagine.

Christina Phillips: Yes, but meet the parents. Do you want to. Do you have a guess? Like what the CIA had to say about his retired CIA officer portrayal in that movie?

Hannah McCarthy: Well, he gets into his car, and it's still. It's like a super CIA car. And he uses the CIA to investigate his daughter's fiance. And I think the CIA would say we don't do that.

Christina Phillips: They allowed that to happen. But there was a scene that depicted torture manuals. Like on a desk. And they removed those and replaced them with photographs of government officials. Okay, so we don't do torture. We do do spying on fiances and lie detector tests.

Christina Phillips: So the next one, Jeff Daniels single dad aircraft, Canada geese.

Hannah McCarthy: Fly way home.

Christina Phillips: Yes.

Archive: Hey, guys. Hey hey hey hey.

Archive: It's called imprinting. Amy was the first thing they saw when they were born. So they think she's their mother.

Archive: That one's fluffy and that one's grumpy.

Archive: See, the problem with your birds is they're going to want to migrate south.

Nick Capodice: Gusts of air shot out of your right eyeball.

Hannah McCarthy: My weekly viewing of my way home as a child.

Christina Phillips: I knew that you would also love flyaway Home because it's like catnip for the millennial girl.

Hannah McCarthy: Oh, such a anna Paquin penguin.

Christina Phillips: Okay, so for anyone who doesn't know Flyaway Home, it's actually based on a true story.

Hannah McCarthy: I know.

Christina Phillips: The father of an 11 year old daughter. Flying geese from Canada to North Carolina. That didn't actually happen. But there was a experimental aircraft that was built to try to help geese migrate, and it looked like a goose. You can see it at the Experimental Aviation Association Museum in Oshkosh in Wisconsin. It's really neat. So there was involvement with the FAA and of course various departments. But I think one of my favorite scenes is there's like this height of conflict scene where they cross from Canada into U.S. territory and they're like, what are you doing? Like, this is not a sanctioned aircraft. Also, she flies alone. This child.

Christina Phillips: Just flies alone forever. Because the whole point is they have to get to North Carolina before a property development starts with these geese. Because if the geese migrate there on time, then they can't develop the property because it becomes protected.

Rebecca Lavoie: Yeah, that's how it works.

Nick Capodice: Yeah. Well, it is, it is, you know.

Christina Phillips: The actual flying with a geese looking machine did really exist.

Nick Capodice: Wow.

Christina Phillips: So fly away home, Hannah. A victorious point for you.

Rebecca Lavoie: Very victorious.

Hannah McCarthy: It's just it never comes up.

Christina Phillips: I know. Okay.

Christina Phillips: This movie has Tom Hanks, Kevin Bacon. Carbon dioxide explosion.

Nick Capodice: Apollo 13.

Nick Capodice: Yes. Oh.

Rebecca Lavoie: Of course.

Archive: Okay, people.

Archive: Listen up. People upstairs here. This is this one, and we got to come through. We gotta find a way to make this fit into the hole for this, using nothing but that.

Christina Phillips: Nasa, of course, played a big role in the accuracy and recreation of this mission, but it was actually the Navy that had the most noticeable script edits. And the Navy, of course, is only really in the one scene where they're rescued after they land in the water. But they insisted that the script remove all swearing.

Nick Capodice: Huh? What?

Christina Phillips: Yeah, and this movie is actually rated PG.

Hannah McCarthy: Which is crazy how 13 is rated PG.

Rebecca Lavoie: So we are to believe that if you are in a doomed aircraft and everybody very likely could die unless this very specific thing is executed perfectly, that nobody would swear.

Christina Phillips: Yeah, exactly.

Rebecca Lavoie: Cool.

Christina Phillips: We've reached the end of the Hollywood round, and the score is as follows. Nick has eight. Hannah has two. Rebecca has six.

Christina Phillips: We're back. This is Civics 101. Our next round is called a torrid West Wing love affair.

Hannah McCarthy: Hmm.

Christina Phillips: So on Civics 101, we all have our niches, our expertise. There's one area of knowledge you all know far better than me. And that's the West Wing, which is a show I've never seen. I've only seen random episodes. Or maybe, you know, clips when I'm trying to pull clips for my own episodes. And every time you reference it, I sort of nod my head and act like I know what you're talking about, and I very rarely do. However, there is one area of pop culture where I think I have more knowledge than you all. And that is the romantic literary career of one Christina Phillips.

Rebecca Lavoie: Hmm.

Christina Phillips: I don't know if that's a pseudonym or not for a while. And depending where you live and you're googling habits. If you Google Christina Phillips, the first thing that will pop up is the romance novelist Christina Phillips.

Hannah McCarthy: Oh, I thought that you were about to reveal to us that you're a romance. Oh, no, I imagined I was so excited.

Christina Phillips: I'm sorry. I hate to disappoint you, but it's not me. But there is a woman out there named Christina Phillips who writes romance novels.

Nick Capodice: All right.

Christina Phillips: This quiz is going to be about how well you know the titles of West Wing episodes.

Hannah McCarthy: Ooh.

Christina Phillips: So it's a this or that. You're going to tell me if this is the title of an episode of The West Wing, or if it is the title of a romance novel by Christina Phillips. Are we. Ready? Yes. Yeah.

Christina Phillips: Nick.

Nick Capodice: Oh, dear.

Christina Phillips: First question for you.

Christina Phillips: West wing, a romance novel. Payback.

Nick Capodice: I'm going to say The West Wing.

Christina Phillips: No. The one thing I can say about payback. The novel is, is part of a series about bikers.

Hannah McCarthy: I was really hoping that it was going to be like the Duchess's finest hour. What is it?

Christina Phillips: You know, I wouldn't make it that easy.

Hannah McCarthy: You know.

Christina Phillips: So, Hannah, the title is The Stormy Present.

Nick Capodice: I'm gonna say West Wing.

Christina Phillips: It is West Wing.

Rebecca Lavoie: Nice.

Christina Phillips: So this is from season five, episode ten. President Bartlet clears his schedule to attend the funeral of a former president. You get a. Point.

Christina Phillips: Rebecca.

Rebecca Lavoie: Yeah.

Christina Phillips: Angel maintenance.

Rebecca Lavoie: It's got to be the West Wing.

Christina Phillips: It is the west wing. So do you know what that episode is about?

Rebecca Lavoie: Angel maintenance. Mhm. I don't know, is it about Air Force One?

Christina Phillips: Yeah it is actually. So you get a bonus point.

Nick Capodice: Nice.

Archive: Hey, uh. Listen, everybody. The colonel just told us we're about to go by something incredible, and you hardly ever get to see this. It's going to be out the left side of the plane.

Archive: What is. It?

Hannah McCarthy: Oh, I remember that one. I like any of the episodes on Air Force One.

Christina Phillips: All right, Rebecca, I'm going right back to you.

Rebecca Lavoie: Okay.

Christina Phillips: Stirred.

Rebecca Lavoie: This could honestly be either one so easily. I'm going with a romance novel. Nope.

Christina Phillips: It's an episode of The West Wing season three, episode 13. The president's staff faces a crisis when a rig carrying uranium fuel rods crashes in Idaho. I'm not entirely sure how that involves stirred. Oh, also, there's a whole side plot about filing your taxes online, which I bet I would enjoy.

Christina Phillips: Nick, not so happily ever after.

Nick Capodice: I'm gonna say romance novel.

Nick Capodice: It is.

Nick Capodice: Thank heavens.

Christina Phillips: Hannah.

Nick Capodice: Yes.

Christina Phillips: Cinderella and the geek.

Hannah McCarthy: West wing.

Christina Phillips: Nope.

Rebecca Lavoie: Oh, that sounds like a West Wing title.

Christina Phillips: So this involves a workplace and a fake relationship? Yeah. You gotta love a fake relationship.

Hannah McCarthy: Like The proposal with Sandra Bullock?

Christina Phillips: Yes. Actually, I think it is a boss to employee relationship as well, so.

Rebecca Lavoie: Yeah. So appropriate.

Christina Phillips: Yes. Yeah. So just think of that. All right. I'm going to go right back to you, Hannah. You have another chance.

Hannah McCarthy: Okay.

Christina Phillips: Another chance at redemption. Because that is the title. Redemption.

Hannah McCarthy: Um. West wing?

Christina Phillips: No.

Rebecca Lavoie: So was this a sequel to payback?

Christina Phillips: Um. So, actually, I think one of them is the first one, and one of them is the second one.

Christina Phillips: So I do have a plot description for this one. A fallen archangel saves a woman from a deadly fate and unleashes an ancient power that could destroy the universe itself.

Rebecca Lavoie: Oh, so it's not about cyclist, but it is an angel romance. That's interesting.

Christina Phillips: She's got a wide genre spread.

Christina Phillips: There's also, apparently wolves, vampires. There's, like, covering all the bases.

Christina Phillips: Historical? Yeah. Very diverse. Okay. Nick.

Nick Capodice: Mhm.

Christina Phillips: Bad moon rising.

Nick Capodice: Something bad is happening in the white House. I'm gonna say the West Wing.

Christina Phillips: It is the West Wing.

Christina Phillips: This is season two, episode 19. President Bartlet could be in violation of full disclosure for neglecting to mention his multiple sclerosis.

Hannah McCarthy: Yeah, that was a big problem. Yeah.

Christina Phillips: Okay. Rebecca.

Hannah McCarthy: Yeah.

Christina Phillips: Noel.

Rebecca Lavoie: West wing.

Nick Capodice: It Is.

Nick Capodice: Is that the one that sort of takes place at Christmas time and Josh is dealing with his PTSD.

Archive: You wrapped that yourself, right?

Archive: The bandage. Yeah.

Archive: Donna's going to take you to the emergency room. She knows she was the one who guessed.

Christina Phillips: This feels like I'm reliving so much of my experience because in meetings when you're talking about plots. I'm like, yes. Oh, yeah. That part. I remember that.

Christina Phillips: So the score is as follows. Nick ten. Hannah three. Rebecca eight. We've reached the final category, which is called Redemption Hour. This is just two questions. I've done, I don't know, half a dozen trivia episodes on this show. And in each of those episodes.

Hannah McCarthy: Christina this is is so mean.

Nick Capodice: Wait. Is this. Oh, boy.

Hannah McCarthy: I know exactly what's going on. I have a feeling. Unbelievable.

Christina Phillips: So you've gotten a lot of questions, right? And some questions very, very wrong. I'm calling this redemption hour because I'm going to bring back two questions that you all got so catastrophically wrong.

Nick Capodice: Mhm.

Christina Phillips: And I'm going to give you a chance to try again. So here's how it's going to work. They are both from the holiday food trivia episode from last December. I want you to write your answer down. I'm going to play the tape.

Nick Capodice: Oh.

Christina Phillips: And then you're going to reveal your answers this time around. Are you ready?

Hannah McCarthy: I notably the things that I get wrong, I get wrong for the rest of my life. I always make the same confusion, you know?

Rebecca Lavoie: Absolutely true. And put it out in your performance review.

Hannah McCarthy: She just doesn't learn.

Christina Phillips: Okay, so here is the first question. Several sources mention that this president, former Secretary of State and founding father from Virginia, loved a cocktail known as a yard of flannel. Who is the president? All right, let me play the tape.

Rebecca Lavoie: Thomas Jefferson.

Christina Phillips: No.

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

Christina Phillips: No.

Hannah McCarthy: Andrew Jackson.

Nick Capodice: 11 presidents were secretary of state.

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

Hannah McCarthy: They were all from Virginia.

Nick Capodice: Tyler.

Christina Phillips: No, he was one of the first four presidents.

Nick Capodice: Well, this is embarrassing.

Nick Capodice: I hope you cut that stuff about us not knowing the first.

Rebecca Lavoie: I'm editing..

Christina Phillips: Leave it in. Leave it in, Rebecca.

Christina Phillips: So you did cut it. Okay, so I brought it back.

Hannah McCarthy: Oh, God.

Christina Phillips: Because you cut a lot of that in the episode.

Rebecca Lavoie: Look what we all look. Okay, okay, okay, okay. I wrote Thomas Jefferson. I'm thinking about all three of you.

Christina Phillips: Thomas Jefferson.

Nick Capodice: What was it?

Hannah McCarthy: George Washington.

Christina Phillips: No. Stop guessing.

Nick Capodice: Monroe.

Christina Phillips: It was Madison.

Rebecca Lavoie: Oh, I remember you eventually said this guy wrote the Constitution. And we still didn't know.

Nick Capodice: Oh, my God, that.

Christina Phillips: Oh, goodness. Oh, that played out exactly how I would. The worst part is that I wrote this, like, kind of romantic, philosophical thing about James Madison this morning. I have to say, in this the script.

Nick Capodice: I feel like I have a yard of flannel.

Hannah McCarthy: Yeah.

Christina Phillips: All right, so no redemption on that one. This is from the same episode. So again, I'm going to have you write down your answers and I'm going to play the tape. And then I'm going to have you reveal your answers. Idaho is the biggest producer of potatoes in the United States. We went around the room and I asked you to share your guests for one of the four states that rounds out the top five potato producers in this country. Idaho is number one, and there are four other states that are top potato producers. So you each got two guesses. Last time, only one person got one out of the eight guesses correct. So let's see. Once you've written down your guesses I'm going to play the tape. Rebecca, you waved your hands. So you first.

Rebecca Lavoie: Maine?

Christina Phillips: No.

Nick Capodice: Oh.

Christina Phillips: Nick.

Nick Capodice: California.

Nick Capodice: No, no.

Nick Capodice: It's so big.

Hannah McCarthy: Ohio.

Christina Phillips: No.

Rebecca Lavoie: New Jersey.

Christina Phillips: Nope.

Nick Capodice: Washington state.

Nick Capodice: Yes. Nice. Nice.

Hannah McCarthy: Mhm. I can, like, see it on a bag of potatoes.

Rebecca Lavoie: That's Idaho.

Hannah McCarthy: That's so good. Rebecca.

Hannah McCarthy: Vermont.

Christina Phillips: No.

Speaker20: All right. We had a lot of bad guesses. One good guess.

Christina Phillips: Rebecca. What did you guess this time?

Nick Capodice: California and Michigan?

Christina Phillips: No. Oh, boy.

Christina Phillips: Nick.

Nick Capodice: California.

Christina Phillips: No.

Nick Capodice: Pennsylvania.

Hannah McCarthy: No. I put California in Minnesota.

Christina Phillips: No, no,

Christina Phillips: Do I do minus one for Nick because he gets it right the first time and not the second.

Nick Capodice: Oh, boy.I did the reverse of getting better. Yeah, it's like when I did so badly in cursive in second grade. And in third grade, it was even worse. The teacher was like, what is wrong with your son?

Christina Phillips: So the states are Washington, Wisconsin, Colorado and North Dakota are all right.

Christina Phillips: So once again, you have not been redeemed.

Nick Capodice: Can you come back next year and do that again?

Rebecca Lavoie: Yeah.

Nick Capodice: Just just like, leave the hot, swanky newsroom file this. If I press that. What a scoop. And just come over here and give us a chance of redemption one more time.

Christina Phillips: Yeah, I'll do a whole redemption.

Nick Capodice: I think everyone deserves a third chance of redemption.

Nick Capodice: Yeah.

Christina Phillips: Same questions. Yeah.

Nick Capodice: No no no no.

Christina Phillips: Are you sure?

Nick Capodice: Yeah, I won't win. Not about the food. I hate it, though. They were so hard.

Christina Phillips: All right, so our final score. Cor. Nic, you have ten. Nice, Hannah. You have three.

Nick Capodice: All right.

Christina Phillips: Rebecca, you have eight.

Rebecca Lavoie: All right.

Christina Phillips: So thank you so much.

Nick Capodice: Oh thank you.

Hannah McCarthy: Thank you. Christina, this was really fun.

Christina Phillips: And I should say that I'm putting together. And you will be hearing it. Listener, in just a minute. I have a little montage of some of my favorite moments that were either on tape or off tape of just recording with you guys. So stick around to hear that.

Christina Phillips: Nick is cringing in horror.

Nick Capodice: No, I'm trying not to cry.

Christina Phillips: Oh, okay.

Nick Capodice: Listeners out there. It's it's it's it is bittersweet. It has been so wonderful to work with Christina. Yeah, yeah. Our show changed when you started working here. And you will be really missed. And you're irreplaceable. But we're all so happy for what you're doing.

Nick Capodice: Thank you. Yeah.

Christina Phillips: Thank you guys.

Christina Phillips: It's hard to leave.

Rebecca Lavoie: As I said to our COO this morning. I'm so happy for Christina, but I'm also so upset because it's her work that makes people think I'm doing a good job, you know?

Christina Phillips: Yeah. Well. You're welcome.

Christina Phillips: This episode was written by me, Christina Phillips, and edited by Rebecca Lavoie. Thank you to our host, Nick Capodice and Hannah McCarthy. And thank you to our producer, Marina Henke.

Nick Capodice: Music in this episode from Epidemic Sound and Chris Zabriskie.

Christina Phillips: Civics 101 is a production of NHPR, New Hampshire Public Radio.

Nick Capodice: Yay!

Christina Phillips: Okay. Um, so, are we ready to get started?

Rebecca Lavoie: Yeah.

Nick Capodice: Yep.

Christina Phillips: Wow. That was so enthusiastic. Okay.

Rebecca Lavoie: Try not to interrupt each other.

Hannah McCarthy: Three times a week.

Nick Capodice: So we're doing hands now. Would you poo pooed when I said it earlier?

Nick Capodice: I did poopoo and I said, should we raise? I should I said, you shouldn't raise your hand. Like, while she's. I mean, maybe we all did.

Nick Capodice: You did.

Rebecca Lavoie: You're right, I did. I'm wrong.

Nick Capodice: Want me to take a photo next time.

Hannah McCarthy: Oh.

Nick Capodice: Let's all just do it.

Nick Capodice: 00000001.

Nick Capodice: And when you like, when you think of Weems.

Hannah McCarthy: Weems.

Nick Capodice: This product is brought to you by Weems. Bingo. Bong!

Hannah McCarthy: Dooba dooba dooba dooba dooba dooba. Hello.

Hannah McCarthy: That is she.

Hannah McCarthy: It's me.

Hannah McCarthy: Bop bop bop bop bop bop bop bop bop bop bop bop.

Nick Capodice: Do you know how many sound checks it takes to change the light bulb?

Christina Phillips: You've also told me this joke.

Nick Capodice: One two.

Nick Capodice: One two.

Nick Capodice: Oh, did you know that in Norway, the boats. The boats have UPC codes on the side.

Christina Phillips: That's really smart.

Nick Capodice: So that when you go you can Scandinavian.

Christina Phillips: Oh no.

Hannah McCarthy: Oh go for your for Christine. It was a really good idea. Um.

Nick Capodice: Did you know that the real Mona Lisa is not in the Louvre?

Christina Phillips: Oh, really?

Nick Capodice: Where is it? No, apparently it's just a picture of her.

Christina Phillips: Oh my gosh. Nick, I know.

Nick Capodice: This is for our listeners. Christina, do you know how to, uh, to, um, make sure you spell cemetery properly?

Christina Phillips: No, but I would love to know.

Nick Capodice: They're so scary. You go eeeee all the way through it.

Christina Phillips: Even the end?

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

Rebecca Lavoie: It's so specific.

Hannah McCarthy: And you have to crack it.

Hannah McCarthy: You like take you have a handful of times. Yeah. What about, like, chocolate covered pomegranate seeds? Nope. What are.

Christina Phillips: No.

Nick Capodice: Where are those? It's basically just a fancy Raisinet.

Hannah McCarthy: Not when you make them, man. I want some tableside flames. Yeah. Yeah. I never had that in my youth. Wait, what? What's the joke? I can't operate on this. This patient.

Nick Capodice: This. He's my son.

Hannah McCarthy: He's my son. How is that possible? Yes. Yes.

Graas is fine. I actually kind of like the grass all the time.

Christina Phillips: The jelly bean or the.

Nick Capodice: The actual substance.

Nick Capodice: Oh, the jelly bean.

Nick Capodice: As a child, do you see grass? Which one's gonna rain? It's. Usually. I eat it when it was about to rain.

Nick Capodice: This was fascinating.

Christina Phillips: Oh, good. I'm so glad.

Nick Capodice: This was taxing. Eating. Well, thank you, Hannah. It's like, just to clarify, per usual, the vice.

Hannah McCarthy: President doesn't do anything. Amendments are in addition to, like, they don't cross anything out. Well, that's.

Nick Capodice: Not that's not true. I can't.

Hannah McCarthy: Cross things.

Hannah McCarthy: Out. They've crossed some things out.

Hannah McCarthy: To establishing eligibility for Austrian born former california governor Arnold Schwarzenegger to run for president.

Nick Capodice: Say, Arnold Schwarzenegger to run for president.

Hannah McCarthy: Arnold Schwarzenegger. What do I say?

Nick Capodice: You're saying Schwarzenegger. It's Schwarze Schwarzenegger.

Hannah McCarthy: Arnold Schwarzenegger to run for president.

Nick Capodice: One more time.

Hannah McCarthy: Oh my God. Arnold Schwarzenegger to run for president. Arnold Schwarzenegger to run for president. Like German born Henry Kissinger. Henry Kissinger. Excuse me. Like German born. Why is that so hard to say? German born, Henry Kissinger. There have been a few proposed constitutional amendments like that.

Hannah McCarthy: Oh, no.

Hannah McCarthy: Because, you know, you're not gonna make me read this. Okay. It's different.

Hannah McCarthy: There's one perfume. I can't even remember the name of it. It's the only one I've ever really, truly wanted in my heart of hearts. And I wasn't even allowed to spray a tester of it.

Nick Capodice: The one made from the blood of a thousand dead roses.

Hannah McCarthy: No, I have purchased that one. It smells great. But a thousand Turkish roses.

Christina Phillips: Nick, I also didn't realize that. Metamorphosis. The guy turns into a dung beetle. I didn't pick up on that. I just thought he was, like, having a weird.

Rebecca Lavoie: Did you read the books?

Christina Phillips: No, I didn't, I was not.

Hannah McCarthy: I just was so grumpy.

Rebecca Lavoie: Do you know this is a difference? This is the difference between a student who uses SparkNotes and one who does it right here.

Hannah McCarthy: Christina.

Hannah McCarthy: Nick thinks Lord of the rings is a bad series.

Nick Capodice: I do. I think they're bad movies.

Hannah McCarthy: All of the good and decent creatures of the world banding together to fight a singular evil,

Nick Capodice: Including trees.

Hannah McCarthy: That would mean the destruction. Yeah. Of life.

Hannah McCarthy: But you like this. You know it.

Nick Capodice: Basically, you like that part when everybody comes together from all these different places to battle this big evil force and then go back to their own lands to probably fight each other in another 50 years.

Hannah McCarthy: Well,

Nick Capodice: Including ghosts, including ghosts that come out of a cave.

Hannah McCarthy: I'm not even convinced you've seen the whole series.

Nick Capodice: Kings in the Hole in the cave. And they come and he's like, please. Okay, fine. And they just kill everyone you bow to no one. Sorry. Go ahead. What a terrible movie that was.

Christina Phillips: Oh, I liked that movie.

Nick Capodice: And at the end, it's like and they died of a cold.

Christina Phillips: It's so funny. And there's so many things that you're like, I hate this.

Christina Phillips: And I'm. Like.I love that.

Nick Capodice: The perfume I wear. They don't. They don't say you can always have it. Because you can always have maximum confidence in the original odor protection of speed stick.

Christina Phillips: Nick.

Nick Capodice: Yeah.

Christina Phillips: Who's who? Who are you, sir?

Nick Capodice: Oh.

Christina Phillips: Nick, answer this as Christopher Walken.

Speaker26: I would think that the creators of Jelly Bellies. So to sell the children wouldn't have an alcoholic drink. But then again.

Nick Capodice: Oh.

Christina Phillips: Okay.

---

Is same-sex marriage in legal peril?

In 2015, the Supreme Court made marriage equality the law of the land. However, for the first time in over five years, Kim Davis (an opponent of same-sex marriage) petitioned for a writ of certiorari to overturn Obergefell. Is there a possibility the court will revisit its finding? How does this decision compare to other recently overturned decisions like Roe v Wade? And is even talking about this a problem in itself??

Talking us through the situation and possible scenarios is Danaya Wright, Professor in Constitutional Law at the University of Florida Levin College of Law.

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Transcript

Archival: [00:00:01] Ten years after the Supreme Court ruled in favor of same sex marriage across the United States, it could now be overturned. Senior Washington correspondent Devin Dwyer is on [00:00:10] the story for us. All right. Give us the deal, Devin. Who is actually asking the justices to overturn this?

Nick Capodice: [00:00:19] You're listening [00:00:20] to Civics 101. I'm Nick Capodice.

Hannah McCarthy: [00:00:22] I'm Hannah McCarthy.

Nick Capodice: [00:00:23] And today we are talking about a Supreme Court case we have talked about before the 2015 decision that made marriage. [00:00:30] Marriage Obergefell v Hajji.

Archival: [00:00:33] We're going to go to our Ari Melber right now. Ari, I would imagine people are running behind you at the Supreme Court steps from the Supreme Court. We have [00:00:40] read from the bench there is a right to marriage equality. I repeat, speaking to you from the steps of the Supreme Court. There is a right to marriage equality. Read just from the bench now, waiting to get the opinions [00:00:50] as they come running out of the court. Thomas.

Nick Capodice: [00:00:55] And I wanted to talk about this case again, Hanna, because we've [00:01:00] been here before.

Hannah McCarthy: [00:01:01] How so?

Nick Capodice: [00:01:02] Well, we have talked about a landmark Supreme Court decision in great detail, a famous right to privacy case. [00:01:10] And then we saw that decision get overturned.

Archival: [00:01:13] Enraged abortion rights supporters say Dobbs robs women of a fundamental freedom.

Archival: [00:01:18] My body, my [00:01:20] choice.

Archival: [00:01:20] And give state lawmakers, mostly men, control over their bodies and futures.

Hannah McCarthy: [00:01:26] You know, when I was making our Roe v Wade episode four [00:01:30] years ago, I was shocked when the guest, Mary Ziegler, said, When Roe is overturned and I say when not [00:01:40] if, I'd never heard someone express that with such certainty. And about a year later, when the Dobbs decision came down, she was proven right.

Nick Capodice: [00:01:49] Yeah. [00:01:50]

Hannah McCarthy: [00:01:50] But what does the overturning of Roe v Wade have to do with Obergefell? Is marriage equality in a similar tenuous position?

Nick Capodice: [00:01:59] Kind of. [00:02:00] Maybe.

Archival: [00:02:02] Former Rowan County Clerk Kim Davis is asking the U.S. Supreme Court to overturn the landmark Obergefell marriage [00:02:10] ruling. Davis made national headlines.

Nick Capodice: [00:02:12] It feels like a strange thing to do right now to say this right is in danger. And, Hannah, there's a part of me that fears just by saying marriage [00:02:20] equality is in danger, puts it in more danger. But there is a chance that marriage equality will be on the docket in the upcoming Scotus term. So, Hannah, [00:02:30] do you remember somebody named Kim Davis?

Hannah McCarthy: [00:02:32] I do, she was a county clerk who refused to provide marriage licenses to same sex couples, and she continued [00:02:40] to deny those licenses after the ruling in Obergefell. And I believe she went to jail.

Nick Capodice: [00:02:46] Yeah, she did five days in jail. And I'm going to get more into Kim Davis [00:02:50] later. But long story short, lots of appeals, lots of losses in other court cases. But this July 2025, for the first time in years, [00:03:00] Davis filed a writ of certiorari with the US Supreme Court.

Hannah McCarthy: [00:03:05] Okay, so listeners who are not familiar with the case, Obergefell v Hodges, really should listen to [00:03:10] our episode on it. We had the privilege of speaking with the Jim Obergefell. There's a link in the show notes if anyone wants to hear that. But before we look at Obergefell [00:03:20] under this new recent light, can we get a quick summary of the ruling?

Nick Capodice: [00:03:26] Absolutely.

Danaya Wright: [00:03:27] Okay. Well, the finding of the court was really straightforward, [00:03:30] which is that the right of same sex couples to marry was a fundamental right protected by the due process clause [00:03:40] of the Constitution.

Nick Capodice: [00:03:41] This is denier, right? She's a professor of constitutional law at the University of Florida's Levin College of Law.

Danaya Wright: [00:03:47] But that is there's a lot [00:03:50] to unpack and a lot underlying that. So I think we can't talk about anything that's been happening with abortion, with Obergefell [00:04:00] without going back to 1885 1885.

Nick Capodice: [00:04:04] Yes, today's episode is really all about the due process clause in the Constitution. Hanna, you [00:04:10] talked about this a lot in your episode on Lochner v New York.

Hannah McCarthy: [00:04:13] One of the anti canon cases, the cases where people generally agree that the Supreme Court got wrong. [00:04:20]

Nick Capodice: [00:04:20] So wrong. So the due process clause is in the Constitution twice. It's in the Fifth Amendment and the 14th amendment. The text of the fifth says that no person [00:04:30] shall be, quote, deprived of life, liberty or property without due process of law, end quote. And the 14th amplifies that by saying, no state shall deprive [00:04:40] any one of those things without due process of law. Now Lochner was decided in 1905, but deniers talking about this whole 50 year period where this [00:04:50] concept was brought up in the courts.

Danaya Wright: [00:04:52] Starting around 1885, going up to the 1930s, you had a really conservative Supreme Court, and that [00:05:00] conservative Supreme Court was very unhappy with a lot of state and federal laws that were aimed at regulating businesses, and that Supreme [00:05:10] Court believed in sort of laissez faire capitalism, no interference, etc.. And so they struck down a whole lot of laws in a lot of cases, on [00:05:20] the grounds that the due Process Clause of the Constitution prohibited governments from interfering [00:05:30] with economic rights. Nobody would get together and into civil society and agree to be governed by a government that [00:05:40] was going to do something so egregious as interfere with your right to work for a dollar an hour, or to work in unsafe mines [00:05:50] and things like that.

Nick Capodice: [00:05:51] And for decades, the court struck down laws that were pro-union laws that regulated how much people should be paid. Any laws [00:06:00] that told companies how to treat their workers?

Hannah McCarthy: [00:06:03] Okay, this is what's called laissez faire constitutionalism, right? Just let the market take care of things. Don't let the government [00:06:10] interfere with the economy. Unfair wages and hours will cease to exist because people won't work in places that treat them that poorly, etc..

Nick Capodice: [00:06:19] Exactly. And [00:06:20] the court justified this by citing the due process clause.

Danaya Wright: [00:06:24] Which is a really vague concept, right? Whether it means just process, just procedure, [00:06:30] or does it actually mean that government has to have a good reason for doing what it's doing? And the idea of that, of substantive due process is that [00:06:40] the government has to have a good reason. It can't just be arbitrary and capricious when it makes decisions to to pass laws that are going to affect people. So [00:06:50] this period from 1885 to 1935, with this very conservative court, that period, I mean, ultimately, the Supreme Court's decisions led [00:07:00] to a complete economic meltdown. Right. They partly caused the the depression and people losing their lives in their homes. And, [00:07:10] I mean, it was just an economic catastrophe. The fact that they would not let government intervene at all. They said, government can't do this. Struck down all [00:07:20] these laws. And finally, you know, FDR comes in, we've got a big popular mandate, and the New Deal sort of takes off.

Nick Capodice: [00:07:29] So FDR wants [00:07:30] to pass all these laws helping workers out, and he keeps running up against the Supreme Court decisions from the last half century that stop him. So how can [00:07:40] FDR get around the Supreme Court? How can the unstoppable force deal with the immovable object? Hanna.

Hannah McCarthy: [00:07:46] By packing that court like a tin. Sardines.

Nick Capodice: [00:07:52] Exactly. [00:07:50] Uh, Franklin Roosevelt said, look, I'm the president. Congress is on my side. The people are on my side. We're [00:08:00] just going to add six more justices to the Supreme Court.

Danaya Wright: [00:08:03] And so in 1935, the first Justice Roberts changes a vote and says, okay, [00:08:10] we give, we give. We're not going to continue to strike down all of this economic legislation. We were wrong. You government. All you state, federal government. Go do whatever you [00:08:20] want. Pass out. Pass whatever laws you want in this area. So the conservatives, you know, really kind of had to eat crow for that period because [00:08:30] they had, in an activist way, made up this doctrine that economic rights were so fundamental and they were [00:08:40] protected by this vague due process clause. The government, they were going to strike down laws left and right. I think you can't understand where we are now with [00:08:50] abortion, with contraception, with same sex marriage, without understanding that history.

Nick Capodice: [00:08:59] Now. Roosevelt never packed [00:09:00] the court, but he did appoint a few justices. And the court then begins to rule in a less Lochner way. And time marches on. [00:09:10]

Danaya Wright: [00:09:12] So fast forward 30 years later tonight to the 1960s. Now we've got a liberal court. Now [00:09:20] we've got a whole bunch of laws, um, outlawing contraception, outlawing interracial marriage, outlawing abortion. And these liberal [00:09:30] justices want to strike those down. And they say, well, there's nothing in the Constitution that says you have a right to do these. So where are we going to find a [00:09:40] good source, a good constitutional provision to protect this liberty interest? Of that people have. And they say, [00:09:50] oh, the due process clause.

Nick Capodice: [00:09:53] Just slapping the hood of that due process clause and saying you can get a whole.

Archival: [00:09:57] Lot of rulings out of this baby.

Nick Capodice: [00:09:58] But now they're [00:10:00] not decisions stopping the government from interfering with how you run your business. They're stopping the government from interfering with your business. Business.

Danaya Wright: [00:10:11] The [00:10:10] whole idea here is that this is a very vulnerable ground constitutional [00:10:20] grounding for these rights. And you can imagine that when the court really came out with it and said, you know what? There's this thing called the right to privacy. And the [00:10:30] word privacy doesn't exist in the Constitution, but we think we can kind of see it lurking around through, you know, [00:10:40] First Amendment rights, the right to be free of search and seizures, all of these other things. And therefore we're going to imagine really, [00:10:50] a right to privacy.

Hannah McCarthy: [00:10:51] I have to wonder about the conservative justices here seeing the very tool they had used turned essentially against them.

Archival: [00:10:59] They [00:11:00] were livid.

Danaya Wright: [00:11:01] You can imagine that the conservatives on the court went ballistic. They said, wait a minute, wait a minute. You made us [00:11:10] stop, right? We had this threatened court packing plan. You accused us of being activist judges, which we were. And now you're [00:11:20] you're going and doing the same thing on the left, on the liberal side.

Nick Capodice: [00:11:25] Now, one of the first big cases to do this was another one we've talked about Griswold [00:11:30] v Connecticut.

Hannah McCarthy: [00:11:31] This is the case that said that laws prohibiting the sale of contraception were unconstitutional.

Nick Capodice: [00:11:36] Yeah. So there were six opinions total in that decision. [00:11:40] Four of the more liberal justices saying, yeah, this.

Archival: [00:11:43] Looks pretty clear to me.

Nick Capodice: [00:11:45] This due process clause says the government.

Archival: [00:11:47] Can't.

Archival: [00:11:48] Interfere with your life, etc.. [00:11:50]

Danaya Wright: [00:11:50] Two conservatives just saying. Wait a minute, wait a minute, wait a minute. This is all going back to this substantive due process that we have. We've all agreed that we're going to reject [00:12:00] and we're not going to do this again. But lo and behold, we're going to do it again. What has happened is that after Griswold, then after row loving [00:12:10] versus Virginia, so interracial marriage bans were struck down. You then you gradually see these privacy rights, this idea of substantive [00:12:20] due process growing to include the right to live with whoever you want in your family, the right to same [00:12:30] sex sexual conduct, then eventually the right to decline medical treatment, the right to die, basically, and ultimately then the [00:12:40] right to same sex marriage. And they're all based on this due process, sort of reinvigorated substantive due [00:12:50] process clause or idea that the Supreme Court made up.

Nick Capodice: [00:13:00] All [00:13:00] right. So that is how we get to Obergefell. But this episode is about it coming up potentially. Again, we're going to get to Kim Davis's recent petition and a whole [00:13:10] bunch of if's. What might we see if this is picked up by the court next term? But first we've got to take a quick break.

Hannah McCarthy: [00:13:17] But before that break, Nick and I promise never [00:13:20] to say give us a thumbs up and smash that subscribe button unless we are doing it for an episode on constitutionalism in Minecraft, but for real. Giving us a review on whatever [00:13:30] app you listen to our show on is one of the best ways to let other people know about it. So do it if you want to. We're [00:13:40] back. We're talking about a lot of possible potential maybes today on Civics [00:13:50] 101, specifically, that marriage equality could be brought before the Supreme Court again.

Nick Capodice: [00:13:56] Again. Potentially.

Hannah McCarthy: [00:13:58] Can we do a recap of how [00:14:00] cases get to the Supreme Court, how they are brought before the Supreme Court?

Nick Capodice: [00:14:04] Uh, sure thing. If you lose a court case, you can appeal your case to an appellate court. Now, [00:14:10] which court exactly depends on your case and your state. But eventually, after appealing as high as you can. And if this is a situation where it's not about just guilt, like [00:14:20] whether you did it or not, but if you feel the law you're guilty of is unjust or unconstitutional, you can petition for a writ of certiorari, which [00:14:30] has a pronunciation that nobody seems to agree upon. Uh, but anyway, the court has to choose it then and say, yeah, we're going to talk about this this [00:14:40] term.

Hannah McCarthy: [00:14:40] How many cert petitions are submitted each year?

Nick Capodice: [00:14:43] About 8000. Wow. Yeah. And they don't pick a lot of them. Here is denial right again.

Danaya Wright: [00:14:49] Normally [00:14:50] the court will accept like they'll take 60 cases or so for Four justices have to agree to take the case. It only takes four, but of course it [00:15:00] takes five to have a majority opinion. So there are situations when four justices will accept a case because they think, oh, we're going to [00:15:10] we want to make a we want to make a point. And then they don't have their fifth vote. And then sometimes they just say, oops, we that was a bad idea to grant cert. We're [00:15:20] going to just dismiss the case which they have done, or they go ahead and decide it. But but then they don't. They sometimes end up with precedents [00:15:30] they don't particularly like. But generally speaking, if there's a circuit split. So if the courts of appeals have not agreed, if they've come up with interpretations of [00:15:40] federal laws or constitutional rights that disagree with one another, that's the kind of case the court likes to take, or cases that are setting really important [00:15:50] constitutional precedents, because the Constitution is the is the supreme law of the land. Those are the ones they they try to pick ones that they think [00:16:00] are going to have some impact.

Hannah McCarthy: [00:16:05] And Kim Davis has filed one of those 8000 cert petitions she has. [00:16:10] And what's her claim exactly?

Nick Capodice: [00:16:12] It is a First Amendment free exercise of religion claim. As Rowan County clerk in Kentucky, Kim Davis refused [00:16:20] to issue marriage licenses to same sex couples and a court ordered her to, and she refused on religious grounds.

Danaya Wright: [00:16:28] And ultimately, she [00:16:30] ended up serving time in prison, and she ended up with large fines she had to pay. I think $100,000 in punitive damages for emotional distress to the couple, [00:16:40] for not doing her civic duty, or what she was required to do by the end of the law, that she had to pay their attorney's fees. I mean, she suffered [00:16:50] significantly, um, from her the the position she took, which was that she argued her religious liberty interests, allowed her to [00:17:00] justified her in not complying with this law and not granting marriage licenses. If Obergefell were overturned, then perhaps [00:17:10] these these judgments, these $360,000 worth of money judgments might be made to somehow go [00:17:20] away.

Hannah McCarthy: [00:17:21] Nick, do we know any of the potential ways the court could decide on this?

Nick Capodice: [00:17:25] Yeah, Danny, I had a few ideas.

Danaya Wright: [00:17:27] Well, first off, I think we need to understand what [00:17:30] would the court do with Obergefell so they have different possibilities, right? One thing they could do is to say, you know what? All of that substantive due [00:17:40] process is hogwash. We're going to throw it all out. We're going to throw out a same sex marriage. We're going to throw out right to die. We're going to throw out every [00:17:50] contraception, every liberty interest based on substantive due process. I don't see them doing that right. I think that would be that would be pretty, uh, pretty [00:18:00] significant. Although Justice Thomas, on every decision, he writes a dissent saying we need to revisit this, this is all illegitimate. So if [00:18:10] that were to happen, a whole lot of privacy interests would fall. I don't think anybody really wants that to happen. I really don't.

Nick Capodice: [00:18:19] However, [00:18:20] there's another route the court could take, and it's the route they took in the Dobbs decision, which overturned Roe v Wade.

Danaya Wright: [00:18:27] Which is to say, well, you know, this is kind of a [00:18:30] funky legal basis of funky constitutional doctrine, but abortion is unique. Abortion is special. Abortion involves potential life. So [00:18:40] we can kind of pull it out from under this privacy umbrella and treat it on its own. And we can do the same with same sex marriage. [00:18:50] We can say, you know what? Same sex marriage historically was not permissible. It's not part of our history and tradition. Therefore, we [00:19:00] can justifiably say we were wrong to extend the substantive liberty interest under due process to same sex marriage, because [00:19:10] we shouldn't have so somehow pull it out and get rid of it.

Hannah McCarthy: [00:19:16] So if the court did decide one way or another to overturn [00:19:20] Obergefell, how would that even happen? Because about a million Americans are in same sex marriages. Could those unions be undone? [00:19:30]

Nick Capodice: [00:19:30] Dina said that is pretty unlikely and very difficult to do.

Danaya Wright: [00:19:36] So are they going to now void all of the marriages [00:19:40] for the last 15 or 20 years that people have entered into? That would be huge. If you think about the reliance [00:19:50] interests, the economic Interests. The number of children who are legitimate, right? I mean, all sorts of things that that unwanted. I think [00:20:00] putting that genie back in the bottle is probably not going to happen. So then it would be a matter of, well, going forward, we're not going to do any more of these marriages, in [00:20:10] which case it could go back to a state by state level. But that's also a problem. That's a problem because marriage is [00:20:20] portable. You know, if you get married in Iowa and you move to California, you don't have to get married again. It's not technically [00:20:30] the full faith and credit provision of the Constitution that requires comity between states, but it was a real issue for same [00:20:40] sex couples prior to Obergefell. If you went from one state to another, you were married in this state, but now you're not married. Just the the technicality of dealing with that. It [00:20:50] was a real pain in the neck.

Hannah McCarthy: [00:20:53] Okay, I have one more Supreme Court decision that feels kind of tied to this one. Maybe closer than any of the [00:21:00] others that we have mentioned. Loving v Virginia.

Nick Capodice: [00:21:03] Yes. Okay, so this is the 1967 decision which struck down laws banning interracial marriage.

Hannah McCarthy: [00:21:09] Did loving [00:21:10] also rely on the Due Process Clause?

Nick Capodice: [00:21:13] Yes it did, but.

Nick Capodice: [00:21:15] In addition, it also relied on the Equal Protection clause. This [00:21:20] is from the 14th amendment. And it says basically that states can't deny people in similar circumstances equal protection under the law.

Danaya Wright: [00:21:28] So when we talk about [00:21:30] the difference between equal protection and due process, equal protection challenges come when the law classifies people into different groups and treats one group [00:21:40] better than another group. Due process clause is when it the government action interferes with an individual's right to do something. [00:21:50] And if it's a fundamental right. The government has to have a good reason for it. If it's just a non fundamental right, like what day my garbage is going to get picked up on. They don't that we [00:22:00] don't care about that right. We can infringe that. You want it on Monday. You're not going to get it on Monday. You're going to get it whatever day they decide to have garbage collection. Right. So there's so [00:22:10] the a due process analysis is always focused on the right at stake. Equal protection analysis is always focused on the classification that is being made [00:22:20] between people that are being treated differently. So if we look at loving, which was about interracial marriage, it was about the right to marry the person [00:22:30] you want, which is a right, which is a due process issue. But it was also because it was limited on the basis of race, and it was treating one group differently than another on the [00:22:40] basis of race. The court struck it down on equal protection grounds as well. Now fast forward to Obergefell Obergefell. The Kennedy [00:22:50] Opinion is 95% due process. But he also throws in there that this is kind of an equal [00:23:00] protection violation as well.

Archival: [00:23:01] The right of same sex couples to marry is derived too, from the Equal Protection Clause. The court's case is touching upon the right to marry, as well as its cases. [00:23:10] Addressing the legal treatment of gays and lesbians have long emphasized the relation between liberty and equality.

Nick Capodice: [00:23:16] And interestingly, Justice Sandra Day O'Connor wrote a concurring opinion [00:23:20] to Justice Anthony Kennedy decision. And she said, you know, I think the whole thing should be equal protection. Let's just leave due process out of it.

Danaya Wright: [00:23:29] So Obergefell, [00:23:30] in loving our bookend cases, they're both have the same dual justifications, dual constitutional theories [00:23:40] going on in them, whereas Rowe did not. Right. Whereas contraception does not. Those are pure the right to die Case. [00:23:50] Cruzan. Those are just about due process, fundamental rights. And that's where the weak leg of the stool is is is this substantive [00:24:00] due process?

Hannah McCarthy: [00:24:01] If due process is the weak leg of the stool? Has anyone considered just scrapping it when it comes to these civil liberties cases? Just [00:24:10] stick to equal protection instead.

Nick Capodice: [00:24:12] Yeah, that is a very good question. And the problem with doing that is that substantive due process is really, really [00:24:20] popular.

Danaya Wright: [00:24:21] I don't think the Supreme Court or anybody really wants to get rid of substantive due process altogether, because we all [00:24:30] kind of like our privacy, whether we're conservative or liberal. We kind of like not having the state in our bedroom. So then it becomes a question of, well, which, which rights? [00:24:40] Why? Why are they picking on these rights? Why are they picking on these things? That's a little I think it's a little harder to justify just picking [00:24:50] on the rights you don't like. And keeping the rights you do. Like when you are a Supreme Court justice. So we all know they didn't like abortion. Okay. We got rid of that. [00:25:00] They may get rid of same sex marriage okay. But then what about the right to die? How are they going to feel about that one? Hard [00:25:10] to say.

Nick Capodice: [00:25:14] The last thing I want to talk about today, Hanna, marriage isn't something that just happens and that's [00:25:20] that. You know, it's not like an event that just is a one time thing. Marriage creates myriad legal and financial privileges. We're talking about taxes, children, [00:25:30] insurance, inheritance, on and on. This is not a simple thing to undo.

Hannah McCarthy: [00:25:35] So I'm thinking about Kim Davis, that clerk who argued that giving a marriage license to same [00:25:40] sex couples goes against her religion. And it kind of makes me think of Roe v Wade, because there are accommodations in states where people have a right to an abortion, wherein a medical provider [00:25:50] who does not wish to assist in one can request an exemption. Could county clerks like Davis get the same thing?

Danaya Wright: [00:25:59] So I could do [00:26:00] that. Um, but one of the things that that bothers me about this case is or about this, that that claim, the idea that, [00:26:10] you know, we could say, well, Kim Davis doesn't have to give, give a marriage license because it violates her personal religious views. Is [00:26:20] everybody in the community is paying taxes. Gay people in straight people are all paying their taxes, and they're paying their taxes to fund a [00:26:30] court system, to fund a police system, to fund all of these public services. And so for somebody to say, I'm taking public [00:26:40] dollars as my salary, but I'm going to choose to only serve a portion of the public that I approve of That [00:26:50] strikes me as being very problematic. She doesn't have to be a state employee or a county employee. She can go get a job [00:27:00] working at McDonalds. And then if she wants to not serve gay people, that's fine. Assuming her employer allows that. But if she's taking taxpayer [00:27:10] dollars for her salary, it seems like there should be some obligation to serve all of the people who are paying your salary.

Hannah McCarthy: [00:27:19] I know [00:27:20] we're not in the prediction game, but from what you've read about this, Nick, do you think it's likely the court will take this case up in the fall?

Nick Capodice: [00:27:30] Well, [00:27:30] I am famously not good at making predictions, Anna, but I want to restate something I said right at the top. So I think it is extremely important to [00:27:40] keep watch on our rights. And we should all take note of the fact that Kim Davis did file for CERT this year, but at the same time, that [00:27:50] filing is in no way an indication that the court is interested in taking this up. And if I say over and over, Obergefell is in danger. This [00:28:00] could give an inaccurate feeling that it is, which weakens a right. And this is a right that is, for now, secure. So [00:28:20] that is what's up and what's not. With Obergefell v Hodges, this episode is made by me. Nick Capodice with you, Hannah McCarthy. Thank you. Marina Henke is our producer, Kristina [00:28:30] Phillips, our senior producer. And Rebecca LaVoy, our executive producer. Music in this episode from Chris Zabriskie and Epidemic Sound, Civics 101 is a production of NPR, New Hampshire [00:28:40] Public Radio.

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On Monday, August 11th, Trump announced a takeover of Washington, D.C.'s Metropolitan police. He also deployed National Guard troops and federal agents to the streets, all in the name of cracking down on crime. We called on political scientist and historian Dan Cassino to help us understand what happened, why it's legal and what could happen next.

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Nick Capodice: [00:00:05] You're listening to Civics 101 I'm Nick Capodice on August 11th, 2025. President Donald Trump took control of the Metropolitan Police in our nation's capital, Washington, D.C. he also deployed federalized National Guard troops and FBI agents to patrol the streets alongside police officers in the name of cracking down on crime in the city.

Archival: [00:00:32] Overnight confrontations in Washington, D.C..

Archival: [00:00:36] Are you proud of what you're doing?

Archival: [00:00:38] As protesters pushed back against President Trump's move to expand the National Guard and federal officer presence in the nation's capital.

Nick Capodice: [00:00:45] Both statistics and statements from D.C. leadership tell us that crime is at a 30 year low in the capital. And still, the president declared a crime emergency in the city using a federal law called the District of Columbia Home Rule Act, which allows the president to seize control of the police under emergency circumstances for up to 30 days. This happened shortly after the 19 year old Edward Kirstein, former staffer of Dodge, who is known by a nickname. I will not say on a podcast that lots of high schoolers listened to, was carjacked earlier this month, and Trump posted his photo to Truth Social, promising to, quote, federalize this city. So since we at Civics 101 do shows on things like the Declaration of Independence or how a bill becomes a law, but we also do shows on things happening right now in our democracy. We wanted to jump into this quickly. We wanted to know how this action is legal. What mechanisms keep this situation in check, and whether this can happen where you live to get to it fast. Hannah McCarthy reached out to one of our most beloved, most trusted and certainly fastest responding guests, Dan Casino of Fairleigh Dickinson University. They talked on Thursday, August 14th. Since then, the Washington, D.C. attorney general has sued the administration, calling Trump's actions a, quote, hostile takeover. So here's Hannah and dance conversation, and we hope it answers your questions. All right, here we go.

Dan Cassino: [00:02:24] Yeah. So I'm Doctor Dan Casino. I'm professor of government and politics at Fairleigh Dickinson University in Madison, new Jersey.

Hannah McCarthy: [00:02:30] Excellent. Thank you. And, Dan, our listeners are very familiar with you at this point. All right. So we are talking about what is being referred to as President Trump's takeover of D.C..

Archival: [00:02:41] As President Trump's takeover of DC.

Archival: [00:02:43] Using the Trump administration's takeover of the police.

Archival: [00:02:46] Chief to execute a takeover of.

Archival: [00:02:48] And also extend his federal takeover of the president. Donald Trump's federal takeover.

Hannah McCarthy: [00:02:53] Is the word takeover an accurate one here?

Dan Cassino: [00:02:58] So in the case of DC, it actually is isn't accurate one. Dc, remember, is unique in the American federalist system. So generally we have all these other states. The states have their own local governments, and the state governments have power balanced with the federal government as per the constitutional design. Dc is not the same because DC is not a state. Dc is set up by Congress and government by Congress is a creature of the federal government. So the president is, by law, allowed to go into the case of an emergency. And of course, no one really gets to review when the president says something is an emergency, is allowed to have a full blown takeover of the DC police. He can just do that in a way that he couldn't do in other states or any other municipality in the country. So yes, the president is essentially can declare himself to be in charge of the DC police. He's essentially working the way a governor could in a state in sending in the National Guard, except, well, DC's National Guard, the president saying, well, I'm in charge. I can send the military, I consider the National Guard if I want to. And by law, he is allowed to do this in emergency. 48 hours of his own accord. After that, he has to inform Congress that he's doing it. And then he can do it for another 30 days, whether Congress likes it or not. Unless Congress passes a bill saying that he's not going to. Which, of course, will not happen.

Hannah McCarthy: [00:04:11] I do want to talk about this idea of the emergency, right. So Trump justified his crime emergency declaration by citing crime statistics. Now, a number of analysts have called these statistics false or misleading or inaccurate. The mayor of D.C. says that violent crime is at a 30 year low. Does a justification for a presidential action have to be true for the president to use it?

Dan Cassino: [00:04:38] This is a really interesting question. American constitutional law. So Congress does have all sorts of laws set up with tripwires in it where Congress says, all right, yes, generally we have to do this, but in an emergency you could do something different. We'll give you an out in an emergency. And this really goes actually back to the 1950s, where there was this idea that the world is moving so quick. We think we're in the Cold War. The nukes could start dropping any minute. Congress is all right. We need to let the executive branch do what they need to do. If there's an emergency and then after a couple of days, they can come to us, and then we'll have the sort of consultation proposed to have. Historically, in America, consultations are supposed to happen between the executive branch and the legislative branch, between Congress and the president. But there was a movement starting in the 1950s to make the consultation within the executive branch. So the executive branch has got to talk to itself. Think of what happened to the Cuban Missile Crisis, right. The president talks to all the secretaries, talks to the cabinet, and they all get together and they reach a decision. And it's thought in the case of Cuban Missile Crisis, that worked pretty well.

Dan Cassino: [00:05:31] So this is our model going forward. If you have a consultation within the executive branch okay. So we got all the consultation happening with the executive branch. The president is going to issue a statement of an emergency, a proclamation of this emergency. This activates whatever law Congress said you can do in case of emergency. The question is who gets to review that? Who can review this declaration? Does the decorative be factual? Does that be real? The answer is we have assumed that the president would never do something like make up an emergency. The law just assumes that because if he did, he would be poisoning his relationship with Congress. If the president just starts declaring emergencies and usurping all this power, the thought is, well, then Congress is going to start pushing back and the president is going to have real, real trouble passing any bills in the future. And that was essentially supposed to be the check in all of this. Now, if the emergency goes on for long enough, there might be some degree of court review. But the courts in general have been very, very unwilling to actually look at it. Essentially, an emergency is whatever the president says it is.

Hannah McCarthy: [00:06:29] Got it. All right. You know, you talked a little bit about how President Trump is allowed to take over the police and use the National Guard. D.c. is not a state. But what law permits the president to take control of the D.C. police?

Dan Cassino: [00:06:46] These are a series of laws that go into how Congress actually runs the District of Columbia. So the District of Columbia does have local government. It's got a mayor, it's got a city council. But that is entirely because Congress says they're allowed to have it. This is essentially Congress doesn't want to deal with, you know, traffic laws in D.C. so we'll set up some people to do this. The federal government, Congress in particular, still has ultimate control. The federal government, if they want to, it can go and overrule any law passed by the District of Columbia. They can do whatever they like. They probably wouldn't be allowed to like, remove the mayor because they didn't like her. But outside of that, the Congress and the president can do whatever they like. And it's actually a very similar relationship between a state and a city. You know, cities do not exist as their own legal entities. They are entirely subject to the state. So we've seen this in Florida in recent years where the governor can just say, no, that's he's not allowed to do that. And now you change the city policy. They can remove elected officials, but they can do all sorts of things because it doesn't operate as a separate legal entity. So Congress essentially, given DC some degree of autonomy, and Congress can take it back whenever it wants.

Hannah McCarthy: [00:07:51] I mean, this makes so much more sense when you think about DC regularly lobbying for statehood that it's this one city for whom essentially the president and or Congress is the governor. Right. It doesn't have the same thing as any other state in the nation.

