GUEST: David Nasaw
AIR DATE: 01/19/2012
VTR: 01/26/2012

I’m Richard Heffner, your host on The Open Mind.

And surely over the past half century and more this program has often been blessed by the rich legacy of Andrew Carnegie…in the form both of financial support from the Carnegie Corporation of New York and of keen intellectual participation in our on-air conversations by such of its leaders as John Gardner, David Hamburg and Vartan Gregorian.

Then, too, as an American historian I draw heavily upon Carnegie in my Documentary History of the United States in describing the harsh competitiveness and brutal Social Darwinian ethic of our industrial age following the Civil War… and including as a key document of the period Carnegie’s own essay on “Wealth”.

Yet we’ve not spoken much here about Andrew Carnegie himself…until today, that is, now that I’ve lured David Nasaw, whose massive, best selling Penguin Press Carnegie biography has been so widely acclaimed.

The author of another major biography of a controversial American giant — The Chief: The Life of William Randolph Hearst — David Nasaw is Distinguished Professor of History at the Graduate Center of the City University of New York.

Now last evening I went back into my now rather ancient file titled: “General Good Things” to dig out an issue of The Saturday Review dated February 6th, 1954 in which I rather remembered that my own teacher, Columbia’s Allan Nevins, had done battle with Matthew Josephson that other great chronicler of our past, essentially as to whether Andrew Carnegie – and others such as Rockefeller, McCormick, Westinghouse and Ford – should be remembered today as America’s “Robber Barons” or as her “Industrial Giants”… a question I would now put to my guest. What do you think?

NASAW: Terrific question. I would say “no”. I think that the term “robber barons” was originally used to describe the railroad entrepreneurs, the railroad builders … Stanford, Crocker, Huntington, Gould … and they were called “robber barons” because like the old robber barons in medieval times and the feudal period, who made money immorally, if not illegally, by putting toll gates on their property and you had to pay to go through their property … so it was said that the railroads robbed … they were barons, they didn’t need to do it … but they robbed the common people … they robbed the nation, they robbed people who could not afford it … by putting extra tariffs …by exploiting the good people of this nation, by charging more than they should for the privilege of riding rackety railroad cars from one destination to the other.

Now, I think of Carnegie as different. And Rockefeller and Ford and Edison and Westinghouse. They were certainly not saints … they were certainly not out to save consumers or purchasers of their products money. They tried to get the most they could. But they manufactured something. They made something. They made steel, they got oil out of the ground and refined it. They created, as Edison did and Westinghouse did … products that changed the way we live.

They made a profit and a very hefty profit, but they created something tangible that created to the material welfare of millions of Americans and millions of people around the world. So I would not put them in the same category as the railroad robber barons.

HEFFNER: I guess what I’m led to then is to, to ask you another question … and I don’t know how I could find the answer in your great biography. Did you like him?

NASAW: (Laugh)

HEFFNER: Was he a good person? Or don’t you …

NASAW: Yup …

HEFFNER: … need a good person to like him.

NASAW: I’ve now … I’ve now … am finishing my third biography … I’m, I’m just about to hand in a manuscript on Joseph P. Kennedy …

HEFFNER: MmmHmm.

NASAW: … and on Hearst and, and Carnegie and on Kennedy the question is, “Did I like them”. With all three, but especially with Carnegie I was blessed … not necessarily by liking them at all moments … and by “liking” him at every moment of his life … certainly didn’t like him around Homestead. I certainly didn’t like him when he outlawed unions. I certainly didn’t like him when he instituted work rules that put men at his plants and his males to work 12 hours a day, six and a half days a week.

But as a biographer, (laugh) as a historian, I was never bored. I was … never for a moment … thought “Why am I doing this?” I was never wanted to stay in my room rather than go to an archive and read letters or read reports.

Carnegie was an absolutely fascinating … human being. And of the three larger than life characters that I’ve written about. Carnegie sustained me and sustained my interest and fascination because he had this, this spirit … this optimism, this buoyancy … this sense of taking joy in every breath he took … every morning he woke up and every evening when he went to bed. He was also an extraordinarily wonderful writer. He was garrulous in conversation. He said too much rather than too little …

HEFFNER: So you indicate … so you indicate …

NASAW: (Laugh) So … yeah … his, his wife … they worked out hand signals so when they were at a dinner party … if he went on …

HEFFNER: “Andy, keep quiet.”

NASAW: … (laugh) … much too long … she would signal to him, you know, “enough, enough, enough, enough”. And for a biographer that’s wonderful.

So I can’t say that I liked him all the time, but I can say that I’m grateful that he held my interest for the many years I worked on this and the many thousands of words I read … by him or about him …

HEFFNER: You know, I come away from what you’re saying, David, with the feeling that your answer is “I didn’t like any of those three guys …” … now I know that’s unfair because it flies in the face of what you’ve just said. Fascinated by them all … Joe Kennedy … William Randolph Hearst … Andrew Carnegie … how could you help but be … they were so much bigger in size than all the rest of us.

But as I read Andrew Carnegie I had the feeling that you were appalled by a number of the things … you mentioned some of them …

NASAW: Yeah.

HEFFNER: … the work hours … increasing them …

NASAW: Yeah.

HEFFNER: … the philosophy that he expressed that was Social Darwinian … am I wrong at that?

NASAW: No, you’re, you’re not wrong … but it, but it’s not my task as a, as a historian to stand in judgment …

HEFFNER: Why not?

NASAW: … of the people I write about. It’s my task to present their lives. I don’t believe in objective history … I believe in being fair. And I believe in sticking to the sources and I believe in doing everything I can to avoid error and avoid mistakes. But I’m not God … a historian can’t be God … a historian can’t rule from above. Historians can’t traffic in theological terms of good or evil. We’re all … you know … bundles of contradictions. We do things that are admirable and we do things that are less than admirable.

And my task in writing all of these biographies is to try to lay out the life in such a way that some people will say “You were too soft on him”. And other people will say, “God, you detested this man … you didn’t like him”.

And when I do that, I think I succeed. Now, with all of these people Carnegie lives an extraordinary life. And a long life. And the second part of his life he dedicates to world peace and to giving away his money for the betterment of mankind.

His years as a peace activist … his years … the money and the energy he expends in trying to stop the great war … World War I … which he sees coming … are admirable. And I was taken by this.

His career early on in which he raises himself from rags to riches and the only American industrialist or entrepreneur who really comes from rags to riches … the rest don’t … Carnegie does. There’s something admirable in that. And then there’s the 12 …

HEFFNER: Even though the 12 hour work day?

NASAW: Well, I said early … (laugh) … then there’s the period in the middle of, of this life … of this long life … in which, you know, day after day, letter after letter I’m appalled … I’m appalled.

HEFFNER: By what?

NASAW: I’m appalled by the self-assurance, the self-confidence, the god-like assurance in which he moves forward.

The traditional story of Carnegie is that once he begins to give away his money and decides to give away his money … he becomes a kinder, gentler loving soul … who could … you know … dislike a philanthropist?

I found the opposite. I found that once he decides to give away his money and he decides to give it away early in life … in, in middle age, rather than, than later. He decides to give, that he’s going to give away his money before he goes into steel, before Homestead, before the strikes.

Once he decides to give away his money … he has a reason for exploiting his workers that allows him to do things … he has to at some level … have known were wrong. And he says so. This is the social Darwinist side … he says that to benefit mankind, to benefit the larger community, people are going to have to be sacrificed.

Herbert Spencer, the original Social Darwinist is even … is worse. Herbert Spencer says “Poor laws will save poor people from starvation”. But is that the best way to spend government money, tax money, state money … charity? To keep alive these people?

So Carnegie understands that in order to produce the cheapest possible steel … and make the largest profit and expand Carnegie Steel, he’s got to cut all his costs … including labor. He’s got to provide the most efficient work force and that’s a work force his engineers tell him is one that works two shifts, not three eight hour shifts, but two shifts. And he does it.

Because the more money he makes, the more he can give away. And I think one of the reasons he leaves Pittsburgh for New York is because he doesn’t want to look … the squalor, the degradation … the human degradation he’s created, he doesn’t want to look it in the face. It’s no accident that Frick is the man who leads the union busting at Homestead and elsewhere.

Carnegie rarely visits Pittsburgh … he spends half the year in New York where he wants to be a writer, an intellectual, a great man … and he is …

HEFFNER: Well …

NASAW: … and he spends half the year in Scotland.

HEFFNER: How do you evaluate this, this judgment that he’s made … you and I know from the incredible number of Carnegie Foundations, from the incredible sums of money that have come, ultimately, from his riches to benefit … as I said, this program and so many, many, many, many worthy institutions in our times. I mean enumerable and the 100th anniversary now of the establishment of all of these foundations, institutions, testimony to that.

How do you evaluate that notion that I’ve got to build, on the backs perhaps of workers …

NASAW: Yeah.

HEFFNER: … I’ve got to build more and more profit so that those dollars can go … not to my children, I will provide for my wife and child, but to these great causes, to benefit mankind.

NASAW: I find it morally reprehensible. But understandable. Let me … the best answer to that question was Vartan Gregorian who you’ve had on the show …

HEFFNER: Right.

NASAW: Recently. We gave … when my book came out, we had a conversation at the New York Public Library and someone in the audience asked that question directly. And a lot less kinder than you have asked it (laugh) or posed it.

Someone said to him, directly … don’t you feel guilty or don’t you feel ashamed giving away the money that was earned, that was made by the super exploitation of workers?

And … how … you know … how can you do this? And Gregorian said something to the effect of “Yes, I feel that there was no need to do that. That Carnegie could have made a healthy profit, he could have made millions and millions of dollars to give to the Carnegie Corporation and of provided for the welfare of his workers. It’s not either/or. And Yes the Carnegie Corporation would be a smaller corporation if he had paid his workers a decent wage, but we would still be able to do good. And I both regret that he exploited his workers, but I think that much of the good that we’ve done since then is, is worthwhile”.

HEFFNER: … It does, of course, put the focus back on the Spencerian notions that Carnegie seems to have adopted whole cloth. Did he … was he aware of being … having a philosophy that would guide him … certainly in the essay on “Wealth” …

NASAW: Yeah.

HEFFNER: … he gives wonderful expression to it.

NASAW: Yeah. One of the reasons he was a wonderful subject is that you don’t’ have to … with, with a man like Rockefeller or Edison or any of the other industrial founders, the so called robber-barons … you have to guess at what’s going on in their minds.

Carnegie you don’t. Because Carnegie let’s you know in his letters to his friends and in his published writings … he is absolutely convinced that the laws of social evolution, which Herbert Spencer lays out … that we call Social Darwinism … that the world and its inhabitants are going to live better and better and better lives … there will be some set-backs, but progress is inevitable.

But in order for there to be that progress, in order for people to live longer and live better and eat better and live fuller lives and richer lives, something is going to be … have to … something is going to have to be sacrificed.

And Herbert Spencer teaches him that. And he accepts that. Now, for Carnegie and for the other …the so-called “robber barons” … I’m going to use that term though I …

HEFFNER: Can’t avoid it.

NASAW: … discounted it … no … earlier … it’s the best one around. Herbert Spencer does an incredible service … if Herbert Spencer hadn’t written his Social Darwinian tracts, they would have had to have invented him. Because he is the perfect excuse … whatever they do … whatever crimes are committed against humanity, against the environment, they can be excused for the greater good of the greater people. The, the greater good of the larger population. And again some people will have to be sacrificed. In this case it was the workers in the Carnegie steel mills in Pittsburgh, in surrounding areas.

HEFFNER: Would you say that all three of your subjects adapted, adopted a Social Darwinian philosophy? Kennedy as well as Hearst, as well as Carnegie?

NASAW: No. I don’t think so. I think that Carnegie … the, the exploitation in the Carnegie mills is more palpable, is more direct than anything that went on in Hearst’s enterprises, or in Kennedy’s road to wealth.

Now, on the other hand, one can well say that Carnegie produces … his way to wealth is through producing something. And Carnegie said over and over and over again … I am not a speculator, I don’t gamble in stocks. I make my money … you know … I’m putting words into his mouth … the old fashioned way … by producing something people need.

Hearst’s wealth comes in a slightly different way and Kennedy’s as well. But they don’t feel the same obligation that Carnegie feels to explain himself. They don’t have the same need to say “I’m a good guy. You know, here’s why I’m doing this”.

There’s an extraordinary example of this at a … one of the dedications … I talk about this in the book … at one of the dedications of a library in, in Pittsburgh …there are workers invited, or representatives of workers … they sit in the back … 90% of the audience is politicians, bankers, the recipients of these charities …the upper elites of Pittsburgh.

And Carnegie at one point, looks to the rear and he says there are workers here … and he said … and I salute you. And he said, you probably think that you and the world would be better off, if instead of saving this money and building a library, I had given it back to you in wages.

But let me tell you something, if I had done that … you would have spent those wages on better cuts of meat, on drink … maybe on better houses … he said, but I’ve given you and the community something much more important … a library.

HEFFNER: Those of us who grew and were educated thanks to Carnegie free libraries are, are so grateful to that. You and I, I’m sure, can testify to that.

In just the two minutes that we have left, though, let me go back to the point that you make so strongly, about his involvement in world peace. His great disappointment that he didn’t achieve there. Did he really want to bring the Kaiser and TR and …

NASAW: (Laugh) Yes.

HEFFNER: … the Prime Minister or King of England together?

NASAW: Yes. He had an extraordinary notion that men of reason can settle all the problems. This is part of his Social Darwinian philosophy, that wars belong to the 18th century and 19th century. Now that human beings are enlightened, they can sit down and settle their differences.

And he believed that the best possible mediator would be Teddy Roosevelt, so he worked out a deal with Teddy Roosevelt … “I’ll pay for you to go to Africa on your safari, but when you come back … you bring together the crowned heads of Europe and you get them to sign agreements that they will not go to war. That they will settle their differences peaceably in a world court,” in a … what would later become a prototype of the League of Nations.

HEFFNER: Do you, therefore, chalk Carnegie up to having lots of naiveté about him. Or are you so admiring of his crusade in this direction that that’s difficult to …

NASAW: I think there is a role for utopians, I think there is a role for people of faith. I think there is a role for people who will remind us that much that goes on in this world, is not rational and that we should known better and that we should do better. And I think Carnegie by reminding his contemporaries of that … did something admirable.

HEFFNER: You know, you’ve done something wonderfully admirable with this great book on Carnegie and the one on Hearst … and I must say I’m very eager to see the one on Joe Kennedy. Meanwhile, thank you for joining me today on The Open Mind.

NASAW: It’s been a delight.

HEFFNER: And thanks, too, you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.

Guest: Sam Tanenhaus
AIR DATE: 05/12/2012
VTR: 04/12/2012

I’m Richard Heffner, your host on The Open Mind. And though – for good or for bad, depending upon whether one is talking about personal satisfaction or professional success – though I’m not much of a “Gotcha” kind of broadcast interviewer (I am, after all, first and foremost a teacher), when today’s guest first joined me here at this table a half-dozen years ago, I thought I was being kind of smart-ass mean when I held up a most impressively garish, I thought, commercial out-take from the Sunday New York Times Book Review and asked Sam Tanenhaus – my guest then and now and the distinguished and highly regarded Sunday Book Review’s Editor then and now – rather snottily asked him whether this huge advertisement for television programs of all things was, God help us, a likely sign of the Times.

To which Sam Tanenhaus said simply: “Believe it or not…I hope so…because the number of pages we get from week to week, the amount of newsprint we have and space we can devote to reviews is premised in large part on the advertising we get…a huge ad like that, lavishly paid for, gives us more room to run more reviews and essays.”

So now, with reports of generally less and less book review space in the American press, I’ve just got to ask my Sunday Times Book Review Editor guest just how he thinks bookish things are going.

TANENHAUS: It is so interesting a time, Dick. It’s great to talk about this. I had forgotten that exchange, and I’m glad I answered it accurately. Every now and again I speak the truth. And it seems to …

HEFFNER: (Laughter) … I gotcha.

TANENHAUS: (Laughter) But, hmm, as you know, it just shows you how rapidly things are moving. When we had that conversation, I don’t know if there were e-books at that point.

And now they’ve almost overwhelmed the publishing industry. There’s a major law suit, you probably know … the Department of Justice has now brought a collusion suit again major publishers because of battles they’re having over pricing with the retailer Amazon … where so many people get their books.

And it looks as if books have now been pulled into the Internet battles that they actually are the web battles … that they’d actually been able to elude for a long time. It’s not clear whether in five or six years … we’ll even see bound books any longer. I mean we may see some, but they may be specialized books for collectors.

The percentage of book sales that are now e-sales, as they call them, is often 30%, 40% … even for really major authors.

I’ll give … something else … when I started the job I now have as Editor of the Book Review in the Spring of 2004 … almost exactly eight years ago. The big bully was Barnes & Noble because they had all those big chain stores that were driving out the corner bookstore and the independent book seller.

Now, Barnes & Noble has become, for many, this kind of icon of cultural seriousness. At least it was bookstore, because now people are getting their books online.

So those changes are having an enormous impact on the way authors look at their own work … “Is it really going to be read now on, on a kindle, or a nook or an iPad?” Will there not be a generation of readers who know the feel of, of pages and, and book covers and who have book shelves and, and book collections in their homes.

It’s actually changed the … the place the books occupy in the culture … which is not to say the printed word is going anywhere. Or at least the typeset word because it may just be a diode … you know a light emitted diode or something rather than a, a piece, you know, newsprint. Or of typesetting.

But words themselves are actually as healthy … they’re as … surround us as much as ever. And that’s a really good sign. But books are, are becoming a different thing.

HEFFNER: But my question … really had to do with book reviews in newspapers.

TANENHAUS: Book reviews in newspapers. Okay. Let’s … we’ll look back …

HEFFNER: As enthusiastic?

TANENHAUS: Ahemm … am I as enthusiastic as …

HEFFNER: Yes.

TANENHAUS: No. Not. And here’s why. When I started … again … in, in April, 2004 … there were stand alone Sunday book sections in the Washington Post … no longer. The Los Angeles Times … no longer. The San Francisco Chronicle … no longer. Chicago Tribune … no longer. Now the Wall Street Journal has started up a Sunday Book Section … that’s folded inside a weekend’s … actually I should say Saturday section … that’s actually quite good and has really good coverage, but there’s not much else around.

HEFFNER: Because it’s competing …the Journal … with The New York Times.

TANENHAUS: Well, yes, and you know … a, a viewer should understand … the reason this is happening is the result in large part of just the cost of printing paper and distributing it nationally. It really costs a lot of money to own forests like the New York Times … and do this.

And so what happens is the publishers of newspapers … now we’re talking about people much more important and powerful than me … the ones at the top of the … some of the corporate or organizational chain or looking at the expense of producing a single newspaper, or a weekly newspaper … you know, in which the Times book review appears. And looking to see what they can afford to do and what they can afford not to do.

Now luckily the Book Review in its odd way has situated itself in a place where it is journalistically important to the Sunday paper. This is the argument that one of the Editors, Joe Lelyveld made years ago …he would …. When he would meet with business people … at that point I think he was trying to raise the reviewer rates a little bit.

He said, “Well, the Book Review doesn’t make any money”. And Joe would say, “All right, take it out of the Sunday paper and see how many people want to read it.”

So in that sense we have a really strong position. Also we’re sold as a separate publication. Not many people know this, or they know it, but they don’t realize they know it.

When you go to Barnes & Noble, if there’s still one in your neighborhood … and you pick up a copy of the Book Review … which is often there almost as a kind of guide … you know, consumer guide … that’s actually been published a week in advance. And has a little price tag.

So we are supported in part by about some 25 thousand readers who subscribe to us the way they would to the New Yorker or the Atlantic Monthly or the New York Review of Books. We’re a publication that, that arrives in people’s mailboxes. And that generates some revenue as well.

But as far as being able to print and publish those days every week … if we did not have the kind of advertising support we do … the support of the book publishers who look to us to … just let the public know about important books and to … in … sort of enlarge the visibility of the literary conversation in the culture … doesn’t mean we do it better than other people, it’s just that more people see it in our pages.

As long as that stays in place … as long as there’s a belief on the part of readers and publishers and authors and writers, because they are our reviewers … that this is a valuable, important thing to do, we’re okay. But if there’s a … there’s no guarantee of it.

HEFFNER: Sam, you’re a betting man?

TANENHAUS: Nooo … I’m not.

HEFFNER: So you don’t want to bet on this?

TANENHAUS: Ahemm … I don’t. Ahemm …

HEFFNER: Concerned?

TANENHAUS: Well, yes, but, you know, I’m a dinosaur and I’m just used to the, the culture I was raised in which is very much a print driven culture. And, you know, I tell people that when I was really young and imagined I’d like to be a writer or a literary person … I always assumed that I would occupy a marginal place in the culture. But it never occurred to me that I would actually be a kind of an anachronism.

And, and I don’t think that really has happened … actually. I mean the … as I was saying before the, the Internet and the web are keeping print … the idea of language and words alive.

Who knows … I mean it would be interesting to have, you know, the great prophet of all this … Marshall McLuhan here …

HEFFNER: (Laughter)

TANENHAUS: … more and more I think he was the guy who saw it all, the prose is impenetrable, but when you can understand what he was saying … he seemed to be the prophet, you know, and he said that the …you know, the Gutenberg transformation was one that hadn’t really been completed yet. Well, now we have moved to the next one. And it would be interesting to hear what he has to say.

HEFFNER: But you remember his great headline there … this thing he mocked up … he took the symbol of print … Time magazine folds … I mean this was, this was a gag on his part and he was saying it, as you point out … writing it a long, long, long time ago.

TANENHAUS: Well, he saw that the image … or predicted that the image was replacing the word. That’s not exactly what’s happened. And part of the genius of McLuhan, by the way, is that he saw … remember he’d been a Joyce scholar … scholar of James Joyce …

HEFFNER: MmmHmm.

TANENHAUS: … and Joyce himself had an interesting kind of technological approach to writing. Remember those great pages in Ulysses where he, he replicates newspaper headlines … ahem, that he saw that, that art and technology were not as separable as we might think. That art has its own technologies.

Well, what we’re seeing now and, and he also argued, I think … or at least implicitly … remember he was appalled by all of this. He was not a champion of it. But he did see that technology also had its own aesthetic and that’s where the Steve Jobs and people like that of the world, you know, seem to be more and more important and, and … and are admired and, and, you know, often have a kind of visionary sense of what it is that … the ways in which people will consume or, or surround themselves with information.

As far as all that goes, it, it does make me wonder “Well, would James Joyce actually have liked reading on an iPad?” You know he had terrible eyesight. But you know what I mean … all the manipulation of text that you could do … manipulation of images and text … this kind of thing.

That, there maybe a future in all of this … that somebody like me can’t really see, because I’m stuck in my older ways, and, you know, maybe have narrow views.

Do I wish there were a dozen more book review sections? Yeah. I do. You know, if … when a book was published … a major book was published, oh, even 10 or 15 years ago … an author could count on maybe a 100, 125 separate book reviews …

HEFFNER: Seriously?

TANENHAUS: Yeah. I mean small papers all over the country that you don’t’ think about … regional papers … there’d be a book reviewer in … oh, in Cedar Rapids … you know, or, or Wichita, Kansas there’d be somebody there, writing the book review … and you’d be surprised.

When my Whittaker Chambers book came out … it was a big thing for me … it was, you know … I first …

HEFFNER: It was a big book.

TANENHAUS: … ambitious book and, and so I followed everything and here comes the review from, from San Diego and Pittsburgh and Tampa and Miami and Orlando … two reviews in two Houston newspapers. This kind of thing.

And the number would start to pile up. Nowadays, I talked to a very distinguished historian the other day … I was visiting up at Yale, I was a guest of John Lewis Gaddis who wrote an important biography of George Kennan.

And I said, “Well how many reviews did you get?” Twenty. You know … there just aren’t …

HEFFNER: It’s incredible.

TANENHAUS: … Yeah, I mean he was guessing … don’t quote me.

HEFFNER: Yeah.

TANENHAUS: But the, but the number was very small. It’s easier now … dare I say … to be on a television program … maybe not one so distinguished as this …

HEFFNER: (Laughter)

TANENHAUS: … to get on television and talk about your book than it is to see somebody review it in, in a major newspaper.

HEFFNER: Sam, what’s happening in the large communities where you ticked them off before … book review … gone … book review … gone … what’s happening? Does the Times substitute … since you are a national journal.

TANENHAUS: Well, and you can read us online. But we’re just talking about print now … right?

HEFFNER: Just talking about print.

TANENHAUS: Well, ah, the Chicago Tribune I believe is starting up some book pages again, if they haven’t done it already. So that’s a good sign.

The … in Los Angeles, they’re actually starting a, a web only Los Angeles review of books … that I … is very ambitious … if you see the contributors … quite impressive.

And I don’t know how connected that is to the Los Angeles Times. The, the LA Times and Washington Post still review books. But those book reviews will be disbursed or scattered …

HEFFNER: Right.

TANENHAUS: … through the paper. That’s the difference. So that “yes” there’s coverage … and there are real wonderful reviewers and critics who are very seriously writing about them. You know Jonathan Yardley is still reviewing books in the Washington Post.

You … what you don’t’ see is the Washington Post Book World …that’s what’s gone. So … enterprising editors and journalists are finding ways in print to review books and write about books … what you don’t have is the one place you can go to where you can go to where you’ll see 16 pages or 20 or 24 that, you know, you … or 28 … you used to see in those publications.

Now, that said, I think … you know, you’re a kindle guy … you know a kindle reader … we have to accept that many people are doing a lot of their reading online and they’re seeing book reviews of all kinds in the web … there are those who say “tell us …” people all the time … there are those who say the most important reviews any author gets are the write up … are the reviews on Amazon dot com … where people, you know, give them stars and write them up.

HEFFNER: Dear God …

TANENHAUS: (Laughter)

HEFFNER: … is all I can say about that.

TANENHAUS: Well, you know, you don’t feel the authority in it … actually some of them are pretty good, I’m quite impressed.

When my last little book came out I looked at some of the Amazon reviews … and before the ideologues who are just, you know, waging their own battles … got in … and the more interpretive, analytic review around … I was really impressed by a lot of them.

But … yes, it’s not the same as having … you know, a Murray Kempton or a Richard Rovere or someone like that … and Edmund Wilson writing in a really authoritative way … not that we don’t’ have authoritative critics …

HEFFNER: Mentioning all dead writers.

TANENHAUS: Well, there’s some good ones, too. I mean The New Yorker has some really good critics, I think …

HEFFNER: Now, now … again … in the cities where the real review …the weekly review disappeared from the newspaper. Have you filled the space … has the Sunday New York Times Book Review sold more copies there?

TANENHAUS: You know, I … that’s a question I can’t answer. I don’t’ know. I know the number of stand alone subscribers … the ones who’d subscribe to just that magazine. That number has not changed. Oh, I mean except in the most fractional way in the eight years I’ve been doing the job.

So we’re not selling them more that way. Now, you follow the Times very closely and you know … we not only have national editions printed on printing presses across the country … but also some that include local content. If you get the San Francisco or Houston editions of the New York Times … Chicago, as well … you’ll see pages written by journalists in, in those cities.

HEFFNER: You know …

TANENHAUS: A … books …

HEFFNER: … I didn’t know that.

TANENHAUS: Yeah. It’s something … it’s … it is still in a kind of development stage, but it’s definitely happening. There’s not as much direct book coverage that way. I think people probably do look to the Times …and remember it’s not just the Book Review … it’s also the daily New York Times … you know, we’re publishing reviews …you know almost every day of the week.

HEFFNER: More now. Am I wrong or right?

TANENHAUS: Ah, I think it’s about the same number. Well, there’s so many different sections of the paper though … you’re right. See, in some ways we’re doing that the other big newspapers are, too. You see books reviewed in the Styles Section, for instance, and … by often very good critics … one of our favorite reviewers, Liesl Schillinger … also writes about books …

HEFFNER: Right.

TANENHAUS: … in, in the Style Section of the magazine.

HEFFNER: But this is what worries me … if you’ll forgive me for worrying about the fate of your publication. I do see reviews all over the place. Do I have to worry about whether I’m going to continue to see the Sunday New York Times Book Review?

TANENHAUS: Do you mean reviews all over the rest of the newspaper?

HEFFNER: Yeah.

TANENHAUS: I don’t think so. I mean to me, the more the merrier. I’m all for it. If books are being written about in other parts of the newspaper … in some ways … since, you know, I’m a book writer myself … it may be more helpful for the careers of successive books if a columnist of a Paul Krugman or a Maureen Dowd or a Gail Collins … David Brooks and all the … all the rest … if they devote a column to a book …

HEFFNER: Well …

TANENHAUS: … that could be more useful than getting a …

HEFFNER: Yeah.

TANENHAUS: … a glowing review on the cover of the Times Book Review.

HEFFNER: That’s David Brooks thing … very much. Writing about a book, usually a research study …

TANENHAUS: Yes.

HEFFNER: … that peaks his curiosity.

TANENHAUS: Yeah, but you know, there it is … I think he even wrote a … he didn’t like Jonathan Franzen’s novel Freedom very much …

HEFFNER: Right.

TANENHAUS: … but he did write a column about it. I remember … not long after I started at the Book Review … when Philip Roth’s novel The Plot Against America was published … Frank Rich wrote a column about it … I remember that had a real impact … somebody else in the paper did, too. And those … that commentary I think had as much to do with the success of the book as the very, very long review we ran by a great critic Paul Berman. Not to say it wasn’t an excellent essay … it was … we were very proud to publish it. But it was that other attention that other voices were bringing to it that accounted …that helped account for the extraordinary success of that novel.

So, all that is to the good, but, of course, we still want to have our Book Review. I have a proprietary interest in it. I want it to keep going. And so far the signs are, are pretty good. We’re actually getting …. some more support from publishers than we were … oh, say … in 2009 and 2010 … particularly because there’s been some recovery in the economy and also the … what e-books have done.

This is one of the, the great paradoxes of, of journalism, of books and I suppose … of business … is that because e-book sales are rising so dramatically …

HEFFNER: Yeah.

TANENHAUS: … the publishers are chasing that opportunity. And what … that is to say … if that’s how they can sell the books, then they’re going to publish them simultaneously with the hardcover books and also rather than follow the conventional procedure whereby the hardcover book came out in January and then the next January, the paperback came out … or September to September instead of waiting … you waited a year … that’s when you introduced the new version.

Now, the publishers tend to make them available in different formats, as they say, or platforms … simultaneously.

HEFFNER: What do you think of the economics of that?

TANENHAUS: Well, here’s what’s happened for us. Is it … means if you’re a publisher whose got a big new book … one that you and I are both interested in … Robert Caro’s The Passage of Power … right … the fourth volume of his enormous epic about the life of Lyndon Johnson.

Well, if you’re a publisher you just want to know … you want readers to know … this book is available however you want to read it. That’s the change that’s happened.

So … e-book form or hardcover form … so how do you get the word out? You take out an ad in the New York Times. You take out an ad in the newspaper.

So, we, we found the ironic consequence of the, the rise of e-books and of digital reading is that it’s brought more attention back to what we do because we still remain the place … not the only one … but one place where many readers go to get the news about a new book that’s coming out. So all of that has been to the good as far as we’re concerned.

HEFFNER: And you think … or let me put it in another way, I’m not going to ask you “do you think that” … what happens to the old line publishing? Its standards, its fact checking … its copy editing … all that in this new world. What have you observed?

TANENHAUS: Well, Dick, you’ve written a book or two … there was never a whole lot of fact checking going on in publishing houses.

HEFFNER: Let’s move then from fact checking …

TANENHAUS: (Laughter)

HEFFNER: … to the …

TANENHAUS: … to the editing …

HEFFNER: … the copy editing.

TANENHAUS: Well, years ago editors … you know the really distinguished book editors became … who actually poured over the manuscript …

HEFFNER: Right.

TANENHAUS: … the way my great editor, now retired … Bob Loomis did … went through it with a pencil. Those, those numbers began shrinking a while ago. Because the emphasis shifted to acquisition … your job as an editor was to buy as many promising books as you could.

And that meant also higher volume of books published and so more of the editing … the actual editing became in the alarming term “out sourced” to free lancers. Now some of the free lancers are really good. But it does mean … it does create a different relationship when you, as I have a strong feeling you will … talk to your great friend Robert Caro, who’s really a giant in our profession and he describes as his books were edited. How he and Robert Gottlieb his great editor would, really, almost come to blows over the choice between, you know, a semi-colon and a dash.

And if the editor and the author, two enormously distinguished figures in publishing … fighting it out at that level … you know, the micro level of publishing … no we’re not seeing so much of that. Now did we ever see a lot of it? No. But there was more of it, much more of it than we see now. And yes that’s a concern.

I … another thing I worry about is … in additional to books, is magazine editing. The New Yorker, for instance, has enormously skilled, experienced editors who’ve mastered their craft over many, many years … and to work with them, as I did on one occasion, partly just to see what it was like … is to be, you know, powerfully impressed by the range of skills and the seriousness they bring to it. Two people are fact checking it simultaneously … a copy editor is going over it, you’re working with the editor, in this case the great Henry Finder who’s their books editor and everybody’s communicating with everyone else, without any confusion … that’s a kind of institutional expertise that the Internet certainly does not encourage and that very hard driving, bottom line economics don’t encourage. Because all that stuff costs a lot of money to keep all those people on staff … the man or woman hours …the labor that goes into it and all the rest. Yeah, we’re losing a lot of that.

HEFFNER: And the pride in that … makes me think that pride does go-eth before the bottom line falls.

TANENHAUS: Could be.

HEFFNER: And I, I just … we’re at the end of the program … but I, I was thinking of Sam Vaughan, the late Sam Vaughan and a discussion he and I had here 100 years ago …

TANENHAUS: I knew Sam Vaughan.

HEFFNER: … about fact checking and what an important thing it was that the publisher takes responsibility. It was his book.

TANENHAUS: Right.

HEFFNER: Sam Tanenhaus, you’re just great to come here with me … and I hope that … well, I know you’re going to come back soon to talk about politics and thank you for joining me today.

TANENHAUS: Oh, it’s always great, Dick.

HEFFNER: Thanks. And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as another old friend used to say, “Good night and good luck.”

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.

GUEST: John Tirman
TITLE: The Deaths of Others
VTR: 05/05/2012

I’m Richard Heffner, your host on The Open Mind.

And my guest today is John Tirman, Executive Director of the Center for International Studies at the Massachusetts Institute of Technology, and the author of a recent Oxford University Press volume, The Deaths of Others: The Fate of Civilians in America’s Wars.

Now, drawing from his study of Americans’ historic indifference to body counts other than of our own, earlier this year Mr. Tirman had an opinion piece in The New York Times titled, “The Forgotten Wages of War”.

A few days later a Times Sunday Dialogue on “Do We Live in a Less Deadly Time, or Not?”, presented Robert Jay Lifton’s compelling critique of Steven Pinker’s new book NOT ironically titled The Better Angels of Our Nature, which insists that “violence has long been declining and that this may be our most peaceful era in our species’ existence”.

To begin, then, I would ask my guest if he believes there is as much of a disconnect as I perceive between the thrust of his book on The Deaths of Others and Steven Pinker’s thesis concerning The Better Angels of Our Nature. What do you think?

TIRMAN: That’s a good question. I think that the two are not incompatible. That is that the idea that we are witnessing, as I document, large scale civilian casualties in America’s wars. The wars that I covered mainly were Korea, Vietnam, Iraq and Afghanistan. And Pinker’s discussion of declining violence … because if you look at history and the breath of history that he does, one could easily hold that overall in a world’s population of 6 billion now … that the number of deaths by violence is much smaller than it was in a world of 1 billion in the 19th century or so. Or even earlier.

So I don’t think the two ideas are incompatible. But I do insist, I guess, that we are still witnessing wars … America’s wars are what I cover … but of course there are others as well. Those in the Congo, for example, which have been particularly deadly in the last decade or so, in which you’ve seen hundreds of thousands, if not millions of people being killed.