Dan Cassino: [00:08:04] Exactly right. And they don't have that autonomy. And this is perceived by some people as being racist, that D.C., the district, Columbia is 44% black. And they say, look, we've got a lot of black people and we think we're being treated as second class citizens because we don't get the benefits of federalism. And that is not a phrase we hear a lot in American government. The benefits of federalism and federalism is a problem, but D.C. is looking for that protection. And, you know, D.C. state has been on the agenda for a long time. Democrats have been very skeptical about granting it in the thought that, you know, this could set off some sort of war where Democrats creating states and Republicans create states. And way back in the 1840s, before you know it.

Hannah McCarthy: [00:08:42] All right. So going back to what Trump has done in terms of what he is legally permitted to do, has a president ever done this before for DC?

Dan Cassino: [00:08:50] Yeah, I believe there was a mobilization of the National Guard into D.C. in response to rioting and in response to, you know, protests that turned violent in the 1960s and 1970s. We haven't really seen that since then. And look, the reason is because, first off, the president, nobody has better things to do than to worry about D.C. and if you're really worried about crime in D.C., you give the government of D.C. more money to hire more police officers. In fact, we should note that Congress and President in recent years have actually done the opposite. They took a bunch of money away from D.C., the district used for law enforcement. So, president, nobody has better things to do. Also, the people who are most upset by this and get the most affected by this are executive branch employees, a lot of whom live in D.C. and they get a little annoyed when they're suddenly, you know, road stops and checks all the time.

Hannah McCarthy: [00:09:35] And in terms of the police take over as well. To my knowledge, this is not something that has ever happened.

Dan Cassino: [00:09:41] No, the police takeover is not. We've seen mobilization, National Guard. We have not seen the provision allows them to take over the police force if necessary.

Hannah McCarthy: [00:09:50] You mentioned the 30 days that the president sort of automatically gets, but Congress can extend it. How long could this last? In your opinion? What are we going to be looking at here?

Dan Cassino: [00:10:01] Oh, okay. So again, it's 48 hours after 40 hours. President has to notify Congress doing it. This is actually the same language you see in like if the president attacks a foreign country, he has he has to notify Congress. Then 48 hours and then it is 30 days. And unless Congress acts to say, okay, this is cool and passes a bill to that extent, actually, it's a joint resolution. So Congress passed a joint resolution saying it's okay, in which case the president can extend it indefinitely. If Congress doesn't, then after 30 days, he basically has to stop. Uh, I have to say these laws were not that well written, as in, there is not necessarily a way to for Congress to make the president stop. That is, even if they say, no, you can't do this anymore. The president could the next day declare another emergency. And it's not clear that the Congress can do anything about that. So, you know, if after 30 days, the president says, okay, emergency over, I'm taking everyone home, and six hours later they say, oh, no, there's another emergency and they can do it again. So again, all of this is based on the assumption of goodwill and comity and the idea that even. You don't have to worry about the laws because everything is based on the norms of behavior. And so when you violate the norms of behavior and people are doing things outside the norms, then you know, the system starts to fall apart a little bit. And there's all sorts of little areas of American law, especially constitutional law, where we get the sort of outcome where it's just like, oh, it turns out they just didn't fully think this through because they didn't have to, because the norms were controlling in the past.

Hannah McCarthy: [00:11:28] So Trump said that he, quote, doesn't want to call a national emergency, but he will if he has to. But he expects Republicans in Congress to basically give him what he wants, which is an extension of his control of the police.

Archival: [00:11:42] We're going to do this very quickly, but we're going to want extensions. I don't want to call a national emergency if I have to, I will, but I think the Republicans in Congress will approve this pretty much unanimously.

Hannah McCarthy: [00:11:53] What would be accomplished by declaring a national emergency versus this crime emergency.

Dan Cassino: [00:11:59] So if we're declaring a national emergency, that would I think President Trump believes that would give him authority to go in and take over the police departments of other cities. Uh, so as far as a national emergency, what does it do with D.C.? I don't know what President Trump is talking about there, but President Trump has talked about doing the same thing in other cities in New York and Los Angeles and Chicago and taking over their police departments as well.

Archival: [00:12:19] We have other cities also that are bad. Very bad. You look at Chicago, how bad it is. You look at Los Angeles, how bad it is. And we have other cities that are very bad. New York has a problem.

Dan Cassino: [00:12:31] That would be entirely unconstitutional. There is no legal path for the president to do that again, because federalism. So the president has no legal authority to do that. But I think the idea is under an emergency. Uh, the laws can be suspended, as Abraham Lincoln said, you know, shall we preserve all the laws? But one if we have to break some laws and in order to save the country, then it's Acceptable under the Constitution to break some laws in order to save the country. And so I think the president would be saying, well, we are going to therefore say we're just going to suspend these laws for a little while. And he thinks perhaps a resolution from Congress allowed him to do it. There is, again, no legal way he could go ahead and doing that. But this just assumes everyone's going to follow the norms and rules that have been in place before.

Archival: [00:13:13] Hmm.

Hannah McCarthy: [00:13:14] So what we know is that that would be entirely unconstitutional. And it also depends on how people behave.

Dan Cassino: [00:13:20] Well, we should say there is actually there are ways the president can actually do a lot in terms of law enforcement in those other cities. So the Border Patrol can go into any cities within 100 miles of the border, including waterways. And that's all the cities, right? Unless we're talking about, you know, the middle of Oklahoma. Okay. No, but everywhere else. Yeah. The president could send Border Patrol into New York tomorrow. Fine. Um, the president can also send federal agents, even troops, to protect federal property. So if there's a courthouse that's under assault, he's allowed to send federal troops in there. He's allowed to send the Coast Guard in wherever he wants on any navigable waterway can be sent in, and they actually can do law enforcement activities.

Hannah McCarthy: [00:14:00] You know, the president basically authorizes his own control of the D.C. police. Why also include the National Guard? Why also include FBI agents sent on patrol? We know that there are already Ice agents out there. Why? Why basically mobilize all of these other national law enforcement entities alongside this action of taking over the police?

Dan Cassino: [00:14:23] So because you need to get more boots on the ground, if your goal is to get more boots on the ground, yeah, you could take over the D.C. police and say, all right, everyone's working two shifts a day now, but you're going to run out of people very, very quickly. And the president does have a whole lot of people working for him. This the whole executive branch. He could put people from the Department of Agriculture out in the street if he wanted to. So those are in direct, direct control of the president. The command and control is clear there. Right. If you want to order around the D.C. police, you've got to go to the police commissioner, order him to do it, and he'll do it. He's got to tell the sergeant he's got where if you just send the National Guard and the FBI, you just tell one guy and they go on doing it. Uh, this is the reason this doesn't happen a lot, honestly, with mobilizing the National Guard and the FBI is because you get burnt out real, real fast. So National Guard, generally, if they are sent out for 30 days, they're on active duty and they get all these active duty benefits.

Dan Cassino: [00:15:08] And so the tendency in recent years in America has been to send them out for 29 days or even 29.5 days, so you don't actually have to pay them housing benefits or anything like that, which saves you money. Good. But also really upsets the soldiers, right? Because you get to where you're stationed and they don't give you a housing allowance. They you have soldiers in California are sleeping on the floor of hotels. I mean, it's it gets real bad. And so you wind up burning out your troops and FBI agents. I mean, you spend four years in college and you go to Quantico, and you spend all these years studying, and they've got you walking a beat like a first year cop. Uh, that's real bad for morale. And so. And certainly, if you're an FBI agent, you're not used to standing on the street running a, you know, running a blockade on a on a city street and having people shout at you and boo at you. That's really bad for morale. So you don't want to do that over for too long.

Hannah McCarthy: [00:15:57] Yeah, that's something I've been thinking quite a lot about, is that you have all of these agents, these officers who are out on the streets, and you have so many people coming to them and saying, you don't want to be doing this. You don't want to be on the wrong side of history or screaming at them or throwing sandwiches at them. And I wonder, do we know of incidents where in either law enforcement or federal agents have gotten to a point where they say, I'm done, this is too much, I am either overtaxed or I don't agree with what's being done here.

Dan Cassino: [00:16:25] So what we do see is we get wildcat labor action essentially is we do get remember, these are all unionized employees. They complain to the union and we get sick outs. And we have seen that in the past. We saw that in California. People say, oh, I'm just sick. And so we get lots and lots of people calling in sick or pretending that they're injured or doing whatever in order to avoid going out, because this isn't pleasant for them. This is not what they train to do. It's not what they want to do. And so yeah, so we do get wildcat labor action, but that's kind of the extent of it because directly saying, oh, I don't want to do this. Well, that's a very quick way to get fired.

Hannah McCarthy: [00:17:02] What are the limits to using the military for domestic law enforcement?

Dan Cassino: [00:17:07] Okay, so let's talk about the Posse Comitatus Act. So this is post reconstruction. And reconstruction is the whole era Civil war, north winds that go into the south, and the army does not come back north. The army sticks around the south for ten years, basically enforcing civil rights law. Now, this is not because the Republican Party that was running things really cared deeply about civil rights law. Mostly it's because they wanted to win elections. And so what they did is they moved federal troops into the South to make sure that black voters who were disproportionately voting for Republicans because Abraham Lincoln, uh, that they could vote and disenfranchizing white voters, they say if you worked for the Confederacy, you can't vote anymore, which, you know, Confederacy's traitors. So I can see that. But also, it made those voters very upset. Hey, why do I get. Up. So the South starts electing lots of Republicans. Black Republicans likes lots of Republicans, which is good if you're a Republican. You're in Washington DC because you want to win elections. So after ten years, this turns out to be tremendously unpopular. Imagine you're a mother. Your child has been sent out in the Civil War. They're still in Alabama for some reason. You're like, wait, it is 1876 and we're still down there. What? The junk. And it's so unpopular. The Republicans lose the election of 18, the presidential election of 1876 and make a deal with the Democrats and say, all right, we will agree to end reconstruction, pull the northern troops out if you let us steal the presidential election. And so the Democrats agree to it. And then suddenly you find all these voting irregularities and a bunch of southern states that happen to say, it turned out the Republicans actually won the election, and you get President Hayes rather than President Tilden.

Dan Cassino: [00:18:40] So now, as part of this deal, how are you going to make sure how are the Democrats going to hold the Republicans to this deal to make sure they're not going to go right back down there to make sure they don't start enforcing civil rights law and making sure black and African voters get to vote. And the answer is the Posse Comitatus Act. And the Posse Comitatus Act makes it illegal for the Army to go down and enforce federal law and enforce any local law. The Army cannot enforce the law. Period. Now you may be saying, oh wait, that sounds like an exception there. It just says the Army. And that's true. The version of the law passed in 1878 only says the Army, but it was later expanded to include the Marine Corps, and the Air Force cannot do it. Now, I will say it doesn't include everybody, because the Posse Comitatus Act actually specifically excludes as rewritten as recently as the Biden administration specifically excludes the Coast Guard, which is actually allowed. They are armed, they are allowed to go in and enforce the law if they need to. So they can be used for domestic law enforcement purposes. No one else can. And I will say the role of the Space Force here is also still up for grabs. So I'm not quite sure if the Space Force can be sent to enforce domestic law. But the Army, the Marines and the Air Force cannot.

Hannah McCarthy: [00:19:43] We're going to take a quick break when we return. I talked to Dan about the last time President Trump federalized the National Guard and deployed them in an American city back in June of 2025. Stay tuned. We're back. I'm talking to Dan Cassino, professor of government and politics at Fairleigh Dickinson University and stalwart friend of civics and democracy, about President Trump's recent takeover of the Washington, D.C. police and deployment of federal troops and agents to the streets of D.C.. I asked Dan about another instance of Trump sending troops to American streets when he federalized California's National Guard in response to protests over mass immigration raids. Trump says he did so to protect federal agents and property. California says his actions were illegal, a violation of posse Comitatus. Don't worry, Dan will give you a refresher, and we're waiting to hear how a federal judge will rule on the constitutionality of Trump's actions in California. So this brings me to, you know, There is currently a three day trial going on. If there is a federal judge determining whether or not Trump, when he basically took over the California National Guard and sent them in in response to protests in California, whether or not he violated the Posse Comitatus Act by doing that in terms of, you know, if you're just looking at the Posse Comitatus Act, how it works, does it seem as though the president did violate the Posse Comitatus Act?

Dan Cassino: [00:21:15] So this trial is getting a very, very narrow term so that we know the troops can be sent to protect federal buildings. And that's actually what they were doing. So they were stationed on federal buildings, or they were protecting federal workers who were doing stuff. So essentially, Ice agents and Border Patrol agents were arresting people. We called the National Guard to defend them, but they cannot do any domestic law enforcement. They actually can't arrest anybody. It's not clear what they're supposed. They're supposed to stand there to look intimidating. So nobody gets close to them, I guess. And we actually have one incident where it seems like they arrested someone. And this gets into the very weird distinction between detaining someone and arresting them. And essentially we did have soldiers. We have National Guard troops who arrested someone, who detained someone for about 25 minutes because, well, this person was going into restricted area. We told him not to. And then we held him for 25 minutes that letting him leave until the local police could come and pick him up. And the question is whether that's a detention that amounts to an arrest. Because if you say, can I go and the police say, no, congratulations, you're under arrest. Does that amount to a violation of the Posse Comitatus Act? And the question is basically about intent. Were they intending to hold him in, arrest him, or were they just kind of milling about and making him not leave until the local police got there? Is there a distinction? We don't know? Um, it certainly does seem like they were very clearly riding that line. But what they could and could not do because, again, the National Guard, the militarized National Guard. So we should distinguish here. If Governor Newsom had sent the National Guard in to California in order to patrol the streets and enforce the law, they could enforce domestic law all they want. The difference here is that the president Nationalized the National Guard, making them essentially the equivalent of the Army rather than the California National Guard. And that's why the Comitatus Act kicks in.

Hannah McCarthy: [00:22:58] Okay. And so this judge is not going to be attempting to determine whether or not those protests qualified as an invasion or a threat of rebellion.

Dan Cassino: [00:23:06] No. It's irrelevant. It's irrelevant to this. The question is for the Posse Comitatus Act. Let's take is a given that the troops are there. All right. Troops are there. Fine. What are they allowed to do? Were they not allowed to do? And were they violently attacked by being there at all?

Hannah McCarthy: [00:23:21] Okay. Got it. Thank you. So when it comes to how DC might respond to Trump's actions this week, we know that DC is very different. Dc is not a state. Trump is permitted to mobilize the National Guard the way that he has. If DC were to issue any kind of legal challenge, what might it look like?

Dan Cassino: [00:23:39] Legal challenge is really tricky here, because the only thing they really could do is try and challenge the declaration of the emergency and say, this is not really an emergency. This was illegitimate. It never should have been allowed. That said, courts are very, very reticent to question the president's declaration of emergency. The thought is, I mean, because Congress does give the president this power. So this falls under what we call the political questions doctrine. I mean, in American constitutionalism, if you think the president has exceeded his power in a way like this, the solution we have is impeachment or removal, and we don't have any other solutions for this in the American system, which is a problem. It has been known to be a problem for, oh, I don't know, 200 years. So we know it's a problem, but that is the only solution here. So this is if he violated this. The solution is for Congress to impeach him and remove him from office. And that's the only solution we have. Um, or Congress, of course, could use the power of the purse and say, hey, we're going to you cannot use any money in this, in this budget to do this thing we don't like you doing. Also possibility. But of course, even that budget power has been cut pretty substantially in recent months.

Hannah McCarthy: [00:24:40] And I assume that whatever comes out of the federal judge's ruling with Posse Comitatus will not have any impact on what's going on in D.C., correct?

Dan Cassino: [00:24:48] Well, in theory the so first off the plastic contact. Yeah. Is not going to kick in in DC because he's not sending the military in DC. And if you send National Guard troops those National Guard troops are under his control anyway. So it is as if he is the Gavin Newsom in this who can send the National Guard in California if he wants to. He can let the National Guard in DC if he wants to. None of this really kicks in. Um, it could potentially kick in if he actually took the Marine Corps and put the Marine Corps on corners so it wasn't the D.C. National Guard and had them arresting shoplifters. Yeah. Then PCA would kick in. Um, but, you know, I don't see that happening. And and if he did, he always could just use the Coast Guard in the Space Corps.

Hannah McCarthy: [00:25:26] So looking at sort of the politics or the PR of this, what are the impacts of the president of the United States saying that the Capitol is essentially a wasteland of crime and bedlam and bloodshed?

Archival: [00:25:42] I'm announcing a historic action to rescue our nation's capital from crime, bloodshed, bedlam and squalor.

Dan Cassino: [00:25:50] Well, so this goes back to something President Trump has been talking about since his first inaugural address in 2017. We talked about American carnage, that cities are horrifying and unsafe. And so he believes that rhetorically, this works to his advantage, that in times of chaos that people are going to want a strong hand at the wheel. And so if you portray things as being chaotic, that they're going to say, well, we'll put someone in charge who knows what they're doing, who can actually really fix these problems. And of course, it matters that these cities are mostly run by Democrats. And so they're going to say, these Democrats cannot fix this crime problem. We need someone strong to come in and do it so rhetorically among Republicans. It works for him and his. He and his advisers certainly believe that this makes sense to portray cities in democratic states as being hell holes. Now, the data does not back this up. The most dangerous cities in the United States are small to medium sized cities. Many, many in the US South, in New York City, Boston. These are not in the top ten of the most dangerous cities in the United States on a per capita basis. That said, there we have a continuing problem in America, and this has been not just America, which has actually seen this in data from Europe as well over the past 20 years, where there's been a disconnect between people's perceptions of crime and the actual crime rates.

Dan Cassino: [00:27:03] And if you go back before about the 1990s, they moved along with each other and crime was up. People thought crime was up, crimes down, people thought crime was down. And since about 2004, 2005, we've seen as those become increasingly disjointed and now people think crime is way up. People think crime is much, much worse than actually is. In fact, there was a big a bit of a spike in crime around 2020 2021 during the pandemic. It's since come down. You know, murder rates, crime rates everywhere in the country are way, way down. Nobody quite knows why. Um, lots of weird theories about why that might be. But murder, crime, you know, all these rates are way, way down. But people are scared. More scared than they used to be. Which is so weird because people's, of course, it doesn't matter what the actual crime rate is. If you think everything is dangerous, you're gonna want someone to somebody protect, you're going to want more police. And so the fact that the crime is actually down almost doesn't really matter.

Hannah McCarthy: [00:27:55] Is there anything that we didn't talk about that's really important and should be in this episode?

Dan Cassino: [00:28:00] I do think, look, this is supposedly the sort of thing that is consultation between President and Congress. That is the way this is definitely envisioned by the founders, definitely envisioned by the law that was passed by this. But that has fallen apart. I mean, Congress has is not doing its job and has not been doing its job for about 30 years now. And Congress has just stopped doing his job. And when Congress gives up power, that power doesn't just fly away into the ether, it goes somewhere else. And we've seen that power because Congress has given up its power. It's not doing the things it's supposed to do because of that. That power is flowing to the executive branch and to the courts. And so we see the courts and the executive branch getting so much more powerful than the Constitution ever intended for them to be. This is something that we would have never seen in a previous president, because Congress would have stepped in and done something, or Congress would have, or the president would have been scared that the Congress would do something. They would only do it in consultation with the leaders of Congress. And we've seen the leaders in Congress are just saying, you know what? Let the president, whatever the heck he wants. That's the real crisis here, is that we've got this long term crisis of members of Congress just being afraid to actually exert the enormous powers that Congress has under the Constitution.

Hannah McCarthy: [00:29:06] To your eye and ear, is the American public paying sufficient attention to the divesting of power in Congress and where it is going?

Dan Cassino: [00:29:15] I only when it gets to outcomes. So the public cares deeply about outcomes. The public does not care about process. There's lots of laws. Congress would like to get people like Congress to pass. It doesn't happen and people are upset about that, or a law does get passed that they don't like or the president isn't. They don't like. They care about the outcomes. They don't really care about what's going on there. And honestly, if you ask them, do you want Congress to have more power? There's always going to be no, because no one trusts or likes Congress. Um, and you're not supposed to. I mean, Congress has always been widely despised. People generally like their own member of Congress, and everyone else is terrible. And I live in new Jersey, so we actually also think our own members of Congress are corrupt and terrible. So people don't want Congress to have extra power because they don't trust Congress either. But I'm not sure they like the outcome. So this is why presidential elections and, you know, appointments to Supreme Court appoints judges have gotten so much more fraught because we've just given all the power over to them and all the decisions people from the Supreme Court like or don't like any of these could just be overturned by a law, almost all of them. But Congress isn't willing to do much. They've just given that power over the public cares about outcomes. They don't really care about the process.

Hannah McCarthy: [00:30:24] Just a reminder that this episode was taped on Thursday, August 14th and released the following day, so there's almost certainly more to know on the situation, including how Congress votes on an extension of President Trump's federal control of the D.C. police, and how a federal judge will rule in the Posse Comitatus challenge to Trump's federalization of California's National Guard. Stay informed, dear listeners. That does it. For this episode, I warmly recommend you check out Dan Cassino's books, which include Masculinity in American Politics and Fox News and American Politics How One Channel Shapes American Politics and Society. This episode was produced by me, Hannah McCarthy with Nick Capodice. Our senior producer is Christina Phillips, who is leaving the team to become Senior news editor at NPR. And we couldn't be more delighted for her and our news team. Or more bummed for us. We love you, Kristina. We'll miss you. Rebecca Lavoie, Executive Producer don't you go anywhere, Rebecca and Marina Henke, our producer. Same to you. Music in this episode comes from Epidemic Sound. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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What's it like being a scientist facing federal funding cuts?

It’s a weird time to be an environmental scientist. The proposed cuts to federal science funding in the United States are profound, and if they come to pass, it’s not clear what American science will look like on the other side. But for many researchers, science is much more than a career: it’s a community, lifestyle, and sometimes even a family business. 

This episode was produced by our fellow NHPR podcast Outside/In. You can check out photos and more related to this episode right here. 

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Cinema Civics: Mr. Smith Goes to Washington

When Mr. Smith Goes to Washington came out in 1939, it infuriated politicians, the press, and fascist nations. At the same time, it delighted audiences and informed them on the legislative process decades before Schoolhouse Rock. 

Today we talk about the film, as well as corruption, earnestness, our families, lost causes, and hope.

Listen to our episode of Hannah's visit to the Lincoln Memorial here.

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Transcript

Archival: You all think I'm licked? Well, I'm not licked. I'm gonna stay right here and fight for this lost cause. Even if this room gets filled with lies like these

Nick Capodice: You are listening to Civics 101, I am Nick Capodice.

Christina Phillips: I'm Christina Phillips,

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today in our cinema civics series, we are talking about the big one. Mr. Smith goes to Washington.

Archival: What do you know about laws are making laws or what the [00:00:30] people need? I don't pretend to know. Then what are you doing in the Senate?

Nick Capodice: Now, first off, I wanted to tell you, too, that this was not initially my first pick for Cinema Civics. I was going to do network, which is one of my favorite films of all time.

Archival: You have meddled with the primal forces of nature, Mr. Beale.

Nick Capodice: But then I had a conversation with my mom and I said, well, I can't decide if I'm going to do network or Mr. Smith goes to Washington. And she was like, you have to do. Mr. Smith goes to Washington. I said, why? And she [00:01:00] said, because it's a really hard time right now and people need hope. They don't need media cynicism. They need a story about, you know, one person can fight against a problem or a difficulty in the government. So I followed her advice. Before we launch into the movie, Hannah, Christina, the three of us are people who love to be sarcastic and speaking for myself and myself. Only a little bit of a no at all. From time to time it would be easy, and [00:01:30] it would be fun to sort of talk about how corny and propagandist, rah rah rah America and completely naive this movie is. Let's just break that for like one day, or at least for ten minutes of one day. Uh, so I wanted to start just by asking each of you. And I'll start with you, Hannah, if there's anyone in some way or another in your life, in your childhood, or anywhere that resembles Jefferson Smith in terms of a person who, regardless of how [00:02:00] impossible it seems, continues to try to do the right thing. Up against all of the machines.

Hannah McCarthy: My father has worked in housing for 35 years, I believe, and many days of his job include things like trying to tackle the problem of waste in the building, you know, the endlessly piling up garbage, [00:02:30] for example, or believing that he can convince the owner of an apartment to invest more money in the health, safety and function of that apartment than in the way that apartment looks, so that you can charge more money. And he does it every day. He goes back every day, and he does it even if he repeatedly gets pushed back down the hill. You know.

Christina Phillips: This is going to be so navel gazing, but whatever. Um, [00:03:00] I think of some of the journalists and particular friends that I have that are journalists who are reporting on just an avalanche of things. And, and the reporting itself becomes just an act of witnessing. Um, and the like, I think with, with climate coverage, for example, whatever you may define as the lost cause, the outcome of trying is not necessarily that there [00:03:30] is a win. The the outcome of trying is demonstrating that he tried like that, that, that you can try and that will actually that matters to people that you are trying.

Nick Capodice: I feel like it's cheating, Hanna, but mine's also my dad. Uh, as somebody who is perpetually, you know, was perpetually told, you know, stop doing this act. Acts. Quote unquote, more normal, no matter what. He would go to every social situation with like [00:04:00] full on love and full on excitement and attention. Uh, never hurt anybody to the best of his ability. Uh, and he kept getting hit in the head by it over and over and over again, but he just never stopped doing it. Um, and the the line in the movie that made me think of that is when Jefferson Smith is speaking, he says, I wouldn't give $0.02 for all your fancy rules if behind them they didn't have a little bit of plain, ordinary, everyday kindness and a little [00:04:30] looking out for the other fella too. Mhm. And we're a show about rules. So we talk about like what our show is, is talk about the rules about how things operate. And this movie kind of, uh, helped me realize sometimes the rules are there for a really good reason, be it to preserve democracy or to preserve kindness or something like that. And it's easy to get cynical about it, but, uh, just for this, like two hours last night when I watched the movie, I felt that. With [00:05:00] that said, let's launch into it. Mr. Smith goes to Washington. Directed by Frank Capra, starring Jimmy Stewart.

Archival: It's just the blood and bone and sinew of this democracy that some great men handed down to the human race. That's all.

Nick Capodice: Jean Arthur.

Archival: This is no place for you. You're halfway decent. You don't belong here. Now go home.

Nick Capodice: The gentlest actor in the world, Claude Rains.

Archival: You can come here and pull that steamroller stuff. No methods won't do here.

Nick Capodice: The not so gentle Guy Kibbee.

Archival: Oh, my nerves are strained to the breaking point. [00:05:30]

Nick Capodice: Hollywood's resident bullfrog. Eugene Pallette.

Archival: I haven't been able to show him a single monument. Not even one that high.

Nick Capodice: And last but not least, Baby Dumpling.

Archival: Oh, it's a briefcase Jeff

Nick Capodice: So, Hannah, just give me your, like, first impressions of the movie. Like, what did you think?

Hannah McCarthy: I was incredibly moved by it. I was crying by the end of it. I really appreciated the fact that in this film, Washington is pretty much [00:06:00] what we, um, when cynical, think Washington is, that you can have all of your rules and it's such a civics lesson because you've got this man appointed senator who has to be told the very, very basics of things like how to craft a bill, which was a brilliant scene. Um, yes. And he's often being told this information by cynical people who are sort of rolling their eyes at him. And then so you've got these things, you've got the how it's supposed to work. Right, which we're very familiar with here at Civics 101. And [00:06:30] then you have the deep and incredibly effective corruption that has seeped into even Jimmy Stewart's, you know, most revered friend of his father, who's been a senator for decades now, even he has been poisoned and he won't let go of it. And I, I actually, you know, snicker in terms of like, hokey or propaganda or all of that. Sure. But at the same time, to make a movie that is honest about [00:07:00] the deep and almost, uh, inescapably powerful corruption in Washington, I think was pretty honest.

Christina Phillips: I think my couple stray thoughts for this is that it's got a lot of really good physical comedy, and the scenes are nice and long and lingering, which I really found refreshing. Um, and I think it's interesting that the audience learns very on that. Mr. Smith is being set [00:07:30] up to fail. And because it makes me wonder what the experience would be like if we learned with him about the corruption. But we learn, you know, like the first five minutes, there's not a lot of subtext. It's all text. Like he's just they're just saying straight out, we're going to do this and we're going to do this, and we need a guy that will just be a body in the room. And and so we get really clear, like pretty straightforward corruption right on the surface. And then to Hannah's point, this [00:08:00] is a really great civics lesson in so many ways. And so I really loved that. I think that that, you know, we have an episode about how a bill becomes a law. And the way that Saunders laid it out is just a really it's so succinct and fascinating, and it has a little bit of humor to it. At one point, I muttered, everything Saunders says is poetry, and I didn't even realize I'd done it. But my partner was watching it with me was just like cackling. And every time she said something, he'd be like, [00:08:30] was that poetry? Was that poetry? But I stand by it. Everything she says is poetry. It's so good, I agree. So yeah, I think I just yeah, it was it. I didn't walk away feeling cynical at all. I walked away being like, yeah, people know how the government works. And also, uh, look at all these human beings. So that's my takeaway.

Hannah McCarthy: Yeah, I also feel like it was one of the better love stories I've ever seen. Not to give it away that you.

Christina Phillips: Spoiler [00:09:00] alert for 1939.

Hannah McCarthy: You know, you never know. But you have. You have someone falling in love with, um, you know, sort of initially being, uh, I really about someone's naivete and then sort of coming around to realize that it's, it's almost not naivete that it is the, the necessary ingredient in the functioning of a democracy [00:09:30] and a society. And so it's almost like she's not falling in love with the man, or she's falling in love with the man alongside falling in love with what he represents, and it's something that she lost. You know, she said she she came to Washington with blue question marks in her eyes, and now she's got green dollar signs in her eyes. And you can tell she's constantly saying, I want to quit because I'm over all this, this, this is terrible. It's there is no government. It's just business [00:10:00] guys running the world. And then he, she she also sort of falls in love with the fact that he's able to bring her back into a belief, I think, in American democracy, which I found really touching. His editor needs a little work, though. Those are some of the roughest cuts I've seen in a long time. But you know what? I didn't really care.

Christina Phillips: I couldn't tell if they were because of restoration or what, but there were some rough cuts.

Nick Capodice: I'm so glad you mentioned the sort of bad edits and the bad cuts in the movie Hannah, because [00:10:30] Frank Capra was sometimes kind of known for that, for his in delicacy with the camera, uh, later on in life. In an interview, he said undisguised camera tricks are the mark of beginners who fall in love with bizarre camera angles and hand moving camera shots. Wrong. Fall in love with your actors. So yes, that's a little self laudatory.

Hannah McCarthy: I appreciate that, no, I really do.

Nick Capodice: I appreciate the fall in love with your actors. Let me tell you about Frank Capra. We are a nation of immigrants, so I'm going to leave it to one to [00:11:00] tell us about what America stands for. He was born Francesco Rosario Capra, and he comes from the land of the Kapodistrias, which is Sicily, just outside of Palermo in Italy. He came to Los Angeles when he was five. He came in steerage, a 13 day trip with his family to come to America. One moment he remembered, even though he was five, was his father looking at the Statue of Liberty, grabbing his son and pointing to it and saying, look at that. That is the greatest light since the Star [00:11:30] of Bethlehem. That is the light of freedom. And remember that freedom. He was broke. He was penniless in Los Angeles. He went to Caltech for chemical engineering, and he paid for it by waiting on tables and playing the banjo in nightclubs.

Hannah McCarthy: Wow. Man. After your own heart.

Nick Capodice: That's right. My own grandfather played the banjo. So, uh, that really sticks to me. Uh, and he finally. How he got a gig in filmmaking was he lied to a Hollywood producer and said he had experience making movies. And [00:12:00] this producer allowed him to shoot a one reel short film. And step by step, he becomes Frank Capra.

Christina Phillips: Incredible.

Nick Capodice: His career after Mr. Smith goes to Washington is very interesting, and I'm going to talk about it sort of at the very end. But now let's get to the movie itself. Christina, can you sort of tell us, like, how we jump into the scene, like, you know. How does this whole thing begin?

Christina Phillips: Well, a senator has died.

Archival: Senator has died.

Archival: Senator Samuel Foley. Dead? Yeah, yeah. Died a minute ago here at Saint Vincent.

Christina Phillips: A senator from a state [00:12:30] that is not explained. That appears to be Midwestern, based on the Washington of it all. Um, not that I'm really someone who should be speaking with expertise on accents, but, um, and the other senator, the governor, and then the political boss, I guess we'd call him, who seems to be the media press guy, all get together and are like, who do we put in charge of this position? Because we have a very important [00:13:00] vote coming up, and we need a body in a chair to vote. Is that about cover it?

Nick Capodice: That was pretty good for a quick civics 1 to 1 lesson. Do either of you know how we fill a seat? If that senator dies or resigns.

Hannah McCarthy: The film would have us believe that the governor appoints the, uh, senator, I think, to fill the seat until there can be an election. However, I also know that Senate seats sometimes sit vacant.

Nick Capodice: Very good.

Nick Capodice: Hannah, in 35 states, you get a temporary senator who is appointed by the governor, [00:13:30] and then you got a special election to fill that seat the next time your state has an election. So that's what happens in this movie. Governor Hopper. Happy Hopper is in a whole pickle. He needs to pick a senator. But as you mentioned, Kristina, he is entirely in the pocket of the villain of this movie. Or, in my opinion, the villain. Jim Taylor. Uh, Hannah, would you tell us a little about, like, who is Jim Taylor?

Hannah McCarthy: Yeah. So I don't know exactly what his business is, but I know that he [00:14:00] is the person who has a hand in every newspaper and as many businesses as possible and, uh, can move and shake Congress because of all of his many connections and because of his strong arming. But it's specific to the state that Mr. Smith is from, that he's really in control of this state. And in the case of this film, he wants a deal to go through that he will personally financially benefit from.

Nick Capodice: He is [00:14:30] basically a party boss as much as I can find out. Yeah. He owns all the newspapers. He owns all the media in the state. And by the way, when I started to notice that I didn't know what the name of the state was, I became obsessed with it. I would like, look for, like, license plates or billboards or anything to just give me an idea, like, what state are they from? But I think it's in the West. I think it's like some sort of nearest California, just judging by his description of the prairies.

Hannah McCarthy: Right.

Christina Phillips: I so I have a question. I, I sort of once I realized they weren't going to identify the [00:15:00] state, I just assumed they didn't want us to know. And then that made me wonder, do we know what party these people are and are we?

Archival: That was my next question.

Hannah McCarthy: Do not we do not.

Christina Phillips: Good. Yeah.

Hannah McCarthy: No, it's very clever. We have no idea what party they are.

Nick Capodice: There's no indication because we don't know what other kinds of bills they're passing. And we know that it's 1939. So, like, what did Republicans and Democrats stand for in 1939? I actually don't even have the greatest idea, but we didn't know.

Christina Phillips: Yeah, it's a curiously aligned Senate [00:15:30] and that they all seem to agree with each other in the way that they all leave at the same time they come back. I know that's further in the plot, but there seems to be absolutely no, uh, like political parties in this Senate that we're shown.

Nick Capodice: Taylor needs a yes man to push through this dam, because this dam is a big piece of craft. And I was going to ask for one of you to tell me what what graft is. But, Hannah, you kind of just did it, right.

Hannah McCarthy: I don't know, perhaps I did. I always thought of [00:16:00] graft as an action you do for profit. That isn't actually what it seems to be for other people. Does that make sense? Like you're sort of tricking people. Is that correct?

Nick Capodice: Yeah. Well, actually, you said it earlier. The definition of graft is for in politics. It's a politician using their position for personal gain, usually financial gain. Okay. So it's being like a senator or a president and using that power to make yourself some money. Uh, we've done episodes before on like the Emoluments Clause, [00:16:30] which are things that are sort of created to prevent people from doing this. But it still happens a lot, doesn't it?

Christina Phillips: This does make me think, I don't know if, like the literal origin of the word graft is is meant to be taken in the biological sense, where you sort of graft on to things. But, uh, this the fact that this is happening in a, what they call a deficit bill, which seems to be a large bill, is something we see strategically all the time in Congress, where there's a big bill that's [00:17:00] very easy to sell on certain populist policies. And you sneak in things in the text of that bill or in the like, the fine print that seem to be more targeted towards specific policy aims for individual politicians or certain parties.

Nick Capodice: So Jim Taylor tries to appoint a stooge, sort of a chair warmer, to go in and vote through his dam. But the governor, Governor Hoppy, says, uh, no, we can't do that. The people will revolt. The people are demanding this sort of progressive other guy and Jim Taylor's like, [00:17:30] absolutely not. That night at dinner, the governor gets no peace from his children, including Baby Dumplin, who insists that there is one man only who can hold the job of senator for this mystery state. It is a wide eyed lover of nature, head of the Boy Rangers, Jeff Smith.

Archival: He's the greatest American. We got to dad. He can tell you what George Washington said. My heart.

Nick Capodice: The reason it's the Boy Rangers is the Boy Scouts of America refused to be involved in the movie and to have their name used, so they had to [00:18:00] make up the Boy Rangers. So Jefferson Smith's appointed, there's a celebration party, and interestingly, they play old Lang signs.

Hannah McCarthy: Yeah. What was that?

Nick Capodice: It's just like It's a Wonderful Life. Jimmy Stewart just has that song following him around wherever he goes. And at that party, the fellow senator of the Missouri state Senator Payne, who is played by Claude Rains, whom I love so deeply. For anyone out there who doesn't know Claude Rains, he plays Louis Renault in Casablanca.

Archival: I'm shocked. [00:18:30] Shocked to find that gambling is going on in here. You're winning, sir. Oh, thank you very much.

Nick Capodice: So at that party, the corrupt Senator Payne learns that Jefferson Smith's father was a Clayton Smith. Clayton Smith was Senator Payne's best friend back in school. I love the scene where the two of them are taking the train to D.C., and they sort of reminisce about Jefferson Smith's dad, who was a newspaperman who took on a corrupt mining interest and eventually was murdered for [00:19:00] it was shot in the back over his rural top desk, still with his hat on.

Hannah McCarthy: Still with his hat on.

Archival: Still with his hat on.

Christina Phillips: My note watching this was. We are two minutes into this plan and it's already falling apart. That being the plan of getting Jefferson Smith there and that he means nothing because it appears as though he means a lot, as is very deeply connected to the other senator.

Nick Capodice: I would also like to note that it was. I made a little note to myself, [00:19:30] to Christina, two minutes in. And that's the first cry.

Nick Capodice: Yeah.

Nick Capodice: I can't help it. Claude Rains can make anybody cry. So at the end of that train ride, finally, Mr. Smith goes to Washington. And before we get into what happens in Washington, we have got to take a quick break. All [00:20:00] right, we're back. You're listening to Civics 101. We're talking about Frank Capra's Mr. Smith Goes to Washington, 1939, and we are here. We made it to Washington, DC. Hannah, you want to lay out, you know, Jeff Smith's arrival in the wacky, turbulent Capitol.

Hannah McCarthy: So they get off the train, they're being followed around by porters, um, one of whom is carrying Jeff Smith's messenger pigeons that he has brought along with him.

Archival: Pigeons to carry messages back to mall.

Hannah McCarthy: You know, all of the other sort of the handlers, the other senator, the other people, [00:20:30] they just want to get Jeff to his offices. But Jeff wanders off because he sees the Capitol Dome.

Nick Capodice: What'd you think of that part when he was wandering around D.C.? And this is the emotional, emotional musical part of the movie where he wanders around Washington, D.C..

Christina Phillips: So I feel two ways about it. One way I'm like, oh, this is so lovely. And I just kept thinking, audiences of that time, this is maybe the first time you see the [00:21:00] detail of D.C. through the eyes of this person. You know, you get to get a tour yourself. And at the same time, I was sort of like, this is a two hour movie, and we got all four sides of the Lincoln Memorial in this movie. But I really loved it. I was so moved. You know, just seeing him experience these things. And then we've got that long pause for the child to read a line from something in the Lincoln Memorial. And the man [00:21:30] is teaching him how to read. And I was like, ah, yeah, I'll be here forever. This can be five hours. I don't care.

Archival: That we here highly.

Archival: Resolve.

Speaker6: Resolve that these did not have died in vain.

Hannah McCarthy: What was interesting for me is the fact that although it was so terribly cheesy and drawn out and long and and I don't, I don't necessarily think that an audience member who's not like me or perhaps like Christina, someone [00:22:00] who's who's very vulnerable to that sort of thing, would be convinced of it or won over by it. But as someone who has cried in the Lincoln Memorial every single time, including on tape, I was like, yeah, well, you know, I mean, I get it. I totally get what he's feeling. I just don't. I'm not sure about the execution. I have to be totally honest with you. But it still worked on me.

Nick Capodice: Yeah, it worked on me too. It did feel a bit much, but it worked on me. And by the way, listeners were going to put a link in the show notes to the episode where Hannah [00:22:30] cries at the Lincoln Memorial, because that's one of my favorite ones.

Christina Phillips: That's really sweet.

Nick Capodice: Well, Jefferson Smith finally makes it to his office, where he meets his hard nosed, whip smart secretary, Hannah McCarthy. Just kidding, just kidding. Clarissa Saunders, she is cynical. She dates a reporter named diz who keeps asking her to marry him.

Hannah McCarthy: I don't know if she's dating the reporter.

Hannah McCarthy: Be honest with you. I think he's just. I think he's [00:23:00] in her space. He's constantly hitting on her, and he is her closest press connection. She's. He's the one that she's like. She tells what to do. Give me this headline. Do this for me.

Nick Capodice: Hmm. Maybe you're right. Maybe they're not dating. They just go out and eat oysters and steak and drink a lot together. Saunders hates the fact that she has to babysit this idealistic bumpkin, so she decides to quit. She's like, I've had enough of this job, I'm out and she's gonna go out in a blaze of glory. So she's [00:23:30] six. The Washington reporters on Jefferson Smith now is where I'd like to ask you both what you think about the depiction of the media in this film.

Speaker8: Oh, they're utterly corrupt.

Hannah McCarthy: Utterly corrupt. But, you know, it's what's interesting about it to me is that, um, the media are either bought in this movie or they are doing anything to catch someone out and to to get a good headline. Right. But [00:24:00] then at the end.

Archival: Jeff has a paper. They're boy stuff, right? They aren't letting what Jeff says get printed in the state. Now, if I give you a raft of it over the phone right now.

Hannah McCarthy: I thought to myself, well, there's there's little old public radio. You know, like. Just for.

Christina Phillips: Voice.

Archival: Just for periodical.

Nick Capodice: Us, our little public radio station. Just getting run over by Cybertruck. Sorry. That's too hard. Our public radio station is getting run over by a truck. [00:24:30] That is the complete recission of funds already promised to us. Well, eventually Jeff Smith goes to bed and he arrives for his first ever session in the Senate the next day at noon. By the way, the the the the Senate in the movie, that was the largest set that Columbia Pictures had built to that point. Wow. It's a complete replica of the US Senate. Capra had gone to DC and filmed, like, every square foot of it, to make sure he recreated it perfectly. [00:25:00] And when he gets into the Senate, he is shown the ropes by a young Senate page named Richard, who he calls Dick. I love in movies where there's like some person who knows what's up, who's telling the protagonist how everything operates. That's like my favorite trope.

Christina Phillips: There's a lot of that in this movie. There are several characters who do that for him.

Archival: They are not a bad desk either. Daniel Webster used to use it.

Archival: Daniel Webster sat here.

Archival: Give you something to shoot at, Senator. If you figure on doing any talking.

Archival: Hold on.

Archival: I'm just going to sit around and listen.

Archival: That's a way to [00:25:30] get reelected.

Nick Capodice: Then we see the swearing in of Jeff Smith by the very avuncular president of the Senate, played by Harry Carey. Uh, next civics question. Who's the president of the Senate?

Hannah McCarthy: Um, the vice president. Right?

Nick Capodice: Yeah. Do you think this guy was the vice president?

Christina Phillips: Now he's the president pro tem?

Nick Capodice: Yeah, he is the president pro tem.

Hannah McCarthy: He's got to be.

Christina Phillips: Yeah. What I find so interesting about the president pro tem, which is the person who acts to lead the Senate in the absence of the vice [00:26:00] president, is. It's the longest serving senator from the majority party and also third in line of succession.

Nick Capodice: I was going to ask for a definition of president pro tem, but you already got that right.

Christina Phillips: I'm so ready.

Nick Capodice: And after that first day in the Senate, Jefferson Smith finds out all those newspaper men wrote all those horrible, salacious fake articles about them. And then what does he do, Hannah?

Hannah McCarthy: He goes and punches as many reporters as he can find.

Archival: Who will let you in here? Why is she out chasing ambulance? That guy [00:26:30] Smith's punching everybody he meets.

Archival: Just got away from him. Oh, Tarzan.

Christina Phillips: I went through the entire movie assuming that was a dream sequence. I was like, he's just imagining it, but I'm realizing he doesn't actually, like, leave that dream sequence. He just ends up in the bar.

Hannah McCarthy: But now he's, like, totally punches everyone. That's that's real. Yeah.

Christina Phillips: That's so funny.

Nick Capodice: My favorite is when he punches a reporter out and then leaves, and then the reporter shaking his head like.

Nick Capodice: Oh, what just happened? He looks up.

Nick Capodice: And it's a portrait of George Washington [00:27:00] looking smug, like, yeah, you deserve that. Yeah, that's what you get for messing with the stuff that I created. And that is one of my favorite scenes in the movie, when all the press reporters get them together and say, well, what are you doing here, man? Don't you know what an honorary senator actually does?

Archival: When the country needs men up there who know and have courage, as it never did before? He's just going to decorate a chair and get himself honored. What would you vote? Sure. Just like his colleague tells him to. Yes, sir. [00:27:30] Like a Christmas tiger. He'll nods his head and vote. Yes, sir. You're not a senator. You're an honorary stooge. You ought to be shown up.

Nick Capodice: Do either of you know what a Christmas tiger is?

Hannah McCarthy: It's a it's a bobblehead.

Nick Capodice: How did you know that?

Hannah McCarthy: Because I've seen them a million times.

Nick Capodice: In England, they used to call them naughty dogs. You know, Dee Dee, why, you'd put a dog, like, in the back of your car, and it would just kind of be nice. And that's what the Christmas tiger.

Christina Phillips: Wait, so how does that connect to Mr. Smith? [00:28:00]

Nick Capodice: Oh, because what's he actually going to do? He's just going to do what Senator Payne tells him. He's just going to be constantly nodding his head and saying, you're so depressed and powerless. He goes to his fellow senator Joe Payne, who says, look, I gotta do something. I'm not just a Christmas tiger. And Senator Payne has the great idea of just how to keep Jeff Smith busy. He convinces Jefferson Smith to write his very own bill to create a national boys camp in [00:28:30] his nonexistent state. Now we get to the tremendous civics lesson decades before schoolhouse Rock.

Hannah McCarthy: Oh, I loved it.

Archival: Finally, they think it's quite a bill. It goes over to the House of Representatives for debate and a vote, but it has to wait his turn on the calendar. Calendar, huh? Yeah. That's the order of business. Your bill has to stand way back there in line. Unless the steering committee thinks it's important. What?

Archival: The steering committee.

Hannah McCarthy: For me, it was the first moment where I realized that this actress is very, very, very special. [00:29:00] The way that she plays, the line between annoyed and An incredibly patient, was brilliant. And even just like the way she holds her mouth in a straight line was remarkable. And she just delightfully is explaining to him, essentially the fact that what he has just been told to do is sit on his hands and play or play in the sandbox, and then she explains to him that this thing will not happen. [00:29:30]

Archival: Yes, sir. The big day finally arrives and Congress adjourns.

Hannah McCarthy: And he's like, great, let's get started. And she's like, don't you understand that? I've just told you this is a play pretend project that you don't understand. And it was just it was wonderful.

Nick Capodice: One thing that caught me off guard is when she's explaining what committee is, she says, how else are you going to get 96 people to agree on something? And I was like 96. There's 100 people in the Senate. Yeah, what's up with that? And then I realized it was [00:30:00] 20 years before Hawaii and Alaska were added to the United States.

Hannah McCarthy: Yeah. Yeah.

Nick Capodice: So Smith writes his bill with Saunders. But Saunders knows something that he doesn't, which is the site for his proposed national boys camp is where the dam is going to be. Do you remember the dam from so long ago, Jim Taylor's draft. So Smith introduces his bill. Senator Payne runs out all flustered. Jim Taylor and Senator Paine decide they have got to get this damn legislation through. Toot sweet or their scandal is going to be [00:30:30] revealed. So they use Senator Paine's attractive daughter to lure Smith out of the Senate for one day when they propose the bill.

Hannah McCarthy: Wait, may I just say something quickly? Because I know we moved past this fairly fast. Sure. In in the scenes where we're first in the Senate and the very, very basics of the senator being explained to us. I feel like you can feel the movie already telling you everyone in this room is pretending to abide by the rules. They all know the rules. They all [00:31:00] look as though they're following the rules. But as has already been established, this is a place steeped in corruption. And it's almost like these rules are for not until you bring in an individual who doesn't just follow the rules, but he believes in the power and democracy thereof. I just wanted to say.

Nick Capodice: That that's a really good.

Hannah McCarthy: Point. I found that really interesting.

Nick Capodice: Yeah, it's like the senators are doing [00:31:30] nothing but maintaining their reputations. Like that's all they care about. They're not passing legislation, they're not impassioned about anything. They just follow the rules step by step. Um, leading to, you know, back to that quote again. You know, what's the point of rules if there's not some humanity behind them? There's some reason why you have them other than just protocol and reputation.

Hannah McCarthy: Right.

Nick Capodice: So Smith is kept out of the Senate the day that bill is introduced. Do you guys remember what it was called in the movie, this bill with the damn stuff crammed into it.

Christina Phillips: A deficiency bill, right? [00:32:00]

Nick Capodice: A deficiency bill. Have you ever heard of a deficiency bill?

Christina Phillips: I had not.

Hannah McCarthy: I had not, but I. I assume it's some sort of appropriations bill. Perhaps, I don't know.

Nick Capodice: It is. It's even, like, referred to in essays about the movie as just the appropriations bill, but it was called the deficiency Bill, which is a spending bill that asks the government to spend money to make up for some deficiency. Like, you know, Medicaid was budgeted for X billion dollars, but we're a billion short. Can we have that money? We are deficient. And that's a deficiency bill. Got [00:32:30] it. And you may wonder, like how does a building of a dam fit into that? The same way all legislation happens, like you said, omnibus bill, things are just crammed in. So Saunders goes out and gets drunk with diz, eats some oysters and steak. Uh, comes back to the office while inebriated to tell Jeff Smith that he was played by Senator Payne, Senator Payne's daughter, and the big bad Jim Taylor. She spills all the dirt on the dam. And then the next day in the Senate. Jeff Smith makes a bit [00:33:00] of a mistake. He rises and accuses members of the Senate of graft, of being corrupt and in the pocket of Jim Taylor, and he has no idea how the Taylor machine is going to break him down.

Archival: Either he falls in line with us and behaves himself, or I'll break him so wide open they'll never be able to find the pieces. Jim, I won't stand for it. You won't stand for it. I don't want any part of crucifying this boy.

Christina Phillips: What struck me about him [00:33:30] kind of standing up and calling out the corruption, and that being a problem for him is that so often, I think in current politics, like the way that you get attention in a way that advances you seems to be standing up and being like, you're corrupt and you're corrupt, like, um, this ends up backfiring on him in a way that I think a lot of politicians deliberately kind of go after that sort of opportunity to take out their colleagues.

Hannah McCarthy: Well, so this is far more cynical. Um, [00:34:00] I, I, I think that this is pretty close to what actually goes on. Certainly there's, there's a lot of show in Congress lately, and I know that there's, there's not a great deal of, um, getting anything past when it comes to disagreements between the parties. However, I think it's far less likely that individuals are called out for real corruption and more that they are called corrupt. Um, [00:34:30] I have a little bit of a hard time believing that everyone's as much of an angel as the lack of evidence of deep, deep corruption, uh, at least espoused by members of other parties would have us believe. You know, I don't know, they're just people. Um, so I actually felt like, yeah, this is probably how it would go. Like if if someone were being sort of hamstrung by the political machine that got them the job and that keeps them the job, [00:35:00] they would probably be like, fire that guy. You know, if he's revealing that something actual is going on here.

Christina Phillips: Yeah. It's like what you were just saying about how he's like, he's following the rules earnestly. He's like calling out corruption earnestly. And, you know, the rule that happens in the Senate is perhaps more like, no, we're all sort of like assuming these roles that we play. And he's actually coming in and being like, well, wait a minute. No, this is how I understand it to work on the surface.

Hannah McCarthy: Right.

Nick Capodice: So what they do is [00:35:30] they just turn the tables and say, no, you're corrupt. They accuse him of graft. They forged signatures. That was really scary to me. Just this notion of someone who is truly innocent can just, in a blink of an eye, be accused of all sorts of crimes with zero actual evidence. It's just they all, they all fall in line, and.

Hannah McCarthy: It happens every day. Nick.

Archival: I have conclusive evidence to prove that my colleague owns the very land described in his bill. He bought it the day following his appointment to [00:36:00] the Senate, and is holding it using this body in his privileged office for his own personal profit.

Nick Capodice: Smith is then hauled in front of the ethics committee, and he is asked to defend himself, and he runs out without saying a word. So it looks like a lone man cannot fight for a lost cause. The odds are all against him. Hanna. Christina, what's the one way? A man like Jefferson Smith can fight back against the machine a dame.

Hannah McCarthy: Well, it starts [00:36:30] with the dame he has to be. He goes. He goes to cry at the Lincoln Memorial, which don't we all. And, um. And he's planning to head out of town, and Saunders finds him, and she essentially says to him, you know, I was wrong in my understanding of you. Uh. She calls. She hearkens back to, uh, Senator Smith saying it seemed like Lincoln was sitting there waiting for someone, and she says to him, maybe he [00:37:00] was waiting for you. Right? Maybe you're the one. Um. And so he goes back to her place, and, uh, they decided to craft a plan.

Nick Capodice: And, uh, Christina, what is the tool that Saunders teaches him to use the next day?

Christina Phillips: The filibuster?

Archival: And I'll tell you one thing.

Archival: The wild horses aren't gonna drag me off this floor until those people have heard everything I've got to say, even if it takes all winter.

Nick Capodice: Did you ever think [00:37:30] you'd romanticize the filibuster? Which is kind of like that was.

Christina Phillips: The thing is, I was like, oh, man, what a take that the filibuster is done for honor. Um, but then again.

Nick Capodice: Do you one of you want to just we've done episodes on the filibuster, but one of you want to just explain briefly, one on one what it is.

Hannah McCarthy: In certain circumstances. If a senator is granted the floor by the president of the Senate or the president pro tem, then so long as that Senator does not stop speaking, does not sit down, [00:38:00] and does not leave the chambers, and does not yield their time, except in sort of like brief interruptions, that Senator may continue to hold the floor. So what that means is that person could theoretically, although, you know, we are human beings, could talk forever.

Nick Capodice: And, Christina, do you know how we stop a filibuster? How you interrupt it?

Christina Phillips: Doesn't it require two thirds of the Senate to interrupt a filibuster? [00:38:30]

Nick Capodice: Yes. Well, now it's 3/5. But at the time of the movie, it was two thirds of the Senate. They invoke something called cloture. Cloture is, hey, you know, we've had enough of this guy talking. So my question is, these senators all were miserable listening to him talk. Why didn't they just invoke cloture?

Christina Phillips: Yeah.

Hannah McCarthy: However, however, they do maintain a quorum in the Senate at all times.

Archival: And that among.

Archival: These are life, Liberty and the pursuit of. It looks like the night shift is coming on.