HEFFNER: Well, I was interested in what the reaction must have been to your writing, to your concerns about others …

TIRMAN: Right. Well, of course, one of my principal assertions here and I think a fairly original one is that the American public is essentially indifferent to this high mortality in America’s wars … the, the deaths of people who live in the war zones, not the deaths of American soldiers.

HEFFNER: You say … “indifferent”. You mean “unknowing”, or both?

TIRMAN: It’s a little bit of both. I think there’s enough news coverage of these major conflicts, Iraq, Vietnam, etc. that, that the American public is certainly aware that there’s a major war going and there’s a lot of violence. And I think it’s partly because of the scale of violence that they turn away from it and don’t want to psychologically deal with it.

So it’s not unknowing … they may not know the details, they may not know the extent of civilian versus military deaths, for example. But they certainly are exposed to enough news and analysis that that’s not really an excuse for not knowing or for indifference.

It’s indifference that is, that’s a kind of a psychological defense, if you will, against a, a mission that’s gone very wrong.

HEFFNER: What do you mean?

TIRMAN: Well, we go into each one these wars … if you look at Korea, Vietnam, Iraq and Afghanistan … and there are other examples, too, the Philippine’s War at the end of the 19th century, for example … there are high expectations about what we’re doing … about the morality of the mission, the necessity of the mission, the, the … you know, the expansion of American Empire for some … for others a kind of a “rally ‘round the flag” sentiment.

And then in each of those four post-1945 wars there was a pretty quick subsiding of the bubble of enthusiasm. And in … for example, in Iraq, it came after about a year or two if you look at the opinion polls, the people very suddenly got turned off to the war, believing it was a mistake and not paying a great deal of attention to it.

We have less public opinion information about the earlier wars, but there was a very similar pattern … for Vietnam it took a little longer for the public to turn against it. Korea, of course, is known as a “forgotten war” and it’s known as a forgotten war, I think, because people purposefully wanted to turn away from it and not deal with it after about a year, after the retreat from the Yalu.

And each of these wars has this pattern. And it’s partly the, the war itself has gone badly, and that’s one explanation. But it’s also the scale of carnage, I believe, the, the size of, of the emiseration, if you will, of the local populations, the scale of mortality … all due, in fact, to America’s actions. Of course, there were others involved, too, who are also responsible. But largely due to America’s actions. And people don’t really want to, to come to terms with this psychologically.

HEFFNER: You mean the “others” body counts due to Americans’ actions?

TIRMAN: Well, I mean that the … in Korea, for example, the Chinese, the North Koreans obviously were responsible for a lot of killing. It’s not just the United States, obviously that is, that is involved in, in the war in that way.

But in … certainly in Vietnam and in Iraq and Afghanistan these were largely wars of choice for the United States. We didn’t start the Vietnam War, but we certainly escalated it. We did start the Iraq War and we did start the war in Afghanistan, although with some provocations. Nonetheless we were the first ones in.

So we are, you know, we’re responsible … it’s the Pottery Barn rule, that Colin Powell talked about … if you break it, you own it. And we did break these societies to a significant extent. But we haven’t really psychologically come to own them.

HEFFNER: You … before, I think you were saying that your feeling is that we are aware of it as a people, or we have been aware of the dimensions of the body counts. Do you really feel strongly about that because my sense is that we are … awareness is a strange thing. If you were to ask someone where there so many civilians killed or so many more … they might come up with the right answer, but I mean aware.

TIRMAN: Well, in fact … of the civilian casualties Americans have not been very aware of the scale.

HEFFNER: And isn’t that what you’re writing about?

TIRMAN: Yeah. I spent a good deal of time talking about what happens to the civilians in each of these wars, I give a history of each war. And part of that history is about what happens to the local people. And this is what we don’t get, generally, in most accounts. It’s certainly not in popular culture and it’s not much in the popular mind even at the time of the war.

So, in Vietnam, for example, we still don’t know how many people died, but it was probably at least 2 million people … that would include fighters, not just civilians, very hard to separate the two when you’re doing these kinds of calculations.

In Iraq I believe the number is probably close to a million … between a half a million and a million. And this number has been very controversial … not my estimation, but the estimations of some that I’ve been associated with like the Johns Hopkins scientists that did a household survey in 2006 and estimated from that, that there were 650,000 people who had died … Iraqis who had died to that point in the war.

This is … this is a very controversial topic among people who follow it closely. And I think that the reason that it’s controversial is, again, because most people don’t want to, to come to terms with the scale of mayhem that has been begun there.

Many Iraqis … you talk to Iraqis … Iraqi journalists and others … will not deny that they think it’s well into the hundreds of thousands. The popular … the conventional wisdom in the United States, which you hear in the news media all the time is 100,000 civilians died in Iraq. I think that number is low by a factor of at least five.

HEFFNER: How do you trace the history of Americans’ concern for, or lack of concern for civilian deaths?

TIRMAN: Well, it’s a good question. Measuring indifference is a very difficult thing to do unless you are able to do a lot of survey research, which is, of course, expensive to do.

I think it’s interesting that the, the question about civilian casualties in Iraq has hardly ever been asked by pollsters.

There’s very little representation of civilians in, in our popular culture, in novels and films and so on. Where we have some polling data, it tends to reinforce this idea that Americans don’t really care very much.

So, for example … just one example. There was a poll, an AP poll in 2007 … war’s been going on for a while … asking how many American soldiers have died. And the, the median answer was very close to the actual number at that time, about 3,000. And then they asked how many Iraqi civilians had died. And the median answer was, I think, 9,800 at a time when, I believe, it was well into the hundreds of thousands and there’d been a lot of publicity about the, the earlier mortality studies.

I think that … there … the little indications of that in the polling data … I asked a research librarian at Yaddo where I spent part of one summer to write this book … and I asked her “Could you use your network of research librarians to find accounts of Vietnamese” … I was writing a chapter on Vietnam at that point … of Vietnamese voices about the war … just accounts by the Vietnamese of what happened to them during the war.

And she sent out this bulletin to research librarians all over the world and in English there was virtually nothing. There was virtually nothing about … from the Vietnamese … about what happened in this very important event. A long war in which there was tremendous destruction.

So, you know, that’s just another little indicator that there’s so little that we know how these people lived through a war … what are they thinking, why do they leave? In Iraq there are five million people who are displaced by the war, why did they, why did they leave their homes? We don’t know. We don’t know the answers. And I think that’s another sign of indifference.

HEFFNER: Question. I don’t even know how quite to put it, because as I’m about to phrase it, I think “That’s a damn stupid question, Heffner”, but … do you think it would make terribly much difference if we did know the counts … if the body counts had been made of civilians in these various wars as well as our own?

TIRMAN: Well, I think it’s a very good question actually. And it’s one that I do try to come to terms with a little bit … it’s speculative.

My argument runs as follows … I think that there is a difference between believing that 100,000 people died in Iraq and a million people died in Iraq. I think most Americans would acknowledge that difference and be much more horrified by the larger figure.

And how it makes a difference is not about Iraq, which after all, is now finished for Americans, but the next war. In fact I have read some, some comments by, mostly conservative politicians and blogs and things like that, saying “Oh, well we got rid of Saddam and only 100,000 people died.” So it was a victory, we should declare this a victory, not be ashamed of what we did in Iraq.

And what worries me is … not to necessarily engage that argument, but the next war. There will be a call for a next war … there is a call for a next war, in Iran and possibly other places … Korea. And if we’re not mindful of the destruction of the last war, not only the million, perhaps who died … 5,000,000 displaced, but the virtual destruction of, of the society, then it’s much easier to say, “Yeah, let’s, let’s go bomb Teheran”. And I think that’s the real danger. That, that’s the risk of not coming to terms with what really happened in Iraq.

HEFFNER: It’s strange. I find, you’ll forgive me … myself so unconvinced by that point of view or of that point of view. But then your point is certainly well made that we didn’t know. Well, at least I think that you would concede that really the press did not emphasize the nature of civilian casualties. Those who are the “others”, they don’t really count, do they?

TIRMAN: Well, that’s part of it … is that we’re … you know, it’s not a coincidence that these wars that I’m talking about are all taking place in Asia and we’ve tended to have dismissive attitudes very often about these particular “others”.

But I am … I, I think that there are very dimensions to this that need more exploring. I think that what I’ve tried to do in this book, is really start an argument. Let’s pay attention to these civilians. Let’s pay attention to what really happens on the ground with these wars. And then let’s, let’s, let’s tease out what the implications of this are. Not only for our own souls, so to speak, but also for what American policy should be in these situations.

HEFFNER: But, but let’s broaden the horizon here. We certainly know that the question of civilian damage in the Second World War was very important. How do you account for what we did there? Participating in the Dresden bombings …

TIRMAN: Well, the …

HEFFNER: Hiroshima …

TIRMAN: Right.

HEFFNER: Nagasaki.

TIRMAN: I had a short chapter on strategic …

HEFFNER: MmmHmm.

TIRMAN: … bombing. In part because it was very important as a precursor to the Korean War … it was a great deal of bombing … most of the casualties in Korea were really from the strategic bombing carried out by the US Air Force.

The, the bombing in Germany and Japan was called “terror” bombing by Roosevelt and Churchill when they met at Casablanca in 1943, they endorsed this policy of essentially terrorizing, demoralizing the civilian population in the belief that this would help end the war more quickly … also going after steel plants and other infrastructure. That’s what strategic bombing was and there were 60 cities in Germany and 60 cities in Japan.

The Japanese bombing took place later because we were close enough until 1944 to start that bombing. 1943 in Germany. The results were, were pretty horrific … you remember Tokyo .. the bombing of Tokyo …

HEFFNER: MmmHmm.

TIRMAN: 180,000 people killed in one night in the fire bombing. Fire bombing. Napalm in Tokyo. So, yeah, we have some experience with this before, with a popular war. In a war in which this was considered necessary and, of course, the nuclear … the atomic attacks as well.

HEFFNER: Doesn’t that mean, though, I’m sorry to interrupt you, but doesn’t that mean that from that point on our concern is not going to be with “others” body counts.

TIRMAN: I don’t disagree with that. I don’t disagree with that. I’m not … I’m not arguing that there … that, that somehow we’ve misplaced our, our moral compass, to use a common term.

I’m arguing that perhaps we never had that moral compass as far as “the others” are concerned. And this is something we should, we should discuss. We should come to terms with. Now, I’m not sure that we’re any worse than any other major power … this is a question that’s often asked of France, Britain, the Soviets, whomever. But I’m an American and this is what I want to talk about.

HEFFNER: Would you entertain the notion that in a sense the opposite is true. It is, or had been so difficult for us to go to war. That once in war, we do everything to bring it to a rapid … as rapid as possible and successful conclusion.

TIRMAN: There’s certainly circumstances in which a doctrine of annihilation, which was really the US military’s doctrine in, in the Second World War might make sense. I mean I’m not going to argue against that especially when facing Hitler or Tojo.

But what my concern is about is … really these, these latter wars in which they were considered to be limited wars on the one hand, fought under somewhat, at least debatable, contestable rationales … right.

I mean going into Vietnam under the Gulf of Tonkin resolution … certainly going into Iraq … the hot pursuit of Bin Laden in Afghanistan … all of these really had problems with the rationale of the war.

So the morality of a doctrine of annihilation is suspect because of the causes of the war to begin with. And then how the wars are actually conducted and what we say we’re doing versus what we’re actually doing. There, there was very much a disconnect … as we’ve seen in this Haditha massacre decision that came down recently.

You know 24 civilians killed, innocent civilians … nobody claimed that they were insurgents after the fact. The Marines lied about it until an enterprising reporter uncovered it. And then basically everybody gets off … the, the ones that were prosecuted.

That seems to me to be emblematic of, of what happened more broadly in the war … that is that we simply won’t take responsibility for the destruction that we’re wrecking on those societies.

HEFFNER: War is hell. We’ve heard that before. How much do you need to hold on to that notion? You go to war … you’re in hell … seriously. Not distinguishing between this human being and that human being … this human being is a civilian … this is a soldier … war is hell … we’re destroying life.

TIRMAN: Right.

HEFFNER: Isn’t there something “off-putting” a bit about distinguishing in this way?

TIRMAN: Well, we’ve traditionally tried to distinguish and this is deep in, you know, sort of the Judeo-Christian ethic … but I, I don’t think that the question is simply that war is hell and we need to accept everything that comes with that. The man who said “War is hell” which was General William Tecumseh Sherman … also …

HEFFNER: Made it hell.

TIRMAN: (Laugh) He did make it hell. He also said, that civilian casualties and the destruction of war is … what he called the epistemology of war … it’s a way of knowing what war is. And I use that phrase …

HEFFNER: Yes, you do …

TIRMAN: … and I think it really encapsulates in some ways what I’m after here. Because we need to have a system of knowledge about war … that’s what an epistemology is … a system of knowledge … we need to know more about what we’re doing in these places.

One of the reasons is … even if you look at it from the standpoint of the war makers and this was part of what my New York Times piece was about is that if the military doesn’t really appreciate what is happening on the ground … forget for a moment their moral culpability about civilians … they just don’t know how many civilians are dying, for example, or why people are moving out of the area in large numbers … they’re not going to be able to fight the war efficiently.

Many, many, many people who have been captured in Iraq, in Afghanistan … treated more or less as terrorists or insurgents, say that they’re defending their communities … that’s what they think they’re doing.

And what does that tell us about how we’re conducting the war. These kinds of questions aren’t really being asked.

I think they are being asked, actually, inside the military, but it’s not a part of a public discourse that I think we have to have.

HEFFNER: You suggest that it is being conducted inside the military.

TIRMAN: Well, certainly Petraeus came …

HEFFNER: Yeah.

TIRMAN: … came to this realization that we were creating more enemies than we were killing because, because of the way we’re conducting the war … too harsh, too many house to house searches that didn’t honor people’s privacy and, and so on … their customs. Too many detentions. The Abu Ghraib … not just Abu Ghraib … but lots of other things. A long list of things that we didn’t do well. And that that was creating more, more resistance inside Iraq and I think the same could be said of Afghanistan.

Petraeus, and others realize this. I don’t think they had a particularly good answer for it because you need a huge number of troops, very well trained to be able to carry out counter-insurgency the way that it’s designed, in theory.

But I think they did recognize this phenomenon … what was going on and that’s part of what my concern is frankly.

I mean I’m not a pacifist … I think wars sometimes are necessary. And … but you need to conduct them in ways that are not only … that not only honor the rules of war, but also is efficient from every standpoint. And that includes treating civilians well.

HEFFNER: Efficient death?

TIRMAN: Well, hmmm … this is, this is getting down in the weeds and I’m not quite sure if it’s easily answered, but I think that the attitudes going in … you look at the training, you look at the attitudes of the troops who do not have, what I would call, enlightened beliefs about civilians … a lot to them believe civilians were all terrorists in Iraq … as a country we’re supposedly liberating. Many of them did not know about the Geneva Conventions and so on. These things we could improve upon that, at least. There’s some baby steps we could take that would improve the situation.

HEFFNER: Well, one major step is for people to read The Deaths of Others: The Fate of Civilians in America’s Wars … and John Tirman thank you for joining me today.

TIRMAN: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.

GUEST: Dr. Peter B. Bach
AIR DATE: 04/21/2012
VTR: 01/26/2012

I’m Richard Heffner, your host on The Open Mind.

And this is the second of two programs dealing with what perhaps we should call the “marketplace” of American medical practice.

Once again my guest is Dr. Peter Bach, Director of the Center for Health Policy and Outcomes at Memorial Sloan-Kettering Cancer Center here in New York. Dr. Bach has written frequent opinion pieces for The New York Times and the Wall Street Journal, valuing as he does ever more extensive communication between the medical profession and the lay public.

Last time my guest used a phrase many of us have only recently begun to hear: “Hospitalist”. He is one, and I’d like him not only to define again this new medical specialty…but also to define the implications of its existence for our traditional doctor-patient relationship. Fair question?

BACH: Absolutely. And thank you again for having me. One minor clarification. I’ll define “hospitalist” and explain why I’m not one, if you will …

HEFFNER: Okay.

BACH: But … the, the … there has been a shift, if you will in the work force structure in healthcare. And this … with relation to “hospitalists” this shift is that, if you will … in ancient times, let’s say … five years ago or more … traditionally doctors followed their patients into the hospital. So the same doctor you saw regularly when you were relatively healthy, when you became sick would … that same doctor would take care of you in the hospital. They would make rounds in the morning, they would check on you, they would talk to the … usually physicians in training in the hospital or other their staff and they would go back to their offices and take care of their other patients, who were out-patients.

HEFFNER: Who was in charge of the patient care at that time?

BACH: Well, at that time … usually it was your regular doctor, if you will … the one who you saw on the outside. Those doctors had privileges in the hospital where they admitted you. And even though there may be other doctors in the hospital that you would see, usually your attending physician or your physician of record was your, if you will, your regular doctor.

There’s been a shift … rather rapid … that patients who are being admitted now to the hospital and there’s a specialized doctor who works within the hospital, who then takes over the responsibility of your care. A doctor many of us refer to as “hospitalists”.

And those doctors are typically employed by the hospital and they work on a salary and their expertise is essentially taking care of people who are quite a bit sicker than patients who are out-patients. They understand the system within the hospital better, they’re usually better networked within the hospital, they’re familiar with … the sort of intricacies and also, idiosyncrasies of the particular hospital where they’re employed. And they take care of the patient until the time comes to discharge them back to the … their out-patient setting and then care is transferred back to the patient’s doctor.

I’m not a hospitalist, although I exclusively see patients in a hospital. That’s an artifact of my specialty, I’m a pulmonologist … and I happen to only serve one pulmonary function, which is … I see patients who are sick enough to be in the hospital, who also have a pulmonary problem. But I could be taking care of patients on the outside if, if my … if, well, my life were structured differently.

HEFFNER: Okay, let’s go back to the hospitalist, himself or herself. And indeed, is it mostly “herselves” these days?