Nick Capodice: The [00:39:00] current record for a filibuster in U.S. history is Strom Thurmond, who was filibustering against the passage of the Civil Rights Act of 1957. That was 24 hours and 18 minutes. That record was recently beaten by Cory Booker, but he was not filibustering. This is very important. So the filibuster record is still Strom Thurmond. Cory Booker spoke for 25 hours and five minutes. So the people in the gallery who were, you know, visiting the Senate and watching the filibuster, they're [00:39:30] kind of like they like what he's saying. They're getting behind it, and he's saying a ton of good stuff, great speeches off the cuff and then resorting to, you know, reading the Declaration of Independence or Letters of George Washington or the Constitution slowly, but Jim Taylor is stopping all of the news coming into his state. Unless it is anti Jefferson Smith. So Jim Taylor runs a smear campaign saying that the deficiency bill needs to pass right now or [00:40:00] people will starve.

Hannah McCarthy: Keeping it vague.

Nick Capodice: I don't think a deficiency bill going through is going to be something that, you know, in one day lets people starve.

Hannah McCarthy: But it's of course not about that. It's all about how you sell it. That's the whole point of this, and it's about who has enough power to manipulate people.

Christina Phillips: I did just like how he started to get kind of, um, chippy, you know, like, this is the opportunity.

Hannah McCarthy: For, [00:40:30] like, punchy.

Christina Phillips: Yeah. Like, he gains confidence throughout his filibuster. Whereas before he was so uncertain, it's like now that he's been empowered with the knowledge of how the filibuster works, he starts being like. Is it a question? I guess I'll yield for a question or I'll be like, ah, my favorite text. And and so he starts, you know, actually kind of operating in the language of the Senate in a way.

Nick Capodice: Like we've created a monster. Exactly. Somebody who knows the rules but actually cares about them.

Hannah McCarthy: But he's still he's utterly [00:41:00] reliant on Saunders to give him cues for everything because she knows exactly what to do and when to do it.

Nick Capodice: Yeah, she's like the real hero of this movie, I think. So since Jim Taylor owns the media, nobody in the state hears anything that Smith is saying to defend himself. But then Saunders remembers that Jefferson Smith ran a little paper for the boy Rangers, so she and diz dictate copy over the phone to Smith's mother and these plucky little kids. They write their [00:41:30] own coverage, and they bike and wagon these papers all over the state.

Christina Phillips: Boy stuff?

Nick Capodice: Oh, yeah. Boy stuff.

Hannah McCarthy: Yeah. And then Taylor. Taylor attacks them.

Nick Capodice: Yeah.

Hannah McCarthy: Yeah. He runs. He runs children who are inexplicably driving. It's it's actually kind of shockingly violent. Mhm. That he, he would basically kill people children. And that's I think the point is that it's sort of illustrating. No you don't get how much this guy doesn't care about human beings.

Nick Capodice: And [00:42:00] Taylor is telling the kids you don't get to be a journalist because that's me. I am in charge of what people learn. I'm in charge of the truth. You don't get to share your truth with the people.

Christina Phillips: Yeah.

Nick Capodice: And it was a heartbreaking moment, that scene, I got very emotional when the kids were getting beaten up and knocked off the road and stuff. I like the David versus Goliath man versus machine thing of the little kids with their tiny little press putting a paper together, contrasted and juxtaposed against the spinning [00:42:30] iron wheels of Jim Taylor's press machine. I love it when things like that happen so boys get beaten up. It's very sad. And finally, Jefferson Smith passes out after about 24 hours of filibustering.

Archival: And the Taylors and all their armies come marching into this place.

Archival: Somebody will listen to me.

Nick Capodice: When [00:43:00] Jefferson Smith falls, Senator Payne runs out of the Senate. And this part was always confusing to me. I think to shoot himself. But I don't see a gun. But you hear gunshots?

Hannah McCarthy: Yes, that's my understanding.

Nick Capodice: So he runs in again and shouts that everything Smith has been saying is true and that he, Senator Payne, is the corrupt one. He's not fit to serve. He's not even fit to live.

Archival: Every word about Taylor and me and graft and the rotten political corruption of my [00:43:30] state. Every one of it is true. I'm not fit for office. I'm not fit for any place of honor.

Nick Capodice: And after that, it's pretty much the fastest ending in Hollywood history.

Hannah McCarthy: That's it. Yeah. That's it. You don't even get to see Jeff Smith wake back up.

Nick Capodice: Yeah, that's a really good point.

Hannah McCarthy: He's just he's passed out cold at the end of it. But you know what? I really, really liked that because while you had this turnaround, while you have the crowd is cheering and the [00:44:00] president of the Senate doesn't even try to call order any longer. And, you know, Saunders yells, yippee! Um, he's still passed out cold after completely draining himself in the name of democracy and representation of the people. And I do think we're meant to say to ourselves, look at what it takes. And usually even this is not enough. You know, look at what they make you get.

Nick Capodice: I was just about to say, look what they make you give. So are you too curious how audiences reacted? [00:44:30]

Christina Phillips: Yeah, yeah. Deeply curious.

Nick Capodice: We're gonna talk about it after a quick break. All right. Hannah. How do you think Mr. Smith goes to Washington? Was received.

Hannah McCarthy: I don't have a very good reason as to why I believe this. My guess is that it was initially poorly received and that now people think it's a masterpiece. That's my guess.

Christina Phillips: I'm gonna guess that the public loved it. Because [00:45:00] we love a movie that tells us how to feel. And it's funny and I think it's, uh, accessible. I'm going to guess, and I hope I'm wrong, but I'm going to guess that a lot of politicians and journalists were real grumpy about this one.

Nick Capodice: All right, so here's what went down. The film premiered in the Constitution Hall on October 17th, 1939. This premiere was sponsored by the National Press Club. About 4000 [00:45:30] people came, including 45 of the 96 senators, and this movie was absolutely eviscerated. Oh, gosh. Just like you said, Christina politician said that it showed DC as a bunch of crooks that are rife with corruption. And it was also accused of being communist and socialist propaganda. Now, again, this is coming out. You know, right before our involvement in World War Two. So, [00:46:00] you know, saying, uh, you know, there are problems with America because senators are corrupt. That was considered communist. Yeah. Also, the fact that anybody can stand up and speak their mind about whatever they think, even if it harms the country, is a danger to the United States.

Christina Phillips: Mhm.

Nick Capodice: Send a majority leader. All been Barkley. He called the film quote silly and stupid. Uh he said that the film was, quote, a grotesque distortion of the Senate, as grotesque as [00:46:30] anything ever seen. And the last line of his that I appreciated was, uh. Barclay said the film showed the Senate as the biggest aggregation of nincompoops on the record. In addition, newspaper reporters despised the film. One from The Washington Star said that it showed, quote, the democratic system and our vaunted free press and exactly the colors that Hitler, Mussolini and Stalin like to paint them.

Christina Phillips: Oh my goodness. I'm sorry, [00:47:00] but this this feels a little bit like the Streisand effect, where you just, um, if you make a big deal about a thing about you, it never works. Well.

Nick Capodice: Uh, the biggest complaint from the press at large was that it depict them all as, uh, drinking too much. Really?

Christina Phillips: Yeah. Oh, that's what they're upset about.

Hannah McCarthy: You know, it is interesting. Members of the press are often shown. Well, I guess if you're going to depict the press and you need them to be chatting.

Nick Capodice: In highball drinking?

Hannah McCarthy: Well, yeah. Well, if you need them [00:47:30] to be talking to one another, they need to be at, like a bar in Washington where people rub elbows and they're drinking and smoking. Yeah, you see that a lot, I guess.

Christina Phillips: Yeah. It's much less interesting to see them, like, hunched over their phone or like in a in a corner.

Hannah McCarthy: Yeah, I.

Christina Phillips: Think.

Hannah McCarthy: That all the time I yeah, I often think.

Nick Capodice: Like, real journalism looks like.

Hannah McCarthy: Well, if, if members of the, if they tried to make a movie about what so many of us spend so much of our time doing, it would be, you know, no one would, no one would watch it.

Nick Capodice: So [00:48:00] last thing I want to say is that Frank Capra at the premiere was seated next to a senator from Montana, and Frank Capra said, quote, that night was the worst shellacking of my professional life. Oh, so American politicians despise this movie. Interesting. But you know who else did? Fascist countries. Hitler's Germany, Franco's Spain, Italy. They [00:48:30] all banned this movie because it showed America and democracy in a positive light.

Christina Phillips: Interesting.

Nick Capodice: Isn't that interesting? There was one theater in occupied France during the war. There was. The theater was told it's not allowed to show any American movies whatsoever. So they put on Mr. Smith Goes to Washington for 30 days nonstop until the government shut the movie theater down.

Christina Phillips: I love it.

Nick Capodice: And as to the question of the public, the public loved it. It was nominated for 11 Academy Awards. It made $3.5 [00:49:00] million in the box office, the third highest grossing film of the 1930s, beaten only by Gone with the Wind and Snow White.

Christina Phillips: That's a tough year.

Nick Capodice: What fascinated me most, sort of at the end of this story, is something to do with Frank Capra himself. So he made a lot of movies, he made a lot of money. He was the president of SAG for a while. December 7th, 1941. Bombing of Pearl Harbor. Frank Capra quit [00:49:30] directing entirely. He gave up his SAG presidency. He stopped making films and he enlisted in the US Army. And he wrote. He wrote this line about it. He said, I had a guilty conscience in my films. I championed the cause of the gentle, the poor, the downtrodden. Yet I had begun to live like the Aga Khan. The curse of Hollywood is big money. It comes so fast it breeds and imposes its own mores, not of wealth, [00:50:00] but of ostentation and phony status. He was 44 years old when he enlisted after Pearl Harbor, and he was told, buddy, you know you're too old to fight. Uh, so Chief of Staff General George C Marshall asked Frank Capra to come to the Pentagon for a special meeting. And this general told Capra he was worried about soldiers in the US Army.

Nick Capodice: He was worried about them being unwilling to fight because they're overseas. Right. You're [00:50:30] not at home defending your house or defending your country. You're fighting a war overseas that mainly is dealing with other countries and other people. Frank Capra was asked by this general to make a film that told soldiers and Frank Capra's own words, quote, why the hell they're in uniform? And Frank Capra made a seven film series, a series of documentaries that is titled Why We Fight. Wow. The first one came out. President Franklin Roosevelt said, quote, I want every [00:51:00] American to see this motion picture. Winston Churchill ordered the films to be screened in British theaters and the very last coat of Frank Capra. He was asked in an interview why he made movies to inspire soldiers, and he said, quote, because for two hours you've got him. Hitler can't keep him that long. You eventually reach more people than Roosevelt does on the radio. Do you guys have any last thoughts in the movie? What [00:51:30] was the part that made you cry the most?

Hannah McCarthy: I probably about halfway through. I was just sort of tearful. Um, I think I think that earnestness is important, and I think that in so many ways we have become a nation and a world that looks at earnestness as, um, reflective of a lack of [00:52:00] intelligence or an ability to swan around with other people or, um, or a sign that you don't carry the cultural capital that would make you useful. And I think that's generally Not good for the world. And so to have a character who is not just earnest but quite intelligent, played by someone who can also [00:52:30] make that character very charming and very enigmatic, I think accomplishes a kind of beautiful feat.

Christina Phillips: I think that the moment that made me tear up unexpectedly and then now that I think about it, makes a lot of sense, is after Saunders lays out how a bill does or does not become a law. And Jefferson Smith says, okay, so should we order food first or should we get started? And she [00:53:00] says, I think, let me go get a pencil. And I thought, because I'm cynical, unfortunately.

Hannah McCarthy: That she was gonna.

Christina Phillips: Leave like that. She was gonna.

Hannah McCarthy: Leave. Yeah, I thought so, too.

Christina Phillips: And then. Yeah. And then she comes back. The next scene, you just see her sitting there And also what happens next is that he opens his mouth and he just starts like he's on it, like it's it's like they're like, okay, we're doing it. And then they just start doing it. And like [00:53:30] he's like, here's why this bill matters. Here's like the why, the how, the what. Um, and they just kind of dive in and it feels like that's a moment. I don't know where they both seem to understand the reality of the situation. And they're like, okay, we're here. We're doing it. Uh, and that was like, really touching for me.

Hannah McCarthy: Yeah. Christina, I agree with you. That moment for me was, I guess, and, you know, you know that the bill is supposed to be doomed either [00:54:00] way. But I think also a reminder that you can choose to do something, even if it it's, you know, as you asked at the very beginning, Nick, a quote unquote lost cause. Right. And that I think so often when it comes to American politics, there's a lot of throwing up of hands and saying that will never happen. Uh, and I think that that is really dangerous for things actually happening because if everyone agrees, oh, no, that'll never get done, [00:54:30] then someone has won and it is not the people.

---

The Supreme Court rulings that aren't rulings

Increasingly, some of the most controversial issues are decided not through the tried-and-true method of a hearing in the Supreme Court, but rather through a system called "the shadow docket," orders from the court that are (often) unsigned, inscrutable, and handed down in the middle of the night. Professor Stephen Vladeck takes us through this increasingly common phenomenon.

Listen:

Transcript

Note: The following transcript is machine-generated and may contain errors

Nick Capodice: And the more shows we do, the more it feels that the wheels of government are powerful but slow. So if you want to get something done, the reason perhaps you decided to get involved in politics in the first place, it might be easier to just use a shortcut. You don't want to write a bill cut and paste from another.

Hannah McCarthy: One states because I didn't realize just how many copycat bills there are out there right now.

Nick Capodice: You don't want to go through the rigamarole of amendments in a House vote. Do it under suspension of the rules. Mr. Speaker, I moved to suspend the rules and pass HR 2663. You want to pass a bill in the Senate without debate, without filibuster? Do it under unanimous consent.

Speaker3: I ask unanimous consent that the Senate consider the following nomination calendar numbers.

Nick Capodice: Five 3434. Oh, you're the president and you just don't want to involve Congress at all. Just sign an executive order. I'm on executive order, and I pretty much just happen. But the one entity that was, to my knowledge, unable to use shortcuts was the one which determines how the Constitution applies to us. America's final arbiter, the Supreme Court.

Hannah McCarthy: And let me guess how wrong that you were.

Nick Capodice: How wrong was I?

Speaker4: Hi again, everyone. It's 5:00 in New York following the Supreme Court's refusal to block Texas's new law that all but bans abortion in the state. There's been a barrage of criticism and harsh scrutiny over the Supreme Court's shadow docket.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're talking about the shadow docket, Supreme Court decisions that we know very little about.

Stephen Vladeck: Justice Amy Coney Barrett gave a speech in April at the Ronald Reagan Presidential Library where she said, you know, you guys think we're all partizan hacks, but like, don't just read the media, like, read our opinions, you know, decide for yourselves.

Hannah McCarthy: It's also perfectly fair game to say that the court got it wrong. But I think if you're going to make the latter claim that the court got it wrong, you have to engage with the Court's reasoning first. And I think you should read the opinion and see, well, does this read like something that was.

Stephen Vladeck: Purely to which my response is great. What if there's no opinion to read?

Nick Capodice: This is Steven Vladeck. He holds the Charles Allen Wright chair in federal courts at University of Texas School of Law. He has a book on the shadow docket coming out spring of 2023. He has also testified before the Senate Judiciary Committee on the shadow docket.

Hannah McCarthy: And this is quite the introduction.

Nick Capodice: I promise it's worth it. And he has argued in front of the Supreme Court three times.

Hannah McCarthy: How'd he.

Stephen Vladeck: Do?

Nick Capodice: 043043. Quick, funny. Civics aside, the first time he was in the Supreme Court, Justice Anthony Kennedy threw him the heaviest curveball ever. Do you think Marbury versus Madison is right? But particularly as to.

Hannah McCarthy: That is a hilarious and impossible question to answer before the Supreme Court. And the reason it's hilarious is because Marbury versus Madison is the case where the Supreme Court gave itself the power to rule on constitutionality. So it's like the case that defined what the Supreme Court is. Okay, but let's get back to the shadow docket. What does this term mean?

Stephen Vladeck: The term was actually coined in 2015 by a professor in Chicago named Will Bode. And it's not meant to be nefarious. It's really an umbrella term that's supposed to cover basically all of the stuff that the US Supreme Court does. Other than the big fancy merits rulings that it hands down every year. So we spend a lot of time every May and June talking about big rulings on affirmative action, abortion, same sex marriage, guns, campaign finance. You know, pick your favorite socially divisive issue.

Hannah McCarthy: We've done, what, like 15 episodes on socially divisive Supreme Court decisions?

Nick Capodice: Yeah, like more maybe from Dred Scott to Roe to Tinker to Citizens United. These massive decisions that affect our daily lives. And we love learning about those. We love talking about those. And as each spring comes to a close, as May turns into June, the nation waits with bated breath to see those new rulings come down.

Speaker4: We have breaking news from the Supreme Court. It is a landmark decision for the LGBTQ community. The justices ruling that it is illegal for workers to be dismissed from.

Stephen Vladeck: And the reality is that those 60 to 70 rulings are a tiny fraction of the Supreme Court's total workload, that most of the work the court does is through unsigned, unexplained summary orders that are public. So it's not like they're inaccessible, but they're inscrutable. I mean, you know, even with a law degree, it's hard to figure out what to make of them. And, you know, when Professor Bode coined the term in 2015, he wasn't trying to suggest that anything especially nefarious was afoot. Rather, his point was just that we ought to be paying more attention to that side of the court's work.

Hannah McCarthy: So when we use the term shadow docket, we're talking about work that the Supreme Court does. That's not the tried and true ruling on an opinion.

Nick Capodice: Yeah, and Supreme Court justices have been doing this work since the beginning of our nation. And just to be clear, I want to put air quotes around the term shadow docket. Not everybody uses that term. Justice Samuel Alito has actively criticized it, saying the term insinuates something sinister.

Hannah McCarthy: But it is a relatively new term because I haven't heard of it before. Why are we suddenly talking about this now?

Nick Capodice: Right. So the court has stepped in to decide things on an emergency basis for a long time. I've got some famous examples. In 1953, the court stepped in to halt the execution of Ethel and Julius Rosenberg, who were convicted of espionage and then allowed it to continue the next day. Likewise, Justice Stephen Douglas ordered a halt of bombing in Cambodia in 1973, but then he was soon overruled by the whole court. These were both shadow docket orders. But to your question, we're talking about it a lot more now because there has been a big increase in orders of the court that are political in nature, not just sort of run of the mill procedural stuff.

Hannah McCarthy: Well, how does that look? How does shadow docket decisions differ from the ones that we've talked about before.

Nick Capodice: The kinds of cases that we watch out for and talk about on the show? Those are called merits cases. And just to juxtapose the difference between that and the shadow docket. Let's go through the journey of a Merritt's case. Hannah, you broke the law.

Hannah McCarthy: What did they do?

Nick Capodice: You know what you did. You did something you shouldn't have, and you were fine.

Hannah McCarthy: I did something I shouldn't have.

Nick Capodice: Hypotheticals are very difficult. You argue that the thing you did is speech. It's protected by the First Amendment and that the law you broke is unconstitutional. So it goes to one of the 94 federal district courts. Lawyers do research. Your case is argued, you lose. But you're a fighter, Hannah. You don't give up so easy. You appeal it up to the circuit court and hear lawyers write briefs, wonderful, succinct documents outlining their legal reasoning. Three judges read those briefs. They have lawyers in. They ask him some questions, and then they affirm the lower court's decision. They say, Yeah, that law is legit and constitutional. Hannah, you shouldn't have done what you did, and you deserve that. Fine. But you don't take that sitting down and your lawyer petitions for a writ of certiorari, asking the Supreme Court to hear your case. Now they get about 8000 cert petitions every year. They only pick about 60. The odds are not in your favor. But lo and behold, four out of nine justices agree. Yeah, we need to weigh in on that McCarthy case. It's scheduled to be heard in the highest court of the land. You've got more briefs. You've got Amichai Friends of the court brought in to testify. There's an hour long argument. Justices deliberate. And then when May finally rolls around, they read their opinion. You see how each justice voted. And the whole thing took a couple of years.

The court will now read its opinion in the case of McCarthy of Braintree, the question of determining speech actions, especially related to those who host public radio podcasts, is complex and worth lengthy consideration.

Nick Capodice: By contrast, what we call a shadow docket ruling would be that a party could skip that entire process by appealing directly to the Supreme Court to issue an emergency order. No arguments, no opinion, no signatures, just an order sent late at night.

Hannah McCarthy: Like it actually happens late at night.

Nick Capodice: Not always, but often. Yeah.

Stephen Vladeck: There was this pattern, especially, gosh, in 2020, 2021, where we had like 10 p.m., 11 p.m., 11:58 p.m., 2:17 a.m.. I don't think that's, you know, to me that's not the hill to die on. Like, yes, they come out late at night if everything else was fine about them. The fact that come out late at night would not be a problem. But I think it reinforces how much of a departure it is from the court's normal operating procedure to be handing down orders like this outside of that flow. So the the joke about the book is that, you know, if I'm really being faithful to everything, the book will be one inscrutable page handed down at 11:58 p.m. on a Friday night, but I don't think my publisher is going to go for that gag.

Hannah McCarthy: What sorts of cases do they decide this way?

Nick Capodice: Stephen gave me a few recent examples. Yeah.

Stephen Vladeck: I mean, so, you know, last September, when the Supreme Court refused to block Texas's controversial six week abortion ban, that was on the shadow docket, you know, in January, when the court blocked the Biden administration's OSHA rule to require large employers to have a vaccinator test requirement that was on the shadow docket in February when the court put back into effect congressional district maps in Alabama that two different lower courts had held to violate the Voting Rights Act. That was on the shadow docket. So, you know, we're just seeing so many more of these decisions that are producing immediate, massive, real world effects that the justices are handing down. You know, not always without explanation, but with far less explanation, with far more truncated explanations, and in context in which at least historically, they weren't supposed to issue relief, they weren't supposed to upset the apple cart unless particular things were true. That don't appear to be true. So we're seeing just this. It's no one thing by itself. It's the rise of so many more of these rulings, having so many so much broader effects in context that are both inconsistent and increasingly in seeming defiance of the court's own rules for what it's doing.

Nick Capodice: And we're going to get into what people see as problems with the shadow docket, as well as some numbers on how much more prevalent these decisions have been in the last few years right after the break.

Hannah McCarthy: But first, Nick and I just want to tell you that civics one on one is listener supported. If you like our show and our mission to simplify the tangles of governmental systems, make a donation at our website civics101podcast.org. We don't mind if you do it late at night. All right, we're back. And we're talking about the shadow docket. So, Nick, you said these sorts of emergency decisions have been happening for hundreds of years, but lately there has been a big increase. Like, how big are we talking.

Nick Capodice: During the George W Bush and Barack Obama administrations combined? We're talking about 16 years total. There was a grand total of eight cases where the federal government appealed directly to the Supreme Court for emergency relief. But in the Trump administration.

Stephen Vladeck: In four years, the Trump administration went to the Supreme Court 41 times. Now, folks disagree about whether that's because lower courts were out to get Trump or because Trump's policies were terrible. Right. Shockingly, that tends to break down on how you feel about President Trump. But what no one can dispute is how much that turbo charges stems and how much that really sort of ratcheted up the pressure on the shadow docket when the federal government, the most common influential player in the Supreme Court. Right, is going back to the well over and over again, asking the justices for this kind of relief.

Hannah McCarthy: You know, one of the most controversial decisions that Stephen mentioned was the court's refusal to block Texas's six week abortion ban.

Nick Capodice: Making news out of the Supreme Court. The Supreme Court has issued an opinion on that major abortion case out of Texas. The justices by a conservative majority have decided to allow that law in Texas, which effectively bans nearly all abortions in that state to remain.

Hannah McCarthy: But to me, there's a major difference here, because that's not the court doing something. That's the court not doing something. Can we consider inaction the same as action when it comes to the shadow docket?

Stephen Vladeck: The problem is, is that if the court had not spent the previous year reaching out over and over again to block California and New York COVID restrictions in context in which historically the court had sat on its hands right then. I think the SB eight rule and the Texas abortion ruling from September would be a lot more defensible. But when the court says over here, we're going to intervene over and over and over again in context where we never have before, and the context in which we probably aren't even allowed to. But over here we're not going to intervene because our hands are tied by the same things that we weren't bound by in those other cases.

Hannah McCarthy: You know, when we talk about members of the Supreme Court doing things that fall in line with one party or another, I'm reminded of a quote that you used in your episode on the judicial branch. It was said by Chief Justice Roberts, quote, We do not have Obama judges or Trump judges that we have an independent judiciary.

Stephen Vladeck: Well, and the irony is and Chief Justice John Roberts line about how there are no Obama judges and there are no Trump judges. Was in a case the court resolved through a shadow docket order.

Nick Capodice: But regardless, I'm very glad you brought up Roberts, because one of the arguments made in favor of these shadow docket decisions is, hey, you're just angry because we have a conservative majority court, right? If it was five four the other way, progressives would totally be fine with it. But Roberts demonstrates that isn't necessarily true.

Stephen Vladeck: I actually think the chief justice is a really remarkable figure here, because John Roberts, who is no one's idea of a liberal. Right, who is a dyed in the wool establishment Washington conservative, has been this fascinating player as the court's center of gravity has shifted. So when Anthony Kennedy was still on the court and Kennedy was the median vote. Roberts We very rarely saw Roberts as the key player in a shadow docket ruling.

Nick Capodice: But once Justice Kennedy retired in 2018, Roberts became that median vote. And where he went, so too did the court.

Stephen Vladeck: And what that meant was that in the early part of the COVID cases, where there were these claims for, you know, religious liberty challenges to COVID restrictions, Roberts Was the key vote in joining the liberals and not allowing those challenges. And what he kept saying over and over again, it's not that I. Roberts am unsympathetic to these claims. It's that these are this is not the context for vindicating them that we should not be using emergency orders to reach these hard, difficult, challenging questions. You know, those should be merits cases.

Nick Capodice: And as a result, those challenges did not go through. They just weren't successful. But in September of 2020, Justice Ruth Bader Ginsburg passed away, intends to pick this woman as his Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. Her name is Amy Coney Barrett. She met with the president at the White House Monday.

Stephen Vladeck: So when Justice Barrett is confirmed to replace Justice Ginsburg, Roberts is no longer the median vote. And as early as one month into Barrett's tenure, we see Roberts joining the liberals. In the case after case, what we're seeing on the chief do, he's writing separately and he's saying, I'm sympathetic to this challenge. I don't like what the state is doing. I have problems with this, but not this. The shadow docket is not where we should block it. We saw this again in February in the Alabama redistricting case where John Roberts, no fan of the Voting Rights Act. Right. He wrote the majority opinion in Shelby County that tore a big hole in the Voting Rights Act. Roberts says, You know, I think we might want to revisit our interpretation of this provision of the Voting Rights Act, but the shadow docket is no place to do it.

Nick Capodice: Roberts was then on the losing side of five four shadow docket decisions seven times.

Hannah McCarthy: These five four decisions are the justices pretty much voting along ideological lines.

Nick Capodice: And all the shadow docket decisions Stephen talked about. It was the same five in the majority Justices Barrett, Alito, Kavanaugh, Gorsuch and Thomas.

Stephen Vladeck: And then finally in this Clean Water Act case in early April, right for the first time, he doesn't just dissent in one of these cases, but he actually joins Justice Kagan, who has been repeatedly criticized in the majority for, in her terms, abusing the shadow docket. Now, we finally have John Roberts endorsing that critique. And I just you know, I don't know how you look at John Roberts and and his now criticism of the shadow docket and say that this is ideological. Right. Because if if John Roberts, who actually is sympathetic to these religious liberty claims, is sympathetic to the voting rights claims, doesn't like abortion. Right. Is with the other conservatives on the merits in all of these cases and keeps dissenting because he thinks they're taking shortcuts. If that's not a message about how broken this is, I don't know what is. And, you know, I don't think it's enough of an answer, as I think so many conservatives are want to do, to say, oh, well, Roberts is a squish. You know, no, he's been clear that he's with them on the merits. He just said there's a right way and a wrong way to do it.

Hannah McCarthy: Hang on. What does Squish?

Nick Capodice: Squish is a term that goes back to the Reagan administration. Politicians use it to describe members of their own party who sort of hem and haw who can't be counted on to back controversial initiatives.

Hannah McCarthy: Can we just stop here for a minute? Because my big question is, if we make the assumption that the same five justices vote one way and the same for the other, couldn't we just say that the shadow docket is speeding up the inevitable? Like, sure, we don't know for certain how a justice is ever going to vote, but if it's about a big social issue like abortion, we've got a pretty good idea. So what does Steven think is the biggest problem with decisions made this way?

Stephen Vladeck: It starts with a basic proposition, which is that what makes a court, a court is its ability to defend itself, is its ability to provide a rationale for its decision.

Hannah McCarthy: In other words, the reason the Supreme Court can be the Supreme Court is that it lays out its reasoning for its decisions.

Nick Capodice: Yes. And that is Stephen's first problem.

Stephen Vladeck: So, you know, problem number one is that the absence of any rationale deprives the public of the opportunity to access the principles to assess them not not necessarily for agreement or disagreement, but for whether we think the court is doing legal, judicial things. Problem number two is, the less the court writes, the easier it is for to be inconsistent. When the court at time one rules for one party one way and writes 50 pages as to why it's very easy for a different party at type two to say, look what you wrote in that case, right? We're now in the same situation. We should therefore win. Well, if the court has written nothing that it's not bound by what it didn't write at time. One.

Hannah McCarthy: So if these shadow docket decisions are happening with the same five justices in the majority, how will it end? Will decisions made outside of merits cases continue to be more and more common?

Nick Capodice: Maybe there's just no way of knowing how this will change as justices enter and leave the court. And Steven told me that for those who are critical of this uptick in shadow docket decisions, there are three steps that could result in it changing.

Stephen Vladeck: So I think step one is getting folks to realize that this really is a big deal and that it's not strictly partizan or ideological, that there are entirely neutral reasons to be deeply concerned with how the Supreme Court is behaving. Step two is more self awareness on the part of the courts. And then if neither of those succeeds, step three is Congress really ought to start thinking seriously about how it relates right to the core as an institution and why, when we talk about Supreme Court reform, we shouldn't be distracted by the big ticket, but never going to happen. Items like Adams's to the court or term limits. We really should be focused on the far more important, palatable and possible technical reforms that actually might reallocate some of these dynamics.

Hannah McCarthy: Nicky started with the wheels of government to bring this back to the wheel, to the big, powerful, slow wheel of government. I can understand people wanting to dodge that wheel to get things done quickly.

Nick Capodice: I can, too. But if everybody's dodging the wheel, why do we have a wheel in the first place? All right. Well, you can't tell by listening to it, but in honor of this episode, I'm recording these credits late at night. After everyone's asleep, you can maybe hear my washing machine in the background, and that'll do it for this episode. And the shadow docket. I tried to put in a midnight judges joke, but I just couldn't figure out how to do it. This episode was written and produced by me. Nick Capodice with Hannah McCarthy. Our staff includes Jackie Fulton. Christina Phillips is our senior producer and Rebecca Lavoy, our executive producer. Music In this episode by the old greats Blue Dot Sessions, Ezra, Peter Sandberg, Apollo, the New Fools, Christian Anderson, Halston, Cisco, Juanita's, Ari De Niro, Jesse Gallagher and the Man Who Never Missed the Swiss Missed Christmas List, Chris Zabriskie. Civics one on one is a production of HPR New Hampshire Public Radio shadow.

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Is it possible for a president to serve a third term?

Is there a way President Trump (or any president) can serve a third (or fourth) term in office? Maybe there is. 

Most people assume the 22nd Amendment limits a president to two terms, period. What happens when the president, or legal scholars, challenge that assumption?  

Joining us to talk about that is Bruce Peabody of Fairleigh Dickinson University. 

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Transcript

Christina Phillips: [00:00:00] This is Civics 101. I'm Christina Phillips, filling in for Hannah McCarthy.

Nick Capodice: [00:00:03] And I'm Nick Capodice.

Christina Phillips: [00:00:05] Hi, Nick.

Nick Capodice: [00:00:06] Hi, Christina.

Christina Phillips: [00:00:07] So today I want to tell you a story.

Nick Capodice: [00:00:10] All right.

Christina Phillips: [00:00:12] This story begins in the late 90s. We've got Clinton as the president. We've got Newt Gingrich's bopping around. Okay.

Nick Capodice: [00:00:21] Oh, yeah. This is about the the the Republican takeover.

Christina Phillips: [00:00:24] Not really. Okay. It's not. But it's just what I think of when I think of the 90s.

Nick Capodice: [00:00:30] So what's the story about?

Christina Phillips: [00:00:32] So this is a story about two friends named Bruce and Scott, who love thinking about and talking about the Constitution. And one day back in the 90s, they find themselves like two friends debating the finale of severance, discussing the meaning of one constitutional amendment in particular. This is the amendment that sets term limits for the president, aka the 22nd amendment.

Bruce Peabody: [00:00:58] It may not shock you to hear that I'm a little bit of a constitutional nerd, and I have friends who are constitutional nerds, so a friend and I were just talking, and I think, truth be told, he came up with the idea.

Christina Phillips: [00:01:11] This is Bruce Peabody. He is a professor of government and politics at Fairleigh Dickinson University in New Jersey. So Bruce's friend in the story is Scott Gant. He's an attorney in Washington, D.C.. Nick, will you do me the honor of reading the main clause of the 22nd amendment?

Nick Capodice: [00:01:27] Absolutely. And I do not have this one memorized. Here we go. No person shall be elected to the office of the president more than twice. And no person who has held the office of president or acted as president for more than two years of a term to which some other person was elected president, shall be elected to the office of the president more than once. I do have to say, Christina, this amendment. Its meaning seems pretty straightforward.

Christina Phillips: [00:01:54] Yeah. I don't disagree with you there. A little context. It was passed in 1951 after President Franklin Roosevelt was reelected three times during World War Two, even though the norm since George Washington had been for presidents to only serve two terms. So it seemed like a good idea at the time to get that norm codified into law. And I think it's safe to say that you, me and most of the public see this amendment and the norm. It codifies as pretty cut and dry. Serve two terms as president, if you're lucky and you're done. But Bruce and Scott's idea was to push on that collective understanding just a little bit.

Bruce Peabody: [00:02:36] I mean, the basic argument is just that the 22nd amendment to the Constitution, passed after Franklin Roosevelt served an unprecedented four terms, seems to leave open some doors for a twice elected president to serve once again.

Christina Phillips: [00:02:53] Now, this is something that's been pondered before. For example, Eisenhower once alluded to possibly returning to office as vice president. But since the amendment was passed, most people seem to have settled around the idea that two terms is all you get.

Nick Capodice: [00:03:09] So I don't remember the 90s too well politically because I was so young. But was there some reason that Bruce and Scott were talking about term limits in the 90s?

Christina Phillips: [00:03:19] Yeah, there was.

Bruce Peabody: [00:03:20] I suppose the nominal prompt was the end of the Clinton administration. So his second term was coming to an end. He was quite young, he was seemingly ambitious, and he was relatively popular as a as a figure in the, well, certainly the late 20th century and definitely popular by the standards of the 21st.

Christina Phillips: [00:03:41] What if he stayed in politics and maybe got a job that put him in the line of succession? Does the 22nd amendment hold up in that scenario? What if, for example, someone wants Clinton to be their vice president.

Nick Capodice: [00:03:56] Yeah, we've never had a scenario like that strain show Designated Survivor. But even if Bill Clinton was like, you know, Secretary of Agriculture, he would be in that list, like he'd be in that order. It would be possible.

Christina Phillips: [00:04:07] Mhm. Exactly.

Nick Capodice: [00:04:08] And anyone out there who wants to know the order of succession, we have a whole episode on it. We got a link to it in the show notes.

Christina Phillips: [00:04:14] So in 1999, Bruce Peabody and Scott Gantt published a legal article called The Twice and Future President in the Minnesota Law Review. That article laid out an argument for how a president could potentially serve more than two terms in office. And they supported this argument by looking at the origins of the 22nd amendment, how the specific language of the amendment came to be, and how term limits had been talked about since its passage.

Nick Capodice: [00:04:41] So what was the reaction amongst the public when this article came out in the law review?

Christina Phillips: [00:04:46] Well, I will say it's funny because this comes out in a legal journal. So the public reaction is not really that there really isn't a huge public reaction.

Nick Capodice: [00:04:56] Really read law review, right?

Christina Phillips: [00:04:58] Yeah, and but it does get the attention of a lot of people in the legal community, right? So some scholars responded directly to their article. Some refuted their claims, some built on those claims and offered other critiques using other parts of the Constitution. So it sort of lives in the scholarship around term limits and the 22nd amendment constitutional interpretation. Now, in 2016, Bruce and Scott wrote a follow up article, Twice in Future Presidents Revisited. They address some of those responses to their first article. They looked at presidents who had been in office since the article came out. And ultimately they came to the same conclusions as they did in the first article, which is that there are pathways for somebody to serve more than two terms in office.

Nick Capodice: [00:05:45] And that revisiting of the article, I assume, happened before President Donald Trump was elected.

Christina Phillips: [00:05:51] It did. And now we've reached the final chapter of this story. Do you know what happens next?

Nick Capodice: [00:05:58] Well, I lack a skill of augury. Christine, I don't know what's going to happen next, but I do know that the current president, Donald Trump, has made overtures to thinking about running for a third term as president.

Archive: [00:06:13] People are asking me to run, and there's a whole story about running for a third term. I don't know, I never looked into it. They do say there's a way you can do it, but I don't know about that. Should I run again? You tell me. This. There's your controversy right there. This year we want Trump in 28.

Christina Phillips: [00:06:36] President Trump has not yet, nor have any of his staff provided their legal justification for how he could do this. He has just said that he could. And in fact, since he made those initial statements, this was after he was elected and in the early months of 2025, he has walked them back, and he has said that he planned to be a two term president.

Archive: [00:07:01] But it's something that, to the best of my knowledge, you're not allowed to do. I don't know if that's constitutional, that they're not allowing you to do it or anything else, but there are many people selling the 2028 hat. But this is not something I'm looking to do. I'm looking to have four. Great.

Christina Phillips: [00:07:17] Nonetheless, this caused a little bit of chaos in the news cycle when he first started saying this, right. I think we can't count out the fact that his election was a very emotional one for a lot of people. We live in a very partizan environment in which the temperature is very high. And so when he starts speaking about doing something that most people have understood, a president cannot and should not do. It generates a lot of attention, right? Journalists like us try to figure out what reasons he's alluding to. They try to answer the question, could he do this? Or if he tried, what would happen? And the way that journalists often do this is that we consult constitutional scholars and political scientists. And I kept seeing Bruce's name and this article from 1999 being cited over and over and over everywhere by all kinds of publications, from NPR to the Daily Mail to Axios to the Wall Street Journal to the National Constitution Center. They even do a write up of his argument and put it in position with other arguments about the 22nd amendment.

Nick Capodice: [00:08:30] Has Bruce talked to President Trump? Like, do we know that their paper is what Trump is talking about?

Christina Phillips: [00:08:37] Have you been, as anyone in the Trump administration reached out to you, or have you had any communication with them?

Bruce Peabody: [00:08:42] No communication with Trump administration.

Christina Phillips: [00:08:46] Yeah. So I, I was curious about Bruce's argument for sure, and what he thought about how Trump was talking about term limits. But also, I was really curious about what it's like when essentially you have your research go viral. And not only that, it's research that you did many years ago, and it's on a legal theory that has not yet been tested. Right.

Bruce Peabody: [00:09:13] So what happens in part is you start getting inquiries right, which is gratifying, I suppose, but also more generally, it does maybe shift that earlier conversation from it being more of a scholarly exercise to to thinking about both the general public conversation and then thinking through some of the policy implications. But the basic argument shouldn't change, right? So people are generally interested in these questions with specific Scenarios and people in mind that shouldn't change the analysis, right? If the if the legal arguments are sound in 1999, they should remain sound in 2025 regardless of the person seeking the office.

Nick Capodice: [00:09:57] I just think it's so interesting in the work that we do. Christina. We keep running into these old legal articles that were sort of like, you know, philosophical what if's that are now playing out in the public marketplace of ideas every day.

Christina Phillips: [00:10:11] I agree with you. And I think what was nice about talking to him is that he is having the experience himself, where he has spent a lot of time thinking about this theoretically, and then somebody is coming to him and saying, this person is saying they're going to do this is what you're saying, how they would do it. And he's having to work through that himself.

Bruce Peabody: [00:10:30] These issues have a number of different strands, right. There's what's the best reading of this provision of the Constitution and the Constitution as a whole. And then there's the political question of what are the implications for this. And those are intertwined. But but also separable. Right. You could have a legal conclusion about the 22nd amendment but also fervently believe it should be reformed. Or you could think this is the right interpretation, but still fret about future scenarios where the country is the country doesn't agree or is uncertain and and something that's supposedly a strength the kind of continuity of executive leadership is as compromise.

Christina Phillips: [00:11:09] So I think the point of this episode is not to tell you whether the president can serve more than two terms or not, though hopefully you'll leave with more information to decide how you feel about it. The truth is, no president has seriously tried this since the amendment was ratified in 1951, and that includes President Trump. If he does try to pursue options to stay in office or serve a third term, we don't know what that would look like yet. And we don't know what the public or Congress or the courts would do.

Nick Capodice: [00:11:38] Right? Well, regardless of how it makes us all feel. Let's get into the words.

Christina Phillips: [00:11:43] We will do that right after a break.

Nick Capodice: [00:11:45] All right. But before that break, just a reminder. You can listen to any of our hundreds of episodes on myriad topics and see a whole bunch of other stuff that we've got for teachers and the public alike at our website, civics101podcast.org. We're back here listening to Civics 101. We're talking about the 22nd amendment. And Christina, let's get into what it says.

Christina Phillips: [00:12:19] Yes. Let's start with the basics. Nick. You quoted it a little bit earlier, but would you just read the first clause for me again?

Nick Capodice: [00:12:26] Absolutely. Quote. No person shall be elected to the office of president more than twice.

Christina Phillips: [00:12:32] It's that word elected. No person shall be elected to the office are.

Bruce Peabody: [00:12:40] So most people assume that the 22nd amendment bars a present from serving again. And that's not exactly what it says, right? It just says no person shall be elected to the office of president more than twice. And then it has some other language which basically says that if somebody else serves for more than two years of a term, somebody else began, you know, think maybe like a vice president taking over for president, that counts as one elected term for the purposes of the 22nd amendment. So on some level, you might say, well, what's the big difference, right? Isn't that the same thing? But for the reasons we spelled out, it's really not the same thing. And it's it's an interesting choice that the words are focusing on election, which is obviously an important I think we can probably stipulate the most important way to become president, but not the only way. So a deeper dive into the surrounding language. A deeper dive into the kind of history surrounding the debates around the 22nd amendment, and a closer look at our history, suggested to us that the best reading was that this choice really did leave open the door to to other options.

Christina Phillips: [00:13:52] The article spent some time discussing how people settled on the exact wording of the amendment. That is important to this argument. At one point, there was this idea that the amendment should say something like no person shall serve rather than be elected. Which of course would probably be more clear. And the article goes into the history of why they ultimately went with the word elected.

Nick Capodice: [00:14:16] Right. So I'm guessing that one scenario would be a person is a president for two terms, and then they get nominated as someone else's vice president. Can that happen?

Christina Phillips: [00:14:28] That's a good question. Bruce and Scott's article argue that it could potentially.

Nick Capodice: [00:14:33] And if they are vice president, there is the possibility that the current president dies and that vice president could be president again.

Christina Phillips: [00:14:40] Yeah, that's one idea they talk about. There are a few other scenarios they explored. I'll go through a couple of them. One is if a former two term president ascends to the presidency through some other means, like being the speaker of the House or another person in the line of succession, like you had said, the designated survivor. In some scenario like that, the second option could be a contingent election where nobody wins 270 electoral votes. In that case, the House would choose the president and the Senate would choose the vice president. In that scenario, could the chosen president be somebody who has already been president for two terms? This is something that Bruce and Scott talk about in their article as potentially being possible.

Nick Capodice: [00:15:22] Because they weren't elected.

Christina Phillips: [00:15:24] Yeah, they just, you know, maybe the house was just like, let's just, you know, bring back the other guy. He seems good. So ultimately, their conclusion is that the 22nd Amendment's language leaves the possibility open for someone to come back into office after two full terms.

Nick Capodice: [00:15:48] But it seems like there is a general consensus on one thing, which is that the 22nd amendment bars a person from being reelected for a third time. Also, I think it's worth pointing out that in all of these scenarios you laid out, an actual presidential election still happens in the first place.

Christina Phillips: [00:16:08] Yeah, it's safe to say that this is operating under the assumption that someone isn't going to violate the Constitution by canceling the election.

Nick Capodice: [00:16:16] A quick question I wanted to ask earlier, Christina, can somebody be elected vice president if they've already been a president two times? Like, isn't this something laid out in the 12th amendment or something like that?

Christina Phillips: [00:16:30] Yeah. You're thinking of the Ineligibility Clause of the 12th Amendment, which says, quote, but no person constitutionally ineligible to the office of president shall be eligible to that of Vice president of the United States. And that is an example of a counterargument made by other scholars in response to Bruce and Scott's paper. Oh, okay. The 12th amendment says that someone must be qualified to be president in order to be vice president. So the reasoning goes, you can't become vice president if you've already been elected for two terms, because that would disqualify you. And one of the people who made this argument is Akhil Amar, who is a constitutional scholar that we've had on the show a bunch of times before.

Nick Capodice: [00:17:15] Amar is wonderful. By the way, everyone out there, you should listen to his amazing podcast, America's Constitution. It's like civics 275 instead of 101494.

Nick Capodice: [00:17:27] He's great.

Nick Capodice: [00:17:32] Real quick, back to the 12th Amendment. This is the amendment that ended the practice, which I find kind of hilarious, where the person who lost the election became the vice president. Uh, which is, if you can imagine, that happening in 2025, meaning that from then on, candidates pick their own running mates.

Christina Phillips: [00:17:50] Yeah. Imagine the bipartisanship that would have to.

Speaker4: [00:17:52] Happen.

Nick Capodice: [00:17:52] Or the lack of the lack of bipartisanship.

Christina Phillips: [00:18:02] And by the way, Bruce thinks that these counterarguments, including Achilles, are a big reason why this article that he wrote is valuable in the first place.

Bruce Peabody: [00:18:11] A lot of people disagree with our analysis, but that's okay. Right. It's kind of fun and helpful to have smart critics, and we're still convinced we're right.

Christina Phillips: [00:18:20] And I have to admit, Nick, I asked Bruce what I always worry. Sounds like a rude question, but genuinely comes from a place of curiosity, which is why do this? Why analyze the Constitution, spend hours doing research and studying case law, and combing through transcripts from Congress all for something that gets published in a legal journal. It's not being used, at least not yet, to defend somebody in court or to make an argument in court. It's not necessarily going to be used to write policy. So what's the point?

Bruce Peabody: [00:18:55] I have an interest. I'll just speak for myself. I have an interest in talking to a community of peers. They're interesting. People are curious about ideas. We try to test our arguments against one another. There's various forms of peer review. So that's, you know, intellectually stimulating and kind of what my profession does. Second, there is this interest in talking to a wider public right. The constitutions are supreme law. We should be educated about it. It's longevity and good health requires a literate and critical citizenry. So. Many of these kinds of issues are great moments of constitutional literacy and. Kind of reflection.

Nick Capodice: [00:19:34] And when Bruce says these kinds of issues, does he mean when our president starts talking about his. Interpretation of term limits and that the public gets more interested too?

Christina Phillips: [00:19:47] Yeah, exactly.

Bruce Peabody: [00:19:48] At least one third possibility is almost a kind of constitutional policy perspective. Is this really what we have as the best reading of the law? Is this something we're comfortable as a nation having as a, as a, as a set of options? Or alternatively, is there something kind of screwy about this that we need to fix through whatever means it might be?

Nick Capodice: [00:20:10] You mentioned earlier that Bruce and Scott, his coauthor. They wrote an update to the paper in 2016.

Christina Phillips: [00:20:16] They did.

Bruce Peabody: [00:20:17] I didn't fundamentally change our point of view or our basic conclusions, but certainly the piece updated things historically. Right? It brought in this, well, this 21st century set of candidates, including Clinton and Obama, and kind of where they stood. And it discussed some of these episodes where their names have been floated as potential running mates, or did the 22nd amendment apply to them? And then another part of the analysis was just to consider, and, I hope, refute or at least engage some of these critiques and questions. You know, scholars over the years have taken this argument seriously. Great, but offered different arguments as to why, in their judgment, some or all of the scenarios we laid out whereby a twice elected president could again serve. I did not I did not change the position, but I guess it's a long winded way of saying I try to take my critics seriously.

Nick Capodice: [00:21:15] So I do want to talk about the politics around this. Just because the law might suggest you could do something that doesn't necessarily mean you should do it, or that the people want you to do it. Um, historically, at least, we like as a nation, we like having term limits. We don't want kings.

Christina Phillips: [00:21:36] Yeah. And for scholars, this can feel a little tricky, especially when people are asking you to explain to them how a law could permit something that maybe they don't like. This made me think about a story on NPR that Hansi Lo Wang wrote about President Trump's comments. The article quotes Bruce and quotes another scholar, a guy named Steven Geller's, who is a law professor at NYU, who talks about a potentially feasible hypothetical scenario where Trump could make a deal with Vice President Vance. So if Vance ran for president, Trump could run on the VP ticket and then become president. Okay, so he explains this in this article. And then he says, quote, I want to make it very clear that I'm identifying an argument that Trump could make in order to get back into the white House. I'm not endorsing it.

Nick Capodice: [00:22:39] And like we see over and over again, like we talked about in our framing episode. All it takes is somebody saying, you know, one potential argument for it to be turned into a defense of that behavior.

Christina Phillips: [00:22:51] Right? Whether you like it or not. And everybody does this right.

Nick Capodice: [00:22:54] And then, you know, these headlines could be top legal scholar says, well, this is good. This is you know, this legal scholar said, it's a it's a way to do it, and therefore it's gold and it's gold forever on.

Christina Phillips: [00:23:04] Yeah, yeah. So I asked Bruce about this about about how he approaches this.

Bruce Peabody: [00:23:08] People will often ask me for kind of policy prescriptions or can I, you know, do I really believe this, uh, in the age of of Trump? Are a kind of apologist for centralizing power. And I think I generally try to, you know, separate my roles as a, as a Partizan or a voter from my roles as a constitutional interpreter. But I want people to take the argument seriously. This is an old idea. The Federalist Papers famously signed their documents. Publius, rather than leaning into, you know, Hamilton, Madison or J. Because in part, they don't want people to dismiss their arguments for their specific political or Partizan goals.

Nick Capodice: [00:23:54] When that first article came out, did Bruce share it with politicians or interest groups or any of that stuff? Like, did he contact Bill Clinton's people and say, hey, you should check this out?

Christina Phillips: [00:24:04] Yeah he did.

Bruce Peabody: [00:24:05] Oh, we did send the piece to William Jefferson Clinton. And he gave back a very nice response. So that was that was gratifying and fun. And Mr. Bush. The second President Bush was was another twice elected president after the time of our article. He didn't have the same popularity as, I think, Clinton or maybe Obama. So the issue didn't come up quite in the same way with him. But there was some chatter with Mr. Obama. He went to Ethiopia and gave some remarks before the African Union and said, I'm pretty popular. If I had been able to run for a third term, I could have won.

Archive: [00:24:45] But under our Constitution, I cannot run again. I can't run again. I actually think I'm a pretty good president. I think if I ran, I could win, but I can't.

Bruce Peabody: [00:25:02] At one point, Secretary and Senator Clinton Hillary Clinton said that she had thought about making Bill her vice president. So that was interesting and then said that on closer reflection, she had decided he was not able to to serve in that capacity.

Archive: [00:25:20] He has served his two terms, and I think the argument would be as vice president, it would not be possible for him to ever succeed to the position. At least that's what I've been told. So you know it. It has crossed my mind.

Nick Capodice: [00:25:34] Considering all this, did Bruce share with you his thoughts on what Trump has said about serving a third term?

Christina Phillips: [00:25:42] So in one of the articles Bruce had been interviewed for, he says, quote, we've already seen, to put it lightly, unusual legal arguments from the Trump administration, end quote. And I wanted to know what he meant by that, because I think so much coverage of the Trump administration lately has felt like it's about how he does things differently, or how his presidency feels different on a policy and a public experience level. But for someone who thinks about constitutional interpretation, what counts as unusual. And why does that matter?

Bruce Peabody: [00:26:14] I think it's fair to say instinctively to say, well, this is a little loopy. Everybody knows that the Constitution bar is a present from service in more than two terms. So to advance an argument, especially an argument about whether a person could serve in a third term, you have to win legal arguments. But presumably you also have to win the political argument. So I think the point in using the word unusual there is to say this might be a president and might be an administration that doesn't care, right, that they're willing to say, hey, there is a conventional wisdom on what it means under the 14th amendment to be a citizen, and we're going to challenge that, right? There's conventional wisdom about when one might issue executive orders and the role of Congress. And we're we're not going to be bound by that. So if you've got that backdrop of a kind of iconoclast or a somebody willing to be a norm breaker on these other areas, then then we should take seriously the prospect that the 22nd amendment might be pursued in the same way. The other ingredient I would add to that is, again, not only a partizan environment, but a particular kind of partizan environment where people tend to see their opponents as dangerous. Right? As not just as not just policy disagree ears or people promoting different candidates, but as purported threats to the health of the Republic. So yeah, I think that's a that is a different model than certainly we've lived with for much of our history and, and certainly a different model than some of the framers envisioned. But but it's where we are now.

Nick Capodice: [00:28:00] We're back here listening to Civics 101. We're talking about the 22nd amendment. So, Christina, all of this makes me think about something we haven't talked about yet, which is amending the Constitution. We can do it. You know, it's a living document, whether it comes from President Trump proposing an amendment that eliminates two term limits or, you know, potentially revisiting the language of the 22nd amendment. Hey, this isn't clear enough. Now, I do know it's really hard, like the idea of even proposing a constitutional amendment seems pretty tough right now, considering you need two thirds of both chambers of Congress to even propose it in the first place. Never mind the staggering consensus you need for ratification, which is three fourths of all the states, right?

Christina Phillips: [00:28:48] And for what it's worth, House Democrat Dan Goldman of New York introduced a resolution after Trump made these initial statements saying that the the term limits do apply to Trump. And House Republican Andrew Ogles from Tennessee, introduced an amendment proposal that would extend term limits. Both were just introduced. They're, you know, just kind of sitting there right now. But there is interest in both directions for this.

Bruce Peabody: [00:29:13] What do you do about the problem of constitutional change? Uh, George Washington was very clear that our Constitution was imperfect, as he put it, that our Constitution would need regular updates. Jefferson famously said, every generation or every 19 years, we needed to reboot the whole thing and start over. So there's a tension between a constitution that clearly anticipates itself as needing to change is imperfect. That has to be adapted for the generations to come. And the reality that in the 21st century, at least so far, it's extremely unlikely that we'll get a formal constitutional amendment right. It's very hard. It's very hard, as a general matter, to change our Constitution. And that's independent of kind of our current environment, where we have closely divided parties and perspectives. And those Those groups are very unlikely to cooperate right now. How are we going to get the two thirds votes to propose an amendment and the three quarters votes to to ratify them when we can't get even ordinary legislation passed?

Christina Phillips: [00:30:25] So there's something I want to leave us with, Nick, that I hope you and me and our listeners can use when our understanding of how our democracy works is challenge, whether by a president, by a person in our life, or by something happening in the news. I asked Bruce how to approach these moments when you go. I thought I understood what this said, and now I'm not so sure. Given that he's a professor and he teaches people about our government all the time.

Bruce Peabody: [00:30:52] One answer is read the text right. Go back to the basics. The framers believed the Constitution and the law it creates. It was was different from the law of Created in statutes or the law found in the cases issued by different judges and justices. They thought it was basically accessible by by ordinary citizens. To start with the original text, that's a good place to to begin. I guess another aspect of this is, of course, to to push your partizan priors. So if you if one has a strong reaction to this or any other argument about constitutional meaning, try it out on your for sure most preferred candidate or political figure or or party. But then also say, could you live with this reading? If your political opponent or the person you think is most dangerous were to to take advantage of it? And that's not a foolproof test, but but is a good one. For example, in a field like impeachment. Right. So what is the meaning of of impeachment? What counts as a high crime or misdemeanor? I think that's a really good exercise for a question like that to say, you know, if I'm going to dismiss a particular impeachment charge, would I really feel the same way. If it were my my Partizan opponents.

Nick Capodice: [00:32:05] Yeah. This is an exercise that you hear played out every single day in Washington. Right. Well, if we get away with it, they're gonna get away with it next time. And you hear this from both sides. And it leads me to reiterate, the one true thing that I've learned since working on the show is that hypocrisy doesn't matter just because one side does one thing in a scenario and then does the opposite in another. The argument, hey, you did the opposite last time, or you said the opposite back when we were in charge. That doesn't hold any water and it never gets anyone anywhere.

Christina Phillips: [00:32:38] But do you still think it's useful if you are like, how do I feel about impeachment? Like it? Do I think that this person should be impeached, that I hate? And then you say, well, what if it was my the person that I loved who was in office? Do you feel like that's helpful for the public?

Nick Capodice: [00:32:55] Well, it's helpful for you and me. It's helpful for the public, but nobody in Congress does it. It's true.

Christina Phillips: [00:33:01] Yeah.

Nick Capodice: [00:33:02] Yeah. But, you know, you see this all the time. People say, I swear I will not do this if when I'm in charge. And then they do it when they're in charge. This happens over and over again from both sides. So I do think it's helpful for you and I to think that way because that's a human way. Right to. It's the golden rule, right? Do unto others as you would have them do unto you.

Christina Phillips: [00:33:23] Mhm.

Christina Phillips: [00:33:24] Yeah. And I always think about when we talk about policy, every time that you change it, when you are in charge that sticks around. Right. So this is I think something that's been happening over many decades is that the party in charge will in Congress give the president more power. And then the president, the next president continues to have that much power, and then maybe they get a little bit more, and then maybe they get a little bit more, and maybe they get a little bit more. I think it's helpful for us to think about as people, but I wish I saw a little bit more of that, or at least news coverage about it. Maybe it's happening, but I don't read about it very much, about thinking about the implications beyond this current administration, because there will be a future like we do have to live with what we do now, in the future, and how will that play out and who's going to be happy about it?

Nick Capodice: [00:34:14] This is so good.

Nick Capodice: [00:34:15] It's depressing, but it's a good it's good.

Christina Phillips: [00:34:17] Yeah. This episode was produced by me, Christina Phillips, with help from Nick Capodice. It was edited by Rebecca Lavoie. Our team includes host Hannah McCarthy and producer Marina Henke. Music in this episode from Epidemic Sound and Chris Zabriskie, Civics 101 is a production of NHPR, New Hampshire Public Radio.

Nick Capodice: [00:34:52] I'm always dehydrated. I hate.

Nick Capodice: [00:34:54] Water.

Christina Phillips: [00:34:55] Do you need water?

Nick Capodice: [00:34:56] Sound like Marlon Brando doing his dawn. Did you see.

Nick Capodice: [00:35:00] The Godfather movies?

Christina Phillips: [00:35:01] No. Oh, I've never seen that.

Nick Capodice: [00:35:03] I knew it.

Nick Capodice: [00:35:03] The second I made that. I was like, wait a minute.

Christina Phillips: [00:35:06] Yeah, I don't, I've not.

Nick Capodice: [00:35:08] What if I told you they're really phenomenal?

Christina Phillips: [00:35:10] I believe you. I just, um.

Nick Capodice: [00:35:13] Just the first one. Here's the problem.

Nick Capodice: [00:35:14] I know their boyfriend films. Like, I know every like. Oh my God.

Christina Phillips: [00:35:17] Your girlfriend is such a boyfriend.

Christina Phillips: [00:35:19] Film that they're a Barbie reference.

Speaker4: [00:35:21] Oh, really? Oh, yeah.

Christina Phillips: [00:35:22] So you haven't seen Barbie? Well.

Nick Capodice: [00:35:24] Yeah.

Christina Phillips: [00:35:25] I consider Barbie the godfather of 21st century.

A country with no kings

As subjects of the British king, the very idea of criticizing monarchy -- or King George III himself -- was a dangerous one. So how did we become a country where "no kings" is a guiding principle? Something we take for granted? 

Holly Brewer is our guide to the resistance, risk and eventual revolution that transformed a British colony into a democratic country that would have no king. 

---

Transcript

Holly Brewer: [00:00:03] I'm just going to start in a strange place.

Hannah McCarthy: [00:00:05] This is Holly Brewer.

Holly Brewer: [00:00:07] Hi, I'm Holly Brewer. I'm a professor of [00:00:10] history at the University of Maryland, College Park, and I work on early modern debates about justice and power.

Hannah McCarthy: [00:00:18] I called Holly up a couple [00:00:20] of weeks ago, because I've been thinking a lot about this principle that we have tended to agree on here in the United States.

Holly Brewer: [00:00:27] We're public. We have no kings.

Hannah McCarthy: [00:00:30] We [00:00:30] have no kings. And I wanted to know how that started. I mean, I know we had a Declaration of independence. I know we fought a long and brutal Revolutionary [00:00:40] war to secure that independence, those blessings of liberty. And I know that we wrote and then rewrote a constitution that cemented that principle. [00:00:50] But when and how did that become something that we ostensibly agreed on? All right, so let's start in a [00:01:00] strange place.

Holly Brewer: [00:01:04] It's with an image that we think was written by Benjamin Franklin's grandmother. [00:01:10] So sometime in the middle of the 17th century, which includes the words no church, no kings, and connecting the hierarchies of [00:01:20] the Church of England to the power of monarchy. And a pretty radical thing. But it's it's scribbled in a letter on an unpublished letter. It's [00:01:30] not published. And I begin with that to illustrate the problems of trying to measure anti [00:01:40] anti monarchical sentiment in early America.

Hannah McCarthy: [00:01:45] This is Civics 101 I'm Hannah McCarthy.

Nick Capodice: [00:01:48] I'm Nick Capodice.

Hannah McCarthy: [00:01:49] And today [00:01:50] how we became the land of no kings. Because remember we used to have one.

Holly Brewer: [00:01:59] It [00:02:00] was seditious to even criticize a royal policy, but it was literally treason to criticize monarchy or the king directly. I mean, [00:02:10] he depended on what you said, and he said it to us, but you wouldn't want to put anything in print. It was bad enough to try to criticize the [00:02:20] Prime Minister or great lords or anybody else. And even then you would want to. If you look at colonial newspapers from the mid to late 18th century, for example, [00:02:30] there'll be criticism during the stamp out crisis of, say, Lord North, but they will write it out dash dash D. And [00:02:40] dash dash dash eight. So you have to guess right. So there's a little bit of plausible deniability.

Hannah McCarthy: [00:02:48] Nick I actually told Holly that [00:02:50] more than once during the conversation I had with her, I had butterflies in my stomach because she does the kind of work that, at least for me, makes the past a little less [00:03:00] hazy. She finds the humanity in the thousands of documents that are clues to our history. And when it comes to understanding how colonists felt about monarchy. [00:03:10] That takes a lot of effort.

Holly Brewer: [00:03:13] You certainly wouldn't want to criticize the King directly, because it could get you in all kinds of trouble, and usually it would just be in the form of a fine [00:03:20] or something like that. They weren't trotting out the full punishment for treason for these things, but you did have to be incredibly careful. And so when we find [00:03:30] things, it's evidence like this that's written into a letter or on a, you know, scribbled in a manuscript, it's not usually in the published press because it's [00:03:40] just stupid and dangerous to say something like that directly.

Nick Capodice: [00:03:46] So for Holly to really understand how some people in the colonies [00:03:50] felt about having a king, while we still very much had a king, she has to hunt for clues to read between the lines.

Hannah McCarthy: [00:03:59] Yeah. [00:04:00] When you're a subject of the king, even if you don't like what he's doing, you still don't want to be caught giving him a bad review. You have to be a little sneaky. [00:04:10]

Nick Capodice: [00:04:12] Wait, Hannah. That letter Holly mentioned. The one probably from Benjamin Franklin's grandmother. That was from the 1600s. [00:04:20] Isn't that a little bit early for being anti-monarchy? Even if you're being sneaky?

Hannah McCarthy: [00:04:26] Well, there was a little something called the English Civil War.

Holly Brewer: [00:04:29] In [00:04:30] England in the 17th century. In the first century of the colonies, there were two revolutions, both of which involved displacing [00:04:40] a king and in the first case, King Charles the first. After seven years of civil war, he was put on trial by Parliament and tried [00:04:50] and executed, and he kept repeating. During his trial he refused to defend himself except by saying that they had no right to try him, that he was [00:05:00] above the law, that God only could sit in judgment on him, and that he was appointed by God, and that therefore they had no capacity to judge him. And that's [00:05:10] probably when that that manuscript drawing from Franklin's grandmother originated.

Nick Capodice: [00:05:15] Oh, so there were colonists observing this thing from afar and [00:05:20] quietly supporting it.

Hannah McCarthy: [00:05:22] Well, it's complicated. The colonies were pretty new. Many of them loyal to the Crown, specifically the king's son, Charles II, who was an exile. But [00:05:30] some were less than thrilled with their deposed king.

Holly Brewer: [00:05:34] You know, you can find all kinds of other evidence from around then, too, especially in New England, where they were less [00:05:40] sympathetic to monarchy, partly because especially Charles the First, partly because of their perceptions that he was intolerant of their [00:05:50] Puritan religious beliefs.

Hannah McCarthy: [00:05:52] Holly told me about this guy, Samuel Maverick. He lived in the Massachusetts Bay colony, And he wrote this letter when the restoration happened. [00:06:00]

Nick Capodice: [00:06:00] The restoration, that is, when Charles II was basically invited to just come on back and be king again. He was restored to the throne.

Hannah McCarthy: [00:06:09] Right. [00:06:10] So Samuel Maverick, who did not get along so well with the Puritan leadership in Massachusetts, is describing the colony in this letter.

Holly Brewer: [00:06:18] And he wrote this letter and [00:06:20] reported on just how terrible they were in Massachusetts and how much they didn't like monarchy. He says there's a tavern right at the main wharf coming [00:06:30] into Boston, and it used to be called the King's Arms.

Hannah McCarthy: [00:06:34] The King's Arms, by the way, refers to the royal coat of arms, the one with the unicorn and the lion. It symbolizes divine [00:06:40] right and power. It also was, and is a pretty common name for inns and taverns in Massachusetts.

Holly Brewer: [00:06:47] In Boston. They renamed the [00:06:50] tavern from the King's Arms to the King's Head. And the reason that this was so dramatic is, of course, the Kings had, [00:07:00] after the execution of Charles the first would have been a bloody head. Right? This was an incredibly radical thing to do for them to rename the King's [00:07:10] Arms, which celebrated monarchy, to the King's head.

Nick Capodice: [00:07:13] Wow. So this tavern was saying something without saying something. Essentially, it's that plausible [00:07:20] deniability thing again, right?

Hannah McCarthy: [00:07:22] And clearly Samuel Maverick knew what they meant. He's saying, look at these terrible British subjects. Now, of course, you cannot prove [00:07:30] that they are opposed to the king. It's just a name. So here's the thing. The English monarchy is restored in 1660. There are still over 300 years until [00:07:40] the Declaration of Independence. And there was a lot going on in North America, British colonies trying to establish themselves amidst resistance from tribal nations and threats from pirates [00:07:50] and competing foreign nations. There were also Nick rebellions.

Nick Capodice: [00:07:54] Oh, yeah, I know about this. Colonists rebelling against royal governors [00:08:00] and also against English law. Right.

Hannah McCarthy: [00:08:04] Right. There were these English laws that basically said the colonists could only send trade goods on English ships. [00:08:10] Some of them could only be shipped to England. And some of the stuff going to the colonies had to go through England first so it could be taxed. And even if these policies did not mean a [00:08:20] huge financial cost for the colonies, they were politically unpopular. In North Carolina, Nick, in part because of the trade laws, colonists even seized control of the government, [00:08:30] arrested officials, and created their own government for two years.

Nick Capodice: [00:08:36] This smacks of self-governance. Hannah.

Hannah McCarthy: [00:08:39] Yeah, it sure [00:08:40] does. By the way, the guy who led that rebellion, John Culpeper, had to go to England. He was tried for treason, and then he was acquitted.

Nick Capodice: [00:08:48] Wait, seriously?

Hannah McCarthy: [00:08:49] Yeah. Because the English [00:08:50] lords feared what would happen in the colonies if he were convicted. He came home a hero. But the reason I'm telling you all of this is to say that things were tumultuous. [00:09:00] In the 100 years before the revolution. The colonists were resistant to taxation without representation, to governance being imposed on them in ways that felt unfair. [00:09:10] America, in short, was developing a vibe.

Nick Capodice: [00:09:14] All right. What about the term that we hear a lot in this era? Salutary neglect that was going [00:09:20] on, too, right?

Hannah McCarthy: [00:09:21] Yeah. We talked about this in our episode on the Declaration of Independence. There was this unofficial policy of not enforcing English laws, specifically trade laws in the American [00:09:30] colonies, which helped the colonies to thrive. But part of the reason England was a little lax on laws is the fact that they were distracted. [00:09:40]

Nick Capodice: [00:09:40] Well, there was essentially a world war going on.

Hannah McCarthy: [00:09:43] There was the Seven Years War, a massive global conflict that came to the North American theater in the form of the French [00:09:50] and Indian War.

Nick Capodice: [00:09:51] Which Britain won.

Hannah McCarthy: [00:09:52] Indeed it did. It all wrapped up in 1763. But you see, even if you win a war, you still have to pay the piper. England [00:10:00] was in a ton of debt, and now it had all this time on its hands. And hey, they protected the colonies. So the colonies need to foot part [00:10:10] of the bill.

Nick Capodice: [00:10:10] Yes. Taxes.

Hannah McCarthy: [00:10:15] Taxes and not just taxes. England knew that tribal nations were not [00:10:20] going to take defeat sitting down. So they kept troops in North America. They also wanted to manage their newly acquired territories to the west. That's the stuff they took from France. So [00:10:30] colonists were forbidden from settling west of the Alleghenies. People like George Washington, for example, had fought in the French and Indian War. They'd been promised [00:10:40] land in return, or they'd been planning for decades to grab that land whenever they could.

Nick Capodice: [00:10:45] So westward expansion was an American obsession. From very early on.

Hannah McCarthy: [00:10:49] An [00:10:50] English interference with this plan was not welcome. So we have England telling us we cannot have the land. We want English troops roaming around who, by the way, [00:11:00] the colonists were required to house and give supplies to.

Nick Capodice: [00:11:05] Wait, wait, hold on a second. Is this why we have the Third Amendment, our most neglected [00:11:10] amendment? Yes. This story keeps getting better and better.

Hannah McCarthy: [00:11:13] And of course, as you mentioned, we have taxes. Oh the taxes. And we're gonna get to that after [00:11:20] a quick break.

Nick Capodice: [00:11:21] But before that break, if you want to learn more about what went into cementing a country without kings, we have a whole series on our foundational documents. [00:11:30] You can check out the whole shebang on our website, civics101podcast.org, or wherever you get your podcasts.

Hannah McCarthy: [00:11:51] We're [00:11:50] back. We're asking how we agreed to be a country without kings. And before the break, the French and Indian War had just ended and England was really [00:12:00] starting to grind colonial gears, quartering soldiers, forbidding expansion and taxes.

Nick Capodice: [00:12:06] And I know we got to have a gentle touch on the historical details [00:12:10] on this one, because otherwise we're going to be here all night.

Speaker4: [00:12:13] All week, all week.

Nick Capodice: [00:12:15] But I think basically what people need to know here is that the colonies had developed [00:12:20] a sense of independence. They had their own methods, their own plans. And now. Now the mother country was yanking them back in certain ways. [00:12:30]

Hannah McCarthy: [00:12:30] Right. And all of this without representation in British Parliament. Still, this didn't yet mean we were anti-monarchy, at least not out loud. Early on in this [00:12:40] episode, our guest Holly Brewer explained the danger of critiquing the crown itself. It was treason in the early days of the colonies, and remained treason in the years before the [00:12:50] Revolutionary War.

Holly Brewer: [00:12:51] One of the things that really fascinates me is there's been some scholarship that has said people didn't really criticize the monarchy, and therefore [00:13:00] people approved of the monarchy in colonial America. But when you realize that it's dangerous to do so, and you can find examples of people being thrown in jail for saying, [00:13:10] God damn the King in a tavern, for example, in North Carolina in the 1750s or something like that, you realize that people learn [00:13:20] to be careful. I mean, not that you might not think things, but you're not going to put it in print. So you have to be suspicious of just looking at what's in the newspapers [00:13:30] and assuming that represents what people really thought about monarchy. And so it was normal in the lead up to the revolution, to blame the king's ministers [00:13:40] for the policies and the problems and not the king himself, because that was a safer thing to do. But people might really be realizing [00:13:50] or probably were really realizing this is the Kings bad choices about prime ministers because he chose the prime ministers. And so that was creating all [00:14:00] kinds of problems.

Nick Capodice: [00:14:04] So even though the safest way to critique your government was to avoid the guy at the top, [00:14:10] people were aware of the fact that the guy at the top was ultimately responsible for the things they didn't like.

Hannah McCarthy: [00:14:17] Yeah, it makes me think about the fact that Americans [00:14:20] today often blame the president before they'll blame whatever cabinet member made, whatever decision, we go straight to the top. But back to the colonies. Tensions are [00:14:30] building amidst taxes and policies and conflict with British troops. Real quick, Nick. Do you know who Oliver Cromwell is?

Nick Capodice: [00:14:38] So Cromwell was the guy who took over. [00:14:40] Way back when Charles the First was executed. He was the Lord protector of the Commonwealth of England. Controversial guy. Some people say he was [00:14:50] a military dictator. Some people say he was a hero.

Hannah McCarthy: [00:14:55] And a true loyalist to the Crown would be anti Cromwell. He [00:15:00] helped to overthrow the English monarchy. So in 1765, the very unpopular Stamp Act imposed a direct tax on the American colonies. [00:15:10] That same year, a clandestine resistance group launched in Boston, Massachusetts, to protest taxation without representation.

Nick Capodice: [00:15:23] I [00:15:20] was hoping we'd get to these guys. The Sons of Liberty.

Holly Brewer: [00:15:26] The Sons of Liberty were meeting at a place called the [00:15:30] Green Dragon in what they did to make sure that only people that agreed with them could come in as they took. They had a painting like a sign [00:15:40] of the Lord protector, Oliver Cromwell, who was the one who defeated Charles first and was in charge of the Commonwealth earlier. And they put it [00:15:50] halfway down the door. So imagine like a doorway and they take the sign and they put it halfway down. So that to walk through the doorway you have to bow [00:16:00] low and then walk underneath this picture. And so their logic was, if someone is willing to bow to the Lord protector, they can come in and be part of the Sons [00:16:10] of Liberty meeting. But if they're not, this is a good way of making people choose their allegiance.

Nick Capodice: [00:16:20] So, [00:16:20] Hannah, look, I know this is all leading towards a long, deadly war, but this kind of thing is just funny. It's clever, you know, it's [00:16:30] good marketing. It is both serious and tongue in cheek. If you bow before the guy who helped to overthrow the king over 100 years ago. You're one of us. [00:16:40] And if you can't bring yourself to do that, we got your number right.

Hannah McCarthy: [00:16:44] And the Sons of Liberty were not the first resistance effort in the years after the French and Indian War, but [00:16:50] their riots, boycotts and propaganda fueled the sentiment of liberty all building up to the shot heard round the world. April 19th, 1775, [00:17:00] at the Battle of Lexington and Concord between British troops and the American colonial resistance, and still still the [00:17:10] battle against monarchy itself. The war against a king that took a little common sense.

Holly Brewer: [00:17:19] Well, what [00:17:20] most historians say, and I think this is right, is the first example of directly criticizing the king is Thomas Paine's Common Sense. [00:17:30] Paine was actually from England, was from a Quaker family. Benjamin Franklin met him in London in 1773 or [00:17:40] 1774 and said, you should come. He liked his ideas, said you should come, and helped him. Anonymously published this pamphlet called Common Sense, which we all know [00:17:50] there were thousands of copies, probably one for every ten people in early America in early American, given that many people couldn't read, and [00:18:00] we know it was at taverns and people were reading it out loud, this was incredibly widely distributed. And it appeared in January of 1776.

Nick Capodice: [00:18:09] As in six [00:18:10] months before we declared independence.

Holly Brewer: [00:18:12] And not only did it directly criticize the king that King George the Third, but it also [00:18:20] criticized monarchy in general. The idea of hereditary power, given the way that you're supposed to talk about monarchy as divine in a world where [00:18:30] the king is the head of the church and called God's anointed servant, which is part of the routine church services that people are supposed to be attending. This is pretty radical [00:18:40] talk. Talk that people laughed at, people listened to. And as he pointed out in great [00:18:50] detail. Choosing your king on the basis of whoever happens to be born to the king before he might be a good person, but will [00:19:00] the child be good? Especially because princes are likely to be spoiled and not grow up among the common people. They really won't understand things. So it's [00:19:10] a really deliberate and sustained attack on monarchy, for which he knew he was potentially in great trouble because it was a really dangerous thing, too, right? And [00:19:20] of course, all the early editions were published without his name on it.

Hannah McCarthy: [00:19:25] Now, Holly told me this was a major moment in the colonies, this barrier that had prevented [00:19:30] so many people from criticizing the king out loud had cracked. And King George the third, of course, played a role in that as well. In more ways.

Speaker5: [00:19:39] Than one. [00:19:40]

Hannah McCarthy: [00:19:40] We're going to get to that after a quick break. We're back. We're talking about the long and winding [00:19:50] road that led to our country being without a king. And a big part of that was being able to criticize the king and the idea of monarchy itself out loud before [00:20:00] the break. Our guest, Holly Brewer, told us about Thomas Paine's Common Sense, a pamphlet that was published in the colonies in January of 1776. [00:20:10] It targeted both King George the Third and the problem of monarchy itself, and it got the colonists talking. But Nick, it was [00:20:20] still immensely controversial.

Nick Capodice: [00:20:23] Wait. But at this point, we were already fighting, weren't we? The Battle of Lexington and Concord [00:20:30] had happened. The revolution had begun. So if that's the case, why was Thomas Paine's Common Sense so controversial?

Hannah McCarthy: [00:20:39] Okay, this might be familiar [00:20:40] to anyone who has seen the musical Hamilton or studied this period in history closely. Yes, the fighting had already begun. And yes, we talk [00:20:50] about the shot heard round the world as the beginning of the Revolutionary War changed the world as we know it. Except Nick. The Continental Congress [00:21:00] tried to end the fighting after just a few months.

Nick Capodice: [00:21:04] Oh, yes, that's right. This is the Olive branch petition.

Hannah McCarthy: [00:21:07] Yeah. Congress signed this thing on July 5th, 1775. [00:21:10] That's a year minus a day before the Dunlop broadside of the declaration was printed in Philadelphia. But do you know what the Olive branch petition [00:21:20] actually says?

Nick Capodice: [00:21:24] No, uncle. Truce? No. Backsies.

Hannah McCarthy: [00:21:28] It begins, quote, [00:21:30] to the King's most excellent Majesty. Most gracious sovereign. We, your Majesty's faithful subjects of the colonies.

Nick Capodice: [00:21:39] Wow, [00:21:40] that is some serious groveling Hannah.

Hannah McCarthy: [00:21:42] Oh, yeah. It goes on to say, essentially. Hey, Your Majesty, we love you. We're loyal to you. Great Britain is amazing, [00:21:50] but we have had some issues with your ministers. And yes, things got out of hand. Please, please, please stop the fighting and let's just work something out together.

Nick Capodice: [00:21:59] And what [00:22:00] did George think of that?

Hannah McCarthy: [00:22:01] He refused to read it. He gave a speech to Parliament, said the colonies were rebelling and Britain was going to squash it, and [00:22:10] then eventually denounced the colonies. Unfortunately for him, common sense was about to hit the shelves.

Holly Brewer: [00:22:19] It [00:22:20] was also a timing issue. So I think this probably arrived in the colonies in about January, about the same month, and was reported in the newspapers where the king got so angry [00:22:30] about what had happened in terms of the battle at Lexington and Concord and the emerging war that he declared that the colonies [00:22:40] were outside of his protection, that they were no longer subjects, that they were. He rejected them. And so it made it, you know, arguably safer because [00:22:50] he said they were outside of his protection. Then all of a sudden he had said, I'm not your king anymore. Right. So they felt like there was a certain space [00:23:00] there, but it was still something they were scared about.

Nick Capodice: [00:23:07] Something I can't stop thinking about. It is [00:23:10] amazing to me, Hannah, how long and how much it took for us to say publicly. All right, George, you're the problem. [00:23:20]

Hannah McCarthy: [00:23:20] Which, of course, we finally did. The Declaration of Independence, [00:23:30] which included a laundry list of grievances against the king, was approved on July 2nd and signed by many of the framers two months later. Holly told me [00:23:40] about this letter that one of the framers, Benjamin Rush, sent to John Adams, and now he sent this about 35 years after the declaration was signed.

Holly Brewer: [00:23:50] And [00:23:50] do you recollect your memorable speech upon the day on which the vote was taken? Do you recollect the pensive and awful silence which pervaded the house when we were called up one after [00:24:00] another to the table of the president of Congress, to what was believed by many at that time to be our own death warrants, the silence and the gloom of the morning [00:24:10] were interrupted, and I well recollect only for a moment by Colonel Harrison in Virginia, he said to Mr. Jerry at the table, quote, I shall have a great advantage [00:24:20] over you, Mr. Jerry, when we are all hung for what we are now doing, from the size and weight of my body, I shall die in a few minutes. But from the lightness of your body you will dance in the air for [00:24:30] an hour or two before you are dead. End quote. The speech procured a transient smile, but it was soon succeeded by the solemnity with which the whole business [00:24:40] was conducted.

Nick Capodice: [00:24:41] It is a literal gallows humor joke.

Hannah McCarthy: [00:24:45] I know. I appreciate this letter so much. Like the way it gives this deep sense of dread. [00:24:50] You know, you hear your name called. You walk up to the table. You put your signature on a document that could condemn you to death. And then some guy [00:25:00] tells a joke, right? But it, like, barely lightens the mood.

Holly Brewer: [00:25:03] But it does give you a sense of just how terrified they're all were. And some of those who wrote the [00:25:10] declaration, Livingston, who was one of the five Committee of Five who helped to drop the declaration. He didn't sign it in the end. And there's others [00:25:20] who were there originally who weren't there for the signature phase. So some did chicken out. And for most of them, it turned out okay. But it was scary. [00:25:30] And I think understanding that is really important, that it's hard to measure popular sentiment against monarchy [00:25:40] when it was so dangerous to speak up Gab openly. Now, of course, after the declaration is signed and people are openly at war. It's it's a it's [00:25:50] a much more complicated business, right.

Nick Capodice: [00:26:02] So [00:26:00] is this it, Hannah? Like, is this when it really and truly started the era of an America that [00:26:10] was against kings?

Hannah McCarthy: [00:26:11] Well, plenty of people were still loyalists and plenty more claimed to be loyalists when they had a red coat staring them down. The Declaration of Independence self [00:26:20] proclaimed unanimity of the 13 states. But not everybody wanted out of the monarchy. The gloves were off, though, for those who did. Holly [00:26:30] talked about a moment when she was going through all of these revolutionary era summonses from the King.

Holly Brewer: [00:26:36] In the fall of 1776, in Frederick County, [00:26:40] Virginia. When I was going through those files, one of those summons. Somebody had clearly the sheriff or some official who was delivering it had [00:26:50] crossed out. They'd kept the part about Georgia third, but they crossed out defender of the Faith and King by the grace of God. And and they put in just two words [00:27:00] the devil. So, so. So there really was a sense [00:27:10] in which the revolution was deliberately against the king and really angry about him.

Nick Capodice: [00:27:17] And is this around about the time when the former colonies started to [00:27:20] write their own constitutions?

Hannah McCarthy: [00:27:22] Yeah. And they certainly looked to the monarchy for inspiration for what not to do.

Holly Brewer: [00:27:27] So you have, throughout these new constitutions, [00:27:30] um, processes of electing everybody in every position of making sure that people had their jobs, usually during good behavior [00:27:40] and not at the pleasure of the governor. And you had efforts to make sure that everybody in all positions [00:27:50] were accountable if they did things wrong. Um, so processes of impeachment and removal, frequent elections, language [00:28:00] that people who serve in such positions are the servants of the people and not vice versa. So there was a real effort to subvert. [00:28:10] Even though they have some of the same structures of power, the authority structure, from being something that was top down towards something that was [00:28:20] more bottom up.

Hannah McCarthy: [00:28:25] And then, of course, Nick, we know how this particular story ends. The United States [00:28:30] won the war against this ancient, powerful monarchy, against monarchy itself. And the framers had to decide what the new nation would [00:28:40] look like. And who would be the leader at the top. Would it be one person? Would it be three? How would they be elected? How long would they serve? And even the most [00:28:50] extreme proposals were a far, far cry from monarchy. And then they had to convince the rest of the new country.

Holly Brewer: [00:28:59] One of the things [00:29:00] that's really striking about that is there's nobody at those ratifying conventions or in the newspapers who's saying the president is [00:29:10] too weak? Nobody. I mean, in a highly fractured ideological landscape, you would have expected somebody to [00:29:20] say something like that. Even in a newspaper, if they really thought it. And maybe the ones who really thought something like that. I mean, of course they left the country. They'd stayed [00:29:30] loyalists or they weren't speaking up at that point. But at least you don't see things like that in the newspapers at all. What you see are worries that there might be [00:29:40] a way for the president to become a dictator, even with all these restraints that are put on him. And you see a lot of emphasis in the discussions [00:29:50] on, oh, no, no. He's going to be responsible before the law. He's going to be accountable. He can be impeached without any punishment, then removal, [00:30:00] and then he can be tried by the courts of common law. If he does something seriously wrong. So there's constant reassurances in these debates that, yes, this is [00:30:10] this person is not a king.

Nick Capodice: [00:30:17] You know, Hannah, over the course of this whole conversation, [00:30:20] I just kept thinking about that one line from the Declaration of Independence. We hold these truths to be self-evident. [00:30:30] Right. The framers thought monarchy was unnatural. That absolute power over others, power that does not [00:30:40] answer to anybody was a violation of our innate human rights. Even if that power was used for good, it is inherently wrong. And [00:30:50] they knew what they were talking about. They lived it. It was their system. They were born into it. They suffered under it, and they broke free. It [00:31:00] wasn't about taxes. It was about humanity versus inhumanity.

Hannah McCarthy: [00:31:06] Yeah. You know, there's one thing that Holly said that I keep turning over in [00:31:10] my mind because the framers created a country where people have come to take democracy for granted. You know, maybe that's a good thing. Maybe it's because [00:31:20] democracy is truth is human is based on what is self-evident. Or maybe we take it for granted, or even grow to dislike it, [00:31:30] because we've stopped thinking about why we made it in the first place.

Holly Brewer: [00:31:35] And we are in a very, very difficult time right now because so many [00:31:40] norms are being ignored and overturned, but it's all the more important. I would suggest that we do think about [00:31:50] fundamental principles and how the world should work, and raise our voices about that. There's a line in the Virginia Declaration of Rights, [00:32:00] and I'll read it to you that no free government or the blessings of liberty can be preserved to any people, but by a firm adherence to justice, moderation, [00:32:10] temperance, frugality, and virtue, and by frequent recurrence to fundamental principles. And there's something about that recurrence [00:32:20] to fundamental principles that I think is so important that it gives us a grounding. We should be thinking about what we want our fundamental principles to be, and then we [00:32:30] should adhere to them, because, frankly, a chaotic world where the rules are always changing is not good for anyone. Not even oligarchs, [00:32:40] Not even big business people need rules that they. They can follow norms. I have my own ideas about what their should be, which [00:32:50] look like some sort of real democracy, right? But regardless, people should always be thinking about what those fundamental principles are.

Hannah McCarthy: [00:33:04] Last [00:33:00] thing, Nick Hawley told me that in the early days of the United States, there was this concerted effort [00:33:10] to figure out what our laws would be. We had federal and state constitutions and legislatures, but they weren't starting from scratch.

Holly Brewer: [00:33:19] In early America, [00:33:20] before the revolution. A lot of the laws, a lot of how justice functioned, was not based on laws passed in the colonies. It was based on these common law guidebooks [00:33:30] that that local justices of the peace would use, or justices even on the High Court to understand how the law worked. But after the revolution, a lot of it changed. [00:33:40] And so there was a considered effort to to understand how the law was changing in a republic. If you're going to have these principles about government [00:33:50] based on the consent of the government. What parts of the common law had to be adopted?

Hannah McCarthy: [00:33:55] We kept a lot of the English common laws, definitions of crimes, contracts, property, [00:34:00] but some we used as examples of what the United States absolutely could not and would not be a country where one person [00:34:10] held all of the power, an unnatural country, a country with a king.

Holly Brewer: [00:34:18] One of the most important legal [00:34:20] justices and legal commentators of the New Republic was a man named Saint George Tucker, who was a judge in Virginia, and he [00:34:30] published um Commentaries on William Blackstone's Guide to the Common Law from earlier in the century that was English. And when [00:34:40] he got to the section about the Kings prerogatives, he kept them so, as he put it, so people could see the evils of monarchy, that, you know, this is what we don't want. But he he has all these footnotes. [00:34:50] He says none of this applies here. We're a republic. We have no kings. Our executive have no prerogatives. They are subject to the law just like any [00:35:00] other.

Hannah McCarthy: [00:35:28] That [00:35:20] does it for this episode. It was [00:35:30] produced by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer, Marina Henke is our producer, and Rebecca LaVoy is our executive producer. You can check out Holly Brewer's [00:35:40] book By Birth or Consent Children, law, and the Anglo-American Revolution in Authority. For more on her work on the origins of democratic ideas across the British Empire, [00:35:50] and stay tuned for her upcoming book that will examine the origins of American slavery in larger political and ideological debates. Music. In this episode by Luba Hillman, Hannah Eckstrom, [00:36:00] Anna Dagher, Joe and Jeannie Loving caliber Beigel Lenin. Hutton, Laura metcalfe, Otto. Hacker, Timothy, Infinite Mind Server Unlimited, Alex Lane, and [00:36:10] Chris Zabriskie. There's a lot more to the story of American democracy, and we have made hundreds of episodes trying to tell it. You can find them all at our website, civics101podcast.org. [00:36:20] Civics 101 is a production of NPR, New Hampshire Public Radio.

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Civics lessons from Karen Read's retrial

The team delves into some of the many civics lessons the public got while watching Karen Read’s retrial, which ended with her acquittal on all major charges in June. Topics include the First Amendment, judicial discretion, courtroom tactics, and more. Our expert for this episode is Colin Miller, blogger, podcaster, and professor at University of South Carolina School of Law. 

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Transcript

civ101-readfinalpod.mp3

Rebecca Lavoie: I'm Rebecca Lavoie.

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: I'm Nick Capodice.

Rebecca Lavoie: And this is Civics 101.

Archive: I'm Vinny Bolton. The subject of my investigation is the death of Boston police officer John O'Keefe and the dramatic retrial of his girlfriend, Karen Reed.

Rebecca Lavoie: So today, we're going to be talking about a high profile trial.

Archive: Defendant not guilty or guilty. So say you, Mr. Foreman. So say you all.

Rebecca Lavoie: Apologize in advance for listeners who might be tired of hearing about this topic, but I promise it will be relevant to this show. Nick. Yeah. What do you know about the Karen retrial?

Nick Capodice: Rebecca I know so little about the Karen retrial. I do know it involves the police, and it happened in Massachusetts, and it's kind of bonkers, like stuff just all over the place? Yes. And it just kind of happened, didn't it?

Rebecca Lavoie: It just kind of happened. Yes. Karen Reed was just acquitted on most of the charges against her just a couple weeks ago in June. What do you know, Hannah?

Hannah McCarthy: I know more. Okay. I know that Karen Reed was accused of killing. Perhaps inadvertently. Perhaps not. I don't I don't know the details of that. Her boyfriend, John O'Keefe, by hitting him with her car. I know that he was found outside in the snow, that her taillight had been broken. And I also know that her defense claims that this was a police cover up, that she was framed, and that he was actually either wounded or killed in a fight at a party with other police officers and was bitten by a dog and left outside in a snowstorm to die.

Rebecca Lavoie: Okay, you're actually pretty close. So I feel like first I should give a little bit of a A disclaimer about me. Rebecca Lavoie. So I work on Civics 101 by day here at NPR. But outside of work, I also host a true crime media review podcast where we look at the journalism around true crime. And I became really interested in the Karen Reed case a little more than a year ago, and I have since become like a commentator on the case and like court TV and stuff. So I do have a point of view about this, and I'm not going to get too much into my point of view. You might get a hint of it, but it's part of why I find this case interesting. So do you want to hear the story?

Nick Capodice: Yes, absolutely.

Rebecca Lavoie: Okay, so the reason this case is important is, first of all, this was a retrial. Her first trial ended with a mistrial in 2024. For second, the Karen Reed case drew outsized public attention for reasons we will talk about, and maybe the first highly publicized trial in a very long time where the majority of the public was rooting for the accused.

Archive: Karen Reed's second trial. Tapping into a common thread beyond the utter conviction by the free Karen Reed movement that she is innocent.

Rebecca Lavoie: Also, this trial, in my opinion, has imparted more civics lessons than any criminal case I can think of in recent years. And we will talk about some of those, but not all of them. In this episode. I want to acknowledge something really important. We're going to be talking about a case, and at the center of that is a woman, a woman defendant, Karen Reed. But the reason the case happened was because a human being died really tragically. Everybody agrees that this was a tragedy. No matter what you might think about the trial, about the outcome. Officer John O'Keefe is the victim at the center of this. But today, we're not going to be talking about O'Keefe. And I just wanted to acknowledge that we're going to be talking about the trial itself. The person who was accused of killing John O'Keefe, the person who was later acquitted of killing John O'Keefe, and some of the things that happened during these high profile trials around this person, Karen Reed. So here is the story. In the early morning of January 29th, 2022, Karen Reed's boyfriend, Boston Police Officer John O'Keefe, was found on the front lawn of 34 Fairview Road in Canton, Massachusetts. That home was owned by a police officer who had been hosting a post night out party.

Rebecca Lavoie: Reed was arrested on February 2nd, 2022, just a couple days later, and was arraigned. And after that arraignment, her lawyer got a tip and the tipster said that John O'Keefe had actually been killed inside the home where he was found and then put outside. Karen Reed was eventually indicted and tried for a lot of charges, but the main ones were second degree murder, manslaughter and leaving the scene of a death. And those charges had some sub charges. And in trial two, the defense successfully argued to allow the jury to vote on one particular charge. Operating under the influence of alcohol, which did not affect other charges, and that is the only charge she was convicted of this past June. Wow. So over time, public sentiment swayed where most people believe. Now, if you poll them that John O'Keefe was not killed, the way the police say he was killed in Karen Reed's case. This is fed by the fact, in part, that his right arm does appear to be covered with wounds from a dog attack. And people believe a lot of the evidence in the scene, including pieces of the taillight, as you mentioned, were planted by a police officer who was, by the way, later fired for ethical misconduct around this very case.

Archive: In the case, a major blow, in fact, to the prosecution in the case of Karen Reed and the retrial. The jury will hear that lead investigator Trooper Michael Proctor has been fired following a three day police trial board review over three months stemming from testimony about drinking on the job and sending inappropriate messages about defendant Karen Reed.

Hannah McCarthy: Wow. Yeah.

Nick Capodice: Can I ask a quick question? Sure. Do you know? How can somebody be charged with manslaughter and second degree murder?

Rebecca Lavoie: That's a very interesting question. And that's a good civics lesson. So prosecutors very often up charge people a common way to get people to plea out. If people believe they are guilty or they want a quick conviction is to pile charges on top of charges. But you can absolutely charge people with both things. And the jury can then decide whether they're guilty of both one or neither. By the way, I'm not the only person who was deeply interested in this case. Millions of people are obviously. But one person who was tweeting and blogging about the case was somebody I really admired. His name's Collin Miller.

Nick Capodice: Ah, he was our guest on the episode determining whether or not Santa Claus as a criminal.

Rebecca Lavoie: That's right.

Nick Capodice: I love Colin. He's great.

Rebecca Lavoie: Yeah. He's incredible. He's a law professor at the University of South Carolina School of Law. He's a blogger. He's a podcaster who's helped a lot of people get out of prison after wrongful convictions or overcharging and so forth. And I asked him why he was so interested in Karen Reed's retrial.

Colin Miller: I think the main reason is that I've done a lot of research about Retrials and the research all points toward the prosecution faring better at a retrial than the defense. And the reasoning is usually the defense knows a lot more about the state's case at trial one. And the prosecution knows less about the defense case, which then helps the prosecution in trial two. What we've seen in this case, though, was I think the defense, to me at least, seems to have learned more from trial one than the prosecution. Namely, it seemed that jurors at trial one weren't willing to accept the third party liability that the people at Fairview might have been responsible. And so, at trial two, the defense is focused much more on a there claim that there was no collision, but b this was shoddy police work rather than pointing the finger at any particular alternate suspect.

Archive: But the story you'll hear is about an investigation that was riddled with errors from the beginning a rush to judgment, conflicted and corrupted from the start, corrupted by bias, corrupted by incompetence, and corrupted by deceit.

Rebecca Lavoie: So here's why I got interested in this case. It was long before the second trial. It was just before the first trial in 2024. I learned that in spring of 2023, the FBI, working under orders from the DOJ, the Department of Justice, were conducting their own investigation into the circumstances of John O'Keeffe's death.

Hannah McCarthy: Rebecca, what triggers a federal jurisdiction in a case? I know that, like going over state lines is one example. Yes. And that being somehow involved with a federal agent or anything like that is another. But how? How is this case within federal jurisdiction?

Rebecca Lavoie: That's a very interesting question. And the answer to that isn't completely clear. However, federal jurisdiction applies to civil rights. Any matters concerning federal law, the Constitution, disputes between states, etc.. The Department of Justice has a public integrity unit and a civil rights jurisdiction. So there is a theory, and I think it's actually not a bad one, that the FBI and DOJ were looking into a pattern of misconduct around police who were involved in this investigation, or in the Norfolk County District Attorney's office run by Michael Morrisey, who's held that office for like 36 years. There's a theory that that is why they're involved now. It's important to note that in February of 2025, President Trump ordered the DOJ to stop investigations into civil rights cases and subsequently to stop investigations into cases involving police. In March of 2025, the prosecutor prosecuting the Karen Reed case announced that he had been told the federal investigation was, quote, over. But that is actually unclear. And what interested me in the case was that the DOJ, in August of 2023, sent the district attorney, Michael Morrissey, in Norfolk County a letter saying that they had come to a very different conclusion about John O'Keefe's death, in essence, that he was not hit by a car. And you would think that that would prompt the Da to take a second look. But no, they doubled down and went forward with trial one, despite the fact that they knew the FBI had looked at the case and come to a different conclusion. So, as I mentioned, Karen Reed's first trial in 2024 ended with a hung jury on all the charges. But interestingly, in a stunning turn, several jurors proactively contacted both the Da and Karen Reed's defense team after the trial, saying that they had actually all agreed on two of the charges, two of the major charges, and they were only hung on one of them. This happened, they said, because of a confusing jury form and because the judge in the case never pulled the jury when they announced the deadlock. Nor did she give the defense the chance to object and ask for a poll of the jury.

Archive: To continue to deliberate would be futile and only serve to force us to compromise these deeply held beliefs. I'm not going to do that to you, folks. Your service is complete. I'm declaring a mistrial in this case.

Hannah McCarthy: So, like multiple members of the jury say we had reached a decision. Your form was just confusing.

Rebecca Lavoie: That's right. And the Reed defense actually took this to the courts, including federal courts. It went all the way up to the Supreme Court after judges kept ruling in the judge and Karen Reed's case forever, saying she hadn't done anything improper. And then the Supreme Court declined to take up the case.

Nick Capodice: In the Supreme Supreme court.

Rebecca Lavoie: Yes.

Nick Capodice: They filed a petition for a writ of circuit to be like, here are the Karen Reed.

Rebecca Lavoie: Yes.

Nick Capodice: I didn't know about that. I have a question, Rebecca. Yes? If a jury can't make up its mind if it's a hung jury, is that a mistrial?

Rebecca Lavoie: Yes. And then the prosecutor has the choice to either let it go, drop the charges, not retry, or to have a second trial, which is what happened in this case. So how does a judge actually decide if a jury is deadlocked or not?

Colin Miller: So the answer is this actually originated in Massachusetts before it went to the Supreme Court. We have what's known as an Allen charge. And so if the jury sends the judge a note saying we're deadlocked, the judge is allowed to give what's known as an Allen charge or an Allen instruction. And that tells the jurors the goal of our justice system is consensus. Please consider the opinions of opposing jurors and see if you can reach consensus. If the jury comes back again and says we're still deadlocked. The judge can give a second Allen charge or Allen instruction under Massachusetts law. Beyond that second instruction, if the jury says they're deadlocked, pretty much that's going to be a hung jury and a mistrial. There's some possibility we could have the judge instructing them to continue deliberating. But usually if there is a deadlock after that second Allen charge, that would be grounds for a hung jury and a mistrial.

Rebecca Lavoie: Interestingly, that Allen charge sometimes called the dynamite charge, basically saying, kids, get back there.

Nick Capodice: And figure this out.

Rebecca Lavoie: And figure this out. So another reason I became super interested in this case is because it's somewhat of a whodunit, right? And thanks to a very controversial but extremely popular blogger known as Turtleboy. His real name is Aidan Kearney, and he's named Turtleboy after his statue in his hometown in Worcester, Massachusetts. Thanks to his reporting, getting tips from the defense team, etc., the public learned about potential alternate suspects and theories and really began to pay attention to the story. It went like a little bit viral in Massachusetts. Now, I know you're familiar with Turtleboy, right? He's a very unconventional and sometimes unpopular methods.

Nick Capodice: Sure, I hear him a lot on sort of like he's on the radio all the time. Howie Carr yeah, we got Turtleboy on this afternoon.

Archive: Turtle boy, thanks for being with us. First of all.

Archive: Thanks for having me, Howie.

Nick Capodice: But yeah, I know Turtleboy. Also. I know Turtleboy because he reports on what's going on here in New Hampshire. Like in Concord. I follow what he writes because it's real local, local, local news.

Rebecca Lavoie: It is. And it definitely got me intrigued about the state of journalism, what I who I saw not covering this case and who I saw covering this case and the power and freedom of the press. So Kearney Aidan Kearney may not have used all the traditional methods of reporting. He doesn't have an editor. He does do some fact checking, but maybe not the same process as everyone else. And he for sure seemed to be on to something in this case and people paid attention.

Nick Capodice: One thing I want to know, Rebecca, how is it determined if someone is a member of the press?

Rebecca Lavoie: Well, that used to be a much more narrow definition before the internet. Nick.

Nick Capodice: Do you have to have credentials? Do we have credentials?

Rebecca Lavoie: We can get credentials if we want to get into a specific event like.

Hannah McCarthy: The Supreme.

Hannah McCarthy: Court. Right. You got credentials for that?

Hannah McCarthy: Apply for credentials. I had to prove that I worked for a media outlet. Yes.

Rebecca Lavoie: That is not the case everywhere. For instance, in this trial. Aiden Kearney, Turtleboy and other bloggers did apply for press credentials to get into this very tiny courtroom. And they got them. And they got them in large part because they were doing most of the coverage of this case for a very long time. So this talk about journalism, it reminds me of a certain amendment that we've discussed a bunch on this show, an amendment of the Constitution. And we'll talk about that. I know you know what it is when we return after a quick break. We're back. This is Civics 101 and I'm Rebecca Lavoie, the EP of this show and our resident true crime expert. I think that's fair to say. And I'm here with Hannah McCarthy and Nick Capodice.

Rebecca Lavoie: Hi, guys.

Hannah McCarthy: Hi.

Nick Capodice: Hi.

Rebecca Lavoie: So before the break, I mentioned we'd be talking about the ways the Karen Reed case raised issues around a certain constitutional amendment. And since we're talking about journalism, any guesses as to which constitutional amendment I'm talking about?

Hannah McCarthy: The first.

Rebecca Lavoie: That's right. Who wants to tell me what the First Amendment says?

Nick Capodice: I got this one.

Rebecca Lavoie: All right.

Nick Capodice: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. Or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Rebecca Lavoie: All right. There have been so many First Amendment related issues in the Karen Reed case. I'm going to tell you about just a few of them, because we could be here all day if we talked about all of them. The blogger we were talking about before the break, Turtleboy. He didn't just cover the Karen Reed case. He has written literally more than 500 stories about it, plus broadcast on his regular nightly YouTube show. He's very active social media. He was in court for both trials reporting on it, but he also played other roles. And he admits this. He is somewhat of an entertainer and he's very much an activist. He convened rallies for the so-called Free Karen Reed movement, for instance.

Rebecca Lavoie: What's going on, everyone? So we're here to peacefully protest. So this is the home somewhere here. Hey. What's happening?

Rebecca Lavoie: So you'd think that all of this. Well, not the sort of straight journalism that we're used to consuming and making that this would all be protected by the First Amendment, right?

Nick Capodice: Sure.

Speaker16: Yeah.

Rebecca Lavoie: Yeah, well, get a load of this. Aidan Kearney, Turtleboy, and several of the people who protested about what they believe to be the truth, Karen Reed's innocence. They became targets for law enforcement during this case. What happened was they began to protest in various ways, including, you know, rallies holding signs and based on something that Karen reads, defense attorney said, if it walks like a duck and talks like a duck, it's a duck. They started leaving these little rubber duckies around canton, Massachusetts. Okay.

Nick Capodice: Were they busted for littering?

Rebecca Lavoie: Some of them were, and some of them were arrested and charged with felonies under the Massachusetts Witness Intimidation statute.

Hannah McCarthy: I remember reading that at least Turtleboy had been accused. I didn't know it was formerly of witness intimidation.

Rebecca Lavoie: That's right. He was facing several felonies for this, the concept being that the witness intimidation statute in Massachusetts says it includes this provision of not trying to influence the testimony of witnesses or intimidating witnesses. And the police and prosecution were arguing in Aidan Kearney's case that because he was covering the case and talking about these alternate suspects on YouTube and creating this sort of movement on social media, that he was actually harassing these witnesses.

Archive: The man behind the online blog known as Turtleboy, Aidan Kearney, outside the Stoughton Courthouse where he had faced a judge moments earlier, arraigned on nine charges of intimidating witnesses in a different case, the Dedham murder trial of Karen Reed. This latest twist had him shouting.

Archive: And I will not be intimidated. I will not be silenced. And we will continue on our journey for justice, for John O'Keefe and for Karen.

Archive: His followers.

Rebecca Lavoie: One of the people who was arrested was this local canton business owner, a guy named Richard Schiffer. He used the sign outside of his company, Canton Fence, to display a pro care and read message, and he had been leaving little rubber duckies with stickers on them that he had made around town. Schiffer became the target of a six month police investigation. It included things like the investigation, pulling the location data from his car, pulling his trash and going through his trash, reviewing surveillance footage, etc.. He was charged with felony witness intimidation and littering. And the judge in these cases dismissed all of them, citing the First Amendment. So the First Amendment. Let's stay on that for a minute. The judge, by the way, is named Beverly Cannone. In this case, she presided over both trials. But for trial two, she instituted a strict and broad buffer zone outside the courthouse in order to keep protesters and Karen Reed supporters away from the building, and the order included things like not being allowed to wear certain attire.

Hannah McCarthy: Well, is it like a shirt with Karen Reed's face on it? That kind of thing?

Rebecca Lavoie: Anything sort of directing court officials, witnesses, jurors to do a specific thing. She banned people from being able to wear in this buffer zone.

Nick Capodice: Quick question.

Rebecca Lavoie: Yep.

Nick Capodice: What's the zone of the buffer we're talking about?

Rebecca Lavoie: It is surprisingly large. How familiar are you with Dedham, Massachusetts?

Hannah McCarthy: A little bit.

Rebecca Lavoie: All right. So I drove to Dedham, Massachusetts, while the jury had the case in their hands, and I drove to the courthouse. And as you're approaching the downtown after you pass, the Welcome to Dedham sign is the beginning of the buffer zone. Before you've approached the courthouse, before you've turned the street to the courthouse. It's huge. It's really big.

Nick Capodice: So I know the restrictions on the First Amendment, specifically when it comes to protest using something called time, place and manner. And I think because it's a courthouse, there's kind of a you can be pretty loosey goosey about how far around the courthouse can someone be restricted or allowed to protest. But like the whole town, that seems a little.

Rebecca Lavoie: Pretty much the whole downtown sort of surrounding the courthouse. Yes. It is notable that a couple of people were actually arrested for violating this buffer zone, and they went to court, and a federal judge almost immediately deemed Judge Beverly Cannon's buffer zone at least partially unconstitutional.

Hannah McCarthy: Wow.

Rebecca Lavoie: All of this stuff, it raised a question for me. Judges especially like district court judges, you know, overseeing murder cases. How much discretion do they have?

Colin Miller: The judge has to comply with the Constitution. The judge has to comply with the rules of evidence or the guide to evidence that exists in Massachusetts. And so that reins in the judge a good deal. On the other hand, Rule of Evidence 611 says the court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to make those procedures effective for determining the truth. And so rule 611 really gives a good deal of discretion to the judge within the confines of the Constitution, the rules of evidence, to kind of do what they want in conducting a trial. And so that gives pretty broad discretion to the judge in how the trial is actually conducted.

Rebecca Lavoie: So judges can do.

Nick Capodice: Whatever.

Rebecca Lavoie: They want. Yeah.

Hannah McCarthy: Given how proliferated this case was in the media, how many people know so much about it, have so many opinions? How do you select a jury? You can't select an impartial jury. You can't be guaranteed that you can.

Nick Capodice: At least I think it's really hard. I mean, I just think of that Saturday Night Live skit about them trying to find jurors for the OJ Simpson trial. And just like that, there's nobody in the nation who hasn't heard of it.

Hannah McCarthy: That's such a good comparison.

Archive: Juror number one. How is it possible that you've never heard of O.J. Simpson?

Archive: Well, as I explained, I just awoke from a 22 year coma and was driven directly from the hospital to this courthouse.

Archive: Very well.

Rebecca Lavoie: There's actually a legal answer to this question of whether or not it's possible to get a fair trial when your community or your whole country is paying attention to it.

Colin Miller: Yes. According to the Supreme Court, in 1961, in Irwin versus dad, the Supreme Court says even if members of the jury had preexisting knowledge of the facts of the case, generally, as long as they say they can put aside that preexisting knowledge, be unbiased, decide the case based upon the facts, they're qualified to be fair and impartial jurors. Now, back in 1961, we're primarily talking about people hearing things in the community, getting little snippets of information. The question is, in 2025, when we have the 24 over seven news cycle, we have social media. We have so much information and misinformation out there about the case. Does that precedent still hold? Or should the Supreme Court reexamine that ruling in 2025?

Rebecca Lavoie: What do you think?

Hannah McCarthy: I would have to guess that reexamining it is not something a court would want to do, because you need to have a jury. That's part of the procedure. What are you going to do except come to the same conclusion, which is we just got to take them at their word. Right. Because you have to have them like.

Nick Capodice: Yeah. And I don't know if I would let's say it was a super high profile case. Like it was really big. Do you want jurors who don't know anything about the news? You know, like who just don't know a single thing.