BACH: It’s a good question. I don’t know the ratio, but it’s probably fairly close to fifty/fifty. The, the hospitalist … the emergence of hospitalist is interesting for a number of reasons.

One, and we talked this, I think, last week, was that it’s evidenced that there are doctors coming into the work force who are ready, more so, to do shift work … to be employed, to get regular old salaries and W-2 statements.

And are less, if you will, entrepreneurial. And in exchange for that they get … you know, a stable work environment … they get regular benefits and they get an ability to have a flexible schedule.

And those are all things that are desirable, I think, to people who are coming into the work force now, more today than, you know, even a few years ago.

HEFFNER: Why?

BACH: There, there can be any number of explanations. One is that going into the sort of entrepreneurial practice of medicine has become a lot less attractive, or in basic terms become a lot less lucrative.

So, you know, the willingness that people have to, kind of hang out a shingle and take all that risk and do all that extra work and all of a sudden become experts in running offices and the rest of it, is diminished because the returns are, are lower.

It could be that administrative complexity has also risen, making those sorts of activities even more challenging. But it also could be that, you know, we have a new breed of people entering the medical profession, who want to work in sort of team structures and have a different work/life balance and, you know, are more accepting of an idea that, like most people in America they can be employed by a larger entity and work in a collective way.

HEFFNER: Now, just between the two of us …

BACH: Yes …

HEFFNER: Am I better off …

BACH: … you’re not saying much about the size of your viewership …

HEFFNER: (Laugh)

BACH: … but okay …

HEFFNER: … am I better off, as a patient … if it is true that the entrepreneurial aspect of the practice of medicine is perhaps diminished or being diminished these days …

BACH: I … nobody knows. It is … it has become in recent years a sort of … a calling card of healthcare reform that we should get doctors on to a different financial incentive structure. For example, salaries or things that start to look more like salaries. All based on the premise that if, if I’m receiving a salary, I’m less likely to do additional services that are not beneficial or are potentially harmful … ah, purely for the profit of doing so.

That makes basic economic sense. There’s some evidence that such things occur more often when doctors have a financial benefit of doing more things. But we’re not … it’s not clear, really, if you took the current workforce and shifted them from these sort of financial incentives to a salary structure if they would actually, if you will, behave better, differently, or in a way that serves your health better. We don’t really know.

HEFFNER: Let me ask whether I’m … you think that I’m correct in my assumption that most people, patients, are as innocent or as unknowing or as plain dumb as I am when one begins to talk about hospitalists and the shift in the nature of medical practice.

BACH: I, I don’t think most people, even educated people, even some policy analysts understand … or have a good insight into the complexity of how medical care is either delivered or financed. Or in this case … staffed.

It, it’s … you know, we’re talking about three-quarters of a million practicing physicians in this … in the United States … ah, I think somewhat more nurses than that. Talking about 17%, 15% of the US economy … something … it’s a very large, complex thing and it wouldn’t surprise me at all that most people don’t know about hospitalists and sort of one slice of how we manage or how we’re starting to manage patients who become sick and have to go in the hospital.

HEFFNER: But what an incredibly important slice … that is.

BACH: Perhaps. You know, the, the data that we have … it’s not fully consistent … the data we have suggests that the hospitalists have not harmed care quality and if anything, maybe outcomes are slightly better.

And they have led to, because, if you will, they understand the nuances or idiosyncrasies of where they practice … they are able to achieve shorter lengths of stay with the same kind of outcome, just, you know, save a half day here or there because they’re preparing or they’re a little bit more up to speed on something to do.

You have to realize that it’s … the fact that we have more hospitalists may not be … not have been driven by more people being willing to go into it, if you will. But rather a shift in how much care is provided in the out-patient side compared to the in-patient side.

It used to be, if you will, that a lot of care was provided inside the hospital to patients who are, if you will, moderately … as well as very ill …

We have increasingly moved the patients who are moderately ill, if you will, back to the out-patient setting … keeping people from having to go in the hospital. That’s a good thing.

The consequence for your doctor, however, is that … in the old day they might say … for arguments sake … have on any particular day three or four patients in the hospital. Making the trip to the hospital, if you will, worth it … worth their time … and just, you know, making their relationship with the hospital more consistent.

And maybe nowadays they have one potential patient in the hospital. And then you sort of start to wonder, like … “Do it make sense for them to go all the way to the hospital”? You know we live in New York City, but, you know, for many, many cases … it’s … we’re talking about across the street.

But in most of the US, it’s not across the street, it involves a car ride, it involves parking your car … ride 20 minutes, 30 minutes each way. And if you only have one patient in the hospital, it starts to make less sense.

HEFFNER: But doesn’t it, and I’m asking you, again, as an innocent … although I think I told you before that my grand old physician years ago, Mack Lipkin, had said when he was about to retire … said, “Dick stay out of the hospital because they’re getting to (and I guess he was describing what you’ve just described) …

BACH: MmmHmm.

HEFFNER: … the hospitalist … getting to the point where I or my counterpart cannot be in charge of your care, but somebody you don’t know and I don’t know, will be so.”

What about the impact upon the patient’s sense of dependence upon the doctor he sees a few times a year … he depends upon … his family sees the same person. What about that personal connection?

BACH: Well, let me answer that a couple of ways. The first is there’s no empiric data. I don’t mean to act all scientist or anything. But, we don’t know. I don’t think it’s been carefully measured about those effects.

Another answer is … you know, of the important parameters, of course, everyone should care deeply about patient satisfaction and experience of care.

But you know we have a health care system that is bloated and costly and actually doesn’t provide as high quality care as it could or as other countries do, which are similar.

So, you know, my top priority, if you will is not the patient’s experience with care … care about it … it’s those other things. You know, actually making sure that they get the best care that we can get to them.

The next is that … it sounds like you, you had a … you have, you know, a tight relationship with your doctor. But, the data don’t suggest that that’s the experience of most patients at all.

That, you know, this notion of that, you know, each individual has for a doctor a sort of Marcus Welby idea … “Moonlight” Graham if you want to think of Field of Dreams since you’re a movie fan.

Ah, that most people don’t. You know, doctors and we talked about this last week … patients and doctors sort of bounce around in this way that was unexpected before a number of analyses, including one I was involved in, showed that there is no such bond for most patients.

And that, that reality is important to sort of work around. And if it’s chaos on the outside, if you will … then actually having consistency (laugh) within the hospital is something we should find desirable.

HEFFNER: Tell me more about that because you’re right. I, I think of Richard Cohen, my internist now and I can’t imagine doing without him or not being able to have him guide my medical destinies. As I had with Mack Lipkin years before. Is this not typical? Are you suggesting that …

BACH: No, by definition it’s, it’s … it’s highly atypical. Right. The average patient in Medicare … you know our work and other people … some of the government groups that analyze Medicare data have shown the average patient in Medicare sees about seven different doctors a year and 20% or 30% of those patients turn over to different groups of doctors each year … those doctors don’t necessarily work together and as patients develop more and more conditions … they actually see more doctors and the variation between the doctors they see rises.

And so it is, it is the antithesis of what you would want if, if you believe that, you know, an individual doctor who gets to know you well is sort of the path to both the satisfaction and high quality care. We don’t have that. We have the opposite.

HEFFNER: Let, let me ask you a question. I don’t think it’s an unfair one … you can yell “Foul” … do you think that’s a more desirable relationship to have … a patient with his physician with his physician … because at times you’re a patient.

BACH: I’d … I think … oh, sure … you mean as opposed to bouncing around randomly to doctors who don’t know you?

HEFFNER: No. No, no. As opposed to being at the tender mercy of a hospitalist?

BACH: Oh … if I had my druthers, I actually think I, I … a seamless interface, if you will, or path of communication between out-patient doctor and one who’s expert in in-patient care is probably preferable to having doctors on the outside following patients into the hospital.

The, the … so I think we probably disagree because I get the sense that you think the opposite.

HEFFNER: I feel the opposite when I think …

BACH: Yeah.

HEFFNER: … I have to pay respect to your … you’re a researcher, you’re a digger … you’re looking for numbers, you’re looking for facts. And I have only my feelings to depend upon.

BACH: But I’m facing, you know, fewer facts than I would like to have to assert, you know, a certainty … one …

HEFFNER: But we’re going ahead. You say you’re facing … you must mean the profession …

BACH: Right.

HEFFNER: … is facing …

BACH: The profession, the field … exactly.

HEFFNER: … okay, but we’re going ahead, nevertheless.

BACH: So …

HEFFNER: For economic reasons?

BACH: Not the first time. Ah, the … I mean for some of the reasons I described … right … that …

HEFFNER: Okay.

BACH: … fewer patients in the hospital per doctor … rising population of doctors who want to do this kind of work … the desire for the hospital to control the physicians … and have them, if you will, report up to the hospital because they’re using the hospital’s resources … right …

HEFFNER: Now wait a minute, wait a minute … let, let’s, let’s develop that a bit. Please expand upon the desire of the hospitals to control the physicians.

BACH: Ah … well …

HEFFNER: You said it, I didn’t.

BACH: Yeah, yeah … of course. No, it’s … it, it’s if you want another aspect of medical care that most people fail to grasp or perceive because it’s sort of hidden … but the, the current construct is the hospital, if you will, is, is a physical building, right that’s staffed and its got things like beds.

But the people who use the resources of the hospital … I mean the patients, of course … but people who direct the use of resources in the hospital … like which patient has to be in which bed … what happens within that bed … what the nurse provides them when they go have an x-ray or an operation, something like that … are doctors who … in most places in the US don’t have a … don’t, if you will, report up to the hospital. They have complex relationships with the hospital.

The hospital makes money as a result of the doctor’s providing their services within them. But, you know, the use of beds, the use of these other things is a bit of a push/pull there.

So, an alternative model and I happen to be a salaried physician employed by a hospital working at Sloan Kettering, but an alternative model is exactly that.

I essentially report up to the hospital. My use of the hospital resources on behalf of my patients … something I’m accountable to at the level of the hospital.

And so it allows … if you will, for everyone’s interests and goals to be better aligned. It’s really important in areas like quality improvement and patient safety, infection control. Those are one family of things that hospitals and doctors who work for those hospitals can kind of worry about and work on together in a team way.

But other areas it’s also important to in terms of homogenizing patient care following evidence based medicine. Migrating patients and doctors, if you will, to ever newer versions of electronic health records and things like that.

Having everyone employed makes it start to look like any other industry, where, you know, the place where the things are built, hires the people who are doing the building inside.

HEFFNER: You’re not saying this, I gather, with a sigh. You’re not saying “This is the way it is … ay de mi’.

BACH: I, you know, I … I’m a policy analyst. I … some of what I’m …

HEFFNER: All the more reason for me to ask you.

BACH: No. But, I mean, some of it … is just sort of statement of fact … this is what’s happening.

I think there’s a strong belief that this is a structure that’s going to be better for patients and better for an evolving healthcare landscape. For example, I mentioned electronic health records.

HEFFNER: Right.

BACH: The … for sure the healthcare reform law contemplates versions of this better integration … the accountable care organization concept is based on … not necessarily restructuring the financial relationships between physicians and hospitals … it doesn’t require hospitals to hire their own doctors, if you will.

But it does contemplate a, a financial tie between those two that’s much more linked to … if you will, there ability to collectively provide care at a lower cost and of higher quality. So that, you know, obviously suggests some sort of coordination and rowing in the same direction.

HEFFNER: You mentioned several times, this week and last week, electronic record-keeping, etc. You feel this is very important part of the whole development.

BACH: I do. I don’t think anyone in their right mind would imagine that a highly functioning healthcare system wouldn’t have an electronic background. We don’t have it now. Getting there will be hard. The software that’s available, the records that are available are not up to the task. The competition between vendors has caused all sorts of … I think … unanticipated problems … such as vendors locking records in a structure that can’t then be read by some other vendor’s software. Which we’ve obviously seen in other areas in the software industry.

But I can’t image that we can get to where we want to without having, you know … it all being based on electronic … for exchange of ideas and, and data. We’re nowhere close to that right now.

HEFFNER: What about time lag in terms of age of physician in this … if we’re going to have a no-man’s land in which physicians between the ages of 50 and 70 right now are not really going to be able to function terribly well …

BACH: You mean in an electronic age?

HEFFNER: Yeah. If we had what you think we need to have …

BACH: Yeah. I don’t know. I mean we certainly see at our hospital that the doctors, you know, are able to adopt … you know we’re fully electronic and our doctors who span decades in age … have been able to adopt the systems, that, you know, we’ve, we’ve integrated into all aspects of care.

So, you know, obviously, it’s traditional to assume that old fogies can’t run computers. But, ah … you know, I don’t think we’ve necessarily seen that. It certainly could be the case that younger people … I know in my office … I’m always … I always call young people when I can’t figure out something in Microsoft Excel or something … so … it’s ah … there’s some generational affect, but hopefully the tools are developed by people in ways that can be adopted by anyone.

HEFFNER: I suppose it’s a sidebar issue, but does the matter of privacy enter into this consideration, this important consideration of electronic records?

BACH: I think it’s everyone’s top priority.

HEFFNER: Really?

BACH: Yes. Because … ah … you know the old expression that, you know, humans can mess things up, but it takes a computer to create a real disaster … is … it bears heavily on … weighs heavily on people.

So the issues of privacy are important. Right now there are really quite a few, not only safeguards or regulations in place, that I think would mostly … at least strongly discourage people from being sloppy.

That’s doesn’t mean that … ah … things couldn’t happen. But I’m not aware of any important privacy breaches every happened in healthcare as a result of the advent of the electronic health records. And hopefully our systems are up to snuff.

That said you, you never want to create any system where you absolutely require yourself to drive … drive some parameter to zero. Because it creates such constraints on everything else. So, I think the truth is … and I could never be a politician because you can’t say things like this, but the truth is that if we obsess to the point of not tolerating any errors or leaks in privacy … we’ll never get anywhere.

That doesn’t mean we should just be free form about it, or willy-nilly, but I think the reality is, you know, we need to figure out ways to enforce the systems, there will be mistakes.

HEFFNER: Where? How?

BACH: Don’t know.

HEFFNER: You must anticipate something.

BACH: Oh, I don’t … no hardly. No, I just … I know the reality is that, you know, as we …

HEFFNER: Murphy’s law … if something can go wrong, it will. Simple as that.

BACH: I think it’s probably more the law of increasingly complex systems operating in systems that aren’t designed to accommodate them, is the problem. And I think this is why we see the kinds of mistakes that periodically get made.

But I’m making a much more basic, if you will, philosophical point that, you know, it’s … we can’t move forward if we cannot tolerate mistakes, because right now there’s estimates to suggest there’s 100,000 deaths a year do to patient safety errors. And every reason to believe that an electronic health record and system would drive that number down sizably. How many of those deaths would we have to avoid to tolerate a leak … a privacy violation. I think, you know, probably not that many. You know because those lives matter a great deal.

HEFFNER: Let me ask you a very different area of question and we only have four or five minutes left. About the young people who are thinking or who might have been thinking about medicine. What are the words of advice and I raise the question because so many of my friends who are doctors tell me … they tell their children, “don’t go into medicine”.

BACH: Yeah, it’s interesting. I, I have a young child … and we’re still working on whether he’s going to be a professional soccer player or a fireman. But I … it’s a tremendous profession … it’s tremendously rewarding, I wouldn’t trade it for anything. You know, like I said, the old days of medicine with the doctors having the houses on the water are gone. The, those houses now belong to people who create financial instruments, or figure out how to get people to click on internet ads. And that’s a reality. That’s a sad reality.

A friend of … a colleague of mine and I propose that we create a different structure for paying for medical school where we essentially could make it free for people. And I think that would be an important part of making medical school work and being a doctor work.

Because right now we have this mis-match between a very heavy debt burden that people take on to go to medical school and really a, a very bad way of trying to pay that back. Because many of the professions that are desirable for other reasons … like primary care … pay at such low rates that really taxes people and serves as a disincentive and drives people to specialize probably more than we need.

HEFFNER: I, I was aware of your colleague and your thought about this. Any reaction to it?

BACH: It, it’s actually been tremendous and we have spoken to people, you know, in Washington about it, as well as many of the organizations who worry about many aspects of medical school as well as fellowship training because if you remember, part of the proposal was actually to shift who got paid when they were doing their specialty and some specialty training.

And I actually … you never know, but I feel like it’s something that could be done, is desirable, we think is do-able within the Medicare regulations. That matters because Medicare pays for some specialty and specialty training through things called Indirect Medical Expenditure Reimbursements.

But, you know, it’s … I believe it’s a fully logical idea that pays for itself and would have numerous positive benefits. Anyone who’s been around healthcare policy will say “Oh, those are the parameters that guarantee its failure”, but … ah … I’m not yet that cynical.

HEFFNER: If I remember correctly, you weren’t talking about an outrageously expensive proposition here.

BACH: No, it’s a “wash”, actually … as currently constructed.

HEFFNER: Nothing is a “wash” … but …

BACH: No, it is, in this case. The cost … the full cost of educating people in medical school right now, on an annual basis is the same as the cash compensation of people doing some specialty training. Like within a few dollars. And, so all we proposed was medical school is free if you do some specialty training … like primary care … you get paid during that specialty training. But if you go on to sub-specializing …something like pulmonary medicine … my specialty … during that training period, instead of getting a salary … you would get nothing. You’d get benefits, but that would be the time you would take out loans to pay for your life.

And … because when you come out as a pulmonologist you’re well … much better compensated then when you come out as a primary care physician. The debt burden for financing medical school would sit on the people who went into higher paying professions like pulmonary medicine.

HEFFNER: Dr. Bach I hope that you get more and more people to pay attention to what you’re suggesting. Meanwhile I want to thank you for joining me again on The Open Mind.

BACH: It’s my pleasure. Thank you for having me.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

GUEST: Dr. Peter B. Bach
AIR DATE: 04/21/2012
VTR: 01/19/2012

I’m Richard Heffner, your host on The Open Mind … have been for most of the years since I began the program in 1956.

And in all this time I’ve counted among my greatest blessings the many medical doctors who have joined me in conversation at this table: Lewis Thomas, Nathan Kline, Jonas Salk, Mathilde Krim, Robert Michels, Benjamin Spock, Harold Varmus, Kathleen Foley, Herbert Pardes, Hyman Spotnitz, Fred Plum, Richard Cohen, Paul Nurse, Oliver Sachs among many, many others.

And all, it seems to me, have had in common an extraordinary ability to communicate to the rest of us, to the lay public … a skill unmatched in importance
as medical knowledge expands beyond our wildest imaginings, but as public understanding of the stuff we’re made of seems left so far behind, and difficult value judgments must ever more often be made to bridge the gap.

Indeed, that’s precisely why I invited Dr. Peter Bach, Director of the Center for Health Policy and Outcomes at Memorial Sloan-Kettering Cancer Center here in New York to join me today.

For I’m grateful to be now what the Cancer Center calls one of its “Survivors”… though, so to speak, I met Dr. Bach for the first time not at the hospital, but rather only a few weeks ago in the opinion pages of the New York Times where he had written a quite provocative piece about once helping save a man seemingly in the last hours of his life…but who three weeks later walked happily out of the hospital with his family.

Dr. Bach further writes: “No one would call what happened over those weeks a waste of health care dollars. But if we change the ending of his story, if my patient had died despite our efforts, many…would have called it just that … [for] the idea that we waste money on terminal patients has caught on”.

And I would today like to ask my guest first to pursue further that idea, which I gather he finds quite inappropriate … the idea that we waste money on terminal patients. Dr. Bach?

BACH: Well, thank you for that very flattering introduction and I’m very pleased to be here.

I wrote the essay to try and illustrate what I thought was an intellectual fallacy in the reasoning around money being wasted on patients because they have died. It presupposes and we spend a lot of money on people who are, for example, in the last year of life.

It’s about 15% of every healthcare dollar goes to people in their last year of life. About 25% of Medicare dollars go to people who die in a particular year.

But the fact that somebody dies doesn’t mean that death was known as a near certainty in the near future when the treatments are delivered.

Rather, patients get sick … when they get sick they need more resources … we spend more money and also when they get sick … they’re more likely to die.

And so there’s a sort of mathematical thing going on where healthcare dollars and healthcare spending will always be concentrated on people who’ve died, as well as concentrated on those who are very sick, who were, if you will … saved … or who’s health was improved, or condition was salvaged by … as a result of that spending.

And so the fallacy I was getting after was a highly technical one but cuts to the core of how we think about or conceive of healthcare.

The fallacy, on a technical basis is purely mathematical. Of course we spend a lot on people who die … people who are at risk of dying are also very sick and, of course, we spend our money there.

On that point, you know, many people look at how we … the healthcare system is distributed and say, “Well, why don’t we spend more on prevention?” … you know, “We shouldn’t spend so much money on ICUs and really very expensive treatments.”

And they may be right that the ratio isn’t ideal, maybe we should spend a little more on prevention. In fact in some areas, we fall pretty short. You know we could screen more people for colon cancer, for example. We could give more kids the flu … more people the flu vaccine, as well.

But it’s not the case that by spending more on prevention we would somehow reduce the spending on patients who become seriously ill. That’s what happens, often, before people die.

So from a mathematical perspective even if we loaded up more spending on prevention, it really wouldn’t take away the spending on people who are very ill.

You know we wouldn’t move that number, 25 cents of every Medicare dollar very much. In fact that number … has … has been within on or two cents, if you will, for the last 30 years in Medicare, because that’s just how healthcare works.

Another problem is conceptual. It’s easy to, if you will, lament money that’s thrown out the door, goes down the drain, spent on a patient who doesn’t walk out of the hospital, but instead dies.

But the very purpose of what we do and our greatest advances in medicine are actually around the objective of improving the quality and the longevity of patients who are at high risk of death by virtue of being ill. They have multiple conditions, multiple problems and we’ve gotten incrementally better at taking care of them and incrementally better at improving their outcomes.

I’m not saying all we do is a panacea, I’m not saying that all patients … and I can circle back … that is, all patients should get all therapies we have, if you will, in all interventions. But the very purpose of what we do and the key frontier of our advances has always been in taking care of people who are sick.

HEFFNER: Well, how do you explain then the, the popularity or acceptance of this idea?

BACH: Well, it, it’s a … it’s a conceptual defect, if you will. It’s the … and it comes out even in the simple language that if … you probably didn’t notice, but I’m very sensitized to it … the subtle distinction between referring to a patient who is in their last year of life because they died on some day and then therefore the 365 days before that were their last year.

And our, if you will, the human concept that somebody is terminally ill, which is a different thing … a subset, if you will … patients who are … you know who have metastatic cancer, who are beyond treatments that are effective and you, are dying, in the, in the sense that we all mean it. That we sort of know, we call the families, we, we sort of know that they’re, if you will, at death’s door. That can be a clinical judgment, it’s also a spiritual one. But that group of patients, is like I said, a subset … maybe a pretty small one.

Of all of those patients who happen to die in a particular year … who, some of, but not all of, went through a period where they were, you know, technically, you know, terminally ill … kind of obvious to everyone. But a whole raft of patients, who were like the man I talk about …

HEFFNER: Yeah.

BACH: … who, you know, I … it was a memorable moment, the details of the story … it is … I think … I said it was 20 years, I think it was 18 years ago … I remember it like it was this morning … he was going to die. We did something, he didn’t die. That doesn’t make us miracle workers … any doctor who reads that essay knows the diagnosis from the first sentence … and knows who you would call.

And no doctor on this planet, I think, would ever stand aside and say, “Well, he could die, so I’m not going to do anything.”

But the, the issue of … you know, the fact that a patient dies means that, you know, some period of time before … a year, for example, if you’re talking about the last year of life … it was totally obvious, the writing was on the wall … or whatever the right metaphor is … you know that just doesn’t marry with what we do every day.

HEFFNER: You know, that’s why I was so interested, in particular … when shortly after your piece appeared in the Times … a month afterward … another piece appeared which the Times people titled “Interactive Tools to Assess the Likelihood of Death” … as if there are certainties about this and if you can be fairly certain that the signs are this person is going to die shortly, then obviously the economic answer is “don’t waste our resources” which are limited on her or on him. Very different approach than your own.

BACH: Ahmm … I, I don’t … I don’t want to pin too much of an expectation of how people would respond to these tools or use them on the, on the Times … the editors who wrote that title. You know, this is a very … this is a gray area conceptually. I was writing about something …

HEFFNER: It’s a black area (laugh) …

BACH: No, I don’t think so. No I was actually making a black and white distinction … right. You can’t think about spending prior to death as spending on terminally ill patients because that’s not how the world works. Some of them are terminally ill for some period of time, but not every person who dies for 365 days exactly … was known to be terminally ill and every dollar was wasted on them.

That was the simple, black and white point I was … but you know, we as doctors, we as human beings, we as patients … do confront the need to understand what the array of possibilities are facing us and our loved ones in the near term when serious illness arises.

And quantitative estimates such as these tools produce provide some usefulness, some utility, if you will.

Some patients really do want to kind of know their odds. Around … and that effects their decision making. They want to know their odds before they’re screened for a particular disease whether or not it will really help them.

We use these tools in completely different settings … like should a person go on a drug to lower their cholesterol? And that answer, when properly done is influenced by the probabilities, using tools, that that person will have a heart attack. No one’s probability is either zero or 100 and so we’re making those sorts of judgment calls, hopefully informed by data.

The mistake and the challenge is, you know, exactly what I’ve just alluded to … no tool says you’re going to live forever, or if does, it’s broken … and no tool will say your chance of death is 100% in the next 30 days or 60 days or something like that. It will just sort of place patients into rough buckets.

HEFFNER: Well, let’s not kid ourselves, this becomes important today because we’re spending so much time talking about the costs of medicine. How are we going to approach that concern?

BACH: The … I … I …

HEFFNER: Small question.

BACH: Small question, I’m glad we have a few minutes to cover it.

HEFFNER: Right.

BACH: And, for sure, I allude to that in, in the article and it’s the subtext of the whole thing that, you know, policymakers think this is a source of savings.

It, it probably is. I think most policy experts who’ve looked at the economics of healthcare … have pointed to a couple of things. And it’s not about the spending in the last, you know, few weeks of life …

HEFFNER: It’s about the spending.

BACH: It’s about spending …. which is about both the prices and the number of services we have and provide to patients, so most policy analysts will look at healthcare spending and say, “You know, the first challenge we have is actually that we spend too much per unit of healthcare”.

Because we have a highly dysfunctional marketplace, if you want to call it a marketplace. We have producers of, you know, drugs and then devices of pushing through very high prices in a sort of monopolistic way and we have a payment system, you know, Medicare, the government or whatever, which just sort of takes those prices and those same manufacturers will sell those same goods, exactly the same, the same packaging, at half the price to the rest of the developed world.

And, so … nobody can look at our spending and say “Well we would … maybe it would be better off if we paid kind of the same price as the rest of the developed world”. You know, and just look at things like spending at the end of life. Right. Clearly one piece is prices.

Another is … you know … there are certain services … the quantity of which we use, you know, blows away other people and, and it doesn’t make a lot of sense … particularly, you know, imagining services and things like that.

We just use a lot of them, they’re sort of completely chaotic in how they’re used … you know … a patient can go to one hospital and get a CAT scan and they can go across the street and because the CAT scan won’t move either digitally or physically … the CAT scan is repeated. And patients get … you know those … as we have more accessibility of those machines, and then they sit there incurring these fixed costs … the machines get used more and more for, if you will, a lower and lower bar indication.

So, when I started my medical training … you know we had a CAT scan that was accessible … we’d have to call up and then we’d had to schedule a time and then maybe the patient would get it in the next day, or something like that. And then we’d all march down there to see the CAT scan … it was a big deal, you know, and I’m not that old.

Nowadays, you know, they are widely available to every doctor, certainly in New York City and in any populated place. And so they get used more. And so there’s both … a price … the cost of doing a CAT scan in the US is much higher than it is in most of the developed world and the number of things, like CAT scans, that we do … or MRIs … is higher, too.

Every piece of new technology we can get our hands on, we adopt rapidly. And, you know, the barriers to doing that … threshold, for instance, … is it really better … does it even make the patient feel better … are sort of non-existent.

HEFFNER: You know as I go through many of the things you’ve written, whether for The New York Times or the Wall Street Journal, or wherever … you’re trying to reach the public. Why? What do you want to have happen?

BACH: Oh, that’s a great question. Thank you. I have no idea … it’s … you know I woke up one day and I thought, you know, we had had a piece …the first piece I wrote for the Wall Street Journal, which I think I saw in front of you.

We’d had a piece in a medical journal where we talked about the chaos in the Medicare program. And that policymakers were looking at Medicare and saying “Well, you know what we need to do to solve one big piece of the problem is … we need to make doctors responsible for and also credited for providing high quality care to their patients”.

And a colleague of mine and I backed up and, you know, we’re skeptical academics … that’s what we do, we tested the most basic assumption in there which was … do Medicare patients actually have their doctor … have doctors?

And again, you know, it was a methodologic … it was a mathematical question, right? We tried to marry … you know, we can look in claims data and we can find unique patients, we can find unique doctors. And we tried to figure out, were they interacting in this way that was like a marriage … like every time the patient went to a doctor …that went to that doctor? … or was it like … if you will … a college mixer … right … where everyone’s interacting with everyone, if you will.

And it was completely the latter. You know, we found patients and we can figure out what’s wrong with them from the diagnosis codes and claims and they were bouncing all over the place … in a sort of Brownian motion … right … the average patient on Medicare was seeing seven different doctors in a year. The next year they’d see seven doctors …

HEFFNER: Different ones.

BACH: Yeah … two of them might overlap. As they got sicker, they actually got into, if you will, bigger mixers. Right? Not … they didn’t get tighter relationships with doctors … you know, handle their complex problems, coordinate them … things like that … what you’d want … right … it was the exact opposite. It just became more chaotic.

HEFFNER: Why?

BACH: Well, I don’t really know. There’s certainly no incentives. Or at the time there were no incentives at all for doctors and patients to form these lasting and bonding relationships.

In fact, the payment system encouraged patients strongly, encouraged doctors, if you will … to take on new patients, because Medicare used to have fees where, if I saw a patient … if you came to see me … and you had a certain level of complexity, I can bill Medicare something.

But if you came to see me as a new patient I’d never seen with the exact same problems, I actually got to bill more. So I was highly incentivized, if you will, to find new patients as are, were, my colleagues.

Those problems, that one defect has gone away. But I, I don’t want to blame all of this on that problem. It’s just … you know, this is if you will … a marketplace.

I don’t want to speak harshly of patients … I love patient care, I’m proud of the fact that I’m a doctor. But, you know, from an economic perspective, patients are revenue generating assets and move around. And so, doctors try to draw them in. You only have to open up the New York Times Sunday magazine … another reference to the Times …

HEFFNER: Yes.

BACH: And see the ads for the doctors and clinics and the services in the hospitals and radiology centers to know that somebody is spending advertising dollars to draw in something very important to them for their business. And in this case it’s patients.

HEFFNER: Question.

BACH: MmmHmm.

HEFFNER: Remedy …question mark?

BACH: (Laugh) Yeah, highly technical kinds of things. Right. So Medicare and private insurers are trying build structures where patients will more naturally sort of localize. Accountable care organizations, patient center medical homes, those are two of the technical kind of details that are in the, the healthcare law.

HEFFNER: Right.

BACH: But those are both things that will create both incentives and penalties, in a way, for doctors and patients to become more coherent … more like a marriage, less like a mixer.

You know quality measures are another way to get there. But you have to understand that, you know, if, IF you look at the sort of politics around healthcare … again, big issue … one of the third rails … I guess you can only have one third rail, but a serious issue … a polarizing point, if you will … is anything you do that limits patient’s choice … and patient choice is “You want to see me? You can see me. You don’t like me, you can go see another doctor” … right. And anything that you do … if you will drive patients and doctors more closely together … if it’s a structural thing, you know, it cramps down a little bit on the ability of patients to go see somebody else. And …

HEFFNER: So it’s choice … again.

BACH: It’s …

HEFFNER: The political slogan.

BACH: I mean … in this case … it’s a different dimension of choice, but sure. I mean, I think, you know, we’re a consumer nation … we want to be able to buy whatever TV we want and see whatever doctor we want and I both understand that both as a doctor and as a patient.

In fact, what we have wrought … through having, you know, any willing provider rules and things like that … all I have to do … and I wrote about it in one piece … all I have to do to be a Medicare doctor is fill out a two page form and fax in my license. And I can see Medicare patients. And I don’t have to see them a second times. I mean, it’s just … we’ve created a lack of structure if you will.

HEFFNER: What … what do you want to see happen? I’m not even asking you to guess what’s going to happen, what do you want to see happen to medicine. And we’re talking about now the, the economics of medicine, within the framework of your concern for human life.

BACH: Hmm, I … you know there’s many different answers. The first is that to, to get to anywhere we need to get we’re essentially going to need a generational change, I think in the work force and in the structure of healthcare delivery. And that’s fine. That’s part of … part and parcel of what we’re doing. We, we have doctors, you know, of my generation … we can barely figure out how to turn on a computer … I being one of them.

We’re going to need the adoption of health information technology and interactivity that is going to take a generation that seems to twitter iPhones. Another is that …

HEFFNER: Excuse me, do you think that’s been a stumbling block?

BACH: Oh, absolutely, absolutely. You know the joke is always that, you know, when we gave doctors computers the first time around the only thing they ever figured out how to do was check their stocks.

And so it’s, it’s difficult. And the IT problem, the software problems are very substantial. And anyone who doesn’t appreciate that … the whole way that the work flows and the data flows and the confidentiality … these are huge stumbling blocks to having good interactivity.

Another thing is that, you know, it … the, the conflict between Medicare as a … medicine as a caring profession and medicine as a business is just so profound that it … my well meaning colleagues … I … we … if every time you have think about what we do in terms of dollars and cents and bottom line, it interferes with contracting, it drives up prices, it causes all sorts of crazy things to happen like doctors have to sign “non-compete” so they can’t do their own business and so that other people can charge higher prices. Competition we have between hospitals that are across the street from each other … that keeping them from being able to share CAT scans, if you will.

Ah, that it, it’s just not working. To have competition on the provider side. I think the competition in other spaces … if we had better movement on prices … on the manufacturing side, the pharmaceutical side … there’s tremendous potential for that … as long as we get prices to move the way they should based on efficacy and things like that as opposed to, to some of the things we have now which are sort of artificial monopologies.

But you know, those two … those are two really important things. I, I hold out hope that the new generation of doctors is going to go into an environment where some of their motives will be different … but just the environment to make a lot of money by kind of going out on your own and trying to carve out your own niche and protecting your market … it’s just that you’re not going to be able to get rich doing it anymore.

HEFFNER: Have you seen any indication that a new generation of would be physicians want to work in that kind of framework?

BACH: Ah, the two strongest indications are … you know, when you do polls of medical students and you talk to residents… systematically as well as sort of ad hoc … you know they’re not interested in working 100 hours a week in a two person practice … so that they can capture all the revenue from the weekend visits in the hospital.

The other is the move toward “hospitalists”. So doctors coming out of their training now … when I came out of training, it wasn’t an option … but it would have appealed at the time. Are moving more and more toward professions where they can be salaried, employed by a hospital. And essentially do medicine as shift work.

And that’s not … in this case that’s not a bad thing. I mean pilots do shift work, right, and they perform at a very high level and they don’t … you know they take home the same paycheck … these hospitalists … every single week. You know they don’t get paid “fee for service”. And I think those are promising shifts, suggest to me that a new generation of doctors could, you know, be paid very comfortably …

HEFFNER: In the two minutes we have left, I need to ask you, doesn’t that conflict with your … ah … what I thought was your desire to see a closer relationship, not when you look at the statistics … there have been seven doctors for this one patient in the last year. But perhaps one or two. Doesn’t that hospitalist approach fly in the face …

BACH: I’m not saying … I wasn’t saying it necessarily solved all the problems, you asked me if I saw a trend towards a different workforce structure …

HEFFNER: Fair retort.