Rebecca Lavoie: That's an interesting question. In this case in particular, they had a pool of more than 2000 people to choose from. And you know how a jury is selected right here? Correct. So there were voir dire questions that both sides agreed to, and whether or not you've heard of the case was certainly one of them. But that was not a disqualifying question. It was all about have you formed an opinion about this case that became the qualifying question? And remember, both sides have strikes. They're allowed to say no to certain jurors for reasons, and they're allowed to say no to a limited number of jurors for no reason. You know, those kinds of strikes are called they're called peremptory strikes.

Nick Capodice: Oh, strikes. Yeah.

Rebecca Lavoie: This leads me to a larger question. You know, we're talking about fair trial around juries. But there actually is a definition of what a fair trial is. I want to hear it.

Hannah McCarthy: Yeah.

Colin Miller: First, we have the right to a competent and impartial judge. Second, the right to a competent and impartial jury that is drawn from a fair cross-section of the community of which the defendant is a member. The defendant has the right to be there in the courtroom for all critical elements of the trial. The defendant has the right to a public trial where members of the press, the public, the media are able to attend. A defendant has the absolute right to confront the witnesses against them. That is the Confrontation Clause. They have the right to cross-examine and probe the testimony of the witnesses against them. A defendant has the constitutional right to testify. Most defendants do not testify in their own defense. They have that absolute right. A defendant, as might be pertinent here, has the protection of double jeopardy. Once jeopardy is triggered by a jury being impaneled in their trial. If that jury finds them not guilty of a particular crime, they can't be prosecuted for that crime again.

Hannah McCarthy: The public trial element of that was the judge's giant barrier around the courthouse in any way, a violation of that public trial element.

Rebecca Lavoie: The public trial element actually refers more to the courtroom itself. Who is allowed to come in? Are you going to bar any members of the public from coming in? Now? That would be a big deal. So in this case, interestingly, the Karen Reed trial courtroom was tiny by design. Well, it's a question as to whether or not it's a by design or whether or not this is the courtroom that this judge prefers. It was a tiny, tiny courtroom. It had room for Karen Reed's family, close friends. It had room for John O'Keefe's family friends and room for ten members of the media. And then, like, a couple more spots. And that was it. It was a tiny, tiny courtroom.

Nick Capodice: Just a shout out. Hannah and I never tire of saying this on our show. You listener are allowed to go watch any trials you want. You can just go down to the courthouse.

Hannah McCarthy: You can try.

Nick Capodice: If they let you in.

Hannah McCarthy: They'll let you in. If there's space.

Nick Capodice: Yeah, yeah, they'll let you in. If there's space.

Hannah McCarthy: Including the Supreme Court, by the way, you can try.

Nick Capodice: You can.

Rebecca Lavoie: Try. Mhm.

Rebecca Lavoie: We just heard Colin talk about witnesses confronting witnesses, questioning witnesses, cross-examining witnesses. In this case. Witnesses were very important. There were witnesses who were first responders at the scene who said they saw and heard certain things. There were expert witnesses. And the judge issued some pretty broad discretion about what witnesses and what experts she would allow in and what specifically she would allow certain experts to say and not say.

Archive: So the defense needs to provide. I'd suggest you listen. The defense needs to provide what chronological data Mr. Varney relied upon and exactly what his opinion is. All right. By the close of business tomorrow, that's fine.

Rebecca Lavoie: So this raised a question for me. What are witnesses actually allowed to do? Because if I only watch this case, I would think, well, that's up to the judge. But that's not necessarily true.

Colin Miller: So we have two types of witnesses. We have lay witnesses. Your regular average Jane or Joe. And we have expert witnesses. We have your doctors, we have your scientists, etc.. In terms of lay witnesses, we have rule of evidence 602, which says a witness needs to have personal knowledge. If my friend tells me about a murder, I can't testify. If I saw the murder, I can testify. Rule of evidence 701 says if I'm offering opinions, I need to be basing my opinions on things that I observed. And my conclusions have to be irrational. If I'm in a cafe and there's a blurry window and I see people opening umbrellas. I could offer my opinion. I think it was raining outside. That would make sense if I were to offer the conclusion. I think it was sunny and not raining. That wouldn't make sense and my opinion would be inadmissible. In terms of experts, we have rule of evidence 702. The expert, first of all, has to be qualified based upon some combination of their experience, their training, their education, etc. and then in terms of the methodology of the expert, this is tested by at the federal level. And in Massachusetts, the Supreme Court case called Daubert Daubert is essentially asking, has this expert reliably applied a reliable technique or technology to the case at hand? In this case, did an accident reconstructionist reliably apply principles accepted in their field to the case at hand?

Colin Miller: And then, in terms of the expert in their conclusions, rule of evidence 704 says an expert is allowed to testify about ultimate factual issues, but cannot offer ultimate legal conclusions that force feed an answer to the jury. So we could have an accident reconstructionist saying in my conclusion, this Honda Accord was following too closely when it rammed this Toyota Camry at the red light. The expert would not be able to conclude this driver was acting negligently. That would speak to the ultimate legal issue in the case.

Hannah McCarthy: Okay, so I've always wondered about expert witnesses. They're paid sometimes staggering sums by law firms to come and offer their testimony. I presume that if a law firm hires an expert witness, they tell that expert witness. This is our position in this case. Can you provide us essentially the scientific or academic or whatever. Evidence of that somehow.

Rebecca Lavoie: Interestingly, you just accidentally perhaps hit on one of the core reasons why people were so engaged with, obsessed with, and angry while watching this trial. And we're going to talk about that after a quick break.

Rebecca Lavoie: We're back, and we're talking about the civics lessons within a high profile trial. And in this case, it's the Karen Reed case. So before the break, Hannah, you asked a question about expert witnesses. What they are allowed to say, whether or not they are just being paid to basically repeat what it is the prosecution or defense wants them to say. Now, a lot of interesting things happen in this case around expert witnesses. I cannot recap the whole trial in this episode. It included more than 30 days of testimony, which, by the way, I did watch Gavel to Gavel. It was streamed on YouTube. Speaking of public access to the trials, many expert witnesses, primarily offered up by the defense, were excluded from being able to testify in this trial by Judge Cannon, including a former FBI agent who planned to talk about the deficits in the police investigation into the case. For instance, one of the first responders in the case, after John O'Keefe's body was found, used a leaf blower to blow around the snow to look for evidence. They gathered evidence of snow and blood in solo cups and put them in grocery store bags, that kind of thing. They never looked for ring footage in the neighborhood, or they say they never looked for ring footage in the neighborhood. That may or may not have captured something happening outside. That expert excluded by Judge Cannon.

Hannah McCarthy: An expert witness. It's I mean, as Colin said, does have to be qualified. And it sounds like this person was exceptionally qualified.

Rebecca Lavoie: Yes.

Nick Capodice: What was the justification of the judge for not allowing this evidence, these witnesses?

Rebecca Lavoie: Well, the FBI guy who's going to testify about whether or not the investigation was proper, Judge Beverley Cannon, said in a ruling, a controversial ruling that the jury would just know essentially what a proper investigation was.

Hannah McCarthy: What I don't know what a proper investigation is.

Rebecca Lavoie: A lot of people don't. Hannah.

Nick Capodice: Have you ever seen the wonderful Sidney Lumet film The Verdict with Paul Newman? Yes. There's a great sort of thing in there where an expert witness is called up, and then James Mason is like.

Nick Capodice: Is it not true that you have been paid to appear here to give evidence? I just wanted to do my James Mason.

Rebecca Lavoie: I appreciate that. And by the way, there is nothing wrong with paying experts for their time.

Nick Capodice: Yeah, it happens every day.

Hannah McCarthy: I totally agree.

Rebecca Lavoie: With you conduct testing for travel for their time in court, etc..

Hannah McCarthy: My question is is just is that witness expected by the law firm to stick to a very narrow parameter?

Rebecca Lavoie: That's a very relevant question for this case, because the defense will tell you that they sent their experts. Basically the whole case file and their experts were able to make of it what they want. The prosecution, by the way, says the same thing, but the defense had kind of an ace up their sleeve for this. Their accident reconstruction experts were actually hired by the FBI during the federal investigation before the first trial. So they're experts in the crash reconstruction side. When they first got this information, it did not come from the defense at all.

Hannah McCarthy: Okay.

Hannah McCarthy: Is that allowed?

Rebecca Lavoie: Yes. In this case, it was allowed, although those witnesses were very heavily voir dired.

Hannah McCarthy: I would imagine if you were involved in the prior investigation, but also what a witness to get right if that's allowed. Like, yeah, that's who you want.

Rebecca Lavoie: They're a firm called ARCCA and they're like the preeminent accident reconstruction and vehicle safety firm. And it was pretty clear the prosecution did not want them to be able to testify in this case.

Archive: I don't care about their opinions, but I care that it's unfair, imbalanced and hidden.

Rebecca Lavoie: Now, on the prosecution side, there were also some crash, reconstruction and car data experts. And in a moment that became a landmark moment in this trial, one of the men from that accident reconstruction company, it came out in court that he had falsified his CV and LinkedIn page, claiming he had graduated from college when he had not.

Nick Capodice: Oh.

Archive: And in fact, as you sit here today, you do not possess any bachelor degree.

Archive: Correct.

Rebecca Lavoie: Other notable things that happen in this trial. There were two motions by the defense for a mistrial with prejudice.

Archive: Your honor, the defense moves for a mistrial with prejudice based upon intentional misconduct that just occurred before the court and for the jury.

Rebecca Lavoie: A mistrial with prejudice is a mistrial is called by the judge, and it cannot be retried because it is so tainted by whatever it is the prosecution is alleged to have done. This happened notably in the Alec Baldwin case, when he was being prosecuted for that shooting that happened on the set of the film he was making. The prosecutor withheld very important, potentially exculpatory evidence from the defense, and that came out mid trial.

Hannah McCarthy: That sounds like prosecutorial misconduct.

Rebecca Lavoie: Interestingly, in that case, the judge actually allowed the defense to question the prosecutor on the stand about when she had learned a thing, how she got the information. And that was when the mistrial was called.

Hannah McCarthy: Wow, that is so dramatic. I mean, I know it's like the law and all that, but that's so dramatic.

Rebecca Lavoie: Yeah.

Rebecca Lavoie: So at the end of all of this, there were closing arguments, our closing arguments. Evidence?

Hannah McCarthy: No, no.

Nick Capodice: They are a summation by the attorneys present. This is what we've talked about. And of course, it's, you know, putting their side in the best light. It's just like a recap.

Hannah McCarthy: Yeah. Isn't it? It's also like. And so I urge you, ladies and gentlemen of the jury, to assert what you know to be true, which is that my client is not guilty.

Rebecca Lavoie: Right. In most cases, the closing argument is designed so that the lawyer who's giving it can tell a story to the jury about the circumstances, about the evidence. This is what we think happened or this is what didn't happen. And in this case, the defense kept it very simple. They had experts who they say proved there was no collision.

Archive: There was no collision. There was no collision. There was no collision.

Rebecca Lavoie: They also did a chart of reasonable doubt. Do you know what reasonable doubt is?

Nick Capodice: They have to be guilty beyond reasonable doubt. That's what the jury is told, right.

Rebecca Lavoie: But what is reasonable doubt?

Hannah McCarthy: I would say that many public radio listeners were introduced to that notion with the first season of serial, where at the end, Sarah Koenig says, I don't know if Adnan had committed a crime here. However, he cannot be proven guilty beyond a reasonable doubt. So Sarah essentially says this was a miscarriage of justice.

Nick Capodice: One thing I think is interesting about reasonable doubt is that it's personal and subjective. There can be different reasonable doubts in a room of 12 people.

Rebecca Lavoie: Reasonable doubt includes all the way up to if I think they probably did it. That's reasonable doubt. Mhm. If I think they might have done it that's reasonable doubt. I think that they did it but I don't see any evidence for it here. That's reasonable doubt. What the defense did was they had a chart which was like a piece of paper. And they had these graphics of post-it notes going on to the piece of paper. And during their hour and 20 minute long closing, they talked about all the issues with the investigation, all the evidence that they had presented, and every time they presented an issue, such as the cop who was later fired for misconduct, they would have a post-it sticky note graphically fly up and stick to that piece of paper. And at the end of the closing, he was allowed to say, look at that giant pile of notes. There's your pile of reasonable doubt right there.

Archive: As you mentally sift through those cards, realize that every one of them is a massive hole in the Commonwealth's case. Every single one of the note cards represents a hole in the Commonwealth's case. If you're holding mentally even one of those cards, you're holding reasonable doubt, folks.

Hannah McCarthy: That's a smart thing to do.

Rebecca Lavoie: Yeah, it's very actually common in murder trials, especially for defense attorneys to do what's like the tree or the chart of reasonable doubt, because you really do have to explain it to a jury. A lot of people have been convicted based on things like their affect in court, based on gut feeling, based on a better story being told by the prosecution. Who bears like the burden of most of the work in a trial? We obviously know that defense attorneys get paid a lot of money. They can hire their own experts. But who bears the burden to do the heavy lifting?

Hannah McCarthy: Do you mean the prosecution because you're trying to prove something?

Rebecca Lavoie: Yeah. So the state bears the entire burden. You're correct. And it is very important for a jury to understand that jurors are given instructions before they deliberate. In this case, the instructions took between an hour and two hours to read. They're very lengthy. They're about how to consider and weigh each charge, what needs to be proven and how they are supposed to deliberate. And then the judge can offer suggestions. In this case, Judge Cannon said, I urge you to not take an immediate poll and see where you all are. Now, I served on a jury once. I was the foreman. That was exactly what I did.

Nick Capodice: Yeah, that's what we did.

Nick Capodice: It's like in the movies. This is what you're supposed to do.

Rebecca Lavoie: Right? And in my case, in my jury, we were all not guilty. So I was like, oh, they just sent in sandwiches. Should we eat these and then go back anyway? Karen Reed was eventually acquitted of almost everything except for the operating under the influence charge, and the prosecutor had shown a clip of her in an interview that she gave to a television reporter, saying, I had had a few drinks and then I drove.

Archive: The 45 year old says she's not guilty of hitting her boyfriend with her SUV and leaving him to die in the snow after a night of drinking.

Archive: Has no life in it, he said. Just get get a shot and mix it yourself.

Archive: The prosecution showed jurors.

Nick Capodice: So she did incriminate herself.

Rebecca Lavoie: She kind of did. Also, the two jurors who have come forward to talk, what they say they did was that they weighed every single charge on that slip. They went through every bit of 31 days of evidence and tried to find evidence to support each of those charges, pointing to guilt, and they couldn't find any. Does it surprise you that this jury would be only influenced by what they saw in court?

Hannah McCarthy: Yes.

Rebecca Lavoie: You're not alone in saying that. By the way, a lot of people have called this a rare jury, especially smart jury and a very literal jury, that they took the judge's instructions and followed them to the letter, which is not what happens all the time.

Nick Capodice: Yeah. But I will say there is something about, I don't want to call it the wisdom of crowds, but one person can be really thorough in a jury and can make everybody be like, hey everybody, let's do it this way. And that person can be very effective at controlling how it is done in those deliberation chambers.

Hannah McCarthy: I think the foreman, if the foreman is like they're put in a position of power relative to the other members of the jury.

Rebecca Lavoie: How to deliberate, etc..

Hannah McCarthy: If that person says this is the way I think we should do it, you're looking for guidance. You're going to go with the person who appears to be the voice of reason.

Rebecca Lavoie: That's right, that's right. So, Nick.

Nick Capodice: Yeah.

Rebecca Lavoie: Hey, do you regret not following this story at all?

Speaker9: I really do.

Nick Capodice: I also regret that I have to make an episode this afternoon, and I can't just binge read every single thing on the internet about this trial.

Rebecca Lavoie: Yeah, I will post some links to some really good reporting on this trial from outlets like Vanity Fair. I'll put those in the show notes if folks want to learn more. There is an epilog here. Karen Reed was acquitted of all the major charges. She's not spending any time in prison. She got probation for the charge, which is the standard punishment in the for the first offense in Massachusetts. However, the O'Keefe family John O'Keefe's family is suing Karen Reed in civil court. Along with the two restaurants that served all these people before. Whatever may or may not have happened that night. So civil case, legal experts also watching that one very carefully.

Hannah McCarthy: What are they suing her for?

Rebecca Lavoie: They're suing her for a wrongful death. And that is separate from the criminal proceeding in the O.J. Simpson case. The family sued him after he was acquitted in court, and they won. So legal experts are watching this, in large part because the rules of civil cases and how you can collect evidence and interviews are very different than in criminal cases. There are many fewer limits for the kinds of evidence you can bring in, and generally, civil cases are a lot easier to win than criminal cases. But a lot of people are watching this because they know what was left out of the criminal proceeding that would have benefited Karen Reed. And they want to see if it's going to come out in the civil case.

Nick Capodice: Wow.

Hannah McCarthy: I have a question about this, because you have laid out a lot of really interesting civics elements here. So we're talking about a white woman who can hire a high powered, obviously highly competent.

Speaker9: Four high powered, highly competent lawyers.

Hannah McCarthy: Go ahead. Okay. So that that requires an immense amount of money.

Rebecca Lavoie: Yes.

Hannah McCarthy: She's a white woman of means. Right. And so we see that, and we're like, well, what's going on here? And we're going to be curious about that in a way that we are often not curious about cases that do not involve a white woman of means. Right. Yes. My question is like, would a lawyer say stuff like this is going on all the time? We are just only paying attention to this one because of that element, or is this an exceptional case?

Rebecca Lavoie: This is an exceptional case, and it's also an important case for exactly the reason that you mentioned. One of the things that fascinates me about the Karen Reed case is the crossing of political lines of protesters and pro Karen Reed people you see people saying in interviews, I have never believed that the police could do anything like this before, but I believe it now and I'll believe it in the future. So what this case has actually done? Yes, this happens to marginalized people, people of color, people without means all the time. But with this case has done, I believe is open the eyes of people who weren't necessarily looking at that. And now they are. So here the so-called thin blue line is being questioned. You know, the backing of the police non questioning their authority. So is the criminal legal system in the state of Massachusetts. And that's pretty new. It's pretty new for this community. And I think that a lot of people Bull are going to be looking at this system with a new view, because in this case, and I think that benefits all defendants.

Nick Capodice: The word conspiracy when used it has a real derogatory nature. So I hesitate to say it. But please, when you when you hear me say it, know that I don't mean it that way. I sometimes wonder is is our conspiracy theories against state or government institutions? Is that going to be the answer to civil discourse? Is that how we're all going to be able to speak again? Is that going to. Is that what's going to end? Ultimate polarization is conspiracy against the man.

Rebecca Lavoie: You know what's interesting? I actually interviewed Turtleboy a few days ago along with my podcast partner, Mel Barrett, and she talked to him about this very thing. She said, I am very different from you, meaning turtle boy. However, we have a thing in common, which is we both are now afraid of this institution. I've always been afraid of it seems like you have because of your reporting. Can we build on this. And the answer was a resounding, resounding yes. That we don't have to agree on aspects of what's going on in the world, on politics, on discourse, but we can agree that we should all be looking at and being critical of the same system. And I believe that is a very big place to start.

Hannah McCarthy: I agree with that. For a long time, I guess I call it a common enemy, but what I really mean is a common concern and like a deep concern that you share with someone else, regardless of your vast differences, is absolutely vital to coming together and making change. If that is something that is important for a community.

Nick Capodice: There's that expression only connect and that goes back a long time, which is that is that is the solution. And it's been staring us in the face the whole time is what can we find that is a connection between us to care about together. We're going to both stave off this guy with a sword over there.

Rebecca Lavoie: Yeah, yeah. We're going to gather in groups of thousands and in protest outside a courthouse together.

Nick Capodice: Fascinating. The things these people must have learned about each other, that they didn't know.

Rebecca Lavoie: About each other, about the government, about how our legal system works. A lot of civics lessons in the Karen Reed case.

This episode of Civics 101 was written and produced by me, Rebecca Lavoie. With a lot of help from our hosts, Nick Capodice and Hannah McCarthy, our team also includes our senior producer, Kristina Phillips. Music in this episode is from Epidemic Sound and by Chris Zabriskie. For more reading on the Karen Read case and all of the issues around it, check out the links in the show. Notes. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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Forget hypotheticals: How are tariffs affecting American businesses?

Today on Civics 101, we answer listener questions about tariffs. And then, we look at how they've affected one American Industry. It's not a game, but these companies do make them, and they've been hit hard by President Trump's ever-changing tariff policies. 

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Transcript

Nick Capodice: Uh, what's the sort of thing we can say to, like, indicate that we're playing an 1800?

Hannah McCarthy: You always get the cheap boxes first.

Hannah McCarthy: I always forget about the cheap boxes.

Nick Capodice: It makes it so you don't have to use artisans, but you can use workers to get.

Hannah McCarthy: I know what it does.

Nick Capodice: Goods. They're just general.

Hannah McCarthy: Goods. I know this game like the back of my hand. That's the only thing I forget. Every time you need the boxes to win the game, you need the boxes for everything.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And we have explained tariffs on the show recently. Please listen to our 101 on what tariffs are and how they work. If you haven't. I got a link down there in the show notes. Does anyone click on the links in the show notes.

Archive: Does anyone still wear a hat?

Archive: I'll drink to that.

Nick Capodice: We say it all the time.

Hannah McCarthy: Yeah, we say it in almost every episode.

Nick Capodice: I don't even know what the word show notes meant. Everyone. It's the little thing. It's like the information about this episode. We call that the show notes. Now you're an insider.

Hannah McCarthy: If you didn't know what it meant.

Nick Capodice: How does all our audience know? Anyways, yeah we are talking about tariffs again because they're changing all the time and we have gotten several listener questions about them since our recent tariffs episode. So first Hannah I'm going to answer some listener questions. And then we'll do a deep dive into how the recent tariffs are affecting one industry in particular, an industry we both love. Sound good.

Hannah McCarthy: Sound good. Is this going to be like a price of milk kind of episode?

Nick Capodice: Oh yeah. It's gonna be one of those.

Hannah McCarthy: Okay.

Nick Capodice: Okay. Cool. The price of milk. All right. Hannah, what do we got in the old question? Hopper? The old question. Basket.

Hannah McCarthy: Okay, first one, how much money has been raised by the tariffs since Donald Trump took office? And I think this one means, like, how much money have the tariffs provided to the United States?

Nick Capodice: Excellent. Yes, absolutely. Um, it's good to have a question that's got a nice firm pat answer from January 1st, 2025 to July 1st, 2025, and that's when we're taping this episode. The United States has collected $97 billion from tariffs. This is according to the US Treasury Department's daily Treasury statements. This money was paid to the US government by American businesses that bought things from outside the country.

Hannah McCarthy: And is that a lot? It sounds like a lot, but we have had tariffs for as long as we've been a nation. So how does that 97 billion compare to other years?

Nick Capodice: Yeah, to compare the same stretch of time last year, 2024, during the Biden administration, the US had collected $58.3 billion in tariffs.

Hannah McCarthy: Okay, so is 97 billion. Is that like breaking a record?

Nick Capodice: Yeah, not yet, but we're on track to break it. The current record is 2022 during the Joe Biden administration. We took in $102 billion over the whole year. So we're only halfway through the year, so we're probably going to break it. By the way, another thing in the show notes there is a wonderful tariff history tracker courtesy of the Federal Reserve Bank of Saint Louis.

Hannah McCarthy: That's actually fascinating.

Nick Capodice: Yeah, you can like, see what we charged every year. It goes back to 1930. That year we took about half $1 billion redos. All right, give me the next one.

Hannah McCarthy: All right, here we go. Where does the tariff money go once the government gets it? Originally in the 1700s, the money funded the government. Who decided where that money went? Is it the same now? Does it bypass Congress? Lots of good questions there.

Nick Capodice: Yeah. All in one email. Very thoughtful, very thoughtful. Uh, another pretty simple answer to this one, albeit with a nebulous caveat at the end. Hannah, the answer to where does this tariff money go is exactly the same as it's been since the 18th century. And I'm so glad our listener brought up the 1700s. And you know, why don't you, Hannah? I think I do have to be careful, Hannah. That's two carriage drops in one month. The tariff of 1789 was our very first piece of legislation as a country.

Hannah McCarthy: Oh, don't I know it. Nick. And with good reason. We had just won a war. We were pretty much broke, and we owed money all over town. And by town, I mean the world.

Nick Capodice: France was basically chasing the US like Sallie Mae. Chase me for my student loans. Live at the Comedy Cellar. Did I ever tell you the bit that my best friend and I used to fantasize about, like, a revolution era stand up comedy routine? I'd wear, like, a tricorn hat. Where are you from, sir? Oh, Fredericton. I hear there's a lot of taxation down in Fredericton, but not a lot of representation. Am I right, folks? Anyways, what's the deal with the food served on carriages these days?

Hannah McCarthy: Where's Fredericton?

Nick Capodice: I don't know, it's one of the ten oldest towns in America. But seriously, folks. The tariff of 1789 was a sweeping $0.50 per ton of goods that came to America on foreign ships, and $0.06 per ton on goods that came on American owned ships. There were a few exceptions. There's one fun, one tied to a certain trade. Good, near and dear to your neck of the woods, Hannah. Very low taxes on a certain good that you might say, flooded the Boston economy.

Hannah McCarthy: Oh, Nick. Is that a great molasses flood joke? People died!

Nick Capodice: So long ago. It was a sweet death.

Hannah McCarthy: Oh.

Hannah McCarthy: No no no, no.

Hannah McCarthy: Uh, but, yeah, we did need a lot of molasses in early America. It was not just for baked beans.

Nick Capodice: Yeah, it was for rum. And that is how the country funded itself. 80 to 90% of our federal revenue until the 1860s came from tariffs. But back to our listener question. Where does that money go? It goes to the US Treasury's general fund. It is the same place our federal income taxes go. And once it's there, it can be spent as Congress decides.

Hannah McCarthy: Just to clarify, Congress spends the money from that fund.

Nick Capodice: They do. Article one, section eight of the Constitution. This is the taxing and spending clause.

Hannah McCarthy: And what was the caveat that you mentioned earlier?

Nick Capodice: Yeah, the caveat is, is as we're taping this, the Senate is debating and voting on a massive budget bill which may have passed in the time between taping and putting this out. I think it might have passed a couple hours ago. Wow. Yeah. So I can't say where the money is going specifically until I read the bill. It's 900 some odd pages, but I got a pretty good idea. Hannah.

Hannah McCarthy: All right, one last question here. Who collects the tariffs?

Nick Capodice: I love this one, Hannah. Let me lay out how the money gets into that treasury fund. Refund. So the business or person or company in the United States that is importing that good from the other country is called the importer of record. When we buy that thing and it's put on a cargo ship in another country and it's shipped here, when it arrives at that port in America, the person can't get it until they pay the tariff to the CBP. Cbp that stands for the US Customs and Border Protection Agency.

Hannah McCarthy: Do they have like a a book that tells them how much money to charge someone before that thing goes away? I'm sure they're not keeping the numbers in their head.

Nick Capodice: Yeah, they use something called the Harmonized Tariff Schedule. The CBP says to the importer you bought hand-cut lace from China, and they look at the chart and they see what extra percentage is owed as a tariff.

Hannah McCarthy: All right. But I imagine this can get a little tricky, right? The tariff percentages on different goods from different countries have vacillated wildly in the last few months.

Nick Capodice: I think that's a bit of an understatement.

Archive: We saw a spike earlier today in markets, for example, based on a rumor and unfounded rumor, apparently, that Trump was going to potentially pause those tariffs. And then the administration said, never mind, we're not doing that. So you're seeing markets just like incredibly jumpy.

Nick Capodice: I also want to add, in April, after several changes to the tariffs, there was a glitch in the system, which meant that for a short period of time, nobody knew the correct amount of tax and no taxes were collected at all. When this glitch happened, I saw an interview on CNBC. Jared Marinelli, he's the vice president of a US sales and logistics firm. He said this, quote, social media posts are not law on the pause and increase in tariffs. With the constant changes to the regulations, all customs brokers in our industry have a difficult task ahead of them.

Hannah McCarthy: What if you buy something, it gets put on the boat and then the tariff changes while the ship is making its way here.

Nick Capodice: Yeah, that is a great question. Once the good leaves the factory or wherever it's made in the other country, the tariff rate is set right then. And this is specifically to prevent the cost going up or down while it's in transit. This is called an on the water clause.

Hannah McCarthy: One last thing. When you are at the port and paying the tariff, do you do you just write the customs person a check like, no, seriously.

Nick Capodice: Yeah, yeah, I'm good for it, I swear.

Hannah McCarthy: No, no, not an IOU.

Speaker6: I'm marker.

Nick Capodice: My marker is good in this town. Most of the time. Hannah, you get this all set before the good ships. And when the goods are at the port, people usually do a bank transfer, and they want you to do it quick. Uh, they don't want these ports clogged up with stuff like a storage unit in Weehawken. Now we've got the logistics out of the way. Time to talk about what these recent tariffs are actually doing when it comes to American businesses. One kind of business in particular. But first we got to take a quick break.

Hannah McCarthy: But before that break, if you like us, leave us a review. Uh, you can do it pretty much on whatever app you are listening to this current episode on. It is a tremendous way to let other people know that our show exists, and ideally that you like it, and it helps us out a lot. Thank you. We're back. You're listening to Civics 101 and today we are talking tariffs again.

Nick Capodice: Again.

Nick Capodice: Our last tariff episode was before they had been enacted. So this time I wanted a real nuts and bolts example of how tariffs affect an industry, one industry in particular, dollars and cents, how much money the US government is collecting and what the new tariffs are doing to American companies. So I decided to ask someone who makes just about my favorite product in the world.

Hannah McCarthy: Black licorice. You shouldn't eat too much, Nick. It's not good for you.

Nick Capodice: It's not good for the ticker.

Hannah McCarthy: This is not. This is not a sugar comment, everybody. Chris can be rough on the heart.

Nick Capodice: Uh, the good we were talking about is something near and dear to both Hannah and my hearts.

Jason Matthews: Kevin gave me a little bit of your background, so that's exciting. But, um. What what's what sort of gamer are you, actually?

Nick Capodice: This is Jason Matthews.

Jason Matthews: Hi. My name is Jason Matthews. I'm a game designer. I design Twilight Struggle. I work with Ford Circle games as well as a number of other publishers.

Hannah McCarthy: Oh, Twilight struggle.

Nick Capodice: Yeah.

Hannah McCarthy: That ranked number one on a little website called Board Game Geek for years.

Nick Capodice: Years.

Nick Capodice: And Jason also made a game called 1960 The Making of a president, where one player is Nixon and the other is JFK. Do you remember that one?

Hannah McCarthy: I remember that very well. Uh, I remember you were playing Nixon, and I, I don't I don't think I have ever gotten so anxious playing a board game.

Nick Capodice: Yeah, it's a wonderful game. It is a stressful game. So I was tired of hypothetical cost of things in our episodes. So I wanted to get a dollar by dollar breakdown. So I called Jason up because he has been speaking publicly about the recent tariffs and their effect on the board game industry.

Hannah McCarthy: And when did you talk to him?

Nick Capodice: This was May 6th, 2025.

Hannah McCarthy: Oh, okay. So this is when the tariffs specifically on anything coming from China were to my memory fairly significant.

Nick Capodice: Yeah.

Archive: Absolutely David. These numbers just keep changing as you know. And what we've just confirmed from the white House is that the new total rate against China is now 145% tariffs so far.

Hannah McCarthy: And just to make it clear, if I am buying sneakers made in China to sell in my local Boston store, and there is a 145% tariff on all goods from China as there was in May. If those sneakers cost me $5,000. Now I would have to pay $7,250 to acquire them.

Nick Capodice: Absolutely. And it's up to you, Hannah. It's up to you how you want to make up all that extra cash. Maybe you could, I don't know, raise the cost of shoes at your store.

Hannah McCarthy: All right. But the tariffs on goods from China are not 145% right now. Right? What are they?

Nick Capodice: Okay, here we go. What are. And what were the tariffs on goods? Cue that jangly piano. February 1st, President Trump signed an executive order putting 10% tariffs on all goods from China, 25% on all goods from Canada and Mexico. Two days later, he issued a 30 day pause on the Canada Mexico 1st March fourth. That pause ended. He doubled China to 20%. I'm skipping a bunch of these because there is a lot. Uh, March 24th, he announces a 25% tariff on any imports from countries that buy oil or gas from Venezuela, which we in America do, by the way. Uh, April 2nd, he announces the, quote, reciprocal tariffs. This is a 10% baseline on every country in the world. And then more depending on a formula, with the exception of 11 nations, including the aforesaid Canada and Mexico, because they have their own situation, but also Russia, North Korea, the Vatican, Cuba and others. China then raises its tariffs and then Trump raises them back. And by April 10th, the US has a 145% tariff on anything coming from China. Uh, the next day, Donald Trump announces there is an exception for electronics and electronics only. Not sneakers, not board games. I then interview Jason. Six days later, the president announces there is a 90 day pause on those tariffs. And that is maybe half of what happened. I didn't even get into automobiles or Madagascar vanilla, or European wine or American whiskey. And I'm going to take a deep breath. Here we go.

Hannah McCarthy: I thought that was pretty well done.

Nick Capodice: Thank you.

Hannah McCarthy: But you didn't say what the tariffs are right now.

Nick Capodice: I didn't.

Hannah McCarthy: Know.

Nick Capodice: Sorry. The most up to date figure that I could find today was from a website called China briefing.com. They have a quote on their website that says trade relations between the US and China are, quote, highly complex, shaped by a tangled web of tariffs that have been imposed, adjusted, revoked and reinstated going back to 2018. End quote. This website lists the current tariff on goods from China at 55%. This is from the 10% baseline tariff, and then a 20% fentanyl tariff and an additional 25% tariff on most goods made in China.

Hannah McCarthy: Can you clarify what is meant by a fentanyl tariff?

Nick Capodice: Yeah, I'm going to just quote what a white House official said. Uh, this additional 20% is because of punitive measures that President Trump has imposed on China, Mexico and Canada. Uh, associated with President Trump's accusation that those three countries facilitate the flow of fentanyl into the United States.

Hannah McCarthy: All right.

Nick Capodice: Okay.

Hannah McCarthy: And again, we're talking about a 55% tariff. But that number could change again.

Nick Capodice: It could change while we're recording these words.

Hannah McCarthy: All right. So back to board games. How are the tariffs affecting them. That industry specifically.

Nick Capodice: All right. Here is Jason again.

Jason Matthews: The way of board game publishing works is that there are basically two models. Uh one is direct sales. So if I for instance, the company I work with for circle, most of their games are direct sales. They sell through their website. People go directly to them. So there's no middleman, but the vast majority are going through the retail sales process. So that means right off the top, you can lop 40% off of whatever a board games MSRP. The the standard price is real quick.

Hannah McCarthy: What is MSRP?

Nick Capodice: That is the manufacturer's suggested retail price. Stores can charge more or less than the MSRP, but it is a very good guide to go off of.

Hannah McCarthy: Okay, so the retailer, let's say a local board game store, they take about 40% of what the person purchasing the game pays them for it, 40% of the money.

Nick Capodice: Yes.

Jason Matthews: And then inside the rest of that, the publisher has to pay an artist, a designer, possibly a developer. And absolutely the person making the game, the company that makes the game, usually a production cost is somewhere between 13 and 17% of the MSRP. So it's a significant portion of the cost of a board game, but it's nowhere close to the majority. It's not where most of the money is made, but it is. You know, it's noticeable when you've taken that 13% and doubled it, or 250% increase of that cost. Suddenly now it doesn't really make very much sense to publish a board game.

Hannah McCarthy: I'm still a little shaky on the numbers here.

Nick Capodice: I was to, so I figured the best way to wrap our brains around this was to imagine that we made a game.

Hannah McCarthy: We could do it.

Nick Capodice: We could. I think we could. And just to make it simple, let's say we designed a game called Civics 101 win, win a win.

Hannah McCarthy: I don't know about winning when it comes to civics, you know, unless it's like a win win situation. Um, maybe it's a cooperative game.

Nick Capodice: Yeah, yeah, we.

Nick Capodice: All win.

Nick Capodice: Civics one.

Nick Capodice: We all win.

Hannah McCarthy: But carry on.

Nick Capodice: Okay. Okay. So, Hannah, you and I come up with the idea, but we need a for real game designer to do the rules and design the board and all that stuff. And we are going to sell it in stores.

Hannah McCarthy: How many do we make? Like, how many games?

Jason Matthews: Normally, I kind of a middling print run would be about 20,000, 20,000 copies.

Hannah McCarthy: All right.

Nick Capodice: Yeah. So first off, Hannah, nobody's going to buy this game unless it looks pretty cool. So we have to hire an artist.

Jason Matthews: So we're doing a 20,000 print run for our game, and it's going to cost us somewhere, let's say around $3,000 up front for the art. And then you might pay an upfront kind of signing bonus for the game designer to kind of help pay for the prototyping and whatnot. And that'll usually be somewhere in the neighborhood of $5,000. So upfront costs, you're somewhere in that $7,000 range.

Hannah McCarthy: As in you and I have to pay seven grand just to get started.

Nick Capodice: Just to get started. And we have a long way to go.

Jason Matthews: And then you have to contract with your printing house. This is going to run somewhere short of 20% of the MSRP. The more components, the larger the game. Obviously the more expensive that all of that gets.

Hannah McCarthy: In the printing of the game. That happens in China.

Nick Capodice: Yes. And more on that later, I promise. I do imagine some of her listeners are like, why don't people print the games in other countries of the US? I swear I'm going to get to that.

Hannah McCarthy: Can we give a hypothetical MSRP for this game so we know how much we are going to make?

Nick Capodice: Sure. I suggested 49.95. I was going to make it 50. But you know pricey game.

Speaker10: What what?

Nick Capodice: But 49.95 is what somebody pays to buy Civics 101 in a store.

Jason Matthews: So at 49.95 we can say that this is going to cost probably about $7.50 a game to make after you have made it. Then you have to ship it back to the United States, and that will be an additional cost. Uh, normally if you're in a game of this size where you've got 20,000 units, you're going to be able to get a container. These days, you can get partial containers also. So at this very second, because of the trade interruption between the United States and China, containers are a bit cheaper than they were previously. So let's say you can do that for $10,000 or thereabouts with 20,000 units. You also have to pay for storage. You're obviously not just putting these in your garage, so you have to ship to a warehouse. Costs for shipping to a warehouse or additional to the cost to get it from China to the United States.

Hannah McCarthy: All right. So you mentioned that customs doesn't want things lying around at ports waiting to be collected. This is why it's got to go from the port to a warehouse.

Nick Capodice: Exactly.

Jason Matthews: Normally you're going to try and pick a central location at the warehouse so that you're shipping to individual retailers or to individual customers is less expensive. So a lot of these are located in Tennessee and whatnot. If you go the retail and distribution route, then you'll have a bunch of copies of the game sent directly to the distributor, and he will handle your retail outlet shipping and whatnot. After all of that, if you're going through retail, you get to lop off 40% of the cost for the retail and, uh, distribution percentage. And now, finally, you try and make some profit out of whatever you've done. I'm guessing you're going to get about $15 out of that, if you're lucky.

Hannah McCarthy: $15. That's what we get for a $50 game.

Nick Capodice: Yep. And that was in the pre tariff world. When I interviewed Jason there was a trade battle going on between the US and China where a game publisher would pay twice as much to get it to the United States.

Jason Matthews: And so now your $15 profit on your $49 game is down to $7.50. Now, if you are a capitalist and you're interested in making money, is that a rate of return that you're really interested in? Can you make money a lot more money a lot easier without all of these risks and uncertainties? Absolutely. So now what are you doing? Like what? What's the point?

Nick Capodice: And look, we know a lot of board game designers. I think it's safe for me to say that nobody really gets super rich from making board games. I mean, of course, yes, there are a handful of outliers, some really successful games, but it's it's just not something people do only for the money. It is not a get rich quick scheme.

Hannah McCarthy: So what is stopping game publishers from moving production somewhere besides China?

Jason Matthews: It's a very hard business case to make for anybody, so why are they going to do it? Which is not to say no one is going to do it. I'm just saying that you're you have to have a business model that overcomes these kind of questions. And if you're already a printer and a successful printer, then maybe relocating a factory to a place with a lower tariff rate for the United States makes perfect sense. Or you can expand your existing facility in Poland or Germany or wherever you are. But the idea that you are going to plop down a new board game making facility in Wisconsin very, very unlikely.

Nick Capodice: Jason told me a story about some companies that had tried to print in the United States, and it was not profitable, and the quality was nowhere near as good. The US and China have a rich production history going back decades when it comes to board games. More years for other things. Factories do this tremendously well. According to board game publishers. It's not about paying workers less in another country, it is about maintaining a long developed production ecosystem.

Jason Matthews: I don't know if you haven't ever played a war game. Most of them come with counters with all these detailed little bits of information on them. Well, printing that precisely on a counter turns out to be a technical expertise that a lot of people don't have, including some European printers who, you know, do board games. Otherwise the Chinese have mastered it. And it's not it's not a question of the Chinese being cheaper. It's not a labor question. It's a technical expertise coupled with, of course, this kind of investment in manufacturing equipment, printing equipment that most American printers just haven't made.

Hannah McCarthy: So what is all of this actually doing to the board game industry?

Nick Capodice: Since I had this conversation with Jason. Several prominent board game publishers have folded. One of the largest online board game retailers Board land. They also closed up shop. In addition, a handful of other board game publishers have filed a lawsuit they are suing. The exact name of the case is Princess Awesome and Stoneware Games, et al. Versus customs, which has been filed in the Court of International Trade. So to answer your question, I asked Jason, what could all of this do to the industry we love so much?

Jason Matthews: The industry? Well, first of all, of course it's being damaged. Some people are in marginal positions in the first place and they simply don't have the capital to make the adjustments quickly enough to save themselves. American distribution was already in trouble. Some retail is already in trouble. There's practically a new announcement every day and has been since the tariffs have come out. And then we get back into this. Okay. I'm a capitalist. I'm trying to make money. Am I going to invest multi-millions of dollars into printing presses made in Germany for an industry with low margins in the first place? Who? I can't tell if the tariffs that are being enacted today are still going to be around three years from now, when I might be able to recover the cost of buying these machines. It just puts all of this negative pressure on doing the exact thing that the president suggests that he wants to do, which is bring back manufacturing to the United States. Uh.

Nick Capodice: Your turn.

Nick Capodice: Hannah.

Nick Capodice: Take those bicycles. Put them on that boat.

Hannah McCarthy: What am I supposed to do without the boxes?

Nick Capodice: That is, tariffs and specifically tariffs and board games. This episode is made by me. Nick Capodice with you, Hannah McCarthy. What a joy. Thank you. Uh, Kristina Phillips is our senior producer, Marina Henke, our producer, and Rebecca LaVoy, our executive producer. While we were recording this, we were playing Anno 1800, the board game designed by Martin Wallace and published by Kosmos Games, didn't pay us anything to say that. They didn't give us a free game. We just love it. And it's about making stuff and trading it on ships. So I thought it was apropos, right? Right. Music in this episode by Epidemic Sound and the artist who I hope never puts a tariff on his crunchy beats, Chris Zabriskie Civics 101 is a production of NPR, New Hampshire Public Radio.

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Cinematic Civics: Independence Day

Is there a civics lesson in the 1996 film Independence Day? We think so. 

Join the Civics 101 team for a conversation about the film, its politics, and what it says about the United States and its place in the world. 

There's even a fire-jumping dog!

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Transcript

Cinematic Civics: Independence Day

Archive: Mr. president, our intelligence tells us the object has settled into a stationary orbit. Part of it is broken off into nearly three dozen other pieces. Smaller than the whole, sir. Yet over 15 miles in width themselves.

Archive: Where are they heading?

Archive: They should be entering our atmosphere within the next 25 minutes.

Christina Phillips: I'm Christina Philips, this is Civics 101, and I am here in the studio with.

Rebecca Lavoie: Rebecca Lavoie,

Hannah McCarthy: Hannah McCarthy.

Nick Capodice: And Nick Capodice.

Christina Phillips: So this is another installment of our ongoing series, Cinematic Civics. Is that what we're calling it? Cinematic civics?

Rebecca Lavoie: Sure. Civics, cinema, cinematic civics, civics on the screen, whatever you like.

Christina Phillips: We'll go with cinematic civics. I like the alliteration there. What I'm talking about is where we talk about our favorite movies that have to do with the government, politics, etc., etc.. And what movie did I make you guys watch this weekend?

Hannah McCarthy: Star Wars Episode ten. Aka Independence Day.

Archive: It is confirmed the unexplained phenomenon is headed for Moscow.

Archive: It's like in chess. First there position on your pieces using this one signal to synchronize their efforts.

Archive: And then what?

Archive: Checkmate.

Christina Phillips: So we are talking about the 1996 film Independence Day, directed by Roland Emmerich, about a giant alien invasion bent on destroying humans and harvesting all of Earth's resources. And the president, President Whitmore, played by Bill Pullman, where he data scientist David, played by Jeff Goldblum, and slick fighter pilot Steven Hiller, played by Will Smith, who team up to bring these aliens down.

Archive: Something you want to add to this briefing, Captain Hiller?

Archive: No, sir. Just a little anxious to get up there and whoop ET's, that's all.

Christina Phillips: I chose this movie for several reasons. One, because it's one of the first movies I saw in theaters when I was five years old, and I loved it. Two aliens three. Because it is a goofy artifact of American patriotism that's about as subtle as being the first country to land on the moon and then immediately planting your flag there, which is also the first scene of this movie. And for because this movie deals a lot with the military might of the United States and the role of the U.S. in geopolitical warfare. Now, one reason I didn't choose this movie is because of the United States decision to drop bombs on nuclear sites in Iran a few days ago, thereby demonstrating this military might.

Archive: With a post online and then an address to the nation. President Trump announced the United States attacked Iran's three most important nuclear sites overnight, marking a major escalation in the violence in the Middle East.

Archive: Iran's nuclear enrichment facility.

Christina Phillips: So we're taping this on Monday, June 23rd, which is two days after the United States drop bombs on three different nuclear sites in Iran. But it just so happens to be extremely, extremely relevant. More than I could have anticipated. So relevant, in fact, that the aircraft carrying the nuclear bomb that the United States drops on Houston in the movie Independence Day is the same kind of aircraft, the B-2, that the United States used to carry the 30,000 pound ground penetrating bombs that were dropped on Iran. So, in the words of our president, Donald Trump, quote, there is not another military in the world who could have done this. All this to say, it's true that this movie both does a really good job representing the geopolitical position of the United States in the 90s, but it's also about telepathic aliens. Will Smith flying a spaceship into another spaceship so Jeff Goldblum can upload a virus to the spaceship's computers. Question mark. Question mark if you've never seen it. Spoilers abound. I don't think spoilers will ruin your experience of this movie. If you have not seen it in a while, I recommend checking it out again. It's kind of fun, but that's just my opinion. So I'm curious and I'll start with you, Rebecca. What did you think watching this movie?

Rebecca Lavoie: Well, I was not five when it came out. I was 24 or something like that when it came out. I was born in 1973. I think that this movie is a peak 90s film. Uh, 90s. The 90s had this entire genre of action movies and political intrigue and all sorts of like, psychological thrillers. And this movie combines a lot of those elements. And you have Will Smith punching an alien in the face.

Archive: That's what you get. Ha ha. Look at you, all banged up. Who's the man? Ha! Who's the man? Why did I get another play?

Hannah McCarthy: So I first watched this film during a party my parents were throwing. I think it was a 4th of July party. If I had to guess, it was on cable. And I just remember thinking, I can't believe I'm getting away with this. All the grown ups.

Hannah McCarthy: During the other room, and I'm getting to watch this movie. That's deeply disturbing to me. I enjoyed watching it as an adult, seeing as it's been so very long. One of the things that struck me the most is that the CGI kind of holds up. I think they were really smart about the CGI. It's often behind smoke or it's like seen through another screen. I do wonder, like, was this one of the first movies in which Will Smith is our dependable, definitely going to save us all guy? How well established was he at that point?

Christina Phillips: I will just say this movie does put him on the map.

Rebecca Lavoie: Fresh Prince of Bel Air actually ended in 1996 when this movie came out. So he had like a continuous career like Fresh Prince of Bel-Air ended. And then this movie came out, which is why he's kind of never had a gap in his fame, for better or worse, since then.

Hannah McCarthy: Yeah, but this is the one that launched him as the action hero.

Archive: I've been waiting for this my whole life.

Hannah McCarthy: In terms of the actual civics of it. There were a lot of moments where I thought like, oh, come on. Like, there doesn't check out at all. But it was delightful nonetheless. And I was moved by the president's Independence Day speech.

Christina Phillips: Okay, Nick, what did you think?

Nick Capodice: Well, I saw it. And when it came out in theaters in 96, and I was telling Hannah, the one thing I remembered most about this movie is not just me, but the whole audience laughing at the amount of product placement that was going on particular. When Will Smith hugs his girlfriend's son? There's a giant Reebok hat scene. The entire audience exploded in laughter when the emotional highlight of the movie had a big old Reebok right there, as big as the cinema itself. But as to the movie, I got emotional. I was, you know, I was prepared to be really cynical and snide the whole way through. And of course, I was wracked with tears at certain moments. You know I do. I do that one thing that matters a lot to me. The movie opens on July 2nd, which is actually our Independence Day. So they got that right. That's not the 4th of July. The 2nd of July was when the Continental Congress approved Virginia's resolution to become an independent nation. So hooray for that. John Adams would have been thrilled.

Christina Phillips: Does someone want to sort of break down what happens? The aliens show up on Earth, and then the United States does what? And kind of what is the main climax that brings everybody together?

Rebecca Lavoie: Well, I think when it becomes clear that it's a worldwide disaster, that everybody is facing the same thing, the United States comes up with a plan that they say is impossible, but they figure out how to do it in like 45 minutes. And then they put out the Aquaman signal to all of the other heads of state and militaries around the world who were able to somehow coordinate within, just like a five minute window, when they are going to be able to drop the shields of these giant ships that are floating all over the world, and they're all going to simultaneously be able to blow them up. And it takes a lot of coordination. But of course, we pulled it off from deep inside of a mountain because that's how we are.

Archive: What the hell is he saying? It seems they're getting a signal. Old Morse code.

Nick Capodice: There was a lot of like, well, we can't understand each other because we all speak different languages, even though we're all citizens of the world. But then it's like Morse code is going to solve all the problems. It's still English in Morse code. It's not like Farsi, but Morse code. It's English. Fire the missiles now. Yeah, buddy.

Christina Phillips: Exactly. Morse code is not. It has never been a universally. Every single country in the world has used it. And there are different forms of Morse code. So that is definitely like a hand-wavy thing. I do think that's a really good example of a like, well, we'll just do this. And if you poke that hole just a little bit, you're like, nah, I don't think that'll work.

Rebecca Lavoie: I think the whole point, though, was that they were using the cables under the ocean instead of like, signals over the air, presumably.

Hannah McCarthy: Well, just this idea that, like, it's Morse code, it's echoing Jeff Goldblum being like, I'll just make a virus that will infiltrate. This highly evolved technology that we've already been told by Brant Spiner that their bodies are like ours in terms of vulnerability, but their technology is way more advanced.

Archive: No no no no no. We know tons about all, but but the neatest stuff, the neatest stuff has only happened in the last few days. See, we can't duplicate their type of power, so we've never been able to experiment. But since these guys started showing up, all the little gizmos inside turned on.

Hannah McCarthy: But it was the 90s. So computer virus, you know.

Nick Capodice: Well, it's a nod to, uh, War of the worlds. Yeah, it's. Yeah, the aliens die from a virus in that.

Hannah McCarthy: I know, I thought that was great, but it's also silly.

Christina Phillips: Yeah. And to be clear, Brant Spiner, that is the actor playing Doctor Brackish Ocean, who is the scientist, the sort of eccentric scientist who has been studying these aliens for the past 15 years, presumably.

Nick Capodice: At area 51.

Christina Phillips: At area 51, which we will talk about. The big thing that really stuck out to me, that I want to talk about first, is the fact that the climax of this movie is about the United States solving this problem, as we've said, and saving the world and doing so by creating a worldwide alliance which includes countries such as Russia, Israel, Saudi Arabia and Iraq all launching their own weapons at the same time. This was a national sensation. It was also a global sensation. This was the biggest blockbuster globally since Jurassic Park, which, like this movie, was about reptilian super beasts and Jeff Goldblum telling us we don't know what we've gotten ourselves into. So, I mean, maybe it's just the Jeff Goldblum of it all. He was not in Titanic, which was the movie that beat the record a year later, but it seems as though he's got something that's really successful. But also, I think that one of the reasons this movie was so appealing is because it hits on the sentiments of the time about the United States, both within the country and outside of it, alongside being super entertaining and bombastic and aliens and excitement. If we think about the 90s, when this movie came out, if we were to imagine a scenario set up in the movie where our world is invaded by aliens, would you say in the 90s that the United States is the one best prepared to respond to that attack?

Rebecca Lavoie: Yeah. I mean, we just come off of Desert Storm Like we had practice.

Hannah McCarthy: We're fresh off the Cold War. And I think the United States would have prided itself on being the sort of victor of the Cold War. Right? Like, look, we came out super powerful. You guys didn't get us. And now here's a movie about nukes.

Christina Phillips: All of that. Exactly. Right. So building up towards the 90s, the United States for at least a century had the world's strongest economy. So we were already the economic superpower. By the 1990s, the United States and the Soviet Union were the two main military superpowers, far and away. No other countries were close. And then, as you said in 1991, we have the dissolution of the Soviet Union and your right hand, the United States played a major role. And I think this is a pretty good example of soft power in that George H.W. Bush was lending his support and essentially saying that if there were parts of the Soviet Union that wanted to seek independence as long as they were doing it in a way that matched the democratic ideals of of the United States, that the US would lend them aid. And so there was like sort of this tightrope that the United States is walking. And I think it's a really great example of the soft power that it's using into effect, in part because we have a lot of actual power, meaning weapons. So that is one side of it. So we have the dissolution of the USSR, and then the US is now the global superpower, right? We are the one that is left.

Rebecca Lavoie: Also, I believe I remember this correctly, that when the Soviet Union broke up and they began looking at all the nuclear sites in the Soviet Union, they hadn't really been maintained very well. So it turned out that we'd been maintaining our arsenal and it was ready to go. And the Soviet Union's was kind of rusty. Mhm.

Hannah McCarthy: Given that fact, this movie presumes that all of these other nations have semi comparable nuclear power to ours in terms of size of arsenal. We see how many nukes it takes to bring down a ship, right?

Christina Phillips: My assumption is that the nuclear weapon is only used first on Houston and then on the mothership. Agreed that all of the other weaponry is just bombs of different kinds.

Hannah McCarthy: Random missiles. Oh, gotcha.

Archive: Can I confirm that the target was destroyed?

Archive: You can take me online. I want confirmation the target was destroyed. Yes, sir. Red arrow, Alpha niner.

Christina Phillips: Houston is the one place where they try it first and it fails. And then they're like, well, we have to get down this force field. And the idea is that if you can get into the ship, you can take down the force field. We'll use the one nuclear bomb on the mothership, which is way bigger than the other ones, even though it really doesn't look that way because you don't see it in scaled to anything else. And then all the other countries will use all of their missiles to take down the other ships, presumably using the method that Russell Case, aka Randy Quaid uses by flying straight up into the solar beam and blowing up the ship.

Archive: I told you I wouldn't let you down. Just keep those guys off me for a few more seconds, will ya? Okay.

Archive: Echo niner, echo seven, take flanking positions. I want you to look after this guy. Okay?

Nick Capodice: Just wondering when is an okay time to talk about Randy Quaid. Rebecca. I think he might know what I'm talking about.

Rebecca Lavoie: Right? Yes. Yes.

Christina Phillips: I didn't mention him in the intro, but he is just some real color in this movie.

Rebecca Lavoie: I mean, Randy Quaid in this movie plays a crop duster who's a former Vietnam era pilot who claims to have been abducted by aliens at some point, which everybody thinks makes him bananas. And that kind of parallels some of Randy Quaid real life trajectory. You know, he's a mainstream actor in the 80s and 90s, and then over time, he has become this kind of outside Hollywood figure.