BACH: And I do. I, I think … it’s not clear yet what’s going to happen … whether the hospitalist structure works. It’s sort of … it probably does because care is shifting out of the hospital.

HEFFNER: By the way, what is a hospitalist, so that I’m sure …

BACH: It’s, it’s a doctor kind of like me, who, you know, just works in the hospital … the patient comes in the hospital, they take of them … when the patient leaves, they’re no longer their doctor. And the doctor on the outside communicates, if you will, remotely. Maybe they come in for, if you will, a social visit, but they’re not in charge of the care for the patients in the hospital.

HEFFNER: God help us, I think, when you say that.

BACH: Ah, the evidence suggests that outcomes are better and length of stay is shorter and costs are lower and the patient satisfaction is higher. So maybe it is working. But …

HEFFNER: Patient satisfaction is higher?

BACH: Yeah, it kinda makes sense. Right. It’s, you know, the environments are increasingly different, the hospital where you take care of very, very sick patients and the outpatient environment where there’s less time and there’s sort of a … you know, less ability to deal with, you know, a lot of problems simultaneously. So, you know, some of us are very comfortable in the hospital, and that’s where I work … I only see in-patients and that, that works for me, if you will. And then the outpatient has just a different dynamic.

HEFFNER: Dr. Bach, you say time is a problem. Unfortunately, time is a problem here too, we’ve run out of it. But I do want to thank you so much for joining me today and get you to promise to come back, because obviously (laugh) we haven’t exhausted the solutions to the problems that you begin by raising in this wonderful article. And in all the other things you write. Thank you for doing so.

BACH: Thank you very much.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at www.theopenmind.tv

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

GUEST: Michael J. Copps
AIR DATE: 04/14/2012
VTR: 11/04/2011

I’m Richard Heffner, your host of The Open Mind.

And this is our second program with Commissioner Michael J. Copps of the Federal Communications Commission.

My guest now leaves the FCC after two terms in office, clearly with much to regret about what the Commission has and has not done to make certain that broadcasting in America functions truly in the public interest.

So now let’s pick up where we left off last time. Commissioner Copps, I’m delighted you stayed. I had the feeling as I suggested at the end of the last program that I wanted to talk about such things as the Fairness Doctrine, equal time … that you really felt that that was old hat … let’s not engage in that. Or that you felt perhaps that it was futile to do so.

COPPS: Let’s have some, some separation here. The public interest is at the heart and soul of the Telecommunications Act. And the public interest is at the heart and soul of what we, as a Commission are supposed to be doing with our oversight of radio and television and, and the cable industry.

So what we need now are policies that reflect the public interest in the 21st century. Part of the public interest is making sure that the media is open to a diversity of inputs.

Part of the public interest is to make sure that the media is reflective of the different cultural contributions to communities of a license so that every body can be heard and that issues of interest to that community are, are being teed up on the programming. It’s very, very important we have that.

I think we should be focusing our discussion on how do we get that in the 21st century. I think probably if we just “tee” it up as “should we bring back the Fairness Doctrine”, which the FCC recently completed taking off the books … everybody thought it was already dead and buried, but I guess they decided to bury it again, just to make sure it was gone.

HEFFNER: How did it do that by the way? How did it bury it again?

COPPS: Ah, I think the Commission went through some of the rules that it thought it had eliminated years ago and this would have been eliminated, as you know, back in the 1980’s and found out that somebody had forgotten, actually, to take the pencil and the scissor or whatever they do to cut them out of the regulations … so they made sure that the, the scissors work (laugh) this time.

HEFFNER: So much for fairness?

COPPS: So much for the Fairness Doctrine … yes. I hope not, not for fairness. Because all of those things are important … so … I want to bring back guidelines that are not onerous, but that are reflective of the public interest. I think that a station owner or a broadcaster has a obligation to out in the community of license and talk to the people who live there about the kind of programming they want to see.

We used to require that back when stations were locally owned and the local station owner went to the barbershop, went to the bakery, went to the grocery store … knew his community … was part of it … we still said … you have to go out and talk to people, make sure you’re hitting everybody and, and reflecting their interests.

Now the station owner could be 2,000 miles away and we say “Don’t worry, you don’t have to do that any more”.

So I think we have to have that kind of community discovery, I think we have to have something in our licensing system that is news-centric …

HEFFNER: What do you mean …

COPPS: I think that’s our shortfall right now. Is a shortfall in news and information … the lack of investigative journalism, the newsrooms that have been cut back as a result of consolidation and as a result of this bottom line quarterly report mentality that now drives stations.

Now it didn’t used to … it didn’t use to be that way. There’s a famous story about Bill Paley back in the early days of CBS gathering all of his news folks around and said, “I want you to go out and do the news, don’t worry about the cost, don’t worry about the money, I’ve got Jack Benny to do the entertainment on, on the network and I’ll, I’ll take care of the rest”.

We don’t have too, too many of that … too many people with that kind of approach or telling their news people that now. We don’t (laugh) we don’t have that many news people to tell it to.

HEFFNER: But that was before Don Hewitt proved that you didn’t have to make news into a loss leader …

COPPS: MmmHmm.

HEFFNER: … that news could produce profit. And once that was known …

COPPS: I …

HEFFNER: … how you gonna keep them down on the farm after that?

COPPS: Well, now it’s the profit leader rather than the loss leader.

HEFFNER: MmmHmm.

COPPS: And, but we’ve paid an enormous price for that and I think there are some, some signs that that kind of news is not … certainly is not fulfilling it’s public interest obligations and probably not meeting the expectations of a lot of people right now either.

HEFFNER: But …

COPPS: Citizens.

HEFFNER: … but when the news does appear … do you feel that there’s no room for fairness and a Fairness Doctrine?

COPPS: Of course there’s room for fairness. There has to be fairness …

HEFFNER: But not a “Doctrine” …

COPPS: … there has to be diversity. I think if we bring back something that was passed … or initiated, I should say, back in the fifties or whenever it was … sixties … a long time ago … in, in exactly that guise, we’re never going to get any public interest kind of responsibility back.

So, as I say, I don’t want it to be onerous … I would, I would be the first to say that the Fairness Doctrine as it existed at the time, was not as onerous as it remains in people’s memories and some broadcasters memories right now.

I mean, the Fairness Doctrine never required that every viewpoint be reflected in programming or that everybody would have access to it. And it left a good bit of discretion to the … to the broadcaster. Yet there are some of the old time independent broadcasters whose opinion I respect, who would tell me it had a chilling effect on what they did.

Now I wasn’t there, I don’t know if that’s true or false, but I don’t want something that has a, a chilling effect on, in their innovation and, and doing … but I do think we have to have guidelines that make sure that we tee up a diversity of programming for the people and that we reflect local communities, local cultures and I think … I think we’ve got a problem going beyond localities.

As you know, the FCC does not regulate networks per se, but I think we have … if you talk about lack of news and investigative journalism, that’s as much a network problem as a local news problem … not more so.

I mean what’s … it’s interesting … people will say “Now, well look at all the news we have right now compared with what we had 30 or 40 years ago. All these outlets”.

And I usually say, “You know, I remember the first news I saw on TV which was probably back in 1947 or ’48 on our little 7 inch Motorola television set in black and white. It was John Cameron Swayze doing the evening news.

John Cameron Swayze had a bureau in London and a bureau in Paris, a bureau in Rome, a bureau in Tokyo, bureau in Bonn and bureaus all around the world with people staffing those bureaus. Where are those network bureaus right now?

Most of them don’t exist. If they do, a stringer comes in in a lot of them … ahh … to cover the programs. You don’t know if you have a trustworthy news source or not. So quaint as those days may have seemed, in some ways they were producing better news back, back then.

And I, I can’t tell you how much I feel that having these kind of guidelines on the book would make a difference because I’ve talked to a lot of folks like Walter Cronkite and Marvin Kalb and Ted Koppel and Dan Rather … people there … who said it made a difference back then when they knew that there was somebody watching … that there was an FCC that was watching and then at least had the potential to take action … whether they took it or not … at least we talked about it, at least we talked about as a public value. And now that’s … now that’s gone.

We’ve got to get back to that sort of … that sort of arrangement when … where people who are given free use of the airways and an opportunity to make a wonderful living … and who in many cases do a wonderful job … I’m not the anti-broadcast guy at all. I love broadcasting and I think there are lots of small, independent broadcasters still out there in whose breasts the fire of the public interest continues to burn brightly.

But in this marketplace in which we live with its unforgiving expectations, it’s more and more difficult for those people to do their job. It’s almost impossible for them to do their job … until we … until we learn to say “No” to some of these mega-mergers and until we get back to a way to express some public interest and have a licensing regime that makes a difference … ahhh … until we do that we’re going to continue on this slide to less and less news and this slide that “dumbs down” too many, too many issues at a cost, as I’ve said before, that this democracy cannot afford to pay.

HEFFNER: But I want to find out from you what you mean by “guidelines”, the phrase you’ve used. You don’t want … limit free speech … what do you mean …

COPPS: No, I don’t want to limit free speech, but I think it’s perfectly legitimate for the FCC to say, “Well, what proportion of your money are you … are you investing some proportion of money into the news? Is it going up or going down? Have you closed a news bureau since you … have you closed your news operation since you were in … were licensed last time?

HEFFNER: Mr. Commissioner …

COPPS: … have you expanded it?

HEFFNER: … Mr. Commissioner … I closed my news bureau. So what? What do you have to do with that?

COPPS: Well …

HEFFNER: What do you do when, when somebody says that to you?

COPPS: I’ve been at the FCC for 10 years and we have not taken away a license on public interest grounds in that entire time. Nor for the 20 years preceding my arrival there.

HEFFNER: Is that good or bad?

COPPS: That’s awful.

HEFFNER: You mean you should have swatted …

COPPS: That’s terrible.

HEFFNER: … someone.

COPPS: If people cannot use the, the license that they are given to benefit the public interest … I say “use it or lose it”. Take it away, give it to somebody who will use it. Of course.

HEFFNER: Well, Commissioner I’ve been using it and my rating for my reality programs are stupendous, look at that and think of the money I’m making. Now how can you say …

COPPS: Oh, I …

HEFFNER: … I’m not serving some public’s interest.

COPPS: Well, I don’t know. I can serve you a bowl of spinach and a, and a Big Mac here and you’re probably going to take the Big Mac …

HEFFNER: Absolutely. And what business is of the FCC …

COPPS: Well, it’s not very good for your health.

HEFFNER: But what good is … what, what business is it of the FCC?

COPPS: I think it’s the business of the FCC because the FCC is responsible for overseeing the stewardship of the airwaves. The airwaves belong to the American people, it’s a public resource. There’s not an airwave in the United States of America that belongs to any company, any special interest or any individual.

HEFFNER: Okay, and when I don’t do what you think or what the Commission thinks sitting “embank” and it’s a unanimous vote what do you do … you take away my license?

COPPS: That’s what I’ve … that’s what I said, yes.

HEFFNER: But the Commission itself had never done that. Or had …

COPPS: Very seldom.

HEFFNER: … very seldom.

COPPS: You, you, you’ll remember the case in the civil rights …

HEFFNER: The Red Lion …

COPPS: No. There was a broadcasting … case … WBLT … or whatever …

HEFFNER: Yeah.

COPPS: … it was … and … but we took that away only when then, not Supreme Court Justice, but Circuit Judge Warren Burger … ordered us to take that license away … we kept refusing … “Oh, we’re not going to take it away … it might be segregationist, it might be cutting off Martin Luther King news … and all that stuff …”. And finally he said, “Take the license away”. After about three times, we finally did that.

HEFFNER: And then Red Lion.

COPPS: MmmHmm.

HEFFNER: And nothing. What makes you think the Commission would do it, could do it within the framework of our Constitutional system?

COPPS: I mean … you need three votes of the Commission to enforce the statute that Congress constitutionally passed and the President constitutionally signed and is part of the law of the land.

HEFFNER: The …

COPPS: … the term public interest can mean it’s a necessity. I had my staff look this up years ago. And I forget the exact number … it appears like 112 or 115 times in the statute. When Congress tells me something … I used to work on the hill … if Congress tells me something 115 times … I think they’re probably serious about it.

HEFFNER: And now? Congress isn’t telling you that.

COPPS: I think they’re … well, it’s the law. They don’t have to tell me that … it’s the law of the land.

HEFFNER: But you tell me that the law is ignored. You’re, you’re telling … you’re describing this god-awful situation …

COPPS: I’m saying that is the law and that the law should be enforced … and you need three votes of the Commission to enforce the law, and I think the, the only way we’re going to get to that is with some public pressure … people saying “Enforce the law and do something about the kind of broadcasting that may offend back in my community of license.”

HEFFNER: What do you think that the High Court would do with that now? I’m not talking about the Burger court.

COPPS: I’m not going to make any, any predictions. But I don’t think that that has to be the, the thing that scares us away from serving the public interest. I think if I do my job and implement the law … and I take an oath to implement the law, the statute … not my own personal opinions, but the statue … I think if we, if we do that …than I’ll take my chances and I might get turned back, but in the meantime I’m going to, I’m going to do what I think is right. I’m going to do what I think the law compels me to do and hope, in the final analysis, that it will turn out all right in the courts.

HEFFNER: You know … you know I’m the last person in the world to rain on that parade, yet I guess I’m so discouraged by what I see … I … and I read your speeches and I know that you’re absolutely right … that there has been an abandonment of this cause … for 30 years. And I have to ask myself why does he think it’s going to be reversed?

COPPS: Well, I think … I think it can be. I think the licensing guidelines that I’ve talked about … we could … we could put those together and promulgate them tomorrow with a vote at the Commission. It doesn’t depend upon the President signing anything. It doesn’t depend upon Congress passing any new legislation.

HEFFNER: It doesn’t?

COPPS: We have the authority to do that.

HEFFNER: It does depend upon the President nominating Commissioners who will do that? Doesn’t it?

COPPS: Yes, it does.

HEFFNER: And the Senate approving them.

COPPS: Right. Well, we’ve got a couple new Commissions I’ll be working to proselytizing among … among them.

HEFFNER: What do you think is going to happen? Seriously.

COPPS: With regard to this whole issue of the future of licensing? I think inevitably we’re going to have the discussion that I’m talking about having as a country.

Media’s changing so rapidly .. .the technology of it’s changing and the Internet is going to play an ever more important role in, in how media is produced and how media is disseminated amongst the people.

So I don’t think you can, I don’t think you can avoid it. And I think there is a feeling abroad and many people in the land … I’m not saying it’s 85% of the American people, but I think there are millions and millions of people in the Untied States who understand that the news and information infrastructure that we have right now is not serving them well.

That we are not getting the information and news in depth that we need. And this is not a partisan issue wherever I go and I’ve been … over the ten years I guess … probably to a hundred town meetings around the, around the country.

One o’clock in the morning, some of them go eight, nine hours to one o’clock in the morning and you’ll have a hall filled with 300, 400 people with an open mike … saying “Something is wrong and we need to change …”

That why we got this 3 million letters that I referenced earlier with regard to when Chairman Powell tried to loosen the ownership rules. And I think that, I think that concern is out there.

Things can change pretty quick in, in a country. The political landscape can change pretty quickly. You’ve seen a little bit of that right now with some of the demonstrations going on and I’m … you know …

HEFFNER: What do you think … do you think there’s a … there’s going to be a connection drawn between the 99 … not 9-9-9 …

COPPS: (Laugh)

HEFFNER: … but the ninety-nine and one … and the issue that you’re talking about? Is it all part of the same thing?

COPPS: I think that the country is in sufficiently dire straights that we are going to have an era of reform. More significant reform, you know, on some of these issues in the years ahead than we have, than we have had in the past.

I think events will probably compel it unless we have solutions to some of these problems that are confronting the country right now. And I think people will understand that to get on top of those problems … whether they’re job creation or environment control or energy dependence or health insurance or creating equal opportunity for people … that we have to have some kind of better understanding of those currents out there than we have right now.

But it is interesting to note that a movement like this pops up, like we’ve had in the last several weeks and talking about the polls, we’ve got to take the polls and a lot of people think there’s nothing wrong with that, that’s maybe … maybe they’re on to something.

So you have to be very careful in predicting the, the future of the American people. You have to be very careful about saying “Well, we’re never going to, we’re never going to change.”

HEFFNER: You have a kind of “populist” streak to you, don’t you?

COPPS: Yeah, I think Mary Baker Eddy … “raise less corn and more hell” … I think that’s kind of the essence of populism.

I think the, the American people have a populist heritage to draw on … progressive heritage to draw upon. And I think it’s time that that comes forward.

HEFFNER: And your feeling obviously is that consolidation hasn’t done the kind of damage to our understanding and our needs and our feelings that would preclude that understanding from being effective.

COPPS: Well, that’s not a lot of damage, but I think there is … there’s still an understanding out there in spite of the awful damage that consolidation has inflicted, in spite of the dereliction of public interest responsibility that the Federal Communications Commission has displayed over the last thirty or forty years. Yeah, there’s still something inside of people that responds to the need of reform, the need for fairness, the need for equity …

HEFFNER: Fairness?

COPPS: Yes.

HEFFNER: But you don’t want to deal with the Fairness Doctrine.

COPPS: I do … I want to deal with the public interest in equity and fairness. I don’t want to bring back something that’s written fifty or sixty years ago and fight about that because that just derails us from having the discussion that we need to have about what is the proper media policy for the 21st century on a media environment that’s substantially different than it was then. Not only the radio and the television, but broadband and Internet, too.

HEFFNER: Is Section 315a still in effect?

COPPS: It is …

HEFFNER: Equal time.

COPPS: …it is still Section 3a15 is the expression of the public interest … equal time, yes.

HEFFNER: What’s happened in terms of the debates that we see? I mean I know that all the candidates aren’t there and the requirement that I remember … that every legally qualified candidate be given … if others are given … or be sold, if others are sold … equal time. What’s happened to that? Where’s the FCC there?

COPPS: Well, I don’t think we’ve anything before us particularly on that issue right now. That’s a difficult question when you start talking about debates like that … if you have 50 candidates, I guess, or 60 candidates step up to be heard on the debate.

HEFFNER: But the law, I gather, is still on the books.

COPPS: Section 315 is, is on the books, yes.

HEFFNER: And the equal time?

COPPS: With the kind … with the kind of granularity that, that you’re talking about … no, I think it’s a more general approach.

HEFFNER: So that you’re not concerned about … well, I shouldn’t put it that way … I should ask you … what your concern …

COPPS: I think broadcasters …

HEFFNER: … is …

COPPS: … have a responsibility. I think media has a responsibility to be inclusive and to offer opportunities for the expression of diverse points of, of view.

HEFFNER: What about candidates?

COPPS: Whether that means … pardon?

HEFFNER: What about candidates? What about the debates are you happy with what’s happened to these seemingly formal debates? Does it conform to what you think should be the FCC policy?

COPPS: Well, what’s happened to the debates and what the FCC policy is are probably two different questions. I think the debates have just kind of degenerated into … this is a purely personal opinion … a lot of political theater and, and “gotcha” kind of, kind of politics … I hope they’re informing the American people. It’s good that people watch debates … I guess any debates. We could all wish for a higher quality debates, but again we don’t dictate content or influence the content of those, those debates.

HEFFNER: Let me ask you one thing because I know we don’t have much time left. The recent indecency question … and this whole business of fining CBS for … I don’t even know how to call it … I didn’t see it … but a brief glimpse, I gather of less than a second, of female nudity, seems to have gotten FCC in an uproar.

COPPS: I think the whole indecency regime is … kind of in question right now … the Supreme Court is hearing a couple of cases having to do with indecency. Nobody knows how they’re going to decide. They could decide on very narrow grounds or they could cast their net more widely to include some of the broader indecency decisions … specific, or even to, to something as broadly important as the, as the Red Lion case which supports a lot of the public interest things that, that we do.

But indecency, again, is part of the telecommunications act … it’s part of the, part of the statute … .you take an oath to enforce the statute, so it is still there. The court has said that the Commission … in so far as this so-called “fleeting indecency” went had not given adequate notice to broadcasters that “fleeting indecency” might be as actionable as something that was less than “fleeting” and longer lasting.

So that’s kind of the question that’s up there. But in … practically speaking in putting the brakes on the “fleeting” indecency right now and while this is all in abeyance, it’s pretty much slowed down indecency decision-making at the commission until we find out which way the Supreme Court is going to handle …

HEFFNER: Any indications at all in terms of past …

COPPS: No.

HEFFNER: … judgments by this court?

COPPS: No.

HEFFNER: What would you like to have happen?

COPPS: I think there is room to, to have an approach toward indecency that during those hours when children are watching, discourages the kind of indecency that a lot of people find offensive. I also happen to think that some of the violence, although this has never been included under the, the indecency, some of the gratuitous and kind of sickening violence is probably not something that’s advisably shown to kids during those hours … there’s plenty of other opportunities for that … so, I’m not saying out with the regime, it’s still part of the law.

HEFFNER: Whatever is part of the law … there it is. Thank you so much for joining me again, Commissioner Copps.

COPPS: Thank you. Privilege to be on.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at www.theopenmind.tv

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

GUEST: Michael J. Copps
AIR DATE: 04/07/2012
VTR: 11/04/2011

I’m Richard Heffner, your host on The Open Mind.

And this program – about broadcasting in America in the public interest – was occasioned by a visit my wife and I took last September to Franklin Delano Roosevelt’s home at Hyde Park, New York and to St. James Episcopal Church there where FDR was baptized and where he worshipped…and where the Roosevelt Institute awarded once again its distinguished Four Freedoms Medals, thus marking the 70th Anniversary of FDR’s memorable Four Freedoms Speech in 1941.

Well, today’s Open Mind guest, Michael J. Copps – for a decade now a dedicated and extraordinarily articulate member of the Federal Communications Commission – accepted the Roosevelt Institute’s highly valued “Freedom of Speech and Expression” Award that day with an absolutely inspiring speech.

“In our own generation, in our own country”, Commissioner Copps insisted, “…these Freedoms have been pushed back by special interests that have ravaged …journalism…and left in their path of destruction a diminished and too often dumbed-down civic dialogue.

“Freedom of Speech and Expression”, my guest continued, “suffers from the excesses of financial speculators who are more interested in the bottom line on the quarterly report than in quality news…

“[It] is further impaired by a federal government absent without leave for more than 30 years from its responsibility to protect the public interest.

“Instead”, Commissioner Copps boldly offered, “government – and I speak specifically of the Federal Communications Commission where I work – has abetted the decline of our small “d” democratic dialogue by…failing to insist that the people’s airwaves serve the people’s interest.”

In an even more recent speech, my guest – now leaving the FCC – said, “Let me be very candid. Two years ago, I thought we would be well on our way to a better media landscape by [now]. We had a new team in town, majorities where we needed them, and opportunities galore to correct media mistakes of previous years…[Still] Whatever the cause, the hopes we harbored and the dreams we dreamed of a better media seem little closer to realization now than they were then.”

So, Mr. Commissioner … tell us, what happened?

COPPS: Well, first of all let me thank you so much for having me on the show.

Let me explain the point that I usually am hatless at affairs like this, especially indoors, but I had a little surgery that did disfigurement to my head yesterday, so I thought it would be more pleasant for your viewers to view me this way.

What happened was … I’m a believer in cycles in American history … the old Arthur Schlesinger thesis and we waited for a long time, for a period of reform to come around … many, many years.

And finally I thought we had it in 2008. And I think in some ways we did, but insofar as the media issues, which are my passion at the, at the FCC … we haven’t come close to making the progress or even a down payment on the progress that I want to make.

Our news and information infrastructure has failed us at a time when this country cannot afford to have its news and information infrastructure fail them.

HEFFNER: Well, tell me … given the hopes and aspirations why didn’t it happen in the Obama Administration?

COPPS: Well, I think it’s a matter of priorities … I wish I could say that I was sufficiently eloquent to gather three votes of the Commission for everything that I wanted to do.

We have some jurisdiction, as you know, over the broadcast industry. I think a good down payment on mini-reform would be to have a licensing system that actually had some, some meaning attached to it and some teeth in it.

Used to be, years ago, you will recall this, when licenses were given to broadcast stations for a period of three years … at the end of three years they came into, to get re-licensed and we had a little series of 12 or 14 guidelines … I’m not saying it was a “golden age” and they were beautifully enforced … but we had some guidelines.

And we put the guidelines here and the application there and kind of went down the, the list … are they communicating with their listeners in their markets of, of service. Are they reflecting diversity in those areas, are they showing news, political broadcasts, all the rest? And you didn’t have to meet every one of those, but if a station was making a good faith effort to be a good citizen and to pay back its free use of the air waves … they got their license renewed.

Fast forward … now every eight years a broadcaster sends in the little postcard basically and … no questions asked … usually without even looking at the, at the public file … they get that license, they get that license back.

And what’s happened along the way really … and you alluded to it in the introductions, too, failure in the private sector … and gross failure in the public sector.

The private sector failure was one that came to be seen in many other sectors other than just media and telecommunications more recently.

It was this ungodly excessive period of consolidation, a few mega media companies gobbling up more and more stations, closing newsrooms, firing journalists, dumbing down the news process blessed by successive Federal Communications Commissions. I don’t think we … we … ever met a merger, really, that we didn’t like …

HEFFNER: You didn’t like.

COPPS: … we really didn’t like. And, you know, the merger parade continues marching on.

But in addition to that failure and that misbehavior, I would call it, really, in the private sector … was a dereliction in the public sector, walking away from all of these public interest responsibilities.

President Reagan, newly installed in 1981, sent us an FCC Chairman who said, “You know, the television set is really nothing but a toaster with pictures”. Just another appliance. And that’s how they proceeded to conduct their public interest oversight of that appliance … nothing at all. Again, shortened the licensing period, but more than that did away with the, with the guidelines … there were no expectations. And without expectations, I think we invited the dumbing down of the news … we invited that destruction of our news infrastructure.

HEFFNER: You think that could be reversed?

COPPS: I think it can be reversed, I think it’s going to be uphill, but I think we have to make the effort, because the travails that did so much damage to old media … traditional media … newspapers, radio and television … I think those trends are coming to be seen in the new media, too. That kind of consolidation, that kind of control by a few. And if we allow the dynamism and the life of that Internet … broadband and the Internet which opens up such incredible opportunities for, for every American … if we allow that to go down that road of consolidation, I think it would be a historical tragedy of major proportions.

HEFFNER: But where and how … I understand in terms of broadcasting …

COPPS: MmmHmm.

HEFFNER: … licensed broadcasters, I understand how you … the FCC ….

COPPS: Right.

HEFFNER: … ran out on its obligations …

COPPS: Right.

HEFFNER: … there. How does it assume such obligations with the newer media?

COPPS: Well, you can’t assume them, we have to have a public discussion about them. Most of the debate in the last few years has been about access to the Internet and that’s where the Federal Communications does have some authority, because it’s telephone companies and the cable companies have been told that access to the Internet and that if that access is going to be controlled by a few mega companies … in most areas you have, at most, two choices … and some areas only one choice of how you’re going to get to that Internet.

If you’re going to allow that to continue with the possibility of erecting toll booths along the way, you’re really closing off access to the Internet. So the first thing is to provide that access and to ensure that access.

Longer term we have to have a discussion in this country, and it won’t be a simple one, about how does the new media reflect the public interest? Nobody wants to regulate the Internet; nobody wants to sit there with the green eye shade overseeing everything everybody does … you couldn’t if you wanted to because it’s a global phenomenon all that … but at some point, if that’s where our programming is going, if that’s where our news and information is going … then that is invested with tremendous responsibility.

The public interest is there and we have to have an intelligent and a rational discussion about how we, how we insure that there is news, that there is information that there access, that there is diversity and, and all the rest. I’m not saying there’s a silver bullet or any easy answer to that, but an intelligent democracy needs to discuss it.

HEFFNER: But I gather you are saying that an intelligent democracy, willing to discuss it and its government or its bureaucracy, if you will, discussing it, can arrive … you, you see room there for even having these new devices serve the public interest.

COPPS: Oh, absolutely and they should serve … I mean our new Town Square should be paved with broadband bricks. And it should open up an opportunity for people … not just to speak, I mean they’re … I mean there, there are very few barriers to getting on the Internet.

A lot of barriers to being heard. How do you actually get heard? How does …

HEFFNER: What do you mean by that?

COPPS: Well …

HEFFNER: … that there are barriers …

COPPS: … anyone of us can sit down at a keyboard and write a message and send it into the blogasphere or, or wherever. But how do we have any guarantee anybody’s seeing that? How do we know this is a vehicle that even encourages that sort of … dissemination or reception to news and information.

One half of one percent, I am told, in the hits on, on the Internet … they have to do with news. And a goodly percentage, a vast majority of them, like 80% or 90% is news from traditional sources. So when people say, “Well, this fellow Copps, he’s just old time or he’s talking about radio and television, you know, he ought to get with the future.”

It’s a seamless thing. Over 90% of the news that you and I see and hear, look at every day … over 90% of it comes from that newspaper newsroom or the television broadcast newsroom.

The problem is, is there is so much less of it because of all the consolidation, because of that “oh, we’ve got to pay off this huge transaction fee now to … for, for the conglomeration that we just went through”. And the first thing that gets “got” is what … it’s the newsroom … it’s the reporter.

So we’ve got, in this country, thousands and thousands, probably tens of thousands of reporters who are walking the street in search of a job when they should be working the beat in search of a story.

You just shutter to think about the stories that are not being told every day that this democracy needs to know. That people who are not being held accountable, that need to be held accountable. You’ve got 27 states, I am told, that don’t have an accredited reporter on Capitol Hill any more.

How do you hold people accountable, how do you hold the, the Congress accountable? And they’re, they’re the first ones … Senator Dodd gave a news conference, I think, shortly before he left and said, “You know, it used to be 11 reporters covering me pretty much, pretty much every day. No longer.”

I can see it at the FCC, you know. You want to hold your institutions accountable, too. When I first got there ten years ago and we had a press conference, there’s be … you know … we’d fill up my, my office with reporters. Now there’s very few working on this regular beat, and the ones that do are usually the corporate media who are, are reporting stories back to the company interests or the special interests or the lawyers in town.

HEFFNER: And how much … just between you and me …

COPPS: (Laugh)

HEFFNER: … how much of a protest have you heard from the public over that phenomenon?

COPPS: Depends what the issue is. I think there is deep and legitimate concern across this country about it … and I, I can back that up to some extent.

When I got to the Commission, then Chairman, Michael Powell was trying to loosen the media ownership rules that we had so that a few companies could gobble up more and more stations.

And I think the majority at that time found “Well, this is really an arcane issue, nobody outside the Beltway is very interested in this. So, you know, we, we don’t …

HEFFNER: We’ll let it go?

COPPS: … my colleague Jonathan Adelstein and I said, “We want to have some hearings”. And we went out and held a couple on own limited resources … Chairman Powell did one or two … but he didn’t want to do a lot of them around the country.

But we latched on where there were members of Congress who wanted to have Town Meetings or consumer advocacy causes that wanted to have hearings.

So, Jonathan and I probably went, over the years, those two or three years right in there probably 40 or 50 or 60 of these, these meetings. Before that summer was over three million people … three million people wrote to the FCC and Congress and said “We don’t want any part of these rules …” that by then Chairman Powell had managed to get through on a three to two vote.

But citizen action still counts. Congress heard that, the Senate voted to overturn those rules. The House was debating whether to vote, when the Third Circuit Court in Philadelphia sent those rules back to the Commission and said, “You did a pretty sloppy job on this. Do it over”.

So, even in this day when so few people hold such outrageous amounts of power, I am convinced that citizen action can still make a difference. And not only am I convinced of that … but finally … I think I’m a slow learner … but after 40 years in Washington, I’ve finally come around to understand that that’s the way change really happens in a democracy. It’s from the bottom up, it’s from the grass roots up. I don’t think we would have had an Emancipation Proclamation back in Abraham Lincoln’s time without the abolistionist movement. You wouldn’t have had Social Security and social welfare movements of the New Deal and the Second New Deal without the, the Labor Unions and, and a lot of other groups.

You wouldn’t have had JFK’s eventual and somewhat belated support of civil rights without Martin Luther King and, and the demonstrations in the streets.

That’s what we’ve got to have again. And this is that important an issue. To me if we don’t get this media issue sorted out right to ensure that people have the depth and breath of information and news they need to make intelligent decisions for the country, we are courting grave danger.

And the country is in … it’s in serious straits right now … I mean you mentioned being up in Hyde Park … I’m not saying we’re in the 1930’s again, but we’ve got some unprecedented challenges facing the viability of this country. The future of our economy, the creation of equal opportunity, making this broadband available to everybody … these are serious challenges and if we don’t get it right, we’re asking for trouble.

And we won’t get it right until we have news and information that befits a democracy. And we’ve always … this has always been a challenge to our democracy from the day one. I think why … you can go back and you can look at their letters and then you can look at the legislation they passed … George Washington, Thomas Jefferson, James Madison … they had this fledging, young democracy … you know this better than I do … was a noble experiment, but an experiment nevertheless … could they make it survive on, on this growing basis … this large, physical country.

And they realized that people had to have access to news. They realized they had to be informed. So what did they do? And these are the authors of the First Amendment, mind you. These are the authors of the First Amendment … one of the first pieces of legislation they passed was for building of the post roads, and subsidization of the newspapers, so that … of the Left and the Right and they were very partisan … but get them all out … let the people be informed. And that’s exactly what happened. And that’s the theory behind, even, I think, becoming a broadcasting … in the, in the last century. It was “Use this to inform the people”.

That was the bargain with the broadcasters. You serve the public interest … give me necessity … we give you free use of the airways.

HEFFNER: Do you think there’s going to be some other source of support for a, a media instrument that will do what you want.

COPPS: We have to find it. And I don’t know what it is, there are lots of experimentation and innovation going on on the Internet right now. But there’s not a business model there for investigative journalism on the scale that we need to see it in this country.

HEFFNER: But why think …

COPPS: Philanthropies can help, foundations can help … so let all of those blossoms bloom forward, but at some point … and I think it’s now …we ought to be having a discussion about … can the new media markets support them, does there need to be an increasing level of public support for media?

HEFFNER: Well, that’s why I wonder why you talk about a business model. You mean a public service model, don’t you?

COPPS: I mean … well, I think we have to consider that … yeah … I’m not saying do away with the business model … cause to the … you know I think the broadcast stations right now, most of them are, are into renewed prosperity … to say the least. I think, I think some of these newspaper … many of the newspapers will survive.

But in this country we spend, per capita … per annum $1.35 in support of public media. One dollar and thirty-five cents … wouldn’t buy you a cup of coffee or a cup of water, even.

A lot of countries spend $75, $100, $150 … that was in dollars per annum per capita … I was in Sweden not so many months ago … again, it’s very different, I’m not saying let’s emulate what they do there … but it’s like every household there pays like $400 a year in support of media. I’m not advocating that, but I … but you have to, you have to have a reasoned discussion which is very difficult to have in the current political environment. Is that really adequate? Can we get the news and information we want on a buck thirty five … backing up what the commercial stations are doing or failing to do.

Now, we’re just not getting the news the people need by watching the nightly news.

HEFFNER: And I’m sure …

COPPS: It’s not there …

HEFFNER: I’m sure you have been watching in vain for this subject to surface in the coming political campaign … Presidential campaign.

COPPS: Well, I’m going to keep pushing that … I’m going to be retiring after two terms of the Federal Communications Commission, though I’m not leaving these issues behind because I think they are vitally important and, again, I want to see some support from the grass roots. I think the potential is there. I think it has to be mobilized. There are reformers for lots of causes out there right now … lots of important issues they need really see and some of them do, but more of them need to … how important this one issue is.

You know you could probably ask all of the viewers watching this show tonight … what to you is the most important issue facing the United States of America. Some might say …

HEFFNER: It’s not going to be this.