Nick Capodice: He tried to become a refugee to Canada and was refused entry. And, he was convinced, made public statements that actor deaths such as Heath ledger and then somebody else after that who I don't remember, those were due to somebody who was killing celebrities, and he was convinced that he was next on the list.

Christina Phillips: What's his arc in this movie? How are we supposed to feel about him by the end of this movie?

Rebecca Lavoie: Redemption. He got redemption for being a bad dad by saving the kids.

Christina Phillips: Also by he gets redemption for being presumed to have been making it up right. And then he's like, no, no, I was actually abducted by aliens. It's not clear if it's these aliens or what. Civics 101. We'll be back after a quick break. We're back. This is Civics 101. We are talking about the 1996 film Independence Day, directed by Roland Emmerich. There is one other thing that I think is really important to this time period, which we've already alluded to. What President Whitmore's job was before he was elected. So what was President Whitmore doing before he became the president?

Nick Capodice: Wasn't he a pilot in the Air Force?

Christina Phillips: Yes. In what war?

Rebecca Lavoie: Desert storm?

Nick Capodice: Yes. You mean Desert Shield or Desert Storm?

Rebecca Lavoie: Yeah. I was actually looking this up, and they. And they've kind of co-branded everything together now. The Gulf War, Desert shield, Desert Storm, freedom, like, they've sort of said, put it all under one big umbrella on all of the military history websites.

Christina Phillips: And Desert Shield is the first part and Desert Storm is the second part. And this all took place over seven months. This was a military campaign. So I'm just going to lay out very briefly what happened. Iraq under Saddam Hussein invaded Kuwait, and this was part of a long, complex history in this region of the world. The important thing to know for today is that the United States was already deeply embedded in the politics of this region. It would be a disservice, I think, for me to try to condense any of that down into a few sentences.

Nick Capodice: I just want to give a shout out to another podcast out there. If anybody wants to know the whole history of our embeddedness, specifically in the Middle East. The blowback podcast is a phenomenal exploration of this season, one in particular.

Christina Phillips: What you should know is that post-World War Two, or even starting in World War Two, is that the US, considered the Middle East one of the most strategically important regions in the world? In large part, but not completely, because of oil and petroleum? The US government was involved in the formation of Israel in 1948, the 1949 Syrian coup, the overthrow of the Iranian Prime minister in 1953, and the first Iran-Iraq War in the 1980s. So what happened in the early 90s is that in order to stop the Iraqi invasion of Kuwait. The US and 41 other coalition countries launched a major military campaign that involved massive land battles and massive air campaigns. And they ultimately succeeded in stopping the invasion, ending the invasion of Kuwait. But it created this major humanitarian crisis in Iraq, and it further destabilized the region. But the U.S. comes to call this the Good War because it was an example of a success, if you will. Hannah, I remember you said that you had a lot of thoughts about all of this. What were you thinking when you were watching this movie?

Hannah McCarthy: Okay, so here's like one thing. And this is what often just like baffles me about alien invasion movies. It presumes that an entire planet can overcome infighting completely, get together as a planet and go invade another planet. Like the notion that there are species out there who can coordinate a planetary effort is, like baffling. And if we are to be extraordinarily generous with Independence Day, perhaps that's kind of what's going on when it comes to a full planet coordination in defense of another planet attacking us. But it is a a bridge that is very, very far away, as I'm concerned, because, I mean, we know our species is evolved. We don't know how highly evolved because we don't know what to compare to except for other species on this planet. But like we are having our real hard time with planetary coordination.

Nick Capodice: Why is there no United Nations in this, in this alien planet?

Rebecca Lavoie: They're living John Lennon's Imagine on their planet, right? No borders, no countries, no nothing. And I think these movies are a fantasy. Like if there's an existential threat to everyone, we will come together. And I think that we've proven that that's not true. Given the climate change situation. There is an existential threat to everyone, and yet we are not able to come together and agree to fight it together.

Christina Phillips: So, I mean, I will say that Roland Emmerich, one of his next movies, is The Day After Tomorrow, in which presumably there is a massive climate disaster. We're heading into the next ice age, and that plays a little bit more with the geopolitical situation, in that there is a very obvious, like 1 to 1 to Vice President Dick Cheney in that film. But yeah, to your point, Hannah, if I find one thing about this movie is that it's like very smug. It's extremely smug about the ability of the United States in particular, but also our world to create this kind of unified response to this alien invasion, as though we are all one and they are the enemy. The person who does that gets a lot of, you know, he gets a lot of time to sort of be human and to presumably be the one who can help bring all of these things together. Which is why I really want to talk about President Whitmore.

Archive: Regardless of what you may have read in the tabloids. There have never been any spacecraft recovered by our government.

Christina Phillips: So I would like to spend just a little time laying out what we know about him as a person heading into this invasion. And this is specifically things we learned essentially in the first five minutes of this movie. You know, him waking up and seeing his daughter and hearing the news in the background. What do we learn about him as a person and what people think of him?

Hannah McCarthy: We know that he's awake when he gets the phone call, even though the line immediately preceding it is wake him. But it's like, no, he's already up. He's already watching the news. We know that he loves his wife very much, right? Laura Roslin. I have a feeling that Mary McConnell, starring as President Laura Roslin in Battlestar Galactica is her way of making up for all of the wild space inaccuracies in this movie. Because BSG is known for being pretty good at that.

Archive: I will use every cannon, every bomb, every bullet, every weapon I have down to my own eye teeth to end you. I swear it.

Hannah McCarthy: But yeah. So we know that he's just an all around All-American. Sweetie. Sweetie, sweetie. Right.

Rebecca Lavoie: He gets over his wife pretty quick, though. Just saying.

Hannah McCarthy: Yeah, he sure does.

Christina Phillips: Yeah, he sure does.

Archive: Perhaps if we'd gotten to her earlier.

Archive: Wait a minute. What are you saying?

Archive: We can't stop the bleeding if we can. There's nothing we can do for her.

Hannah McCarthy: A doctor will not walk out of her room where someone is bleeding out. Be it internally or externally and say, ah, we couldn't stop. That doctor will work on you until you die. I mean, unless there's a doctor out there who's like, no, I do it all the time. But like, to my understanding, that's not what we do when someone is bleeding out.

Christina Phillips: I love that you draw the line not at telepathic alien speaking English, but at doctor leaving the hospital room when. When someone is bleeding out. But yes, you're right. That's ridiculous. What else do we know about this president as far as how he's doing his job up to this point?

Nick Capodice: Oh, yeah, he's a PR disaster, isn't he?

Hannah McCarthy: Mhm.

Nick Capodice: His PR person is also like mouthing the words to his speech that he's giving at the beginning of the movie. Yeah. It implies that his press secretary also writes all of his speeches for him. He's not doing well in the polls. He needs a boost. He's under constant supervision by the press secretary, who happens to be Jeff Goldblum's former wife.

Christina Phillips: Mhm. Yes. Connie.

Nick Capodice: But later in the movie, when he speaks from the heart, his own words, they rallied the world together.

Christina Phillips: One of the things that you hear sort of in the news that's coming up and in his conversations with his press secretary, is that he was a fighter pilot in the Gulf War. Right. So he's presumably fresh off this war. He's very young. He's 39 years old. And that young ness helped him win the presidency. But now it's also seen as a weakness. He is getting mired down in politics at one point. It's too much politics, too much compromise. So at this point in the movie, he's seen as a very weak president.

Archive: They're not attacking your policies. They're attacking your age, addressing Congress. What more seems less like the president and more like the orphan child? Oliver asking. Please, sir, I'd like some more.

Christina Phillips: But if you look at how he performed with audiences, a number of studies and polls have found that he is one of the most beloved fictional presidents in pop culture, alongside President Bartlet from The West Wing and President Marshall from Air Force One. The first was played by Martin Sheen, of course, in the second by Harrison Ford. Why do you think he's so popular? And you alluded to this a little bit, but I'm curious, like, what do you think this says about what we value in a leader if we're using this movie as a frame of reference for American audiences?

Hannah McCarthy: I don't think we actually value, like, experience and being a good dad the way we might pretend to saurus means loving one's wife a great deal. But my point is, while these polls might say that he's our favorite, and maybe it has to do with the fact that he ends up like redeeming himself and saving the world, maybe. I think we like people who are loving fathers and husbands in fiction, but in terms of a leader, does that really matter to us once they're actually in power? I'm not so sure.

Nick Capodice: I think one of the reasons he's so beloved as a fictional president is because he is fictional, because he doesn't have a party as long, as far as I can tell. Uh, isn't that interesting? Uh, we don't know where he stands on any issues that are sort of hot button political issues. He doesn't have any policy at all. A crime bill, that's the most generic thing in the world. We just know that he's good at fighting aliens, and he can speak with sort of a paraphrased Dylan Thomas poem and get everyone all rallied up.

Christina Phillips: Rebecca, do you have thoughts about him?

Rebecca Lavoie: Pullman. That's all I'm going to say about it. Okay. Very appealing.

Hannah McCarthy: He's handsome.

Rebecca Lavoie: He's just appealing. He's like, I mean, when the attack is first happening or first imminent, he's going to stay behind in the white House, like he's going to be with the ship, right? He's going to be the captain. Oh my God, those poor second helicopter people. They always get destroyed in these kinds of movies. Like never get on the second helicopter when you're escaping the white House. That is my advice. If I've learned anything, it's that if I'm at the white House when disaster happens. Get on that first helicopter with the president and randomly the press secretary and other people who are there, because the second one is always a goner. Always.

Nick Capodice: Yeah. The first helicopter also always has the evil guy who's going to keep saying do the wrong thing. And that actor, I don't know his name, the actor who plays the evil, uh, secretary of defense, do you know his name?

Christina Phillips: Anybody know the name of the secretary? This is the secretary of defense, Albert Nims. He's named for, I believe, a producer that Roland Emmerich didn't like. He's played by James Horn.

Nick Capodice: James Horn has been that role in about 7000 movies. And he's always like, no, no, we gotta bomb everything.

Archive: Moved as many of our forces away from our bases as possible, but we've already sustained heavy losses.

Archive: I spoke with the Joint Chiefs when they arrived at Neurath. They agree we must launch a counteroffensive with a full nuclear strike.

Archive: Over American soil.

Christina Phillips: Yeah, yeah, I think that that is hitting on something that really stands out to me, which is that at every opportunity, this is a president who is approaching things from as peaceful a perspective as possible. So they send out that helicopter is called the Welcome Wagon. They're they're like, we're sending out the welcome wagon to like, flash some lights and see if they'll communicate with us.

Archive: No, they will not.

Christina Phillips: Yeah, but even when he's in front of an alien itself, he's like, can we strike a deal? Let's communicate.

Archive: I know there is much we can learn from each other. If we can negotiate a truce, we can find a way to coexist. Can there be a peace between us? Peace.

Archive: No peace.

Christina Phillips: And it's like the alien is like. No! We're gonna kill you. You know, it's only once the alien has telepathically communicated the future in which they take over all of Earth's resources, that he's like, all right. It's time. We have to attack them. But I think he's he's situated throughout this entire movie as Responding to attack rather than initiating attack in order to prevent harm, which at least to me, seems very different from the way the United States has been engaging in political warfare and regular warfare for much of the 20th century. Yeah, and that we have been taking active military action. And even, by the way, today, in order to prevent what we presume as a threat or prevent some sort of action in the future.

Nick Capodice: I freaking love movies like Starman and Close Encounters of the Third Kind, and any movie where an alien comes to Earth and people keep wanting to kill it. And it turns out this may be the savior of humanity. All of those movies are referenced in this one. Will Smith punches the alien in the face and says, now that's what I call a close encounter. And the helicopter that's flashing lights like.

Archive: Doo doo doo doo doo.

Nick Capodice: Just gets blown to hell. So it's it's it's sort of a slap in the face to this notion that people from other planets are welcome and they might help us save ourselves. We need it.

Rebecca Lavoie: Now. They're worse than us because they want to use all of our resources even faster than we're using all of our resources.

Nick Capodice: Yes. Yeah.

Christina Phillips: How dare you do it.

Speaker22: Better than others?

Nick Capodice: Yeah, we're the ones who do that. We strip everything.

Christina Phillips: I would like to listen to the speech that the president, President Whitmore, makes on the morning in which they are going to begin this mission, to send Will Smith and Jeff Goldblum up to plant the virus somehow and wave at that and lower the defenses of all of these alien spaceships that have gathered around the world and allow us to attack.

Archive: We're fighting for our right to live, to exist. And should we win the day? The 4th of July will no longer be known as an American holiday, but as the day when the world declared in one voice, we will not go quietly into the night. We will not vanish without a fight. We're going to live on. We're going to survive. Today we celebrate our Independence Day.

Nick Capodice: I would love it if there was a holiday that celebrated everybody as a citizen of the world. And we're all together on this roller coaster. I don't love the idea that, hey, our independence, they're not independent from anything like from these aliens. We're already independent of the aliens. How on earth is that a celebration of independence?

Hannah McCarthy: Do you know what it is?

Nick Capodice: What is.

Hannah McCarthy: It? It's American democracy. See finally triumphing worldwide, which is the thing we tell everyone we're doing when we engage in war activities.

Christina Phillips: So we will come back to the president when we talk about aliens and area 51, which is what we're going to talk about next, about all of the things that this movie references, all of the government agencies, all of the secrets that are referenced in this movie and not really explained and oftentimes miss referenced when we come back from a break. So stick around for that. We're back. This is Civics 101. We are talking about the movie Independence Day, which came out in 1996. We've talked about the geopolitical climate. We've talked about how the US is the hero of this movie and what that says about how we feel about our country. Now we're going to talk about aliens and whether or not our government knows anything about them. I want to start with a moment where David, aka Jeff Goldblum and his father are on Air Force One.

Rebecca Lavoie: David's father is the one who invokes the idea of area 51.

Archive: None of you did anything to prevent this. There's nothing we could do. We were totally unprepared for this. Ah, don't give me unprepared. Come on. It was, what, in the 1950s or whatever.You had that spaceship.

Archive: Dad?

Archive: Yeah.

Archive: That thing that you found in New Mexico. Dad, what was that? No, no, not the spaceship. Roswell. Roswell. New Mexico. Yeah. No, you had the spaceship and you had the bodies. They were all locked up in a in a bunker. David, I don't know. Area 51. Right. Area 51. You knew then and you did nothing.

Rebecca Lavoie: And that the U.S. has encountered aliens before, and the president's like, no, we haven't. And then his people are like, yes, we have. We just wanted to give you plausible deniability, thereby putting plausible deniability in the lexicon for American English forever.

Nick Capodice: Thank you, Independence Day.

Christina Phillips: Let's talk about this plausible deniability thing. Right. So the idea is that the president does not know about a secret military base that maybe has aliens. Is it a good look that the president doesn't know what the government is doing? Or is it a good look if the president does know and is part of the scheme to hide it? What do you guys make of that?

Hannah McCarthy: The president is an elected civilian, the highest ranking civilian in the country, right. But the idea is like the president is like us, which we know that this is not true. But so the idea that someone who doesn't have the cohesive training that many people at various levels of the government have would be given a bunch of information that they almost certainly cannot understand or know what to do with. That should be a little frightening, right? Like it should the idea that the president knows everything without the tools to parse it is a bit concerning. So I can understand the concept of just. He doesn't need to know this.

Nick Capodice: I'm with you on this one, Hannah, because, you know, the president is given the nuclear codes right there, given the, the the football and the biscuit, and then they're not the president. Right. And they're not president forever. It's eight years at the most. You know, you can't take the knowledge of aliens away from the president once they're no longer the president. So, you know, I think that's kind of in keeping with the framers intent.

Christina Phillips: I do think it's interesting that once he knows, he's able to make a lot of decisions about it, once he sees the facility, he's like, okay, this is what we're going to do. We're going to do this. We're going to do this. So it's almost like he gets to demonstrate the fact that he's a problem solver or whatever. But before we even get to area 51, David's father, Julius, accuses the government of having found aliens before, and he references a place known as Roswell, New Mexico. What is the significance of Roswell, New Mexico? Because he's alluding to something that actually is a part of our history. What is he talking about here?

Rebecca Lavoie: Roswell, New Mexico, is the site of an alleged flying saucer crash. And basically, Roswell has branded its entire town around this, which is super interesting. There's a lot of debate about whether or not it was a weather balloon, and there's a lot of really fun fake videos of the alien autopsy that happened after the Roswell, New Mexico incident. They're totally fake. People try to pass them off as real, but it definitely fed Roswell fed into this law that, you know, we are being surveyed, and it was very much a response to the growing power of the Soviet Union and things being up in the air that we don't know what they are. But yes, Roswell certainly took on the most legendary status of UFO incidents in the United States. It was even a television show called Roswell with Katherine Heigl in it.

Hannah McCarthy: In 1996. Was the existence of area 51 not particularly well known? We didn't have Google Maps. We didn't have a super robust internet. What was the status of the generalized knowledge that area 51 does actually exist?

Christina Phillips: The government did not officially confirm the existence of a research facility in Nevada, known as area 51, until 1998. In fact, Roland Emmerich, the director and his producer have said they originally had permission to film on military bases for this film. When the Department of Defense saw the script and saw references to area 51 and Roland Emmerich refused to take them out, the US government pulled that offer of filming locations and material. Roswell, New Mexico What the government has said is a military research balloon that crashed in 1947, in Roswell, New Mexico. The reason it was in New Mexico is because New Mexico is a place where the federal government does a lot of top secret research. This is borne out of a few things. Geography it's hard to access. There's the kind of topography that you can do a lot of tests and, you know, you have lots of space for runways also. Oppenheimer chose to build the Manhattan Project in New Mexico. And and that sort of laid the groundwork for further research facilities in that region. There's also a lot of research facilities in Colorado, Utah and Nevada in particular. So the fact that Roswell becomes important is, is honestly, because that's where the government was testing things that would go up high enough to monitor communications, especially communications and transmissions from Russia. There was also a lot of scientific research just to gather information about the planet. So once that weather balloon crashed in Roswell. The government was very secretive about it.

Christina Phillips: There were actually people who witnessed what looked like body bags when the government went to recover it, and that led to the assumption that there were aliens. It was actually, as far as the government claims, they were transportation bags for the equipment to keep the equipment safe. All of these things sort of led to these theories of aliens, when in fact it was the federal government trying to hide its own defense research capabilities. And it is true that area 51 is a place that was known to people, in part because of former military and former government officials who left the government and then would say, hey, I worked on an alien spaceship when I was at area 51. It was sort of known in popular culture, and it was also known pretty widely that there was a black box, if you will, in Nevada that was near Las Vegas. That was about 23 miles wide and 25 miles wide in the other direction. That was a no fly zone, a no fly zone, and that was the location of area 51. It was known as the Groom Box. And so there is this knowledge that there is something there that nobody is allowed to get near. And there's also this idea that we've seen these weird flying things in the sky, and it turns out that many of those things are actually researched weapons, their weapons development happening in that place. Nick, do you want to tell me your factoid about area 51?

Nick Capodice: You can go online and see people who have federal criminal records. You can see their file one day, a person who was, you know, a journalist, sort of stumbled into area 51 and was looking around and trying to take photographs and now has a file, now has a government file. And that man who walked in that day. Later on became a radio personality. And now you know the rest of the story.

Rebecca Lavoie: Wow.

Nick Capodice: Paul Harvey, ladies and gentlemen, Paul Harvey.

Nick Capodice: Paul Harvey.

Rebecca Lavoie: When did the government figure out that the UFO theories were actually good for them? Because they were. Because I remember when the stealth bomber first was unveiled. Right. And everybody in, like, Nevada or whatever was like, oh, we've seen that. We thought it was aliens this whole time.

Christina Phillips: There's lots of communications that you can see declassified information in part where the government is kind of like, people know about this place and like we know that they're seeing the military weaponry, the military aircraft that we're testing, and they're assuming it's UFOs. And like, what do we do? Should we confirm that this is, in fact a military training ground or it's a testing facility? Like, what do we do? And there were conversations about that. I think it is one of those things where the the government is like, maybe this is a better thing for you to think we're doing here than what we're actually doing, which is developing weapons and stealth reconnaissance abilities and testing nuclear bombs, which is another thing that was happening in Nevada. There was actually a civil lawsuit against the federal government in 1996 by some government contractors who were like, you're not disposing of nuclear materials properly in this area, and it's causing a lot of environmental issues and health issues.

Hannah McCarthy: There are still communities deeply affected by this who are just.

Christina Phillips: Yes.

Hannah McCarthy: Who still want some sort of help or retribution.

Christina Phillips: And it's yeah, it's been confirmed that over 700 of the over 900 nuclear tests have been done in this region. So this is just a a concentration of weapons development and weapons testing that happens In this part of the country. We have had some things declassified, but it's still like the development of weapons and the development of different kinds of infrastructure. Military infrastructure is still not very well known. Do you know of some of the things that have come out of area 51? What sort of stuff has been developed.

Rebecca Lavoie: Besides stealth technology for planes? Because isn't that area 51 stuff?

Christina Phillips: That is the correct answer. Yeah. So the first is the U-2 and then later the A-12. Now these are military aircraft, surveillance aircraft that can fly way higher than most aircraft, presumably outside of the range of Soviet missiles that can pick up on radio transmissions and monitor and take photographs. The U-2 and the A-12. For a while, they were like, yes, these cannot be shot down. And then the Soviet Union did shoot them down in 1960. They shot down one. And and in order to negotiate, in order to get the pilot back, the US government had to admit that they had developed these spy planes. So these came out of area 51. There is also something known as the F-117, which is the first stealth bomber developed in the United States. Now, if you look at the alien spaceship in Independence Day.

Rebecca Lavoie: The ones they fly around. Yeah.

Christina Phillips: Yeah, yeah. The one that Will Smith flies that if you look at the F-117 or the B-2, which is the same aircraft that was used to drop the ground penetrating bombs that were dropped on Iran this past weekend. They look very, very similar, which I think gets to your point, Rebecca, that people were seeing these being tested and they began to associate them with aliens, when in fact these are government weapons. One of the features of these Hollywood patriotic movies is that the United States is our military hero, right? This film, it does make attempts to make humanity important here, but it's pretty easy to watch a movie like this and sort of get the impression that the United States is all good. The United States is being presented as all good in this film. Until you remember that the reason we have all of these super powerful weapons in the first place is not to defend ourselves from outer space, but to use these weapons against one another and use these weapons against human beings. So I feel like this movie is really relevant in our current moment, because we are holding these two things right next to each other. These weapons are used to save humanity in this movie. They're now being used very similar weapons, in some cases the same aircraft to carry out campaigns against other people and other countries. So that's sort of where I ended up ending my feelings about this. And I'm wondering what else you guys thought about. If you have any final thoughts.

Rebecca Lavoie: I thought a lot about Jeff Goldblum's character and sort of the, you know, the before the rise of tech bro culture. You know, there were just in pop culture, especially computer guys were always portrayed as like sitting in dark rooms alone. He obviously couldn't maintain his marriage and all that stuff. Right? But he's kind of the hero, right? The guy who figured it out, the computer guy, the quote, nerdy guy who can see the code, who can interpret the code, and everybody listens to the tech guy. And it just occurred to me that, like, that seemed very much like a fantasy. Like at the time, like, you know, the smart guy in the corner who no one talked to in high school is all of a sudden the hero. Same thing with wargames, same thing, you know, with lots of these, like, 80s and 90s films. And today it's the tech guys who are running the world like they see themselves that way. Like, we're not they're not portrayed in pop culture that way anymore. They're are villains in pop culture. But they see themselves as saving the world in real life.

Nick Capodice: It's because those tech guys started making those movies in the 60s, 70s, 80s, and 90s. Or they could. Be the hero. And then, you know, two generations later, they run the world.

Rebecca Lavoie: Hmm.

Hannah McCarthy: What's so strange to me about this movie is that it doesn't have a moment of the deeply selfish character who's supposed to be representative of all of the deeply selfish people who, in a moment like this, would get on a spacecraft and leave Earth. And we know that there are people who have the ability to do that privately, right, in certain ways. I mean, I know I'm stretching it a little bit, but I would have appreciated like one guy trying to get to Florida so that he could just get off the planet and then somehow he's foiled or the aliens get him or something. But there was none of that. Nobody even suggests leaving the Earth and not staying in fighting. And I have one other thought, which is that, as I hinted at the beginning of this episode, Will Smith is so Luke Skywalker coded? It's ridiculous. It is so silly.

Rebecca Lavoie: Hero's journey.

Hannah McCarthy: Hero's journey. He is someone who wants to have an adventure in space, but is mostly getting his training in an arid climate in a canyon. He performs beautifully, and then later on, he uses that exact same skill that he displays when he is in a giant, destructive structure in space after getting it ready to be blown up. It's so Star.

Nick Capodice: Wars. Oh, that's a good yeah. Just like Beggar's Canyon back home, huh? I had a thing that I thought was interesting, that I just sort of realized is that there's a scene in this movie that's kind of the reason we're all here making this show. Bill Pullman turns to his weaselly, weaselly secretary of defense and says, you know, you're fired. And the secretary of defense says, I don't think he can do that. You can't do that. He can't do that. And then the white House press secretary says, yeah, I think he just did. This notion of, can the president do this? Well, he did it. That's it. That it just got done. That's that's something we talk about a lot on our show. And that is it's part of our genesis as a show. So thank you Independence Day.

Christina Phillips: Thank you Independence Day.

Nick Capodice: Also, there's a scene where the dog jumps through a ball of fire. Before that scene happened and like the dog was in the tunnel, I was I jokingly said to Hannah, I was like, man, it'd be really cool if the dog, like, jumped through a ball of fire to get out. And we laughed really hard. And then it happened exactly like that. Yeah. 90s baby.

Christina Phillips: This episode of Civics 101 was written by me, Christina Phillips, and produced and edited by Rebecca Lavoie. A big thank you to our hosts, Nick Capodice and Hannah McCarthy. Our team includes producer Marina Henke. Music in this episode from Epidemic Sound and Chris Zabriskie. Civics 101 is a production of NHPR, New Hampshire Public Radio.

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What does the Senate Parliamentarian do?

The Senate Parliamentarian is many things. A nonpartisan referee, an appointed official, and at some times one of the most powerful people in our government.

This week, Senate Parliamentarian Elizabeth MacDonough found several provisions in the currently debated budget appropriations bill violated something called the "Byrd Rule."

Today we explore this complicated and often-unseen role with Sarah Binder, professor at George Washington University, and a person who spent over thirty years in the office, former Senate Parliamentarian Alan Frumin.

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Transcript

Archival: Is it the contention of the Chair that under the rules of the Senate, I am not allowed to accurately describe public views of Senator Sessions.

Nick Capodice: Hannah, I want to play this clip from February of 2017.

Hannah McCarthy: Sure. Go ahead.

Nick Capodice: Senator Elizabeth Warren is found in violation of Senate Rule 19 and is being cautioned by the chair.

Archival: The chair has not made a ruling as respect to the senator's comments. The senator is following process [00:00:30] and tradition by reminding the center of Massachusetts of the rule.

Nick Capodice: Standard procedural stuff. Right. But I cut something out. This is what it really sounded like.

Archival: The chair has not made a ruling as respect to the Senator's comments.

Archival: Following process and tradition.

Archival: The Senator is following process and tradition.

Archival: Reminding the Senator from.

Archival: By reminding this.

Hannah McCarthy: Wait, someone is just feeding him lines. This is happening in the Senate?

Nick Capodice: It happens every day [00:01:00] in the Senate.

Nick Capodice: So I've read a few articles about you, and people tend to refer to you in sports metaphors like you're a referee or an umpire. Is that accurate? Is it like that?

Alan Frumin: Yes. Yes, it's like that.

Hannah McCarthy: Who's that?

Nick Capodice: That is Alan Frumin. I know we've had a lot of guests over the years who know an awful lot about how things work in Washington. But when it comes to the Senate, Allen beats [00:01:30] them all. And he would never say that he is a humble man. But it's true because knowing the intricacies of the Senate was his job for 35 years.

Hannah McCarthy: What was his job?

Archival: JWell, we've got breaking news tonight. The Senate parliamentarian has denied Senate Democrats attempt to include a $15 an hour minimum wage..

Archival: Senate needs to step up override the parliamentarian. The parliamentarian is not elected.

Archival: Big [00:02:00] news and it is big news, the Senate parliamentarian says. Only one new budget resolution and one reconciliation package. That's it.

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

Hannah McCarthy: I'm Hannah McCarthy.

Nick Capodice: And today we're talking about a position that has been referred to as, "the most powerful person in Washington," the Senate parliamentarian.

Hannah McCarthy: Are you trying to tell me that the person whispering in the chair's ear is more powerful than the speaker of the House [00:02:30] or the Senate majority leader or the president? Are you serious?

Nick Capodice: Maybe I'm being a bit hyperbolic. That line was from a Politico article about the current Senate parliamentarian Elizabeth McDonough. And I will get into why McDonough has claimed to hold so much power right now a little bit later.

Hannah McCarthy: All right. First off, can you tell me what the Senate parliamentarian does.

Alan Frumin: At the risk of sounding conceited? The Senate parliamentarian is the de facto presiding officer of the Senate.

Nick Capodice: The [00:03:00] presiding officer is the person who sits in the chair of the Senate and rules on everything, who can speak, who can interrupt somebody speaking, what someone speaking can and cannot say. They rule on every point of order. Points of order are basically objections to what someone else is saying or doing.

Hannah McCarthy: Oh wait. I thought that the Vice President was the presiding officer in the Senate.

Nick Capodice: Yes, technically they are. But when the veep is not around, which is pretty much all the time, the most senior member of [00:03:30] the majority sits in the chair. And Alan told me most of the time Senators don't want to be in the chair ruling on things. They want to be down there doing senator stuff. Now, to be clear, the parliamentarian doesn't sit in the chair, but they tell the person in the chair what they should do.

Sarah Binder: They make decisions. They give advice based on past episodes of confusion.

Nick Capodice: This is Sarah Binder. She's a professor of political science at George Washington University.

Sarah Binder: I teach [00:04:00] Congress. It's the only thing I know anything about. So if you look at the Constitution, it says Article one, Section five. The House and Senate will make their own rules if you have the power to make your rules. You also have the power to apply your rules. And that's the point at which the parliamentarians in the House and the Senate come to play a role. They are supposed to be the non partisan, neutral [00:04:30] expert arbiter of how to apply the rules. And it sounds like, well, that's not hard. However, if you look at the rules of the House and you look at the rules of the Senate, they don't actually tell you what to do and how to apply them in every single circumstance.

Hannah McCarthy: The House has a parliamentarian too?

Nick Capodice: It does. And while I am focusing on the Senate parliamentarian for this episode, the parliamentarians in both chambers of Congress are the ones who know the rules and they advise [00:05:00] the Presiding Officer on what to do in any given situation. Now, Hannah, do you know what dictates the rules of the Senate?

Hannah McCarthy: I'm pretty sure it's something that people use in like student council and community meetings. It's Robert's Rules of Order, right?

Nick Capodice: Yeah, I thought so too. But I was wrong and don't feel bad. Even some senators thought the same thing.

Alan Frumin: Laypeople assume and one or two senators elect had assumed that the Senate used Robert's Rules of Order. And I would suggest to people that, [00:05:30] okay, if you are familiar with Roberts Rules of Order, you probably know that Colonel Robert first published him, I believe, in 1876, which would then beg the question, how did the Senate muddle through from 1789 until 1876, before Colonel Roberts saved them, which he didn't do, of course?

Hannah McCarthy: If they don't use Robert's Rules of Order, what do they use?

Nick Capodice: They use their own rules. They make them and they update them every few years. [00:06:00] The most recent rules and manual of the Senate is from 2013 and comprises 44 rules.

Alan Frumin: Point being that the Senate is a self-governing body that operates by its own rules and precedents. Nobody is familiar with them coming into the Senate. And smart senators recognize right away that the rules of the road in the Senate are unique to the body, and some of them will set out in various ways to become knowledgeable. [00:06:30]

Hannah McCarthy: How complicated are those 44 rules?

Nick Capodice: Fairly complicated. I tried to read it. You're looking at basically a dense 80 pages of procedure. Honestly, I would have a really tough time learning them if I was to spend a day in the Senate. But those 80 pages are the absolute tip of the iceberg.

Sarah Binder: So here's the thing. There were what we call precedents. So the House might decide something or Senate might decide something, and some of them might have scratched it down on a piece of paper. And there might there was a clerk at [00:07:00] the front on the dais, and they usually reported to the speaker or to the presiding officer. But basically there was no written, right? There are no really compilations of precedents. So neither the House or Senate really knew the members didn't know what to do in any new circumstance. So there were lots of appeals, lots of points of order. Hey, stop. I raise a point of order. That's not how this works.

Archival: For what purpose does the gentleman from New York or Mr. Speaker, I rise to a point of order. A gentleman [00:07:30] will state his point of order. Speaker, I object to consideration of this bill because it. violates rule.

Sarah Binder: And they'd arbitrate. There'll be lots of votes on the floor.

Nick Capodice: But those decades of precedents, often written on little slips of paper, have been collected and compiled into an official manual. Allen helped edit it. It's called Redux, Senate Procedure, Precedents and Practices, and that's 1608 pages.

Hannah McCarthy: So the parliamentarian is the one who knows all of this stuff. They [00:08:00] advise whomever is the presiding officer in the Senate.

Nick Capodice: Right.

Hannah McCarthy: How did they do that physically, though?

Nick Capodice: Well, to explain this, Alan showed me a photo of where everyone on the Senate dais sits.

Alan Frumin: There's the Senate floor. Unfortunately, my fat head is in the way. There are four chairs across the secretaries desk, journal clerk, parliamentarian, legislative clerk and bill clerk. There are other chairs behind. There is a chair for the Secretary of the Senate. There's a chair for the sergeant at arms. So. So [00:08:30] this is the parliamentarian's battle station. It's a swivel chair. It's a swivel chair that rocks. I have seen it go over once, before television. That was quite a scene. And in essence, what the parliamentarian does is she swivels and speaks to the presiding officer up here. The presiding officer's mic has a mute switch. It's a spring activated mute switch. The parliamentarian can press and hold if she wants to mute the microphone so [00:09:00] that the conversation between the parliamentarian and presiding officer is not public.

Nick Capodice: I asked Alan if the parliamentarian is just swiveling back and forth all day, and he said that was pretty accurate.

Hannah McCarthy: Is this job anywhere in the Constitution?

Nick Capodice: No, it is not. The job was created in 1935 during FDR's New Deal Era.

Alan Frumin: when Roosevelt and his administration became a little more proactive legislatively. And Roosevelt's vice president [00:09:30] had other things to do than sit on the dais of the Senate and preside. And so the Senate decided that they needed somebody to be the repository of the various interpretations of the Senate's rules. And they selected a man named Charles Watkins who had first come to the Senate in 1904.

Nick Capodice: Charles Watkins. He started out as a stenographer in 1904 in the Senate. He moved up to a journal clerk. That's the person who takes the minutes [00:10:00] of what happens all day, every day in the Senate. And the job of parliamentarian was created for him in 1935, and he was good at it. He had a remarkable memory. He was considered completely non partial to either party. And before the microphone mute button existed, Watkins would spin around in his chair and whisper to the presiding officer hundreds of times a day, and as a result, a newspaper called him, quote, the Senate's ventriloquist. And he held [00:10:30] the job until he retired in 1964.

Hannah McCarthy: So 60 years.

Nick Capodice: 60 years! And the next parliamentarian, he had worked with Watkins.

Sarah Binder: My daughter once asked me like, how do you get to become the Senate parliamentarian? And I somewhat flippantly said, Well, first you have to be the assistant parliamentarian, but it turns out to be generally true that they hire from within.

Nick Capodice: Allen came in this way. He had been the assistant parliamentarian.

Sarah Binder: Why is that [00:11:00] important? It helps to limit the partisanship, right? Because they they get first of all, they get socialized into the practice of being the parliamentarian. And it's a source of expertise.

Alan Frumin: It's always been the model and it's the only appropriate model.

Nick Capodice: Alan told me in the office of the parliamentarian, you want to have assistants spaced out generationally. So when someone leaves office, the next person can be there a long time. And to this date there have been six [00:11:30] and only six Senate parliamentarians.

Hannah McCarthy: And Sarah says the job requires limited partisanship, which honestly is something that feels nearly impossible here in 2022. Can a parliamentarian be truly nonpartisan?

Nick Capodice: From what I can gather, parliamentarians just might be among the most nonpartisan people in Washington, D.C. And I say that because their rulings help both sides and they [00:12:00] take heat from both sides as a result. And let me give you an example. One parliamentarian, Robert Dove, was dismissed by Democratic Majority Leader Robert Byrd and was replaced by Alan Frumin. And then Robert Dove was reappointed again a few years later and then fired and replaced by Alan again, but this time by Republican Senate Majority Leader Trent Lott.

Hannah McCarthy: What did Dove do that caused so much controversy?

Nick Capodice: Well, that is related to the powers of the Senate parliamentarian that we haven't gotten [00:12:30] into. The reason why they have been named the most powerful people in America, so powerful that at one point Alan and his family received death threats. And all that's coming up after the break here on Civics 101.

Hannah McCarthy: But first, when Nick was researching for this episode, he sent me this list. It was the 56 things that they don't teach you at parliamentary school that Alan had sent him. And he promises he will include selections of that list in next week's [00:13:00] newsletter. And you can subscribe to get that free and fun newsletter that comes out every two weeks at the top of our website, civics101podcast.org.

Hannah McCarthy: We're back. We're talking about the Senate parliamentarian. Let's get into why this job is so powerful.

Nick Capodice: Yeah, this is maybe the reason why we've gotten so many requests from listeners to do an episode on this. Two specific facets of the position [00:13:30] that result in some senators getting very, very frustrated. Number one committee assignments. Here's Sarah Binder again.

Sarah Binder: This one's a little less noticed about the parliamentarian, but the bulk of the work is actually deciding when a bill is introduced which committee gets the bill. That's a power of the speaker and it's a power of the presiding officer and the rules. But [00:14:00] a norm of practice is that the parliamentarian makes those decisions and those decisions can be pretty consequential.

Hannah McCarthy: So even though deciding which committee gets a bill is technically the power of the presiding officer of the Senate, the parliamentarian is the one really making the call.

Nick Capodice: Yeah. Every time. And since most bills die in committee, senators care a great deal about which committee they go to. You can work on a bill for months in advance before [00:14:30] you write it, meeting with members of a committee beforehand to make sure it goes through and at the last minute find out it's going to go somewhere else. Here is former parliamentarian Alan Frumin again.

Alan Frumin: You can have a thousand page bill dealing with environmental remediation, all of this material in the jurisdiction of the Environment and Public Works Committee. If, however, there is a provision in there that affects revenues, that bill is supposed to go to the Finance Committee. Suffice to say that [00:15:00] the staff of the Environment Committee doesn't like that. The staff of all the other committees do not like that if they have a provision that might be scored is affecting revenues. They don't necessarily put a star, put stars around it. They'll let the parliamentarian find it if she's willing to spend the four or 5 hours going through every page in line.

Hannah McCarthy: Wow, so how many bills does a parliamentarian have to go through line by line?

Nick Capodice: A lot.

Alan Frumin: All [00:15:30] in all, the parliamentarian is responsible for referring probably 10 to 12000 items in any particular Congress. And virtually all of that plays out without any evidence on on the floor of the Senate. My point being silent killer, nobody sees that job being done. The committees are always jealous of their jurisdictions.

Nick Capodice: And finally, the reason why Alan Frumin was in the media spotlight a lot and dubbed the most powerful person [00:16:00] in Washington. The reason why law enforcement was sent to his house to protect him and his family in 2010. We've got a first talk about that uniquely senatorial action, the filibuster.

Hannah McCarthy: I thought that was coming.

Nick Capodice: Hannah. You want to break down the filibuster for everyone?

Hannah McCarthy: I'll take a swing at it. Bills that come to the floor of the Senate for a vote require only a majority to pass. However, a bill can be debated endlessly until what is called cloture [00:16:30] is invoked by 3/5 of the Senate, which means that, in essence, a bill does not pass unless it has the support of 60 people in the Senate.

Nick Capodice: Yep! Well done. It's rule 22 in the Senate rules and nowadays you don't even see a bill get to the floor without that support, without those 60 votes. And senators rarely stand and talk for hours like Jimmy Stewart and Mr. Smith goes to Washington anymore.

Archival: Somebody will listen to me. Somebody!

Nick Capodice: And [00:17:00] as a result, very, very few bills get through the Senate. But. There is a special kind of bill, a bill that is not subject to the filibuster. It's called a reconciliation bill. It is a bill that deals with [00:17:30] policies that change spending or revenues in the budget. So the budget bill can't be filibustered and neither can reconciliation bills that alter that budget.

Hannah McCarthy: Okay. Well, if I were a senator who really wanted something passed, I would try to squeeze things into those reconciliation bills that maybe weren't related. So what stops a senator from doing that?

Nick Capodice: Something called the Byrd Rule, named after Senator Robert Byrd in the 1980s. Things in those reconciliation [00:18:00] bills and proposed amendments to them can’t be what’s called “extraneous” . They have to be about the budget. And if they're not about the budget, they have to be removed or that bill will be subject to the filibuster and probably won't pass. And guess who decides what is and is not allowed.

Hannah McCarthy: Now I'm going to guess it's the Senate parliamentarian.

Nick Capodice: Yeah, you got it. Alan told me that extraneous material removed from reconciliation bills under the advice of the parliamentarian is lovingly referred to as "Byrd droppings." Seriously.

Alan Frumin: Determined Senate majorities over the years of both parties [00:18:30] have always pushed the limits of what could be done in reconciliation bills because they recognize that these bills can be filibustered and that a simple majority is all that's needed to pass a reconciliation bill.

Archival: Last night's ruling was extremely disappointing. It saddened me. It frustrated me. It angered me because so many lives are at stake. Senate Democrats have prepared alternative proposals, will be holding additional meetings with the parliamentarian [00:19:00] in the coming days.

Nick Capodice: That was Senate Majority Leader Chuck Schumer in 2021. There was a massive spending bill, and a component of that bill would have provided a path to citizenship for Dreamers.

Hannah McCarthy: Dreamers being young, undocumented immigrants who were brought to the United States as children who currently have little to no pathway to citizenship.

Nick Capodice: Absolutely. But Senate parliamentarian Elizabeth McDonough decided that part of the bill was not germane, meaning the Democrats had to take it out or the bill was going to be [00:19:30] subject to a filibuster and not pass. And so the Democrats removed that Dreamers part.

Alan Frumin: And in the middle of all of this is the dear parliamentarian who has always been a career civil servant, whose entire career is dedicated to serve the Senate in a non partisan capacity, who in essence is required to talk truth to power. Every decision the Senate parliamentarian makes, every consequential decision will anger some very [00:20:00] powerful person every single time. And the parliamentarian is just doing her job.

Hannah McCarthy: Can we go back to something you said earlier? What was the ruling that Alan made that resulted in those death threats?

Nick Capodice: Yeah, it was related to the passage of the Affordable Care Act in 2010. The bill had gone through the House, it was in the Senate, and the GOP tried many procedural methods to kill that bill or make alterations to it because that would force it to go back to [00:20:30] the House for another vote. Alan ruled against those. He was in newspapers and blogs everywhere, and the sergeant at arms informed him that as a result, members of the Tea Party had posted they were going to his house.

Hannah McCarthy: It sounds like a really difficult and unique job.

Nick Capodice: Yeah, it is. Alan said it's not for everybody. These people aren't looking to get advancement to a more powerful role. They're not going to run for higher office or recorded by lobbying firms to make seven figure [00:21:00] salaries. When they leave Congress, they make $172,000 a year. Their job is taxing, quiet and mostly unseen until they make a decision that drags them into the spotlight.

Nick Capodice: Last thing, I can't let this episode end without an anecdote. Indeed, Alan did share a list of dozens of strange and wonderful and terrifying things he saw in his long tenure in the Senate, but none more bizarre than the porta potty [00:21:30] incident.

Hannah McCarthy: All right, I'll bite. What's the porta potty incident?

Nick Capodice: Senator Lowell Weicker from Connecticut was on the floor.

Archival: a..I'll correct my language, an historic occasion.

Nick Capodice: And Senator Jesse Helms wanted him off the floor. And it's hard to get someone off the floor. You can't do that unless Weicker yielded and Weicker didn't yield.

Alan Frumin: Senator Helms kept coming to the desk wondering if Weicker had violated this rule or that rule. Blah, [00:22:00] blah, blah, blah, blah. And finally, Helms looked at me and said, Well, eventually he's going to need to he's going to need to go to the bathroom. And naturally, Weicker and his allies knew that as well.

Nick Capodice: But there is a small provision in the rules that senators could have, quote, mechanical devices on the floor of the Senate. And Wicker's ally, New Jersey Senator Bill Bradley, knew about this provision.

Alan Frumin: Senator Bradley came up to me and said, well, mechanical devices, Alan, what do you think of a porta potty? [00:22:30] You know, if we can provide Weicker with some relief, so to speak, does that qualify under this provision? And I thought he was kidding. Bradley was about six, five or six, six, and he stood over me and said, Alan, I mean, it would I decided to do was pass the buck. And I've decided that that's up to the Senate Sergeant at arms.

Nick Capodice: The sergeant at arms was duly summoned. He went up to Senator Bradley and just said no.

Hannah McCarthy: This whole thing is ridiculous.

Nick Capodice: It's not [00:23:00] over yet.

Alan Frumin: Bradley wasn't deterred. He came and asked me about a can of tennis balls. I just said no.

Hannah McCarthy: I never thought that civics 101 would be a show where we talk about peeing in a tennis ball can, but things can go anywhere when it comes to American government. There you go.

Nick Capodice: Like I said, the parliamentarian has a pretty unique job.

Nick Capodice: That'll [00:23:30] do it for Senate Parliamentarian. Point of order, Hannah. We got to get out of here. pretty funny, isn't it? Motion to adjourn. Alan, if you're hearing this, thank you so much. And I hope it didn't get anything wrong. This episode was made by me. Nick Capodice with you, Hannah McCarthy. Thank you.

Hannah McCarthy: Thank you. Our staff includes Jacqui Fulton. Christina Phillips is our senior producer and Rebecca Lavoie is our executive producer.

Nick Capodice: Music in this episode by a lot of the old favorites we know and love. [00:24:00] Kevin McCloud, Konrad OldMoney, Lobo Loco, Scott Holmes, Myeden, ProletR, Rachel Collier and the Greatest of All Time Chris Zabriskie.

Hannah McCarthy: Civics 101 is a production of NHPR New Hampshire Public Radio.

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How political “framing” shapes our thoughts

We know why we feel the way we do about certain political issues, don't we? Don't we??

It turns out that politicians, political strategists, and the media are working every day to alter what we think about something before we know we're thinking about it. And the way this is done is through "framing."

So what is framing? How long have people been doing it? And most importantly, how can we push back against it? Taking us through the Frame Wars is Dr. Jennifer Mercieca, professor of communication and author of Demagogue for President: The Rhetorical Genius of Donald Trump.

For those who want to know more, check out our episode on Propaganda, as well as Jen's article on Frame Warfare.

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Transcript

Jennifer Mercieca: One of the things that I have been thinking about for the last little while is the the, the bastardization of hamlet. Right? So nothing is either good nor bad, but framing makes it so.

Archival: It's crunch time in Congress, where Senate Republicans have released their latest version of the president's so-called big beautiful.

Archival: Bill could have on Medicaid and food assistance.

Archival: 23% are opposed, have an unfavorable rating of the [00:00:30] big beautiful bill. Now, to put that in some for some perspective, Donald Trump's unfavorable rating with the GOP is 9%. So this is more than double.

Archival: Big beautiful bill if it becomes law is going to fundamentally impact every American. If you're hearing my voice and you're watching this on TV, this is going to impact you.

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 something that has a profound impact on our understanding of politics, something that is invisible, Effective [00:01:00] and everywhere, all at once framing.

Jennifer Mercieca: Basically any concept, any word, any choice or policy that we might make can be shaped for us to understand it, and the way that politicians and propagandists try to shape our reality, and the way that we understand reality is called framing.

Nick Capodice: This is Jennifer Mercieca. [00:01:30]

Jennifer Mercieca: I'm a professor of communication and journalism. I teach argumentation, political communication and propaganda. And I'm the author of demagogue for President The Rhetorical Genius of Donald Trump.

Hannah McCarthy: I remember Jennifer, she was in our episode on propaganda. She talked about how propaganda is a kind of force.

Nick Capodice: Yeah, like a card force magician says, pick a card, any card, but then forces you to take one card in particular. Jen is a scholar of rhetoric, and she studied it for years. [00:02:00] And I want to point out real quick. These are her opinions based on that research. And they are not representative of her university.

Hannah McCarthy: Right. Totally understood. And, Nick, you've been telling me that you wanted to do this episode for a long time because you saw a tweet or something, right?

Nick Capodice: Yeah, it was on blue Sky, not Twitter. So it's technically not a tweet. I think some people call them Skeets. I don't know. Basically, she wrote that people who were opposed to President Trump's tax bill should stop calling it the, [00:02:30] quote, big, beautiful bill. And then she wrote, these are the frame wars. You're in them.

Nick Capodice: You're in them. You better stop believing in frame wars, Ms. McCarthy.

Hannah McCarthy: But the people who are opposed to that bill, they say it with air quotes and an eye roll. They say it ironically.

Nick Capodice: Yeah. They'll start with a qualifier. Trump's so-called big, beautiful Bill. But while [00:03:00] their intention is abundantly clear, they do not consider the bill. Big and beautiful. They are echoing the president's framing, and they're doing it unintentionally.

Jennifer Mercieca: It's what we call in persuasion theory as an indirect route to persuasion, meaning that it's not something that your brain immediately recognizes as an attempt to persuade you. Right. If I call something a stinky bill, you [00:03:30] might notice that that's weird. That it. You know, stinky isn't normally a way that we would refer to a bill. But if I call it a big bill or a big, beautiful bill or something like that, um, your brain also might not recognize that it's an indirect route to persuasion, meaning that your brain isn't on high alert for for being Persuaded instead. [00:04:00] You're just receiving information in a sort of uncritical way. And as you do that, you'll start to think of the bill as stinky or as big and beautiful. Whether you realize that you're thinking in those terms or not.

Hannah McCarthy: Uh, Nick, this bothers me.

Nick Capodice: Bothers me too. Hannah.

Hannah McCarthy: I love irony. Irony made me. Nick. Actually. No sarcasm. Sarcasm made me what I am today.

Nick Capodice: It breaks my heart. Hannah. [00:04:30] But Jen said, if you're a politician, you should never use irony.

Jennifer Mercieca: Irony is poison to a democracy. It is cynicism. Saying two things at once means that we don't trust you. Instead of directly making a point, you say it in your ironic words where you use their language but use a tone that is meant to indicate that you don't agree. Which means that yes, you are repeating their language, which is bad for [00:05:00] the framing and the stickiness and the repetition. But it also means that you are not taking ownership of what you actually think. You are using the distancing strategy of irony so that you can't be held accountable. Be earnest, my friend.

Nick Capodice: So one idea we came up with was to imagine that you're hearing a robot say something without any intonation whatsoever, and then to say, who benefits from this phrase? Like someone who was not a fan of President Joe Biden's policy, saying another [00:05:30] brilliant move by Dark Brandon, or likewise a critic of President Donald Trump referring to him as a, quote, very stable genius.

Robot: Looks like Dark.Brandon is totally knocking.It out of the.Park today.

Robot: Ha ha ha. I guess the very stable genius is playing four dimensional chess.

Hannah McCarthy: Did Jen tell you why, though? Why are we like this? Why are humans like this?

Jennifer Mercieca: Our brains are essentially lazy. Where? What is called [00:06:00] a cognitive miser. We don't like to think about things if we don't have to. Because our brain, frankly, is doing other stuff. Our brains main job is homeostasis. It's to check in on all the bits and pieces of our body and make sure that our temperature is right and our heart is beating in the right way. Things that we don't think about and probably we don't even want to know about. A smaller part of your brain is devoted to scanning for threats, and so your brain is constantly looking for like, [00:06:30] oh, is there a bear? And do I need to like, prime the body to react? Flood it with stress hormones and, you know, put it in the fight or flight response anyway, so your brain is busy doing all this stuff that you are not aware of, and then it's doing a little bit of stuff that you are aware of. Right? So that's the conscious mind.

Hannah McCarthy: A little bit of stuff.

Nick Capodice: Yeah. Yeah. The slow, plodding, deliberative thought process. I am sitting on a rock [00:07:00] by the sea and I am thinking these things. Now we may feel that is the lion's share of our brains work, but it is such a teensy little fraction.

Jennifer Mercieca: And so framing works precognitive on our lazy brain, the one that's working really fast but doesn't want to do a lot of hard work thinking about stuff. So the more I repeat Stinky Bill's stinky Bill, stinky Bill, the more journalists repeat that frame, the more, uh, [00:07:30] propagandists or supporters or detractors or whoever circulate that frame, the more your brain will uncritically accept the frame and you will begin to think within the frame. Stinky bill.

Nick Capodice: So the scariest part of this, to me at least, is something expressed by George Lakoff. Lakoff is the preeminent thinker on framing and linguistics and politics. He says that the frame is hard, if not impossible, to beat. So I'm linking [00:08:00] to Jen's article on Lakoff and all of this stuff in the show notes. But the money line from it is this quote you can't fight a dominant frame with evidence. Your brains frames don't care about other frames facts with their feelings. It rejects anything that doesn't conform with its existing frame structures.

Hannah McCarthy: I think this is something that may just be difficult for a lot of people to accept. We don't want to believe that there's some kind of influence making us think in a certain way and reject [00:08:30] other thoughts. This is huge, Nick.

Nick Capodice: It is.

Hannah McCarthy: Do you have some examples of this?

Nick Capodice: Oh, Hannah, I could spend days looking at framing examples. I'm gonna keep it to just a few for this episode, but let's start with something that is one of the most hotly debated issues in the country. How do we frame what is happening at the southern border of the United States?

Jennifer Mercieca: One side of the controversy would try to frame it as a humanitarian crisis.

Archival: Begin with new numbers from Customs and Border Protection [00:09:00] on the humanitarian crisis here in Arizona.

Archival: A pregnant woman seen with her children tells us she's been living on the banks of the Rio Grande for several days without food or water.

Jennifer Mercieca: And if you hear those words, there is a humanitarian crisis on the border or at the border, then it conjures up very specific images in your mind. There are humans involved that are in need, and we ought to bring care. And so that means a policy [00:09:30] position that would include things like bringing tents and water and diapers and baby formula and providing care and assistance to people who are in need. Okay, so that's one frame. A different side of the issue would say that there is an invasion at the border.

Archival: This massive invasion from from our southern border was intentional, and it was done in a systematic way, [00:10:00] and I think it was done by elements of the left that truly hate this country.

Archival: And I'm going to call it an invasion. Like it or not.

Archival: If you use the term, it's an invasion. That's not anti-hispanic, it's a fact.

Jennifer Mercieca: And if there is an invasion at the border that conjures up entirely different, uh, frames and policies and feelings. And so if you hear repeatedly that it is an invasion, then you think we ought to bring violence to the border, right? [00:10:30] We ought to stop the invasion. We ought to bring weapons and barbed wire and build a wall. Right. Like an army should be deployed to stop an invasion. And so those frames are incompatible.

Hannah McCarthy: What happens when you have incompatible frames?

Nick Capodice: You just won't be able to easily understand any policy passed by the other side. So if you've heard invasion over and over and over again, [00:11:00] the very notion of sending water and diapers to the southern border would be puzzling.

Jennifer Mercieca: Likewise, if you are someone who has always heard humanitarian crisis humans in need, and they say, we have to bring the army and the barbed wire, you think that they are inhumane, right? That they're vicious and it's nonsense.

Hannah McCarthy: This brings to mind for me a term we hear a lot. It's one that really came to the fore after the 2024 election, [00:11:30] messaging specifically that the Democratic Party has a, quote, messaging problem. Now, I have not in my own life just anecdotally heard, I think anyone say that the Republican Party has a messaging problem.

Nick Capodice: Yeah. And to that point, Hannah, if you look up the Democratic Party messaging problem, you're going to see a ton of articles on that topic. The linguist I mentioned earlier, George Lakoff. He studied the writings of a GOP [00:12:00] pollster and messaging mastermind named Frank Luntz. Luntz writes a memo to Republicans each year called The New American Lexicon with words you should never say and what words to say instead.

Hannah McCarthy: Wow. Okay, so give me some examples.

Nick Capodice: All right. We can make a game out of this. Hannah. I'm going to say the term a Republican is told never to say. And you try to guess the replacement.

Hannah McCarthy: All right, I'm in.

Nick Capodice: All right. First one is state tax. [00:12:30]

Hannah McCarthy: This one's easy for me. Death tax.

Nick Capodice: Very good. An estate tax sounds like something a rich person deals with. Death tax sounds more like something terribly unfair that your family has to pay just because you died. All right, next one. Government.

Hannah McCarthy: I don't know them. Yeah.

Nick Capodice: The others.

Hannah McCarthy: I don't know.

Nick Capodice: The others from the back of the plane. Like when you're being critical, you don't say the government needs to [00:13:00] get its act together because the government fixes our streets and it funds our troops. Instead you say.

Hannah McCarthy: Oh. Washington

Nick Capodice: Washington, the fat cats in Washington can smoke their Cuban cigars.

Archival: In outside Warshington. This is a contract with Americans for America.

Nick Capodice: Luntz also suggested replacing undocumented worker with illegal alien, replacing oil drilling with exploring for energy. [00:13:30] And he also coined the term tax relief. Can you hear the implicit framing in that term?

Hannah McCarthy: Oh, yeah. If you're constantly talking about tax relief, you're implying that taxes are a burden, that they are something that puts undue pressure on a person.

Nick Capodice: Yeah. And how on earth do you run against that?

Nick Capodice: My opponent is offering tax relief. But I desperately want you to know these taxes pay for things you need.

Nick Capodice: And [00:14:00] then members of the Democratic Party started using the term tax relief as well. The public also. And this frame stuck. All right, Hannah, I got one more framing example, as well as Jenn's recommendations for how we can all push back against the frames assigned to us. But first we got to take a quick break.

Hannah McCarthy: But before that break. A reminder that if you want to pick us up and carry us around in a non audio format, check out the book that Nick and I wrote. It is called A User's Guide to Democracy How America [00:14:30] Works.

Nick Capodice: We're back. You're listening to Civics 101, and today we are talking about framing how politicians and consultants use language to make you think certain things without knowing you're thinking it. And our guest, Jen Recchia, gave a classic example I want to share with you, Hannah. Now, we talked a little bit about this in our propaganda episode, but not this part specifically. The earliest and most successful [00:15:00] framing war in our country's history.

Hannah McCarthy: I have a guess about this one. You do? Might it have to do something about trying to convince a newly formed nation that the answer to all of their problems is in a four page document that a bunch of guys haggled over one hot summer in Philadelphia?

Jennifer Mercieca: People like me who study, you know, democracy and communication. I will look at the Federalist Papers and the whole Federalist agenda in [00:15:30] 1787 and say, that was really good public relations work.

Jennifer Mercieca: They did. Right. They named and branded themselves as the Federalist Party when they were actually arguing for the opposite. They were arguing for what was known at the time as a consolidated government, a national government. Federalist meant that the confederated states would remain unique and separate.

Hannah McCarthy: Nick, I did an entire episode on federalism. [00:16:00] We talk about the Federalist Papers all the time. I love thinking about federalism, and I never made this connection. I am sorry, listeners. I should have. The people who called themselves Federalists were not in the true sense of the word Federalists. An actual Federalist would want individual states to be powerful and semi-independent and have a weaker central government. But a capital F Federalist, as in the Federalist Party, they argued for the opposite [00:16:30]of that.

Nick Capodice: And it's like a double trick. Like, not only did they frame themselves as the opposite of what they actually were. That then forced the other guys to call themselves anti federalists as an anti what they actually believed. Wheels within wheels.

Jennifer Mercieca: So the the dudes who went to the Constitutional Convention, um, they tended to support a consolidated national government, but they didn't use those words. [00:17:00] No, they did not. They sure did it. And so the Anti-Federalists were like, hey, what is? They have taken our words from us. Well, it's so confusing.

Hannah McCarthy: All right. Nick. So framing or the frame wars. This has been around for quite some time.

Nick Capodice: Thousands and thousands of years, Hannah, and we are getting better at it every [00:17:30] day.

Hannah McCarthy: So is there anything that we can do about it? Even just we, the individual? You know what I mean? If it is as pernicious and prevalent as you say, might there be a way to fight it? I mean, can we resist the iron hand of the frame?

Nick Capodice: We have, as of this moment, along with every single person listening to these words begun. The first step is simply to recognize that frames exist and then to push back against [00:18:00] them.

Jennifer Mercieca: So you have to contest the premise of the frame. And it's an old strategy, right? So we teach our students to analyze the points of stasis, which I think is traced back to Quintilian. But like, we don't actually know for sure.

Hannah McCarthy: I don't think I've heard of Quintilian.

Nick Capodice: Yeah, I thought it was the number initially. He was a famed rhetorician in ancient Rome, taught Pliny the Younger.

Hannah McCarthy: All right. Well, I know Pliny the Younger. Um, okay. So points of stasis. [00:18:30]

Nick Capodice: Yeah. These are the lines of argument in any controversy. Four steps, four points, one after the other, that you must go through to come to an agreement of what's going on. That's the stasis part. Stasis means stopping.

Jennifer Mercieca: And so the first point of stasis is. What is it? Right. So describe what happened. What are the facts? The second point of stasis is what do we call it? And that's the frame. That's the framework. The [00:19:00] third point of stasis is is it good or bad? And the fourth is what do we do about it? And if you think about any persuasive speech, if you think about, you know, a legal brief in a court of law, they go through the points of stasis very carefully and very clearly. They lead you through that kind of analysis and assessment.

Nick Capodice: Now, the points of stasis, Hannah, are a little clearer. If we're talking about a dead body on the floor and a man standing over it with a bloody dagger [00:19:30] one. Did he do it? This is like the facts of the case. So let's say we agree on that. Yeah, he did it. So then we can go to number two. What are we going to call it? Murder. Manslaughter. An act of self-defense, a crime of passion. And once we do that, we can go to three. Is this a good or a bad thing? And finally for how is he to be punished?

Jennifer Mercieca: Clear thinking right is very persuasive [00:20:00] thinking most of the time in public discourse, we're not going through the points of stasis in order. We're not describing the facts. And what do we call it? And is it good or bad? And, you know. Right. We move right on to policy. And so we assume that point of stasis that is crucial, which is the second one. What do we call it? Do we call it a coup? Do we call it an insurrection? Do we call [00:20:30] it a peaceful protest? And so we adopt these words that then trigger entire constellations of emotions and policy. And so, breezing through the second point of stasis without considering it carefully. We go all the way to the third and fourth point. But we're not really well prepared to debate those issues, because until you decide what we should call it, [00:21:00] you can't really decide if it's good or bad, right? You're going to decide something very different. If it's a peaceful protest versus it's an insurrection. And so what we do is we rely on heuristics.

Hannah McCarthy: Oh, because our minds are kind of lazy.

Nick Capodice: Yeah. It's not their fault. They need a break. They're busy and overtaxed and telling you to drink a damn glass of water every now and then. So they use any shortcut they can.

Jennifer Mercieca: There are important differences for scholars of, you know, political violence [00:21:30] between a coup and an insurrection and a peaceful protest. And so so instead of doing that work, right, because we're not scholars of political violence, we just do the lazy job and the lazy work of adopting whatever frame gets repeated the most gets repeated by people we respect gets repeated by our party, right? Um, and so what we hear becomes our reality because we don't think about it.

Nick Capodice: So [00:22:00] I got one last arrow in the quiver to fight the frame wars.

Hannah McCarthy: Hannah, you realize that you're doing it right now. What? You are framing. Framing.

Nick Capodice: Framing. I'm framing. Me. This is ridiculous.

Hannah McCarthy: I mean, you're calling it a war. Uh, Nick, you're using a weapon metaphor.

Nick Capodice: Okay, so I am. This is like some post-modern meta framing of the frame. I'm okay with it. Uh, but seriously, something Jen does with [00:22:30] her students each day just to recognize the frames is to first put up the homepage of the Associated Press morning wire.

Jennifer Mercieca: Because the AP morning wire, as I tell them, is a neutral source of information that provides the backbone for all other News that gets distributed throughout the United States. It's not outrage bait. So we look at that every day, and then we compare what we see in the AP morning wire to CNN and MSNBC [00:23:00] and Fox News in The New York Times and the Washington Post and Yahoo! And when you do that, you'll see very clearly that the stories are given different priority, that the headlines use emotive language, very emotionally triggering language in some of those new sources, whereas they do not in others, that the imagery is very different. In some cases you will see. Um, Donald Trump always looks like a hero. [00:23:30] He always looks young and tough and strong and, you know, energetic. And in others he's always making a funny face. And he looks goofy and he looks old and he looks weak, right? You would have seen the same thing with Joe Biden, right? But in reverse, of course. Different news sources. And so you can see based on the imagery. Who is a hero in that news organizations narrative of the world. Right. And that's really important because once you know who is a hero, then of course you can tell who the villains [00:24:00] are to. And news organizations shouldn't be narrating a world of heroes and villains, right? They should let the audience decide who the heroes are and who the villains are. I find that if you if you do that exercise for a few weeks, then you can figure out which news organization you think is best representing reality to you.

Hannah McCarthy: Nick, do you think we could do a points of stasis on framing?

Nick Capodice: Oh, that would [00:24:30] be fantastic.

Hannah McCarthy: Okay, one. What is going on? Politicians and the media are using carefully designed language to make us feel, one way or another about issues. And they try to do that without our even noticing it?

Nick Capodice: That is good. And to be honest, Hannah, if I'd heard just that, I would be tempted to leap to the.

Speaker15: Well, what can I do about this? Won't somebody think of the children step?

Nick Capodice: Uh, but we're going to do this step by step. Continue. [00:25:00]

Hannah McCarthy: All right. Step two. What do we call it? We've already called it the frame wars today repeatedly meaning that it's something that involves conflict or fighting.

Nick Capodice: Yeah. And that might even be the title of this episode. Uh, you never know until it's up there.

Hannah McCarthy: But we could have called it the framing trap, which makes you think of maybe defense, of being careful, of protecting yourself from something or frame mystery, something we have to solve by looking for clues and putting the pieces together. [00:25:30]

Nick Capodice: Yeah, like a BBC mystery with an inspector. With a name like Thurlow. Trowbridge. Trowbridge investigates the deadly frame. But I think we can stick with frame wars.

Hannah McCarthy: All right, got that? Okay. Step three. Nick, is it good or bad. Well, we're calling it a war. Now, some people would say that's a bad thing.

Nick Capodice: And now, Hannah, now that we've done all three of those, we can ask the final question. What [00:26:00] are we going to do about it?

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Cinema Civics: The Manchurian Candidate (1962)

The Civics 101 team delves into the 1962 film The Manchurian Candidate, a political satire and thriller that is more than relevant in today’s political climate. 

Note: this episode contains spoilers for the film.

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Transcript

Archive: Raymond Shaw, please.

Hannah McCarthy: Hi, I'm Hannah McCarthy. This is Civics 101. This is the first in what will be a semi-regular series wherein our team takes a look at our favorite movies and shows about the US government or perhaps other governments as well. Space governments, for example, and finds the Civics 101 of it all within them.

Archive: There will be no covering up, sir. No covering up.

Hannah McCarthy: And today we are going to talk about a movie that I very much love, and I am definitely going to spoil it for people who have not seen it. So if you have not seen the 1962 Manchurian Candidate, I recommend waiting to listen to this episode until you have watched it, and I do recommend watching it. It is rated PG 13 by the way, if that is relevant to you. And I am joined today by three lovely coworkers and friends who have seen this movie first Nick Capodice.

Nick Capodice: Hello, Hannah. I'm very glad to be talking about this movie.

Hannah McCarthy: Me too. Christina Phillips.

Christina Phillips: Hi, Hannah. I'm very happy to be talking about the Cold War.

Hannah McCarthy: Oh, lovely. And Rebecca Lavoie.

Rebecca Lavoie: I can't be more excited to talk about a movie and the strange accents therein than I am to talk about this movie. Yeah. And the strange accents therein.

Hannah McCarthy: And so before we start the brainwashed fever dream, that is the true history behind what is happening in this movie. I just want to know, without actually touching on the plot, did you all like it? I will start with the two people who had not seen it prior to what? This past weekend, right? Yes. Rebecca. Did you like it?

Rebecca Lavoie: Frank Sinatra, Angela Lansbury. What's not to like? Hannah McCarthy.

Hannah McCarthy: I couldn't agree.

Rebecca Lavoie: More. I did, I did.

Hannah McCarthy: Christina. How'd you feel about it?

Christina Phillips: I liked it, I found it very funny, and I was like, I'm not sure if that's me or if that's current context, but I was delighted. I thought it was great.

Hannah McCarthy: And Nick, how do you feel about The Manchurian Candidate?

Nick Capodice: Yeah, well, I saw this movie when I was too young the first time, and I watched it maybe ten times since then. I am in love with this movie. One actor in particular, and the most recent watching it, was just like the first watching in the last four years. It's still hits home, it's still slaps. It's still relevant to everything going on today.

Hannah McCarthy: Very good. So The Manchurian Candidate, it is based on the book of the same name written by Richard Condon. It stars Frank Sinatra, as we said, and Angela Lansbury, among others.

Nick Capodice: Yes, it includes Janet Leigh and Laurence Harvey.

Hannah McCarthy: With the more actor names you say, the more likely people are to tune out.

Nick Capodice: And do you really think people hearing the name John Mcgiver in this movie is gonna make people tune out? I gotta say, everybody, John Mcgiver is very special. He's the, uh, salesman at Tiffany's in Breakfast at Tiffany's. Yeah, he's a he's a wonderful character.

Christina Phillips: Which character is he in this?

Rebecca Lavoie: He's Senator Jordan.

Archive: I think of John. Iceland were a paid Soviet agent. He could not do more to harm this country than he's doing now.

Christina Phillips: Okay, Senator Jordan.

Rebecca Lavoie: Got it. He's Angela Lansbury's nemesis.

Nick Capodice: I will block you.

Rebecca Lavoie: Yes.

Hannah McCarthy: Pictured, there's a scene where you see his face just in front of a giant golden bald eagle. So we know what we're supposed to think about him. A lot of, like, imagery that tells you exactly what to feel in this movie.

Nick Capodice: And a quick public service announcement to anyone out there, please, in my opinion, do not bother with the 2004 version of this film.

Hannah McCarthy: It is Denzel Washington and Meryl Streep, both of whom are incredibly talented people, so you might want to bother with it. Nick and I love the 1962 one. That is the one we recommend. Guess who did not love the 1962 The Manchurian Candidate? Any guesses?

Rebecca Lavoie: Any of the Kennedys?

Christina Phillips: With McCarthy still alive.

Hannah McCarthy: Mccarthy was not still alive. Audiences in 1962.

Christina Phillips: Oh.

Hannah McCarthy: So this movie was kind of a flop. United artists, the production company that produced this movie, pretty much pulled it out of most mainstream theaters two years into its run.

Rebecca Lavoie: Just like It's a Wonderful Life, right? Like which was also a flop, really.

Archive: I'm gonna build airfields. I'm gonna build skyscrapers a hundred stories high. I'm gonna build bridges a mile long. Where are you going? To throw a rock.

Nick Capodice: Yeah, that was a flop. The only reason it's popular. Because it accidentally fell in the public domain. So every TV station snagged it. And, like, let's play it at Christmas.

Hannah McCarthy: Like, um, Wizard of Oz. Like it was a total flop.

Archive: I thought you said she was dead.

Archive: That was her sister, the Wicked Witch of the East. This is the Wicked Witch of the West.

Hannah McCarthy: All right. But what I really want to start with is the term Manchurian Candidate. It is a term that has come to mean someone who's harmful or disloyal to their nation or their party because they are under the control of another nation or party. But the term does come from this book. And then this movie. So I just want to ask you all, what is Manchuria?

Christina Phillips: I believe Manchuria is an important location during the Chinese Revolution. Right.

Nick Capodice: I thought it was northern China near Mongolia, northeastern China.

Hannah McCarthy: That is true. And it is significant. Often throughout history, there is a long and rich, complex history of what is called Manchuria. By the way, a very controversial name for a contested place. That name comes from colonizers, right? Not from the Chinese who lived there. I'm not going to get into this whole history of Manchuria because it is. There's a lot, and I recommend people look into it on their own. What I need you to know about it today is that it was very important during the Korean War, the Chinese People's Liberation Army had an important base in what is called Manchuria. Yes, Communist China fought in the Korean War, as did covertly the Soviet Union, as did United Nations member states, including the United States. Does anybody know why all of these nations and states were involved in the Korean War?

Christina Phillips: Christina I guess I'll start with the United States. So this is post World War Two, and this was during the rise of the Truman era of containment, which is part of the Truman Doctrine, which is essentially this idea that there was encroaching communism. And the United States adopted a policy of preventing the spread of communism in other countries. There's also this massive decolonization happening. So the United States gets involved because they see this threat of communism entering South Korea.

Hannah McCarthy: You're right. But what happens way before that? Why is there a North Korea and a South Korea?

Nick Capodice: Yeah, I mean, it was Korea. And then like a chunk of it broke off specifically around World War two.

Hannah McCarthy: Yes. What happened was Japan had annexed and colonized Korea. So 1910 to 1945, Japan is occupying Korea after Japan's surrender. The United States and the Soviet Union allies really in name only. They have to transition this nation into its independence, right? So what do they decide to do with this country? They decide to split it up along the 38th parallel. The Soviet Union is going to manage the northern part of the nation, and the United States is going to manage the southern part of the nation. And the idea is this is temporary. Eventually, this military government occupation is going to just step away and leave it to Korea to figure out. However, there's an important, as you were talking about, Christina, ideological difference between these two occupying forces. Right. The northern occupiers believe in communism. Communism. And these southern occupiers believe in democracy, anti-communism, capitalism. Right. So basically, what ends up happening and I'm going to grossly oversimplify this because we are talking about a movie and not world history necessarily, although it's all kind of the same thing. You know, tensions are building up, building up, building up. Communist, anti-communist. Eventually North Korea invaded South Korea. And we are not going to declare a war, of course, because we just came out of a war. However, the United Nations authorizes police action, and the United States is permitted to get involved in this war, which was a proxy war, really, between anti-communists and communists as well as North Korea and South Korea. And this is all around the same time that we are really entering the Cold War, which was what, Rebecca? What was the Cold War?

Rebecca Lavoie: You mean the nuclear standoff between the two most powerful nations on Earth, the Cold War, where we were all afraid we were going to blow each other up. That thing.

Hannah McCarthy: That thing? Yeah.

Archive: If you're on the playground, run for shelter. If you're in the schoolyard, get into the building. Move quickly, but in good order.

Rebecca Lavoie: We should mention that this movie is not perfect. It's a little bit problematic. And there are no actual Koreans playing Koreans in this film.

Nick Capodice: I'm glad you brought that up, Rebecca. In particular, the Korean spy at the very beginning. I have no idea where this man is really from new Jersey.

Rebecca Lavoie: That's where he's.

Nick Capodice: From. He's from new Jersey.

Rebecca Lavoie: And Frank Silva, who plays the allegedly Korean man who ends up coming to New York, is Italian. So, yeah, we should just throw that out there. This is a thing that we know about this film.

Hannah McCarthy: Yeah, I totally agree. And I'm very glad you brought that up, Rebecca, because I would argue that The Manchurian Candidate is not just set during the Cold War. It is a two hour tribute to Cold War paranoia and fear. It is both a critique and a product of the panic that still gripped the United States when it was released in 1962. It is not historical fiction, but there is a lot of historical truth within it. I think the movie itself is a reflection of extremism and racism and sentiments about certain elements during the Cold War, because we were still in it, and setting this movie during the Korean War kind of sets this all up, right? We're not fighting the communists, but we are fighting the communists. And the United States was partially responsible for the Korean War because of that division at the 38th parallel. That's where we find ourselves at the very beginning of The Manchurian Candidate. American troops patrolling somewhere in Korea. And what, Christina happens to those troops?

Christina Phillips: They're betrayed by their scout.

Rebecca Lavoie: Their Italian scout.

Nick Capodice: The Italian.

Rebecca Lavoie: Scout.

Christina Phillips: The Italian. Yes, they're betrayed by the Italian scout.

Rebecca Lavoie: Yeah.

Christina Phillips: But, yeah. So they're basically. They're a staff sergeant. They establish that he is not very popular, and then they get captured by, we assume Russians, I assume, or Soviets.

Hannah McCarthy: But let me just ask you, Christina and Rebecca, having watched this, we already sort of touched on it. Did you know right off the bat who they were being captured by? Was it immediately clear to you?

Rebecca Lavoie: No, no, it's not clear, a because the actors are not played by people of any distinct ethnicity other than Americans, and because the setting of their brainwashing sessions is this like hotel lobby with a surgical theater audience around it. And the audience. That's the fake garden club audience that they're doing these demonstrations for all look, American. And I want to say, look, American. I mean, they speak English like Americans, and they're dressed like Americans from that time. So it's a little bit hazy.

Archive: Many years ago, when I was traveling about the country, I noticed magnificent hydrangeas on the hills.

Nick Capodice: I said before that, like, there's one scene that stands out to me. I think every character who was kidnaped, having a memory of that brainwashing that happened to them, is one of my favorite things in cinematic history. Like, I'm nuts about it because depending on who is having the memory, everybody who is in the scene is are portrayed by completely different people. So when there is a black actor who is remembering being brainwashed, he is a group of older black women talking at a garden club. And when it's a British guy, he's like remembering white British people talking. But when you see the real scene, those are people that look like they're from around the world. Like there's a guy with a thick sort of Hungarian accent. There are people from all over who are at this brainwashing demonstration when they're kidnaped in Korea. Even when I was a kid, and even until like the last time I saw that movie, it was like, well, who's doing who's actually kidnaping these people? No, I'm in the exact same boat.

Rebecca Lavoie: That's who. Them. Them. The big.

Hannah McCarthy: Scary they.

Rebecca Lavoie: Yeah. The body snatchers. Just like an invasion of the body snatchers. It's just them. Them. Them, them.

Hannah McCarthy: Rebecca. Exactly.

Archive: It's got no detail, no character. It's unformed.

Archive: All of a sudden, they're growing like parasites. Is it contagious? People are being duplicated.

Archive: How do you know my name?

Hannah McCarthy: Fear of capture was a very deep one. Of course, it's a deep one in any war. But in particular, during the Korean War, American soldiers captured by North Korean and Chinese soldiers could expect absolutely horrifying conditions, which, again, I am not saying is unique to the Korean War, but we do know this about the Korean War. According to the Korean War Legacy Foundation, 43% of American prisoners of war died in captivity during the Korean War, which is a huge number. Those who survived, for the most part, returned home traumatized if they returned home at all. But in this movie, they do return home, and what is waiting for them when they return home? Nick.

Nick Capodice: Uh, Raymond Shaw Raymond Shaw is a returning to a hero's welcome when he comes back from whatever happened over there. Uh, there's balloons and there's a parade. And Angela Lansbury and her husband, Senator Tom Iceland, are there. Excited to bring John.

Hannah McCarthy: Medal of honor.

Nick Capodice: Medal. Congressional medal of honor. That's right.

Hannah McCarthy: Nick, does Raymond like his mom?

Nick Capodice: Does Raymond Shaw like his mother? No, no. Raymond Shaw hates his mother, portrayed by Angela Lansbury and hates her politics as well as her.

Archive: What is it, mother?

Archive: A sort of a greeting is that at 330 in the morning.

Archive: It's a 2:45. And what do you want?

Archive: I want to talk to you, Raymond.

Archive: About what?

Archive: I want to talk to you about that communist.

Archive: Shut up with that mother. Shut up!

Hannah McCarthy: And we, the audience, are also meant to probably not like Senator Iceland and Mrs. Iceland. Right? Also, I don't think it's an accident that it's spelled I e l I n, but pronounced Iceland. Right? Cold. Not good.

Nick Capodice: Cold war.

Hannah McCarthy: So I would say it's pretty obvious that Senator Jon Iceland is a proxy, if you will, is a pretty obvious knockoff and critique of a certain real American historical figure. Who might that be?

Christina Phillips: Oh, I would guess maybe Senator Joseph McCarthy perhaps.

Hannah McCarthy: That is exactly right. Long before I understood what Joseph McCarthy had gotten up to, I used to say like, hi, my name is Hannah McCarthy. No relation, assuming people would know exactly what I meant. But like, I didn't know what I meant. Um, Rebecca, why might I have enough wherewithal without even knowing who the guy was to say no relation to Senator Joseph McCarthy. What did I mean?

Rebecca Lavoie: Because McCarthyism, which is like the expression that was born sort of like Manchurian Candidate after his era, just became a placeholder set of words for oppression of thought. And so you didn't want to be associated with that, I'm guessing. Hannah McCarthy.

Hannah McCarthy: That's right. I like us all to think all we want.

Christina Phillips: So the Korean War was 1950 to 1953, correct? And McCarthy was really in his heyday throughout the 1950s. And then this movie comes out in 1962. The movie was probably being made as he was still alive. His legacy is very much present, right?

Nick Capodice: James Gregory does a pretty good impression of, I believe, of Tailgunner Joe McCarthy.

Archive: I am United States Senator John Yerkes, Iceland, and I have here a list of the names of 207 persons who are known by the Secretary of Defense as being members of the Communist Party. What?

Hannah McCarthy: So just to clarify, you know, we talked about the fact that Senator Joseph McCarthy was sort of a thought police kind of guy. Specifically, he was fueling the flames of anti-Communist sentiment to an outrageous degree in the United States. He made accusations left and right, mostly left, that people were communists. They were card carrying communists. And he assured us that they were here on U.S. soil. They were infiltrating everything, including the government. And, Nick, I just want to ask you, what is one real simple, easy to remember number of communists in the State Department?

Nick Capodice: That's a really good joke. So for those of you who haven't seen the movie, Senator Iceland keeps putting out fake numbers about how many communists there are in the State Department. He's like 147. And he says to Angela Lansbury, can't you pick one simple, easy number? It shows him banging on a Heinz ketchup bottle and he says 57. There are no fewer than 57 because everybody loved Heinz, 57 at the time.

Rebecca Lavoie: One thing that I think is worth mentioning, though, is the reason she gives him for the varying numbers to be advantageous are that now everyone is talking about how many communists there are in the State Department, and not whether there are communists there.

Hannah McCarthy: That was the exact same tactic used by Senator Joseph McCarthy. That is why they have John Iceland doing that.

Christina Phillips: I think this is also the moment we realize that he is essentially everything he's saying is coming from the mind of Angela Lansbury, like he is sort of a puppet of her greater aims. So I thought that was fascinating like that. That conversation is so funny where he's just like squirting the ketchup and she's sitting there like, just do what I say.

Hannah McCarthy: Yeah, yeah. Because, like, communists are scary, but nothing's more terrifying than an older woman with power, right? That's the scary. I mean, like, that's.

Rebecca Lavoie: Very feminist, very ahead of.

Hannah McCarthy: Its time. Yeah, yeah. So, John, Iceland is supposed to be Joseph McCarthy. He's portrayed as a total buffoon, right? He's the puppet of his commander wife. That wife is going to use paranoia, false accusations, and the absolutely drama thirsty media to get her husband to the vice presidency, basically. Right. Just put propaganda out there and rely on the lie so that people are talking about the lie as though the lie is simply the case. And then let's try to understand what's going on around this lie. And then in terms of how he's actually portrayed, he drinks to excess, right? His home is scattered with images of Abraham Lincoln. He in fact, dresses as Abraham Lincoln during a costume party. This, I think, is an unambiguous eye roll at Joseph McCarthy. By 1962, when this movie came out, the late Senator Joseph McCarthy had more than fallen from grace. He had been exposed. Mccarthyism had been exposed for what it was it a largely baseless hunt for an invisible threat in our own nation, for the disloyal turncoats planted on our precious soil. Mccarthy had died three years prior to this movie coming out, some say from complications related to alcoholism.

Hannah McCarthy: He was one of the few senators to have ever been censured by the Senate. Really? Big deal. And seven years before this movie came out was when McCarthy made the first public claim about communists in the government. It was during a speech to the Republican Women's Club of Wheeling, West Virginia. He brandished a piece of paper and claimed to have a list of the communists infesting the State Department. And when he gave this speech, it was Lincoln Day, and he referenced Abraham Lincoln in this speech as a way to sort of link himself to Lincoln and enhance his own Own credibility in his Communist hunt. Linking that to Lincoln's legacy of unity. So I just think there are so many ways in which Frankenheimer, the director of this movie, is hammering it home. Like Iceland is Joseph McCarthy, and he's a buffoon, and we need to throw him away. And America pretty much had at the point that this movie had come out. And speaking of women's clubs, Christina, I think you know where I am going with this.

Christina Phillips: Hydrangeas.

Hannah McCarthy: Yeah, hydrangeas. That's right. And we are going to get to that after a quick break. We are back. We are taking a civics look at the fictional 1962 film The Manchurian Candidate and its real world foundations. And before that break, we were just about to get into a major driving force in this Cold War era film, something that we have already talked about quite a bit in this conversation. Brainwashing. Just a reminder spoilers abound in this episode. Okay, so Nick, I know this is one of your favorite scenes. You've talked about this quite a bit. We're talking about a garden club. What is the deal with the garden club when I say that, what is that referencing in The Manchurian Candidate?

Nick Capodice: Well, this is a scene when, uh, all of the captured soldiers are remembering a demonstration of how they have been brainwashed at the time of the demonstration to sort of the, quote unquote, axis of evil, all the evil people sitting in a room just waiting to see how these men, these American soldiers, have been brainwashed, they've all been hypnotized, and specifically, they've been hypnotized to believe they're at a presentation of a ladies garden club about how to keep and grow hydrangeas.

Archive: Another modern discovery, which we owe to the hydrangea, concerns the influence of air drainage upon plant climate.

Nick Capodice: Oh, and they're also smoking, uh, yak poop instead of cigarettes. They've been hypnotized to believe it tastes good.

Hannah McCarthy: Let me just ask. The group, is brainwashing real?

Rebecca Lavoie: Yes. Anybody who's watched a documentary about cults knows that brainwashing is real.

Archive: Tyndall gave us the tools to brainwash ourselves, literally wash out our humanness from our brains.

Hannah McCarthy: I want to acknowledge, like, first and foremost, brainwashing has become a term that we all use to mean something. So like to Rebecca's point, we use it to mean coercive conditioning tactics, often involving manipulation, deceit, and various trauma in order to change someone's perception of the world, alter their behavior away from what they might have done prior to your conditioning them right. Brainwashing is a term that many psychologists are wary of, and they're like, maybe let's not use the term brainwashing when what we mean is the thing that we think of that a cult might do to an individual, which is coerce abuse condition. And I think that that is in part because of the origins of the public use of the term, especially in the United States, which I'm about to get into because they talk about conditioning in The Manchurian Candidate. Right. There was this like, call it a moral panic, if you will. It was just a panic. There was a panic about brainwashing in the United States. I have a whole thing about this, Nick, with hypnosis, because you and I talked about this earlier. And generally, psychologists will say that hypnosis is a voluntary state that someone essentially in, in some way or another is agreeing to hypnosis itself, and that the implications of brainwashing are that it is not voluntary. Right? It is entirely, entirely against somebody's will. And so also for all those listeners who are like, this fool hasn't heard of MKUltra. I have like, you know, there are a lot of reasons. Yes. No, I have. Trust me, I have. The term brainwashing rolls off of the American tongue. It's a term I have no idea when I first heard it, but I have probably used it many, many times in my life. And we impart have an individual named Edward Hunter to thank for that. Has anyone here ever heard of Edward Hunter?

Nick Capodice: If I'm not mistaken, I thought he wrote the book Budwing or Mr. Budwing.

Hannah McCarthy: That's Evan Hunter. Um, he is a writer. He is a writer. However, Edward Hunter was a journalist, maybe, who ended up working with the United States Army and the Office of Strategic Services, which you can basically think of as the CIA. It was the CIA prior to the CIA. Some scholars think that the whole journalist thing was just a front, and that he was just an OSS agent, a CIA agent. Not everyone agrees on that. However. In 1959, Hunter testified before a Senate subcommittee, and this is what he had to say about this thing that he was calling brainwashing. And Nick, there is some outdated and inflammatory language in this quote. I just want to flag that for our listeners. But can I have you read what Edward Hunter said to the Senate?

Nick Capodice: Absolutely. Okay. So our Mr. Hunter said this thing called brainwashing could, quote, change a mind radically so that its owner becomes a living puppet, a human robot, without the atrocity being visible from the outside. The aim is to create a mechanism in flesh and blood, with new beliefs and new thought processes inserted into a captive body. What that amounts to is the search for a slave race that, unlike the slaves of olden times, can be trusted never to revolt, always amenable to orders like an insect to its instincts.

Hannah McCarthy: Wow.

Nick Capodice: End quote. Wow.

Rebecca Lavoie: This is so funny. Have any of you watched the show The Americans?

Hannah McCarthy: A little bit.

Christina Phillips: A little.

Rebecca Lavoie: Bit. Okay. It is, in my opinion, the best show in in my lifetime in the history of television. And it's about a couple who are from the Soviet Union who have been sent over. They weren't really a couple. They were put together as Soviet spies in the United States. And this is based on a real program that existed where they would train young Soviet people to be American and send them here.

Archive: This work can be too much for people.

Archive: They tell us what to do and we do it. That's how it works.

Archive: Philip and Elizabeth Jennings are not Russian spies. What happened? It's hard.

Rebecca Lavoie: It's such a wonderful show because I remember growing up and hearing that communists were brainwashed. Right? And the show shows the perspective of somebody who grew up in the Soviet Union who thinks Americans are brainwashed by capitalism. So it's just a very interesting, like, Cold War kind of thing that I certainly remember people talking about when I was growing up.

Hannah McCarthy: No, it's very much a thing. Part of the propaganda war between communism and anti-communism or communism and capitalism or communism and democracy was this notion, especially in the United States, of American exceptionalism. And it was very important that we talked about the fear of communism and the threat of communism, and what communists could do to us without allowing for the possibility that the American individual was corruptible. And I think this is very important. And forgive me if I say this again later, because it's important that Americans are safe and secure in their democratic ideals. Right? That is powerful. That is our important propaganda tool. So what what do we need to ensure that we're afraid of communism? We rally support. Opposed to communism, there has to be some sort of almost mystical tool that can hack into your mind. That is not the same thing as social influence. It's very important that we cannot be socially influenced into communism, but we can be brainwashed with something, can pierce our perfect American skulls and get in there. And that's what we're fighting against.

Nick Capodice: Part of the reason I love this movie is the whole movie is instances of people unwittingly demonstrating their lack of understanding or feel fealty or patriotism towards the United States. You know, you've got this blatantly horrible character of the senator who's based on Joe McCarthy, who is, you know, making lies and false accusations and the constant portrayal of a drunk Abraham Lincoln. Like, these are all we are lying to ourselves. It doesn't it doesn't need to be some creepy person in a helicopter who brainwashes us. We're doing it already. That's why I like it.

Hannah McCarthy: All right, so getting back to Hunter and also like, by the way, that quote you just read, Nick, like, sound like a movie you just watched. Like that's what supposedly is happening to these men when they return, right? They have been hacked.

Nick Capodice: Hannah. Ah. Did you say that this is like the first instance of the use of the term brainwashed.

Hannah McCarthy: So Hunter reportedly claimed that he was the first person to ever say this term out loud in American English. Okay. He claimed that it came from a Chinese word meaning wash brain. Now, there's a notion in Chinese philosophy about wash heart or wash brain that has to do with getting toward enlightenment. And this term is actually about like a combination of Western and Eastern philosophies and like, you know, improving oneself. It has nothing to do with the government hacking into your mind. Right. He was just pulling this term also seems highly unlikely that he was the first person to use this term. There are documents that indicate that the OSS was already using the term brainwashing in internal communications prior to Hunter getting up there and saying this. And a lot of scholars believe that Edward Hunter was just a Super effective propagandist employed by the OSS to put ideas out there into the American mind. It doesn't really matter if this is purely propaganda. It doesn't really matter that Edward Hunter is making these outrageous claims or introducing this word that doesn't make a lot of sense, and that the Chinese probably weren't using the way that he was using it, because we were super afraid of communism. And this was a really an excuse that made a lot of sense to us. Right? Like, this is how bad things can happen. And also J. Edgar Hoover had earlier published a book talking about the quote unquote, communist thought control machine. So this was in the air also, Rebecca, by the way, just for our listeners, who's J. Edgar Hoover?

Rebecca Lavoie: Oh, he was the director of the FBI. And he, like, had files on all sorts of Americans. And he was, by all accounts, not a great guy.

Nick Capodice: Yeah. That's the I've.

Nick Capodice: Heard a lot of understatements in my day. Hoover being not a great guy. It's kind of up there.

Christina Phillips: I do think it is interesting worth acknowledging here that the use of saying that this is a Chinese word and that we have translated, have translated this from a Chinese word. There's a great deal of racism and this threat of invasion that is happening in this moment like that is like a very important context to that. And the idea that there is an infiltration within the United States of some foreign, scary nonwhite mind control, I think is like sort of wrapped around all of this.

Rebecca Lavoie: Right. I do think, though, that the Soviet Union became the I mean, granted, it was a huge, powerful country, but I also think they became sort of the symbol of the communist threat because to white Americans, they looked like them. And there had to be something wrong with people who believed in a philosophy that was anti-capitalist. There must be something wrong. They must have been programed. They must have been coerced or something. Because why would anybody not want to be like us?

Hannah McCarthy: Yeah. And I think that's a really an important point, this idea that like communism equals bad, full stop, no conversations about it. We are not going to even think about it. Just bad evil.

Rebecca Lavoie: And if people want to learn more about communism, we do have an episode on communism and fascism.

Nick Capodice: I believe it's socialism, communism, fascism.

Rebecca Lavoie: Yes. And that's one you should definitely listen to in the civics 101 catalog.

Hannah McCarthy: Absolutely. All right, so getting back to brainwashing, getting back to The Manchurian Candidate. So I mentioned American prisoners of war in Korea. I told you that many of those who survived POW camps returned home traumatized, but that not all of them did return home. And I'm not talking about those who died in captivity. Okay, so something unimaginable to the Cold War American mind happened during the Korean War, captured American soldiers started confessing falsely, according to the US government, to war crimes. So they told their captors they had poisoned Korean civilians with anthrax and plague. This absolutely horrified Americans back home. Even more horrifying, POWs also started petitioning the US government to end the war. Unimaginable, right? That can't be done. Yes! Gasp! And then finally, when the war came to an end and the surviving POWs were told they could go home, an American delegation comes to Korea and and is going to get those soldiers back home. 21 of them chose not to go back home. Any theories as to why?

Rebecca Lavoie: I mean, what did they say at the time? I mean, I have theories as to why that or, you know, kind of contemporary, but like, what do they say at the time?

Hannah McCarthy: At the time, it had to be brainwashing, right? It had to be. There's only one reason. Over time, these soldiers who did return home were evaluated by psychologists who were saying, these are not sleeper agents, these are not people who have been quote unquote brainwashed. This idea that they have basically been turned into puppets by Communist China, these are people who have been horribly traumatized. That is the explanation. And that is a very complex state to be within. That can mean that someone behaves in a way that you do not expect them to behave. But it was protracted. It was so much abuse over a very long period of time. But again, brainwashing worked better for us, propaganda wise, right? By the way, we were trying to invent brainwashing in the United States. We were trying to do this. We wanted it. Mkultra, the super illegal super secret OSS, and then CIA human experimentation program that did many terrible things to many people, was trying to invent mind control. They used a lot of tactics, including, you know, dosing people without their consent and interrogations and abuse. And they treated Americans differently than they treated other people who they experimented on. Of course, you know, if someone without your knowledge gives you like 20 times the quote unquote recommended dose of LSD and then interrogates you for four hours, something might happen to you, you know? Right. That wasn't the only thing that came out of MKUltra, although we did not invent mind control the way that we wanted to. Anyone have any ideas of what we started to figure out during the MKUltra program?

Christina Phillips: Torture.

Hannah McCarthy: Yeah. Enhanced interrogation. And. Yeah, yeah. A lot of scholars agree that it was in the MKUltra program, that we figured out that abuse can maybe get us something that we want, even though a lot of people say torture does not actually work.

Nick Capodice: There are so many movies in the 70s with this sort of brainwashing thing. Yeah, I love it in those movies. It's a trope that it just like scares me to my absolute core. So when I see it, it means an awful lot to me. And I think it's cool and terrifying, you know?

Hannah McCarthy: Yeah. Well, and again, for those listeners who are like, it is real. I'm not saying that torment toward coercion and control isn't real. I'm not saying that at all. I'm not saying that experimenting on people and lying to people and all of that doesn't then change them. I'm just saying, if we think about the origins of the term brainwashing, I think it's important to note that brainwashing was a a more magical, impossible thing than the actual tactics used that the United States itself then started adopting toward manipulating people. Getting back to The Manchurian Candidate. You know, the story of soldiers who were successfully brainwashed by communists in a matter of days. Men who were it not for brainwashing, could never have betrayed their country. Because that's impossible. One man in particular, who is referred to as a quote unquote mechanism, a quote unquote weapon who can be triggered to murder even those he loves with a single phrase and a pack of cards.

Archive: Raymond Moylan to pass the time by playing a little solitaire.

Hannah McCarthy: This is something that in Cold War America was not beyond the realm of possibility. It was pretty reasonable, especially given what we've been told about brainwashing, given all of the anti-communist propaganda that we were consuming in the United States. The communists were and are real, and espionage and torture that was happening, and both sides were trying to create mind control. That's all true. So a movie wherein this, in fact, is the explanation for what happens to captured soldiers is totally on brand and totally believable. It makes a lot of sense. So do you remember that I told you that audiences in 1962 did not love this movie?

Rebecca Lavoie: Yes.

Hannah McCarthy: So we don't know why exactly. It did not make Bank basically when it was released. Right? It just it was not widely loved. There were some positive reviews, some negative reviews, but it was just generally what you would call a flop. You know, it also, it is a movie about politics and propaganda and influence and showing the United States in a state of panic to a United States that was still in a state of panic. I think it's not dissimilar from, for example. You know, maybe not all of us want to watch a movie about pandemics during a pandemic. That kind of thing. Right. And some of us do. But, you know, some of us, maybe not so much. I could have had something to do with that. That is me speculating. It was banned in certain communist controlled Eastern European countries because of its depiction of communists. It depicts the assassination of a political figure. Yes. So United Artists, the company that produced it, was worried that the movie might inspire a real life copycat. And Frank Sinatra reportedly asked his buddy, President John F Kennedy, for approval before the movie was released. They were, you know, real life friends. And apparently Kennedy was like, yeah, I love this movie. This is great.

Rebecca Lavoie: Wow. But John F Kennedy was, as far as we know, more than three years younger than his mother. Right? Like the actor who plays Raymond Shaw and Angela Lansbury, real life were three years apart.

Hannah McCarthy: That's baffling to me.

Hannah McCarthy: Wow.

Rebecca Lavoie: Frank Sinatra is great in this movie. I just want to defend Old Blue Eyes for a second. He is so good in this movie. He has top billing in the movie, which is funny. I'm sure that was because of the contractual studio system. Or maybe somebody had a horse head left in their bed or whatever. He is super duper good in this, even though it has all the weird tropes of like, there's like some 30s movie tropes in it, like him meeting the lady on the train and then instantly falling in love kind of situation.

Archive: Are you married?

Archive: No.

Archive: You know.

Rebecca Lavoie: Frank Sinatra's great. I stand by it. Stand by it.

Nick Capodice: Yeah. I love him so much in this movie. He's so humble and he is a wreck. He's a disaster.

Archive: We're busting up the joint. We're tearing out all the wires. We're busting it up so good. All the Queen's horses and all the Queen's men. Will never put old Raymond back together again. You don't work anymore. That's an order.

Christina Phillips: I do think it's funny. I was taking like stray notes in this and so many times I was like, is this not a conflict of interest? Also like, it seems like he is the only person and they're just like, yeah, you can try that. You can try that. Frank Sinatra's character, I don't know, it was such a strange like depiction of what existed as like, intelligence in those days because it's almost absent bureaucracy that it's very much like, I don't know, why don't you try this? And like, we have this little group and we're bringing in the FBI and the CIA like it. Just if you imagine the way those things look now, it's so bureaucratic.

Nick Capodice: I love that, like, the top intelligence agency in the world is just just a bunch of guys sitting around smoking, coming up with ideas.

Christina Phillips: Yeah.

Hannah McCarthy: A year after The Manchurian Candidate premiered, President John F Kennedy was assassinated by Lee Harvey Oswald. Now, a man named John Logan wrote a book called Oswald's Trigger Films, and he concluded that Oswald, who by the way, had lived in the Soviet Union for three years and was married to a Russian woman. I'm just saying had almost definitely seen The Manchurian Candidate. Robert Condon, the guy who wrote the book The Manchurian Candidate, got a call from a reporter as soon as JFK was assassinated asking if he felt responsible for the assassination. And Condon was like, no. And Condon's reasoning was, why would any assassin imitate that guy in that movie, someone who's controlled by communist handlers? Why would any American want to be that right? I read an article that was interesting that was like, perhaps we shouldn't be asking whether or not Oswald was inspired by The Manchurian Candidate, but whether or not Oswald's handlers were inspired by The Manchurian Candidate.

Rebecca Lavoie: So interesting. That's really interesting. I really want the sequel, which is the Angela Lansbury character backstory. Like, how did she become compromised? Right?

Hannah McCarthy: Yeah. And again, this is spoilery enough, but like, the spoiler about Angela Lansbury is, of course, that she was working for the communists. So she's going to try to facilitate a communist takeover of the United States. But then really, what she's going to do is be the one in charge.

Rebecca Lavoie: Power. Power. It's all about power.

Nick Capodice: That's what I love, too, is that power is the ultimate enemy in this movie, and this notion of a character who will do anything against their country, against America, of all places, just to get power. That is an interesting message, specifically one for the paranoia loving audiences of the 60s and 70s.

Hannah McCarthy: Or of 2025.

Nick Capodice: Or of 2025. Yeah.

Christina Phillips: On that note, I think it is worth pointing out that the end of the Korean War, it was not successful. So the United States is coming back from a war that ended in armistice. We are sort of walking back with our tails between our legs, because general MacArthur had this mission of not just containing, but overthrowing communism in Korea and was ultimately unsuccessful. And so the idea that it's kind of a whiplash from World War two, which birthed this idea that we are a superpower, our next big conflict is one in which we failed essentially, to do anything more than reestablish a not so great system that we had created and then was not working with this 38th parallel and Russia implementing communism in US and implementing anti-communism like the United States is not exactly a super confident and super successful in this moment.

Hannah McCarthy: And I think it's also this like, how could we, the great preservers of democracy worldwide, not be having an incredible success in this new era where our former allies are all of a sudden having a completely different idea than our idea. I find this to be sort of chilling little factoid. John Frankenheimer, the director of this movie, was close friends with Robert F Kennedy, and he was the person who drove him to the Ambassador Hotel on the night he was assassinated.

Rebecca Lavoie: Wow.

Hannah McCarthy: I'm not saying there's any link at all. I'm just saying. World. Small world. World. Very, very strange. In 1972, Frank Sinatra bought the rights to this film. And then he pulled it from circulation in 74. And then it was rereleased to much acclaim in 1987 and 88. Nearly the end of the Cold War. Take that as you will. So here are my final thoughts on this movie, The Manchurian Candidate. I told you that I thought of it as a time capsule. It's like Cold War paranoia bottled up for our viewing pleasure. It is also clearly a fairly scathing liberal critique of McCarthyism, extremism, scapegoating the American political system broadly. In the end, it turns out that anti-communist propaganda is itself communist propaganda that widely broadcast lies are themselves brainwashing. Quote unquote. That power can be handed to whomever yells loudly enough at the most television cameras. And it also tells us that we shouldn't trust the one woman in the movie who controls men instead of doting on them, which I find pretty interesting because the other women don't. They love and Angela Lansbury is out for herself. But I think that the absolutism of the communists in this movie, the way they are portrayed, the way they are cast, the utter lack of humanity and machine like operations and way of thinking. That, to me, smacks of propaganda. Even if the movie is satire, which it is, I think it can be both satire and a bit of propaganda itself. The communists are barely people, right? They are archetypes. Meanwhile, Frank Sinatra, Nick, as you pointed out, is very much a person, right? He's sweating. He's shaking. He he can't hold literally hold his glass. Right. Doesn't he drop his glass at some point? Like he is such a fallible person. He is also a red blooded American because despite having been brainwashed, Frank Sinatra figures it out, wiggles out of it, and then he has to go to Laurence Harvey, who plays Raymond Shaw. Raymond Shaw is not a super likable character, even though everyone's brainwashed to say that he's great.

Archive: Raymond Shaw is the kindest, bravest, warmest, most wonderful human being I've ever known in my life.

Hannah McCarthy: To me, this is just me. I feel like we're meant to feel like he's not the red blooded American who can avoid communist control.

Rebecca Lavoie: Is that why he has a British accent? Is that why they cast a guy with a British accent in this role?

Hannah McCarthy: Yeah. Why does he? I feel like I watched it with Nick and I asked you the same question. Like, why is he British?

Archive: I was like, there's some backstory.

Nick Capodice: Maybe Angela Lansbury's former husband was British and she.

Nick Capodice: Didn't say much in there. You just. Yeah, she just made something up. She's like, what's that word?

Nick Capodice: Mid-atlantic.

Rebecca Lavoie: In Star Wars, all of the Empire people were British. And, you know, everyone in the rebellion was American. Like, yeah, yeah, it's pretty wild.

Nick Capodice: I have an answer to it, Hannah. I know why. When he was a child, Angela Lansbury spoke like Mrs. Potts.

Speaker8: I'll be bubbling. I'll be brewing.

Hannah McCarthy: Taylor's all the time. I really think that this movie is both a very effective and often funny exploitation of the era in which it was made, and also very much a product of the era in which it was made.

Christina Phillips: If you go into this movie having no idea what communism is, you come out of this movie with no greater understanding of what communism is.

Nick Capodice: That's a great point.

Hannah McCarthy: That does it for this episode. Thank you all for listening. Thank you to Rebecca Lavoie, our executive producer. Thank you to Christina Phillips, our senior producer. Thank you to Nick Capodice, my co-host. Music in this episode is from Epidemic Sound. You can find everything we have ever made, including our episode on communism, fascism and propaganda at our website, civics101podcast.org. Civics 101 is a production of New Hampshire Public Radio.

Rebecca Lavoie: Or is it?

Speaker24: Or is it? I showed up five minutes late, I don't know.

Rebecca Lavoie: Do you want to hear something related to this that I find hysterical? On General Hospital, there's a long going storyline that one of the Quartermaine kids who was heretofore unknown to the Quartermaines because he was like a secret twin that got spirited away or whatever, had been programed by Helena Cassadine to be an assassin, and the trigger to turn him on is a Queen of hearts.

Hannah McCarthy: Oh that's great.

Rebecca Lavoie: And now that character in the show, Drew Quartermaine, is a US senator.

Christina Phillips: Mhm.

Hannah McCarthy: Oh.

Rebecca Lavoie: Take that.

Hannah McCarthy: That's so good.

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How is the Alien Enemies Act being used right now?

Now that we have explored what the Alien Enemies Act is, we dive in to how it's being used to shape deportation policy under President Donald Trump. If you haven’t listened to the first part, do that before you listen to this one!

Helping us out is Liza Goitein. She is the senior director of the Brennan Center’s Liberty and National Security Program. 

Additional reading:

• Here’s the Alien Enemies Act.

• Here’s President Trump’s Proclamation invoking the Act.

• And this is the April 19th Supreme Court notice halting imminent deportations under the AEA.

• And the May 16 Supreme Court decision halting deportations under the AEA until further notice.

---

Transcript

Hannah McCarthy: This is Civics 101. I'm Hannah McCarthy.

Christina Phillips: I'm Christina Phillips, and today we are talking about the Trump administration's use of the Alien Enemies Act. Last week, we did an episode on what the Alien Enemies Act is and how it's been used throughout history. And if you haven't listened to that one, please go back and listen to it before listening to this episode, because it lays the groundwork for what we're talking about today. And of course, I have linked it in the show notes.

Hannah McCarthy: But to give us a quick recap, the Alien Enemies Act is a wartime law that was passed in 1798. It allows the president, during war, invasion, or predatory incursion by an enemy nation to detain and deport anyone 14 years of age or older from that enemy nation who is not a US citizen. Predatory incursion, by the way, is not defined by that act, but it is a term that was used during that era to describe, for example, a raid on Virginia by super infamous defector Benedict Arnold. And this act, Christina, has not been invoked all that much.

Christina Phillips: No it hasn't. It's only been invoked four times in the War of 1812, World Wars one and two. And now in 2025, through a proclamation by President Donald Trump in March.

Hannah McCarthy: Now we know the Alien Enemies Act does not give the president the right to detain or deport anyone who is a non-citizen. It has to apply to people from a specific country, specifically those countries engaging in war, invasion or predatory incursion, like we said. So, Christina, who are those people in this case?

Christina Phillips: So the Trump administration is using the Alien Enemies Act to deport Venezuelan citizens and nationals in the United States who the administration claims are members of Tren de Aragua, a gang also known as TDA.

Archive: You'll see crime all over the country dry up. Essentially, that's what Venezuela and other countries are doing. They're getting rid of their criminals and putting them into the United States of America. And they're crying.

Christina Phillips: And actually, I think we should just read part of the executive order, which is called the invocation of the Alien Enemies Act, regarding the invasion of the United States. By trend. Aragua. So here's what it says. I find and declare that TDA is perpetrating, attempting, and threatening an invasion or predatory incursion against the territory of the United States. Tda is undertaking hostile actions and conducting irregular warfare against the territory of the United States, both directly and at the direction clandestine or otherwise, of the Maduro regime in Venezuela. I make these findings using the full extent of my authority to conduct the nation's foreign affairs under the Constitution.

Hannah McCarthy: All right, let's pause here for a second. So it's not just that Trump says that TDA is invading the United States. He also says TDA is working with the Maduro regime, aka President Nicolas Maduro's government, which is often described as an authoritarian dictatorship. But it is the Venezuelan government which makes Venezuela the enemy nation in this case. Right?

Christina Phillips: Right. And here's a little bit more of this executive order based on these findings, and by the authority vested in me by the Constitution and the laws of the United States of America, including 50 U.S.C. 21. Now, that's referring specifically to the Alien Enemies Act, including the section we read in the last episode. I proclaim that all Venezuelan citizens 14 years of age or older who are members of TDA are within the United States and are not actually naturalized or lawful. Permanent residents of the United States are liable to be apprehended, restrained, secured, and removed as alien enemies.

Hannah McCarthy: I noticed, Christina, that this proclamation is specifically targeting people who are part of TDA. Not all Venezuelan citizens.

Christina Phillips: Yeah, so the Alien Enemies Act doesn't require proof that someone is involved in some kind of criminal activity, or deliberately working with the enemy nation or even a terrorist in order to justify detention and deportation. But this proclamation does state that additional requirement, and the Trump administration says that this justifies immediate detention and deportation.

Archive: Do you think you have the authority, the power to round up people, deport them, and then you're under no obligation to a court to show the evidence against them?

Archive: Well, that's what the law says, and that's what our country needs, because we were unfortunately, they allowed.

Hannah McCarthy: But even if someone is being deported, even under the Alien Enemies Act, they still have some rights under the Constitution. You know, we established that in our last episode. Even if you are a non-citizen, even if you're in the country without legal status, even if you are an alleged terrorist, you still have a right to due process, meaning everything from being told when and why you are being deported, to being given access to legal counsel and the opportunity to challenge the claims against you in court.

Christina Phillips: So the short answer is yes. The longer answer gets into what proper due process looks like.

Liza Goitein: So what the Supreme Court has said is that Alien Enemies Act detainees must receive notice that they are subject to removal. Under the act, the notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs.

Christina Phillips: This is Liza Goitein. She's the senior director of the Liberty and National Security Program at the Brennan Center for justice. A habeas petition, by the way, is actually a habeas corpus petition. And habeas corpus is a legal principle. That means that someone has a right to challenge the legality of their detention in a court of law. She's talking about a ruling that came out shortly after the Trump administration began deporting people under the Alien Enemies Act. Deportations that the courts pointed out violated people's right to due process.

Liza Goitein: Courts have been very concerned about the lack of due process. Certainly in the beginning when the administration stealthily or at least tried to do this, stealthily whisked people away on a plane without any notice or any opportunity for those people to to try to seek judicial review or try to somehow stop this from happening.

Hannah McCarthy: All right. So the stakes are high here. If you deport someone before they have a chance to exercise those rights, that's kind of the end of the line, right? You can't really undo that decision because the person is no longer in the United States.

Christina Phillips: Yeah, exactly. So let's talk about what that deportation process looked like in the beginning.

Archive: The Trump administration has deported some 250 people it claims are gang members from Venezuela. But the people were not returned to Venezuela. They were flown to El Salvador. Salvadoran officials have imprisoned them.

Christina Phillips: The announcement that Trump had signed the Alien Enemies Act proclamation came out around 4 p.m. on Saturday, March 15th. And within 90 minutes of that announcement, the first plane believed to be holding deportees flew out of Texas, crossed the border and was bound for El Salvador.

Hannah McCarthy: 90 minutes. That seems to suggest to me that people were being rounded up and detained prior to this proclamation.

Christina Phillips: Oh yeah, we know that the administration was already detaining some Venezuelans and other migrants under other policies and provisions prior to this proclamation. So over the rest of that day, March 15th, several more planes containing deportees left the United States, also bound for El Salvador. That same day, a district court judge ordered a temporary halt to any imminent deportations under the Alien Enemies Act after the ACLU filed a lawsuit on behalf of five people, and the ACLU was claiming that the administration was not giving them enough time to exercise their due process rights before they were being deported out of the country. Now, by Monday the following Monday, at about 5:00 pm, the administration announced that at least 137 people had been deported under the Alien Enemies Act.

Hannah McCarthy: Was this around the time that a judge ordered the administration to turn the planes around?

Christina Phillips: Yeah, that was that same judge in that district court.

Hannah McCarthy: Okay.

Archive: The US district judge issued the order after lawyers said two planes were already in the air at the time of the ruling.

Christina Phillips: Part of the issue for that judge was that he had a right to judicial review, but he lost that power. If these people had already left the country before he could evaluate the legal process the administration was using.

Liza Goitein: What exploiting a wartime power allows the administration to do, or what they believe it allows them to do, is to bypass any kind of hearing or any kind of process like that, which fundamentally means that people will be deported erroneously, you know, without hearings, to actually weigh the evidence, without giving people an opportunity to contest the evidence against them and to prove that they are not members of this criminal gang. Mistakes will be made and mistakes have been made.

Archive: But today, CBS news has obtained a list of people deported. Hundreds of alleged gang members sent this past week to El Salvador. But on that list was a Venezuelan migrant living and working in Dallas with no criminal record.

Archive: Through government documents and interviews with lawyers and families, we found that at least three of the deported men, including Elvis, had been carefully vetted to come to the U.S. under the refugee resettlement program, a process for people fleeing war and persecution.

Christina Phillips: And eventually this escalated to the Supreme Court, which temporarily halted the deportations.

Hannah McCarthy: Didn't this happen in the middle of the night or something?

Christina Phillips: Yeah, around 1 a.m.. And actually, this is pretty extraordinary for the Supreme Court to step in like this. The court said, quote, the government is directed not to remove any member of the putative class of detainees from the United States until further order of this court, and that is referring specifically to a group of detainees in Texas. But elsewhere in the country, the administration was continuing deportations.

Archive: From Denver to Chicago to Newark. Immigration officials say Ice agents made 956 arrests on Sunday alone. And while New York City immigration officials say they've seen after.

Liza Goitein: The Supreme Court held Old, that the administration had to provide reasonable notice and a meaningful opportunity to seek judicial review through habeas petitions. The administration interpreted that requirement in a way that simply did not comply with the spirit of what they were asked to do. The written notice that people received was an English only, regardless of whether those people spoke English. Nothing in that notice mentioned that they had a right to review. It just said you are being deported under the Alien Enemies Act. The notice was not provided to people's attorneys, even when they were represented by attorneys, and they were given 12 hours, even if they were given this notice, you know, 7 p.m., 8 p.m. at night, they had 12 hours to state their intent to file a habeas petition, and if they didn't do that within 12 hours, they could be deported. The courts have that have looked at this have had uniformly said that is not due process.

Christina Phillips: And then we get another decision from the Supreme Court in May which said, quote, notice roughly 24 hours before removal. Devoid of information about how to exercise due process, rights to contest that removal surely does not pass muster. End quote. And by the way, that was signed by seven justices, with Alito and Thomas dissenting.

Hannah McCarthy: All right. What does pass muster?

Christina Phillips: Yeah. So we don't know yet. And until that question is answered, these deportations across the board have been suspended.

Liza Goitein: The courts are coalescing around a 21 day notice requirement, with the notice provided in Spanish or in the language that the person speaks. At least one court has said that it has to include something about the right to review. The notice has to be provided to attorneys. The courts are coalescing around a much more fulsome notice and opportunity for review than what the administration was trying to do.

Hannah McCarthy: All right. I have another question about this. Have the courts talked at all about whether or not the use of the Alien Enemies Act is justified, because Trump's proclamation says that the United States is experiencing an invasion or predatory incursion from Venezuela. And I'm just wondering what counts as an invasion or predatory incursion. And is that up to the courts to decide?

Christina Phillips: Yes. So this is being challenged in court, and we will talk about that right after a break.

Hannah McCarthy: But before that break, just remember you can always go to Civics101podcast.org to ask us your questions about what is or is not going on in the United States of America. We might just answer your question with an episode. We're back. This is Civics 101 and Christina. You were about to tell me about how the administration is justifying the use of the alien enemies act. Mainly the claim that Venezuela is coordinating with the gang Ndaragwa to orchestrate an invasion of the United States, and that this invasion justifies the use of the Alien Enemies Act.

Christina Phillips: Yes. The administration has been sued in court over this reasoning. This is Liza Goitein. Again.

Liza Goitein: The sticking point in terms of whether the president's actions are authorized under the Alien Enemies Act has been whether or not there is an invasion or a predatory incursion. On the question of whether or not the invasion or predatory incursion is being perpetrated by a foreign government or foreign nation. There's no question about what those terms mean. If you look at the history of the Alien Enemies Act, there is no question that these terms invasion and predatory incursion were meant to address acts of war. In the case of invasion, it would be something like a full scale ground assault that had occurred maybe before Congress had actually declared war. So at that point, it's an invasion, but not a declared war. If you look at predatory incursion and you want to get a sense of what that was referring to right before the start of the quasi war, John Adams told Congress that he thought the Atlantic Ocean insulated us from invasion, but that major seaports such as New York City were navally undefended and were subject to predatory incursion. So that's what they were talking about there. It was still acts of war, but it was acts of war short of an actual full scale ground assault on the United States.

Liza Goitein: So that's what was meant originally. Now, in some of the cases that have been bubbling up. The administration's main argument is that the alien enemies act really isn't a war power, in the sense that it does not require an act of war. The government has argued in court that an invasion can include any hostile entrance or hostile encroachment, while a predatory incursion encompasses an entry into the United States for purposes contrary to the interests or law of the United States. That is an incredibly broad definition. It would seem to cover anyone who enters the country without documentation, and that person can then be called an enemy alien. What we are hearing now from the from the government is, well, if this involves a foreign terrorist organization, then we can use this war power. That is not an argument that's been made before. And it's also not consistent with the way foreign terrorist immigrations are treated under the law. Um, there is a law that provides special rules and procedures for the deportation of people who are members of foreign terrorist organizations. That is a part of immigration law.

Hannah McCarthy: Have the courts had anything to say about this?

Christina Phillips: With the exception of one decision in Pennsylvania, the federal courts have rejected the Trump administration's definition of invasion or predatory incursion. Two of the more recent cases, for example, were in New York and in Texas.

Hannah McCarthy: And has the Supreme Court had anything to say about this?

Christina Phillips: So, no, they have not taken up the question of whether the administration's claims about TDA and Venezuela meet the threshold of invasion or predatory incursion. In fact, they made it really clear that they were not making that decision, and they gestured to this important separation of powers balance when it comes to the courts, the Constitution and the interests of the federal government. Quote, we did not. On April 19th and do not now address the underlying merits of the party's claims regarding the legality of removals under the ACA. We recognize the significance of the government's national security interests, as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address ACA cases expeditiously.

Hannah McCarthy: But this could still go back to the Supreme Court.

Christina Phillips: It could. Even Justice Kavanaugh suggested that it will. At one point he wrote, quote, the circumstances call for a prompt and final resolution, which likely can be provided only by this court.

Hannah McCarthy: And also, none of these decisions are addressing the question of whether Venezuela is actually invading the United States with or through TDA.

Christina Phillips: Yeah, and by the way, the administration doesn't even seem to agree on this, even though Trump says this is an invasion.

Hannah McCarthy: Or predatory incursion.

Christina Phillips: Yeah, one or the other. Either way, connected to the Venezuelan government, which is important, right? It's what makes the alien enemies act potentially justifiable here. But the the Office of National Intelligence said they didn't find substantial evidence connecting TDA to the Venezuelan government.

Archive: A newly declassified memo drafted by U.S. intelligence agencies seems to contradict when a president Trumps reasons for one of his controversial immigration policies deporting migrants to a prison in El Salvador. Now, the memo disputes the Trump administration's claims that the Venezuelan government is working with a notorious gang.

Christina Phillips: One memo from that office said, quote, While Venezuela's permissive environment enables TDA to operate, the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.

Hannah McCarthy: So some of the people in the federal government who helped the president figure out what is and is not a threat from a foreign government are saying that they cannot find evidence that this foreign government, Venezuela, is actually threatening the US.

Christina Phillips: Yeah. And after that, by the way, the director of National Intelligence, Tulsi Gabbard, fired the two officials that released these reports, and her office told the press they were fired for their opposition to the president. And we only know what those officials had to say because of a Freedom of Information Act request by the press.

Hannah McCarthy: But it does sound like they were fired for sharing information that contradicted the president.

Christina Phillips: I think that's safe to say. Yeah.

Hannah McCarthy: Now, has this been challenged in court and what role do the courts have here.

Liza Goitein: Whether trend Aragua is acting as a part of or at the direction of a foreign government or foreign nation? On that point, the courts have simply deferred to the administration's litigation position. And and President Trump's statement in his proclamation that trend Aragua is acting at the direction of the Venezuelan government, despite the fact that Trump's own intelligence community has issued two different reports concluding that that is not the case even in cases that ultimately ruled against the administration. There's been an unwillingness for judges to probe whether the factual assertions made by the Trump administration are true. So, in other words, the courts have said, you know, here is the conduct that is required in order to meet this definition of a predatory incursion. We will now accept whatever President Trump's characterization of Uruguay's conduct is, and then we will compare that, that description to our definition. And so there's been really complete difference to the how President Trump describes the conduct. Generally speaking, this kind of determination gets a lot of deference. It courts often consider this to be a political question, the kind of thing that the President or Congress needs to decide and that courts should not be deciding.

Hannah McCarthy: All right. This brings us back to what the Supreme Court said about national security concerns versus what the courts can or should say, because there's this principle of giving the executive branch some deference, because the executive branch knows some things and has some expertise that the courts potentially do not. Especially when it comes to intelligence and national security. And that it would be impractical and unwise for the courts to make decisions about these things, which are the expertise of the executive branch.

Christina Phillips: Yeah, this is called the political question doctrine. And it's a major factor when the courts are looking at what the executive branch is doing and why. And so far, federal courts have not pierced that doctrine.

Hannah McCarthy: What about Congress, by the way, where is Congress in all of this?

Christina Phillips: So first of all, Congress has not declared war on Venezuela. But Congress has also not challenged the administration's use of wartime powers, such as the Alien Enemies Act. They could try to limit those powers through a vote, but that would require some political consensus and political will. Congress could also use the power of the purse, including the $80 billion in funding the administration is requesting for immigration law enforcement in the current spending bill. Congress could also repeal the act if they wanted to. Democratic legislators have introduced a bill in the House to repeal the act, and past Congresses have tried to repeal it before, so far unsuccessfully. And Liza does point out that there are more modern laws on the books that deal with the issues the Alien Enemies Act was created for. Back when we basically had no law enforcement of any kind.

Liza Goitein: We have ample other means of addressing threats that we face national security threats during wartime, not during wartime. The president has ample authority to deport people who are actually members of Trento, Aragua, under immigration law.

Hannah McCarthy: Okay, so there may be other laws to use, but this law is still on the books and the president is currently trying to use it.

Christina Phillips: Yeah. And just to zoom out for a second to the larger strategy of the administration when it comes to immigration and deportation. Alongside the use of the Alien Enemies Act, the administration has increased the presence of Ice across the country. That's the federal law enforcement entity that is overseeing immigration, and the administration has begun detaining people who are showing up for their mandatory immigration court appointments. It's also announced its plan to revoke temporary protected status from hundreds of thousands of Venezuelans in the United States, which the Supreme Court has said the administration has permission to do.

Hannah McCarthy: And when we say temporary protected status, this is basically protection from deportation because it would be unsafe for you to be deported for any number of reasons.

Christina Phillips: Yeah. And I think we should also pay attention to how the administration has been responding to the courts and all the legal decisions we've seen, which have so far slowed down the administration's ability to deport people in huge numbers, which is something President Trump promised he would do.

Archive: Judges are interfering, supposedly based on due process. But how can you give due process to people who came into our country illegally? They want to give them due process. I don't know.

Archive: You know.

Liza Goitein: Spokespersons for the administration have basically said that they will be watching the courts to make sure the courts do the right thing in these Alien Enemies Act cases. And if they don't do the right thing, then the president will have to suspend habeas corpus.

Archive: Well, the Constitution is clear. And that, of course, is the supreme law of the land, that the privilege of the writ of habeas corpus can be suspended in a time of invasion. So it's an option we're actively looking at. Look, a lot of it depends on whether the courts do the right thing or not. At the end of the day, Congress passed a body of law known as the Immigration and Nationality Act, which stripped article three courts. That's the judicial branch of jurisdiction over immigration cases.

Liza Goitein: President Trump has for a very long time referred to unlawful immigration as an invasion. And, you know, originally that seemed to just be rhetorical. Now he's trying to imbue it with legal significance. Alien Enemies Act is one example of that. But he also issued an executive order in which he purported to suspend, essentially, the laws that provide protection against removal various protections against removal, including the right to seek asylum. And so, based in part on this claim of an invasion, Trump, in one of his executive orders, claimed the right to basically suspend asylum law. Now, part of the problem that President Trump is running into is it turns out that even these laws, even these really even the pretty draconian powers given to the president under the Constitution in some cases and under various statutes. During an invasion. Do not authorize him to pick and choose what statutes the government is going to comply with, and it does not authorize him to suspend constitutional rights such as due process. And that is why we are we are now hearing talk about the president suspending habeas corpus, because if your goal is to just detain people, deport people with no judicial review and no other impediment, right, just without impediment, just detain people because because you say you can detain them, deport them because you say you can deport them. The closest the president can get to that is through the suspension of habeas corpus.

Christina Phillips: So can the president suspend habeas corpus. You find the grounds for suspension in the suspension clause of the Constitution. Most legal scholars agree that habeas corpus cannot be suspended without the approval of Congress, and indeed, all four times habeas corpus was suspended was with congressional approval. In fact, Justice Amy Coney Barrett, before she was a justice, wrote that the suspension Clause quote does not specify which branch of government has the authority to suspend the privilege of writ. But most agree that only Congress can do it. End quote.

Hannah McCarthy: But there is always a chance that Congress does get on board and says, yeah, you can suspend habeas corpus.

Christina Phillips: Yeah. Or President Trump could declare that he's going to do it without Congress. And I think the question there is, if he does, will Congress use their mechanisms for checking the president to stop him from doing so?

Hannah McCarthy: And I would assume that the courts would probably have something to say about that as well.

Christina Phillips: Yeah, I think based on everything we know, if a president were to try to suspend a constitutional right, people would sue the administration. But we're not there yet. So I asked Liza what we should be paying attention to going forward.

Liza Goitein: Right. So we have these decisions that are binding in the jurisdictions where they have been issued. You know, we haven't yet heard the administration say that they're not binding or that they're not going to comply with them. So at some point, this will probably get up to the Supreme Court. And let's say the Supreme Court rules in a way that the administration disagrees with and maybe says that the Alien Enemies Act does not authorize what President Trump is trying to do here. Then the next question will be, does the president try to unilaterally suspend habeas corpus in violation of the Constitution? If he were to do that, the Supreme Court would then say, that's a violation of the Constitution. I feel pretty confident that that's what the Supreme Court would say, that the president doesn't have that authority. At that point, then we have the courts ruling the wrong way, as the administration has sort of described it with the with the Alien Enemies Act cases. What happens then?

Christina Phillips: And in the meantime, I'll say this to anyone who is trying to wrap their head around this. Start with the text. Don't start with how someone else describes the law to you. And that includes us. That includes the president. That includes the Supreme Court. Read the law yourself. And I know I'm saying that after spending two episodes breaking down these laws. But before you try to hear what other people say the law means, at least have some sense of what you think you understand and what you don't. This episode was written and produced by me, Christina Phillips, with help from Hannah McCarthy and Rebecca Lavoie. Our team includes producer Marina Henke and host Nick Capodice. And Nick, I know you've been out for a couple weeks, but I wanted to thank you for letting me step into the MC mic chair and also say you're welcome, because I'm not using music with marimba in it, even though you're not here to stop me. On that note, music in this episode from Epidemic Sound and Chris Zabriskie - Civics 101 is a production of New Hampshire Public Radio.

Hannah McCarthy: I'm sorry. Let me just drink some water. And I'm sorry for the swallowing sounds on this tape.

Christina Phillips: Oh, I don't even hear Rebecca. Oh, yeah. Sorry, Rebecca.

Hannah McCarthy: You will?

Christina Phillips: Yeah. This is called the political question. In light of the foregoing.

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What is the Alien Enemies Act?

The Alien Enemies Act is a war power granted to the president that has only been used four times in US history since its creation in 1798. It allows the president to order the detention and deportation of noncitizens from "enemy" nations during war, invasion, or predatory incursion. When it was created, the US had a very different understanding of Constitutional rights, including due process, than we do today. We talk about how the Alien Enemies Act has been used throughout history, and how Constitutional law has evolved since 1798. 

Check out our follow up episode, all about Trump’s invocation of the AEA.

Helping us out is Liza Goitein. She is the senior director of the Brennan Center’s Liberty and National Security Program. 

Additional reading:

• Here’s the Alien Enemies Act.

• Here’s a history of court decisions and policies related to due process for noncitizens, and in wartime.

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Transcript

Hannah McCarthy: [00:00:03] Did you hear that?

Christina Phillips: [00:00:05] I hear it. Oh. It's spooky.

Hannah McCarthy: [00:00:09] The thunder is [00:00:10] back, so.

Christina Phillips: [00:00:11] Oh, great.

Hannah McCarthy: [00:00:12] Oh.

Christina Phillips: [00:00:13] No, I like it, I like it. I think it's good.

Hannah McCarthy: [00:00:16] All right, all right. You know what I can say? That I [00:00:20] am so frustrating.

Christina Phillips: [00:00:24] I like the thunder. It's a nice effect.

Hannah McCarthy: [00:00:27] Okay.

Christina Phillips: [00:00:28] Also, for what it's worth, I'm wearing two sets of headphones [00:00:30] right now. All right. Hello, Hannah.

Hannah McCarthy: [00:00:36] Hello, Christina.

Christina Phillips: [00:00:38] This is Civics 101, and today [00:00:40] we are talking about the Alien Enemies Act.

Archival: [00:00:43] President will invoke a 227 year old wartime law.

Archival: [00:00:47] And we have learned that it appears he could be invoking [00:00:50] the Alien Enemies Act of 1798.

Archival: [00:00:53] You must leave to the federal agencies this duty of handling all questions [00:01:00] Actions concerning aliens. This will prevent injustice.

Christina Phillips: [00:01:05] And so we are just talking about the Alien Enemies Act today, because [00:01:10] I think it's pretty fascinating to talk about a law that has only been used during the War of 1812. World War one, World War two, and now [00:01:20] in 2025.

Hannah McCarthy: [00:01:22] And I assume you are referring to the Trump administration's invocation of this act?

Christina Phillips: [00:01:28] Yes, I am, and our next episode [00:01:30] will be all about that. But for today, I just want to establish what the Alien Enemies act is, why it exists in the first place, and [00:01:40] how it's been used. So we don't usually read the text of a law on this show [00:01:50] because laws are rarely easy to read, much less listen to someone read. But I want to do that today because we've been hearing over and over from our guests that we should just start with the text. [00:02:00] So, are you ready? Pause for thunder.

Hannah McCarthy: [00:02:06] I'm just letting Mother Nature speak. I [00:02:10] am ready. I also feel like we have to jump in here and say that alien right is a legal term for non-citizens. And even though this term has [00:02:20] been around for a long time and it comes from Latin, it is also a word that people debate and they say dehumanizes non-citizens, which, given [00:02:30] the other common definition of alien. Yeah, that makes sense.

Christina Phillips: [00:02:35] It does indeed. And for what it's worth, prior administrations and other organizations [00:02:40] had or have tried to move away from using the word alien and replacing it with non-citizen. But you're right. The word alien has been used in case law for longer than [00:02:50] the United States has existed, and is being used in case law today. Okay. So the text we're going to read, the first part of the Alien Enemies Act, known as section 21, because that [00:03:00] is the meaty part and I'm just going to read the first few sentences, but please read the whole thing if you can. It's actually not that long. Whenever there is a [00:03:10] declared war between the United States and any foreign nation or government, or any invasion or predatory incursion is perpetrated, attempted [00:03:20] or threatened against the territory of the United States by any foreign nation or government, and the president makes public proclamation of the event [00:03:30] all natives, citizens, denizens, or subjects of the hostile nation or government, being of the age of 14 years and upward, who shall be [00:03:40] within the United States and not actually naturalized, shall be liable to be apprehended, restrained, secured, and removed [00:03:50] as alien enemies.

Hannah McCarthy: [00:03:53] Wait a minute. You say shawl?

Christina Phillips: [00:03:56] Shawl?

Hannah McCarthy: [00:03:58] That's so. Wait. That's so [00:04:00] British of you.

Christina Phillips: [00:04:01] Is it Chow?

Hannah McCarthy: [00:04:02] Well, I think it must just be like a New Hampshire thing.

Christina Phillips: [00:04:06] Oh, no. I think that's a I listen to a lot of audiobooks.

Hannah McCarthy: [00:04:11] Oh, [00:04:10] no, I honestly, I love it, I love it. I think you should leave it.

Christina Phillips: [00:04:16] Okay. Shawl. I want to call it a couple things here. [00:04:20] So the conditions that have to be met is that we're in a declared war or an invasion by a foreign country or nation, or the threat of an invasion [00:04:30] or predatory incursion by that nation.

Hannah McCarthy: [00:04:33] And in that circumstance, people in the US who are not naturalized, meaning they are not US citizens [00:04:40] who are aged 14 years or older can be apprehended, restrained, secured and removed.

Christina Phillips: [00:04:47] Yes, exactly. And it's important to point [00:04:50] out that the act doesn't specifically say that the president or the administration must uphold these non-citizens rights to due process [00:05:00] or habeas corpus, or any other individual rights found in the Constitution.

Hannah McCarthy: [00:05:06] But it also doesn't say that the president can disregard the [00:05:10] Constitution. Right?

Christina Phillips: [00:05:12] Right. And that becomes important as the legal understanding of who is guaranteed constitutional rights. And what those rights [00:05:20] entail gets more expansive over time after this act is passed.

Hannah McCarthy: [00:05:24] Okay, so reading this, I'm seeing a lot of what seems to me like ambiguity. And [00:05:30] also, this does seem like a lot of power to give a president. So what was going on in 1798 that led Congress to pass this law in the first place? [00:05:40]

Christina Phillips: [00:05:43] We will talk about that right after a little break. And also, this is just a shameless ask I have for people [00:05:50] listening to this. I would like to talk to people who know something about the Office of Personnel Management and the Office of Management and Budget, and I'm also looking for anyone who has been an inspector [00:06:00] general or worked for an inspector general's office in the federal government. So if any of those things is you, send us an email to Civics 101 at nhpr.org. I'm going [00:06:10] to try this out and see if it actually helps me find some people, because we've never tried it before. I don't think.

Hannah McCarthy: [00:06:15] That is brilliant. I'm going to start doing that. We're [00:06:30] back. We are talking about the Alien Enemies Act. And Christina, just before the break, I [00:06:40] asked you what was going on in 1798 that led Congress to pass this act. So what was going on?

Christina Phillips: [00:06:49] Okay, [00:06:50] 1798. We are still pretty fresh off the end of the Revolutionary War. We still have a bunch of war debts to other countries who helped us out like [00:07:00] France. And after a few years, the government sort of stopped paying those debts.

Hannah McCarthy: [00:07:07] Okay, so not very Lannister of us. That's not a [00:07:10] not great.

Christina Phillips: [00:07:11] How dare you invoke the Game of Thrones?

Tyrion Lannister: [00:07:15] Lannister always pays his debts.

Christina Phillips: [00:07:19] So this [00:07:20] lands us in what is called the quasi war, which was never an actual declared war. But at one point, France sees some US [00:07:30] ships, and then French privateers were attacking US merchant vessels, mostly in the Atlantic Ocean and the Caribbean and the US, which doesn't have a ton of money and doesn't [00:07:40] really have a strong organized navy, is kind of scrambling a little bit.

Liza Goitein: [00:07:45] Well, so the fear was that there might be people during wartime who were loyal [00:07:50] to the enemy nations and could sort of be a fifth column within the United States.

Christina Phillips: [00:07:55] This is Liza Goitein. She is the senior director of the Liberty and National Security [00:08:00] Program at the Brennan Center for justice.

Liza Goitein: [00:08:06] And a really important point is that at the time, there really wasn't [00:08:10] an alternative in either the criminal law or immigration law to deal with people inside the country that were national security threats. And certainly [00:08:20] in terms of having sort of federal law enforcement resources, even to sort of detect and respond to national security threats within the United States that [00:08:30] just wasn't there in any significant respect.

Christina Phillips: [00:08:33] And the US Marshals Service was the first federal law enforcement department. But we only got that in 1789, right? [00:08:40]

Hannah McCarthy: [00:08:40] There's no like Department of Homeland Security, for example.

Christina Phillips: [00:08:43] Yeah, we barely had an organized military, much less a national security team, a national intelligence team. And [00:08:50] when it comes to immigration law, we've got the first naturalization acts of 1790 and 1795 and not much else. And [00:09:00] for what it's worth, the Naturalization Act provided a pathway to citizenship for free white people who had lived in the United States for five years and had good moral character. [00:09:10] So other than naturalization at that time, there was no asylum process. There was no green cards, no work visas. There's no immigration courts. None of that. [00:09:20]

Liza Goitein: [00:09:20] And at the same time, you know, we didn't have the same conceptions of constitutional rights. And even the law of war was was in a very different place back then. So you had this combination [00:09:30] of not having the same rights and also not having the same ability to ferret out national security threats. And so what they came up with was this very blunt [00:09:40] hammer, where people who were natives of or born in an enemy nation during wartime could just summarily be detained or deported without any [00:09:50] sort of evidence or inquiry, even into whether they were disloyal to the United States.

Hannah McCarthy: [00:09:55] So this was like.

Hannah McCarthy: [00:09:56] A giant panic button that cast a wide [00:10:00] net because we hadn't come up with any other processes yet, or invented the law enforcement jobs that could do the way, more nuanced work of actually figuring [00:10:10] out who might be a legitimate threat.

Christina Phillips: [00:10:16] Yeah, and we're still licking our wounds from one war in the midst [00:10:20] of another war that wasn't a war. And we're in debt and still very, very new as a country. So we're worried about France and French people in the US. And [00:10:30] we pass four laws known as the Alien and Sedition Acts, which.

Liza Goitein: [00:10:35] Was a very controversial legislative package even at the time. Uh, and the Alien [00:10:40] Enemies Act is is the only one that actually remains. The Alien Enemies Act was the authority that would apply if this undeclared naval conflict with France escalated [00:10:50] into a perfect or total war. That was the terminology through a congressional declaration of war or through a French ground assault. [00:11:00] So it was sort of contingency planning for if this naval conflict turned into something bigger. At the same time, Congress also enacted the [00:11:10] Alien Friends Act, which was the peacetime counterpart, basically, for if the conflict did not escalate in that way. And [00:11:20] in fact, it did not escalate in that way. And so the alien enemies act didn't end up being used at the time, but it was very clear that this was sort of the wartime version of [00:11:30] how the president could treat non-U.S. citizens in a situation that, you know, for the Alien Enemies Act rose to the level of actual [00:11:40] war or otherwise it would go through the Alien Friends Act.

Christina Phillips: [00:11:44] And then there was the Sedition Act, which criminalized false or malicious statements about the government and a new Naturalization [00:11:50] Act that changed residency requirements for naturalized citizens. And it upped it from five years to 14. And as Liza said, everything but the Alien [00:12:00] Enemies Act was repealed or it expired by 1802.

Hannah McCarthy: [00:12:04] But the Alien Enemies Act still stands. So how has it been used since? [00:12:10]

Archival: [00:12:12] Neither the army nor the War Relocation Authority relished the idea of taking men, women and children from their homes, their shops and their farms. [00:12:20] So the military and civilian agencies alike, determined to do the job as a democracy, should, with real consideration for the people involved.

Christina Phillips: [00:12:30] Okay, [00:12:30] we've got the War of 1812 where President James Madison targeted British nationals. We don't exactly know how many people were detained or deported [00:12:40] from that one. And then we've got World War One. President Woodrow Wilson imposed the act first on male German nationals, and then expanded [00:12:50] it to include German Austrians and women of both nationalities. It was enacted in World War Two in order to detain Japanese, [00:13:00] German and Italian nationals.

Archival: [00:13:02] Our west coast became a potential combat zone. Living in that zone were more than 100,000 persons of Japanese [00:13:10] ancestry, two thirds of them American citizens, one third aliens.

Liza Goitein: [00:13:15] The people who were interned under the Alien Enemies Act were basically [00:13:20] 30,000 non-U.S. citizens of Japanese, German, and Italian descent. The internment of Japanese Americans during World [00:13:30] War Two was not under the Alien Enemies Act that was under an executive order, basically a claim of inherent constitutional power by President Roosevelt. It's actually generally [00:13:40] referred to as incarceration. The incarceration of Japanese Americans during World War Two was not done under the Alien Enemies Act, because the Alien Enemies Act only applies to people who [00:13:50] are not citizens of the United States.

Christina Phillips: [00:13:52] And actually, I found out that there was a few thousand additional people from Latin American countries who were actually deported into the United States [00:14:00] so that they could be detained. So other countries were sending their Japanese, Italian or German nationals to the United States for detention. And then Liza [00:14:10] pointed out that in the years since the law was passed, our legal understanding of how people can be treated specifically in wartime and more broadly, anyone within the United States [00:14:20] is different than it was in 1798 or even during these three previous wars. And this comes down to due process.

Hannah McCarthy: [00:14:29] To be clear, when [00:14:30] we're talking about due process, we're talking about giving a person the opportunity after they have been detained to know the charges against them and file a petition to the court asking [00:14:40] the court to review those charges, question law enforcement, determine if their detention or deportation is lawful.

Christina Phillips: [00:14:48] Yes, exactly.

Liza Goitein: [00:14:49] This really goes [00:14:50] to the question of what rights people in this country have in wartime. In 1798, so-called enemy aliens really had no rights whatsoever. So there wasn't even a lot of pushback [00:15:00] on that score when the Alien Enemies Act was enacted. We have a very different conception of rights in wartime today. Congress has passed several [00:15:10] laws providing reparations and apologies for people who were interned under the Alien Enemies Act. During that time period, and also since [00:15:20] World War II, there's been a revolution in our understanding of the rights that are guaranteed by the Constitution. Courts have now made clear that due process and equal protection apply even [00:15:30] in wartime, and the modern concepts of these rights are much broader and more robust than they were 80 years ago.

Hannah McCarthy: [00:15:49] I [00:15:40] mean, [00:15:50] this makes a lot of sense. Christina. We are in a really substantially different legal landscape today than we were in 1798 98 or during World War one, even [00:16:00] during World War two. Right. We are just in a country that has different, more robust, more complex laws pertaining to non-citizens.

Christina Phillips: [00:16:09] I was thinking about [00:16:10] this when I was thinking about what things were like in 1798. As far as who is included in constitutional protections. People who were enslaved were not granted [00:16:20] constitutional protections. In many cases, women were not granted many constitutional rights. So even on in that level, like our understanding of who gets constitutional [00:16:30] rights has evolved quite a bit. And that includes people who are not US citizens. So there's a case in 1903 known as the Japanese [00:16:40] immigrant case, where the Supreme Court said that if someone entered the United States lawfully and then was subject to deportation, they had a right to challenge that deportation in court. [00:16:50] And then over the course of the 20th century, there have been a number of cases that extended those constitutional rights to people without lawful status.

Hannah McCarthy: [00:16:59] So [00:17:00] bringing it back around to wartime. You said the Alien Enemies Act had not been used since World War Two. But you mean not until now? [00:17:10]

Christina Phillips: [00:17:11] Yes.

Liza Goitein: [00:17:15] I mean, I would say this law had been confined to the dustbin of history [00:17:20] before President Trump, um, you know, dusted it off and and revitalized it.

Christina Phillips: [00:17:37] In [00:17:30] March, President Trump officially invoked the [00:17:40] Alien Enemies Act via presidential proclamation. We're going to talk about how Trump has revitalized the act in 2025, what he's doing with it, how he's interpreting [00:17:50] it, and what the courts have said about it. That's all coming up in part two, which will drop in your podcast feed soon, or depending on when you listen to this, it might already be there. This [00:18:20] episode was produced by [00:18:30] me, Christina Phillips and edited by Hannah McCarthy. Our team includes Rebecca LaVoie, our executive producer, Marina Henke, our producer and host, nick Capodice. Civics [00:18:40] 101 is a production of NHPR New Hampshire Public Radio.

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How President Trump is trying to change elections

In March, President Trump signed an executive order that promises to preserve and protect the integrity of American elections. The data shows the integrity of our election system is intact despite the claims of many politicians and the perception of many voters. So what is the president trying to change about a system that isn't broken? Who will it affect and how much will it cost them? Finally, while Congress and the States are constitutionally-empowered to make election law, the president is not. So... can he?

Our guide to this executive order is Jason Carter of the Carter Center.

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Transcript

Hannah McCarthy: [00:00:01] Hannah McCarthy here.

Nick Capodice: [00:00:03] Nick Capodice there.

Hannah McCarthy: [00:00:05] Civics 101 everywhere. We've [00:00:10] got an executive order episode for you today, my friends. This is not the first. Probably won't be the last. And I'll tell you what. This one is a real "can [00:00:20] the president do that" doozy.

President Trump: [00:00:22] Election fraud. You've heard the term. We'll end it. Hopefully. At least this [00:00:30] will go a long way toward ending it. There are other steps that we will be taking in the next in the coming weeks, and we think we'll be able to end up getting fair elections. [00:00:40]

Hannah McCarthy: [00:00:40] This order Preserving and Protecting the integrity of American elections was issued March 25th.

Nick Capodice: [00:00:46] I'm just going to jump in here and say, you should go back and listen [00:00:50] to our episode on the save act, if you haven't already. It's called fixing a problem that doesn't exist.

Hannah McCarthy: [00:00:56] It sure is. Before we get into the details of this executive order, I'd like [00:01:00] to introduce or reintroduce you to Jason Carter?

Jason Carter: [00:01:03] Sure. So my name is Jason Carter. I am a lawyer in Atlanta, and I'm also the chair of the Carter Center [00:01:10] Board of Trustees.

Nick Capodice: [00:01:11] For those of you who don't know or didn't listen to our Save Act episode, Jason Carter, is that Carter? Late President Jimmy Carter's grandson. [00:01:20] The Carter Center does a lot of international humanitarian work, including observing and offering feedback on democratic elections. And recently [00:01:30] they started to look at our country's election system. Two.

Hannah McCarthy: [00:01:33] Yeah. Speaking of integrity, that is something that Jason says the Carter Center is working on. Not so much the integrity of American [00:01:40] elections, which he says we already have more like the integrity of our democracy. Democracy requires trust. So they're working on that.

Jason Carter: [00:01:49] One of the [00:01:50] things that we have found is you have to have trusted messengers on all sides, right? And so one of the things that the Carter Center has spent some real time doing is building [00:02:00] out Its network of individuals from across Partizan lines, from across geographic lines, to talk to folks in their communities. Right. One of [00:02:10] the things that the Carter Center has always been good at, and that my grandparents believed in their hearts, is that neighbors talking to neighbors is going to be more effective than folks [00:02:20] talking on TV or elsewise, right? I mean, that's where trust really comes from, is these communities of care that we all exist in, in our normal lives.

Nick Capodice: [00:02:28] Hang on, what does Jason [00:02:30] mean when he says building a network of people talking in communities?

Jason Carter: [00:02:34] Sometimes they're politicians, but sometimes they're not, right? Sometimes they are just individual community [00:02:40] leaders. You know, there's a good reason, as a former politician myself, that that people don't trust politicians because they feel like they're in the system and in the system in [00:02:50] order to win. Um, but there's a lot of other people who care about that system and have the ability to convey messages that don't necessarily have to be that some of them are journalists. We've done a lot with [00:03:00] lawyers to make sure that they understand what people's rights are and how to approach these things in court without sort of, you know, damning the system and continuing to build trust. And so [00:03:10] that's that's where we are. There's a large network of people out there that have the ability to really affect this and, and to rebuild the trust that we're missing.

Hannah McCarthy: [00:03:18] So Jason calls these democracy [00:03:20] resilience networks.

Nick Capodice: [00:03:22] Hannah, you must know what this reminds me of.

Hannah McCarthy: [00:03:25] Actually I do. I told Jason about it.

Nick Capodice: [00:03:28] Well, I'm gonna just open this mindmeld [00:03:30] up to the listener. Uh, everyone, what I'm reminded of here are the four Minutemen during World War One, the CPI, the Committee on Public Information.

Hannah McCarthy: [00:03:39] Aka the government's [00:03:40] wartime propaganda office.

Nick Capodice: [00:03:41] Right. The CPI organized volunteers in states across the country to stand up at movie theaters, churches, labor [00:03:50] union meetings, you name it, to give short speeches encouraging their fellow Americans to get behind the war effort.

Hannah McCarthy: [00:03:57] Right. You know, there were people in the community. They were trusted. [00:04:00] They were speaking on behalf of America. The difference here being, of course, that this is an attempt to get people behind democracy itself, get them to believe in it, trust [00:04:10] it by hearing from the people who know it well or even work within it. Okay, so that is in part what the Carter Center is doing. Why are they doing that? [00:04:20] Because trust in the system has eroded, due in part to people suggesting it cannot be trusted in its current state. And this brings me to the subject of our episode [00:04:30] President Trump's new executive order preserving and protecting the integrity of American elections.

Jason Carter: [00:04:41] In [00:04:40] this instance, you have the president of the United States making his own view and taking his own power to say, this is how I want this election [00:04:50] run. That is a problem, isn't that?

Nick Capodice: [00:04:53] I mean, Hannah, the Constitution leaves elections up to the states and a little bit to Congress, [00:05:00] not the president.

Hannah McCarthy: [00:05:02] Yeah, we're gonna get to that. So this executive order comes with a pretty long preamble, if you will. It starts off with, quote, [00:05:10] despite pioneering self-government, the United States now fails to enforce basic and necessary election protections employed by modern developed nations as well [00:05:20] as those still developing.

Nick Capodice: [00:05:22] If I may translate.

Hannah McCarthy: [00:05:23] Sure.

Nick Capodice: [00:05:24] Pioneering self-government. So that's basically saying we did democracy earlier [00:05:30] than other countries. The United States now fails. And this one is interesting because, he says now, implying that in the past we were not failing to enforce basic [00:05:40] and necessary election protections. That kind of feels like he's saying this should be obvious and easy. People employed by modern developed nations as [00:05:50] well as those still developing. So basically other people are doing it and we're not. And that's bad. I am also glad to see the president use the term developing [00:06:00] nations as opposed to other ones he's used in the past because we do not swear on this show.

Hannah McCarthy: [00:06:05] Yeah, so I did think it was interesting, to say the least, that this order references [00:06:10] other countries and it does so by name. Trump brings up election protocol in India, Germany, Sweden and a handful of other nations. [00:06:20] I asked Jason about this. Like why kick it off this way?

Jason Carter: [00:06:25] It says to me that the president was nervous about what he was doing. [00:06:30] It says to me that the president didn't feel comfortable just saying, I can do this. And so he he cited Sweden, he cited Germany. And what he did is he picked the most restrictive aspects [00:06:40] of those those democracies ability to to count votes and what they do right, to make it the most restrictive possible.

Nick Capodice: [00:06:48] Wait, like what?

Hannah McCarthy: [00:06:49] Aspects like [00:06:50] how India uses a centralized biometric database to verify voter registration eligibility.

Speaker5: [00:06:56] Whoa. Wait. What?

Hannah McCarthy: [00:06:59] Fingerprints and [00:07:00] iris scans.

Nick Capodice: [00:07:01] To prove you are who you say you are.

Hannah McCarthy: [00:07:04] Yeah. Trump references how Sweden limits mail in voting to people who are abroad or aboard [00:07:10] a ship in foreign waters. And in either case, you need two witnesses.

Nick Capodice: [00:07:14] Witnesses to watch you vote.

Hannah McCarthy: [00:07:16] Yes.

Jason Carter: [00:07:17] And really, the scary thing about that is that we're not [00:07:20] looking at Sweden in terms of a balance of how the election is run.

Nick Capodice: [00:07:25] So in other words, we're not looking at Sweden for ideas on how to make elections more fair, for example, [00:07:30] or more democratic.

Hannah McCarthy: [00:07:32] Right. And to be clear, Sweden regularly rates among the most democratic nations on the planet [00:07:40] for everything from civil liberties to political rights. Its elections are considered broadly free and fair. To cite Sweden for a voting [00:07:50] restriction, as opposed to what makes it a healthier democracy than the United States might just be telling. Jason sees this executive [00:08:00] orders references to things like this as a way to justify what's coming next.

Nick Capodice: [00:08:06] I almost don't want to ask this. Hanna, what is [00:08:10] coming next?

Hannah McCarthy: [00:08:10] All right. This executive order says the following. Ready?

Nick Capodice: [00:08:15] Almost never. But this is my job.

Hannah McCarthy: [00:08:19] One major [00:08:20] thing is that this order is trying to change the federal voting form to require documentary proof of citizenship.

Nick Capodice: [00:08:27] Huh? Isn't that what the Save [00:08:30] act is trying to do?

Hannah McCarthy: [00:08:31] Yes and no. The save act again. Listen to our episode on it to learn more. Would require proof of citizenship to register [00:08:40] to vote. Full stop. It's Congress's attempt to change an election rule in the US, which they are constitutionally empowered to do. This executive order is [00:08:50] commanding an independent federal agency called the EAC, the Election Assistance Commission, to change a mail voter registration form. The big difference [00:09:00] here is that the president is not explicitly constitutionally empowered to do that, which is part of the reason. A federal judge blocked this part of the [00:09:10] order. That same judge blocked another part of the order that tells the federal voter registration agencies to assess the citizenship of people enrolled in public assistance [00:09:20] programs before they give them a registration form. That judge's reasoning was that this is an overreach of presidential powers. Now, [00:09:30] this order packs in a lot more than that, so I'm going to keep going. It orders the EAC to re certify voting systems.

Nick Capodice: [00:09:38] And what does that mean?

Hannah McCarthy: [00:09:40] Okay. [00:09:40] In some states and some listeners will be very familiar with this. You vote using a touch screen and then get a paper printout of your vote. Now that piece of paper has a [00:09:50] QR code or a barcode on it. And that code is then scanned and your vote is counted.

Nick Capodice: [00:09:56] And Trump wants the machines that do this to be recertified. [00:10:00] So is he just telling the EAC to give them all a checkup.

Hannah McCarthy: [00:10:04] Nope. We have voluntary voting system guidelines in the US. Keep [00:10:10] voluntary in mind. We are going to come back to that. Trump is ordering the EAC to change those guidelines, specifically to say that states cannot use [00:10:20] the barcode thing anymore, except for accessibility purposes.

Nick Capodice: [00:10:24] Then how can the EAC recertify those machines?

Hannah McCarthy: [00:10:27] They can't. Not as they are right [00:10:30] now.

Nick Capodice: [00:10:30] Aha! What am I missing here?

Hannah McCarthy: [00:10:33] The states or counties that use barcodes either have to update their machines or replace them. In Georgia, [00:10:40] for example, where Jason Carter is from, and I promise we will hear from him again soon. The whole state uses this system. The cost to change that system is estimated at around $66 [00:10:50] million. Georgia's Senate, by the way, had already voted to ban their QR code system, but they did not allocate money for it.

Nick Capodice: [00:10:59] But why exactly? [00:11:00] Like, what is wrong with the barcodes.

Hannah McCarthy: [00:11:03] This barcode system has had naysayers across the political spectrum. But in 2020, conspiracy [00:11:10] theorists claimed without evidence, that these barcodes had been manipulated. The idea is that the machine itself is hacked and the vote will go [00:11:20] to another candidate.

Nick Capodice: [00:11:21] You know, you could have just said 2020 and left it at that.

Hannah McCarthy: [00:11:23] Anna, election officials say that the system is secure, accurate and they regularly test it. But [00:11:30] a lot of those same officials want the barcodes gone because so many voters don't trust them.

Nick Capodice: [00:11:36] And this executive order forces that action. [00:11:40]

Hannah McCarthy: [00:11:40] Forces that action. And in no way indicates that the federal government will help pay for it.

Nick Capodice: [00:11:44] And reinforces the idea that this system is not secure.

Hannah McCarthy: [00:11:49] Yes. There's [00:11:50] more. This order does not say the government will help pay for these changes. Election stuff is expensive for states. They often [00:12:00] rely on grants from the federal government to help them pay for it. And this order. Nick tells the government to prioritize states who comply when they're passing [00:12:10] out grants. In other words, no money to help you comply and the threat of no money if you don't.

Nick Capodice: [00:12:16] So states don't absolutely have to comply.

Hannah McCarthy: [00:12:19] This is more [00:12:20] like a guidelines than an actual rule situation. It's voluntary remember. And how do you get states to do something voluntarily?

Nick Capodice: [00:12:28] Anna you asked them if they [00:12:30] want all that pretty, pretty money.

Hannah McCarthy: [00:12:32] Yeah. I'm going to bring Jason back in for a moment here.

Jason Carter: [00:12:35] There's only a certain number of ways that the president has to enforce that [00:12:40] executive order. And so what the president is saying is I'm actually intent on executing on this order. The power that he has is the power of the purse [00:12:50] at this point. And so he wants to use that power and bring it to bear to get to change the rules of the game.

Nick Capodice: [00:12:55] But the president doesn't have the power of the purse.

Hannah McCarthy: [00:12:58] That's what I said. And [00:13:00] Jason knows that. He's more referencing the fact that this order firmly suggests withholding federal funds for states that do not comply with it. Now, [00:13:10] is the president allowed to say who does or does not get money?

Jason Carter: [00:13:14] So, I mean, that's a good question, right? I mean, constitutionally speaking, the Supreme Court has to say whether the president [00:13:20] can do this or not. So, you know, in my view, the Constitution requires the elections to be run by the states. There is some role for the federal government, as we've already discussed, because the federal [00:13:30] government stepped in, for example, with the Voting Rights Act of 1965, Nvra other other rules that the federal government has helped to expand and make it easier for people [00:13:40] to vote. Can the president do this without Congress? I don't think so. Because of what you described in terms of whether Congress has the ability to Congress, [00:13:50] in fact, to your point, holds the purse strings under the Constitution.

Hannah McCarthy: [00:13:53] So basically we'll see. All right. Moving on. This order tells the Department of Homeland Security and the Department of Government [00:14:00] Efficiency, aka Doge administrator, aka Elon Musk, to review voter files and voter list maintenance records alongside immigration databases.

Nick Capodice: [00:14:10] Is [00:14:10] it boring if I keep asking why it isn't?

Hannah McCarthy: [00:14:13] But I am going to give us all a quick break just in case it is.

Nick Capodice: [00:14:19] Before that [00:14:20] break, unless the listeners think me capable of a single boring act can never happen. A reminder that Hannah and I wrote a book, and that book is there to tell you all [00:14:30] about how things are supposed to happen. It is called A User's Guide to Democracy How America Works, and it is a reminder of what democracy is. Isn't that something? [00:14:40] You can get it wherever books are sold.

Hannah McCarthy: [00:14:56] We're [00:14:50] back. Nick, before the break, you were asking why? [00:15:00] Why would Trump want Homeland Security and Elon Musk to review voter lists and immigration databases.

Nick Capodice: [00:15:06] I mean, I can guess Hannah.

Hannah McCarthy: [00:15:08] Together with the attorney general, [00:15:10] it is all about finding and stopping noncitizen registration and voting. Listen to the Save Act episode for more on that. I'm not going to get into it all now. All right. [00:15:20] Moving on. The order says states that count ballots received after Election Day will be penalized. Basically, we'll have funds withheld.

Nick Capodice: [00:15:28] Isn't this something that happens all the [00:15:30] time? Hannah, this is why we can't know the final ballot tally on election Day. Mail in ballots have to be postmarked by Election day, but it takes the Postal Service a while [00:15:40] to deliver them because they haven't invented teleportation yet.

Hannah McCarthy: [00:15:43] 18 states currently allow for counting mail in ballots if they arrive after Election Day, as long as they are postmarked [00:15:50] by Election Day. Now, the order says, quote, this is like allowing persons who arrive three days after Election Day, perhaps after a winner has been declared [00:16:00] to vote in person at a former voting precinct, which would be absurd, Served, unquote.

Nick Capodice: [00:16:05] Well, that would be absurd. Uh, but mail in ballots aren't like that at [00:16:10] all.

Hannah McCarthy: [00:16:10] They are not at all. All right, here we go. The order asks the attorney general to create information [00:16:20] sharing agreements with state election officials. The idea is to alert the DOJ to all suspected violations of election laws.

Nick Capodice: [00:16:29] If I've learned one [00:16:30] thing from police procedurals, it's that state law enforcement tends to say something snarky when the feds show up.

Hannah McCarthy: [00:16:36] I'll be honest, I am nowhere near an expert on the machinations and legality [00:16:40] of state federal information sharing, especially when it comes to criminal investigations. But I do know that this kind of information sharing is often largely voluntary, especially if [00:16:50] we are talking about quote unquote, suspected violations before we know whether a federal crime has actually been committed. I also know that states push back against this kind of thing on [00:17:00] the grounds of privacy concerns and resisting government coercion.

Nick Capodice: [00:17:04] It's federalism, baby.

Hannah McCarthy: [00:17:05] Yeah, and this is another one where Trump tells the AG to consider withholding funds. If [00:17:10] a state says no way, no how. Okay. The order also bans non-citizens from being involved in administering federal elections.

Nick Capodice: [00:17:18] To non-citizens [00:17:20] administer elections.

Hannah McCarthy: [00:17:21] Most states already have laws prohibiting anyone who isn't a qualified, aka citizen voter from being involved. This part of the order [00:17:30] says that non-citizens cannot access election equipment, ballots, or any other relevant materials used in the conduct of any federal election. So on its face, that means [00:17:40] non-citizens cannot be poll workers or work for election agencies. But pro-democracy groups are already raising concerns about non-citizens who, for example, [00:17:50] work at companies that make election materials or who work in buildings that become polling places on election day. We're talking schools or city halls. Does [00:18:00] physical proximity to polling places count? Unclear. Last thing the [00:18:10] order tells the AG and the Treasury to prioritize prosecuting foreign nationals who donate to campaigns.

Nick Capodice: [00:18:16] Isn't that already illegal?

Hannah McCarthy: [00:18:18] Yep.

Nick Capodice: [00:18:18] All right.

Hannah McCarthy: [00:18:19] All right, [00:18:20] back to Jason Carter. So Jason looks at the save act again. Go check out that episode to understand what I'm talking about. And then he looks at this executive order and he's thinking about [00:18:30] democracy. And here is how he sees it.

Jason Carter: [00:18:33] It's one thing to have the federal government do a power grab over our election system. It is an entirely different [00:18:40] thing to have a single human being who's the current leader of the country, making a direct power grab around the elections when the president of the United States, and this is [00:18:50] true in any country, when they start to say I, as the president, have the right to change or address these rules without the input from Congress, without taking [00:19:00] it to the states, that's very scary.

Nick Capodice: [00:19:02] Now, Hannah, I'm curious about whether this has happened before. Have any other presidents signed executive orders on elections [00:19:10] before?

Hannah McCarthy: [00:19:10] I did a little research on this one in recent history. Bill Clinton signed an order to help with the implementation of the National Voter Registration Act. That is the act [00:19:20] that lets us register to vote when we get our license and tell states they have to accept mail in ballots. Barack Obama had an order establishing the Presidential Commission on Election Administration. [00:19:30] It was temporary. It assessed our then system and made recommendations to improve online registration, poll access, outdated machines. Biden had [00:19:40] an order. Trump got rid of it to facilitate voter registration and education.

Nick Capodice: [00:19:44] Did you find anything like this, though?

Hannah McCarthy: [00:19:47] It did not. So [00:19:50] look, I already told you that a judge blocked some parts of this order, but many parts of it remain [00:20:00] up in the air. Can the president order all these executive agencies to target non-citizens, withhold federal funding, decertify voting [00:20:10] machines, create new standards and high costs for states. Well he did. Will election officials comply? That remains [00:20:20] to be seen. What I do know is that we have an elections clause in the Constitution. I know it leaves the time, place and [00:20:30] manner of elections up to the states. I know it gives Congress the power to make and change federal elections regulations. And I know [00:20:40] that the president is not in the elections clause at all.

Nick Capodice: [00:20:45] I'm an executive order, and I pretty much just happen. [00:20:50]

Hannah McCarthy: [00:20:50] All the more reason to pay attention.

Nick Capodice: [00:20:52] Is that it, Hannah?

Hannah McCarthy: [00:20:53] Till it isn't. That [00:21:10] does it for this episode. It was made by me. Hannah McCarthy with Nick Capodice. Rebecca LaVoie is our executive producer, Christina Phillips is our [00:21:20] senior producer, and Marina Henke is our producer. Special thanks to Taylor Quimby for his edits on this episode. He is the executive producer of another NPR podcast. It's wonderful. It's called [00:21:30] Outside/In. Go check it out. Music in this episode from Epidemic Sound. You can find everything we have ever made at our website, civics101podcast.org. And while you're there, [00:21:40] you can ask us a question. We might just make an episode in reply. Civics 101 is a production of NHPR New Hampshire Public Radio.

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