COPPS: … some might say “jobs”, some might say 50 million uninsured Americans, the degradation of our environment, dependence upon energy. And that’s fine with me, but what I say to those people is if that’s your first issue … this future of the media needs to be your second issue. Unless you’re happy without that first issue is being treated by your current media system.

If you think there’s enough diversity and enough depth and all of that being presented … you don’t … don’t listen to me … you know, go happily on your way.

But if you think that issue that’s you number one concern would be served better by a little more in-depth reporting, a little more diversity, a little less homogenization and uniformity … a little more investigative reporting … you got to put this media issue right up there.

HEFFNER: Fifty years ago, the guest whom I’m going to tape next week … Newton Minow …

COPPS: MmmHmm.

HEFFNER: … made his famous “vast wasteland” speech.

COPPS: He did, indeed.

HEFFNER: Think anybody could make that now and get the kind of reception he did?

COPPS: Well, I’ve been trying, I haven’t made that eloquent a speech, I guess, or got as many people’s attention … some people say you can make it now and call it the “Wasted vastland” because we have all of these different outlets and everything, but still so much homogeneity of content and, and all that. But … yes, I think so. I think you can, actually. But you’ve got …

HEFFNER: I wondered when I watched you up at Hyde Park … where do you get this spirit? You trained as a historian. I trained as a historian. You’re so much more optimistic about what is likely to be done in our times.

COPPS: I think I’m optimistic about what it is possible to get done. I’m …

HEFFNER: Okay, I …

COPPS: … I’m not putting all the chips on the table and say “this is going to happen” and sit back and relax, because it’s not going to happen without a concerned citizenry expressing itself forthrightly on the importance of these issues.

I don’t … you know, I don’t think people in power … a lot of them necessarily oppose what I … some of them do, but a lot of them don’t … but they’re not going to put the chips on the table and do this unless the know that there’s somebody out there … is really going to say “thank you” or somebody is pushing for this … there’s got to be some political support that comes out of this and I think there can be if you present the … present the issue right. But it hasn’t been the priority that I hoped it would be. And that gets back to your first question, you know, what, what happened and why haven’t we had this, this kind of reform since?

HEFFNER: The question that goes along with it is, for me … are their voices one can hear now besides your own?

COPPS: Oh, I think there’s lots. I think there’s … but you know, I think a lot of people are interested right now in this future of journalism … what has happened to journalism?

It’s easier to get attention on this issue on the future of journalism and talk about it from that perspective than it was when I was talking about the media ownership rules back in 2003, because the big media people didn’t want to go anywhere near that issue because it was their ox that was being gored when you talked about tightening the ownership rules, rather than loosening them.

I think there is an interest in this. But what we have to have is, is the kind of coverage like when, when there are big media mergers or when all these different reports and books come … there have been some wonderful books written on, on the future of journalism, but sometimes you look in vain in the big magazines and newspapers for the, the kind of reviews that they really, really deserve to have. This needs to be teed up as an issue and it’s, I think, I think the publishers are wrong if they think there’s no, no interest in this issue.

HEFFNER: Well, I wasn’t talking about public interest that can be generated …

COPPS: MmmHmmm.

HEFFNER: … I was really talking about the leadership that you were calling for.

COPPS: MmmHmm.

HEFFNER: Is there that leadership?

COPPS: There are people I think in Congress that are very interested in this issue … I don’t think, again, and I’m not trying to speak for the Administration … I’m not a member of the Administration … I’m a member of an independent agency who actually went there … ten years ago, but I think there are … I think there was support for my stance on consolidation … I think Senator Obama made clear that, you know, he had concern about some of the media consolidation …

HEFFNER: That was Senator Obama … and President Obama?

COPPS: … and bringing the public interest back. So, so my point is I don’t think there’s opposition to that, but again … it’s … how do you get it on that list of priorities? How do you get that attention for it? And how do you provide the motivation for them to proceed and get this done?

HEFFNER: Are you … ahh … asking for suggestions or do you think you know that in the years ahead what path you’re going to follow.

COPPS: No. I’m looking for suggestions.

HEFFNER: Because I, I wanted to ask you and if you’ll stay where you are and let us do another program, I want to go back to some of the older FCC questions … like the Fairness Doctrine …

COPPS: Okay.

HEFFNER: … and equal time and things like that because I’m sure you must feel that those issues played an important role in what has happened to broadcasting.

COPPS: I think they did, I think they were important issues … I think we need to frame our policies going forward in the lexicon of the 21st century rather than debating whether we should bring back something that may have been … may still be appropriate, but was perhaps more appropriate back 30 or 40 years ago.

HEFFNER: Well, our time is up now and you may tell me my time is up as an old-timer … I think that may be the reference that you’re making. But stay where you are, we’ll do another program. Commissioner thanks for joining me today.

COPPS: Okay. Thank you.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time and many times. Meanwhile, as another old friend used to say, “Good night and good luck.”

And do visit the Open Mind website at www.theopenmind.tv

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.

GUEST: David Segal
TITLE: In Conversation with a Reporter
VTR: 01/26/2012

I’m Richard Heffner, your host on The Open Mind.

And perhaps it’s because I’ve always regretted not having been smart enough to become one, but surely over the years lawyers have loomed particularly large among Open Mind guests. And nowadays, of course, journalists as well. Talkers AND scribblers.

Which means we may have a ten-strike today, for my guest is The New York Times prolific reporter David Segal. And what made me so determined to invite him here today has been a quite intriguing series of pieces he’s written recently about lawyers and law schools, and about how poorly he believes some of the latter have prepared some of the former…even while presiding over law students’ assumption of huge personal indebtedness.

But neither does my guest spare others in his reporting: not restaurants, airlines, rating agencies and their defenders, movie makers, even the Better Business Bureau and Google…as I’m sure you’ll note when you spot him as The Haggler in the Times.

And so I guess, Mr. Segal, I ought to begin today by going back to the large number of pieces you did on law schools. And ask about this matter of preparation for being a lawyer. How good are the law schools at that? How poor?

SEGAL: Well, the … this is one of the stories that I wrote … was just about the actual curriculum at law schools. Which is strikingly low on any kind of practical training. There is a high bias at law school for the theoretical and the abstract. All of the incentives, when it comes to professorships are to write the most abstract, abstruse scholarship you can come up with.

And, as a result of that, practical training has been given short shrift and there are many, many lawyers who will tell you that they managed to go through law school without learning … by learning the bare minimum of the basics of, of, of, of lawyering.

And that’s a problem now in a way that it hasn’t been in the past because more and more large firms are not hiring law school graduates. It used to be that thousands and thousands of them would go to these large firms and the firms would train them.

It was sort of understood that your apprenticeship began at the law firm. Well, those law firms aren’t hiring the way that they used to and so more and more of these lawyers find that they need to go solo and they have no idea how to do that.

HEFFNER: What happens then?

SEGAL: Well, they struggle. A lot of them have … you know, I got tons and tons of email over the course of this series from newly minted lawyers who were living with their parents. Newly minted lawyers who were working at Radio Shack. Newly minted lawyers who were struggling with ways to open their own practice and not quite sure how to do that.

HEFFNER: But in all fairness … wouldn’t they be in just about the same position except for the fact that the big firms are not hiring the way that they used to?

SEGAL: Yes. I mean in terms of their knowledge base they’d be in, in the exact same position. But again, it was those firms that were doing this. It was understood that when, when clients paid those firms the, the first and second year associates were these newcomers and the clients were basically subsidizing the education of, of these new lawyers.

Well, over the last … since the great recession began you have more and more clients literally sending memos to these firms saying “We don’t want to see the names of first or seconds year associates on our bills anymore. We will not pay for the education of, of these students.” They have to come out of law school knowing at this point.

HEFFNER: So, we’re sticking it … the recession … the great recession, as you call it … is sticking it to the big firms.

SEGAL: Yes, it’s been, it’s been very tough on the big firms. The great recession has caused one of the worst recessions in anyone’s memory when it comes to the legal profession. I mean and the striking thing to me as I sort of stepped back from, from this series of stories was while this revolution was going on at the level of law firms. Almost nothing is going on at the law schools.

HEFFNER: Well, that’s what I was going to ask you. Are they responding … are they meeting the challenge for these young men and women?

SEGAL: They’re really not. And … I mean law schools are very conservative institutions and maybe that’s not a surprise because much of academia moves very slowly. And it turns out that the … the faculty are in control of law schools.

When you, when you hear that there’s a dean, you think the Dean’s in charge and that the Dean could snap his fingers and say, “We’re going to orientate more towards practical knowledge now because this is what the market demands and this is what’s needed”.

But, in fact, it’s the faculty that control the Dean and the Dean really serves at the behest of the … at the good will of the, of the faculty. And if the faculty don’t like the direction that the Dean is going …the Dean leaves, the Dean is fired.

So, there’s surprisingly little going on at law schools in the last three or four years.

HEFFNER: So you think maybe the Shakespearean notion of “let’s first kill all the lawyers” should be “let’s first kill all the professors of law”.

SEGAL: (Laugh) Well, the, the … that … I believe was a compliment to lawyers. That, that line from Shakespeare has been a little bit misunderstood. The, the … the, the people who say that in that play are basically saying “let’s create chaos” and their, their route to chaos is first by killing the lawyers. So this is a back-handed compliment. But in terms if you’re asking who is really in control at … of academia … it is, indeed, the professors.

And the professors love their jobs. I mean these are people who went to law school and had no interest in becoming lawyers. And they … most of them come from the elite law schools … I mean maybe 85% of them from Harvard or Yale or Columbia, from Stanford. And they are delighted to not be practicing law. And what drew them to academic was research.

I mean they, they like teaching well enough, they don’t object to teaching, but what they really want to do is scholarship. And so an incredible amount of the money that is spent by law school students now is basically subsidizing these incredibly esoteric law review articles. Thousands of them. I mean there’s like 900 of these law reviews in this country now and every year there are tens of thousands of these articles.

And you know, when, when you tally up like how much this is all this costing the law students, it’s something like $20,000-$30,000 per student. It’s an astounding amount of money. When you ask … if you ask a … if you, if you just walk back from the checks that law students are writing … and say “What are you actually getting for that money?”.

They’re getting law review articles, that is a big, big answer to that question.

HEFFNER: Pretty unfair, right? You certainly make it seem that way.

SEGAL: Well, I mean if I’m a law student … I don’t necessarily … those, those law review articles don’t interest me very much. I don’t read them. They’re not written for me. I might very much prefer to get training in say, a clinic, so that I could understand how to practice law once I get out of law school. That might be a better way to spend resources if, if I’m a student.

What the law schools will say … and it’s very interesting. Is they will say, “Look scholarship makes prestige and prestige burnishes the diploma”. So, by spending all this time and money on scholarship, we are enhancing the reputation of, of this diploma and that redounds to the benefits of our students once they get out.

HEFFNER: Well, let’s be practical about it. This question of the, the big law schools, the major law schools … versus the bread and butter law schools. Do you think this is going to push in the direction of students being more accepting of the bread and butter schools?

SEGAL: Well, the, the elite schools are basically impervious. They’re always going to have thousands and thousands of students that are trying to get in.

But there are 200 law schools in this country. And the elites are typically defined by the top 14. Why 14? I, I can’t tell you, but that’s always been the case … it’s always the top 14. And the, the … the rest of the pack has been oddly impervious, as well, but there is some thinking that because applications are down and they are reportedly down something like 16% this year … this was reported like a week ago … that this might have some kind of impact on the way that law schools behave. And, and the way that they set their curriculum. I personally am very skeptical about that because the reality still is that the customers of law schools are students and the students get their money, overwhelmingly from student loans.

And those loans are still widely available. So there are still very, very few … if any empty seats at any law school. And the reason is because that money is there. I mean if you are 21 or 22 and you want to buy a house … you’re going to have to jump through a lot of hoops to convince some banker at, at a bank that you’re … it would be appropriate to loan you $200,000 so you can get a house.

But if you’re a student, and you want a law degree, you will get that in an afternoon. Actually it will take you even less than that. The law schools themselves make it very easy to come in … they have arrangements with different lenders … you sign the paperwork right there and you walk out with a debt that is … unlike the debt of a mortgage … non-dischargeable. That is literally going to stay with you like a, like a virus the rest of your life. There’s no way to get rid of this particular kind of debt.

HEFFNER: What’s the implication then in terms of the kind of professional work that you do with doctors … it means something, certainly. What does it mean to the young lawyers … when they’re out … where do they go once they’re encumbered with this debt? They can’t go to the big firms.

SEGAL: Right. I mean this is a, this is a serious problem. So there are … you know, the elites are still sending some of their students to the big firms, but you’re right … the math is excruciating for thousands and thousands of these graduates. There are about 45,000 law graduates turned out by American law schools every year. And there are tons of them. I mean there are thousands and thousands who are not able to make payments on their loans. And, like I said, they’re moving into their parents homes, they’re taking whatever jobs that they can … and, you know, then there’s also … I mean I ran into a bunch of people who took … you know modest paying jobs because they, you know, had no choice but to begin to try to make payments as quickly as they could.

You know that’s sort of a separate tragedy of, of … not of people who are being crushed by debt and aren’t, aren’t working or aren’t able to make their payment … but there’s also this other group of people who … who are making their payments, but are doing it at jobs they don’t like. You know, these are the people that went into the law because they wanted to be public interest lawyers. They wanted to do something good. They wanted to be prosecutors … very commonly.

Well, if, if the prosecutor’s office pays $32,000 in this country in Florida … and you have a debt that takes way more than that to service, you’ve got to take that $90,000 job at the mid-sized corporate firm and be happy about it.

And the hard part is the happiness. I mean I’ve spoken to a number of, of people who say, “Look, I got the lifeline of this job and I’m one of the fortunate ones. I’m miserable. I’ve had to make a number of, of decisions about my life that are all about finances and my … the working part of my life is not fulfilling at all”.

HEFFNER: You mentioned numbers before … 200 law schools. I almost thought, for a while there, reading you in the Times that you had a “thing” about this business of law schools and … let’s talk about that.

You, you don’t like this idea of, of the lawyers controlling or the bar association, really ….

SEGAL: Well …

HEFFNER: … controlling what, what goes in and what goes out … who becomes … what becomes a law school or not.

SEGAL: Yes. So, first of all I have nothing against lawyers at all … some of my best friends are lawyers …

HEFFNER: Ahh, I’ve heard that before …

SEGAL: Yeah. Many of my family members are lawyers. What I was writing about is law schools and the business of law schools which turned out to be far more intriguing than I would have ever have guessed.

And I started this, by the way, just by meeting a kid who’d come out of law school and said “I have a job … none of my friends have jobs … nobody knows this, but law schools are continuing to crank out students at the same rate, even though there is no … there are no jobs left”.

HEFFNER: And heavily indebted.

SEGAL: And heavily, heavily indebted … in debt, again, that they will not be able to discharge … no matter what.

But you mentioned the ABA … so that was another part of this series was to look at the role of the ABA. And what it does … is it accredits … it has a deal with the Department of Education to accredit law schools. This was started in the fifties.

Now the ABA is a fascinating entity because it is basically the trade group for lawyers. It is also the group that regulates lawyers. And that is in every instance a, a recipe for problems and conflicts of interest.

And, in fact, the ABA got in a serious spot of trouble back in 1995. The Justice Department sued them and said “Look the standards that you’re imposing on these law schools, the hoops that they need to jump through … they appear to be designed to inflate the salaries of law professors. And that is a no-no”. So they sued them and the ABA agreed “Okay, we’ll back off some of these regulations and we’ll change them and they used to literally show up at law schools … the ABA … and say, “How much are these professors getting? How much is the English professor getting?” And if they were the same amounts they would say, “No, no, no. The law professor has to be paid more than the English professor”. It was like a … they were like a gang. I mean there were people … deans who I spoke to said like … it was like the lawyers … we were gang. And, I mean, even the Deans, as part of the gang, thought like we’re bullies … like we’re being bullies … within academia. And they were uncomfortable with that.

So, the ABA did, in fact, back off some of the most obvious ways in which they were trying to prop up the salaries of, of law professors.

But it is still a system that … it, it doesn’t explain why law school tuition at the high end has gone through the roof. It has actually galloped faster than the rate of, of undergraduate tuition.

But it does explain why it’s so hard to start a low end law school. It is hard to start an affordable law school. There’s no Honda Civic of law schools. They all have to be Cadillacs. The architecture is all Cadillac. You know there’s nothing … the, the law school you can get in and out of for, say, five, seven, ten grand … doesn’t … it doesn’t exist unless you’ve got a heavily state sponsored school.

And, so … I looked … for one of these stories I looked at a school in Knoxville, Tennessee, which is serving the Appalachian community there in Tennessee and wanted to serve not just Tennessee, but Kentucky and so ought ABA accreditation because you need that in order to practice law in other states.

And they tried as hard as they could to keep the price of their law school down. And it ended up that tuition there was $28,000 a year. And in the student handbook it said, “With living expenses, expect to spend $50,000 a year”.

Now these are students who are going to be in Appalachia … the, the point is for them to serve Appalachia. This just doesn’t make any kind of economic sense at all.

HEFFNER: And … what’s happened?

SEGAL: Well, what happened immediately after my story ran was that the ABA had a hearing … that was before my story ran … the results of the hearing were announced after my story ran and they turned this school … Duncan … down for accreditation. They said “You have, in fact, not met our standards”. They had a, a list of problems that they presented to Duncan. And Duncan sued. And that is now being litigated.

I frankly think that Duncan has very little chance, because the ABA has power vested in it by the Department of Education to make the decisions that it wants to make and has standards set out. And it basically can apply those standards as it wants.

HEFFNER: So much for the power of the press?

SEGAL: Yes. (Laughter) There’s … believe me … you know … this is all very humbling in a way. I mean … I wrote these stories and … you know, what has been the effect of them? It’s … you know … there, there are people that will say, “Well, the ABA has looked at a number of things that you cited and they’re going to have different disclosures that are required of law schools. That is encouraging”.

And, and I could describe some of those in particular, but, you know, as I step back after having spent, you know, the better part of year writing about law schools … do I see that this is … you know … a wake-up call … is this fundamentally changing institutions? I don’t think so.

HEFFNER: Well, let’s turn to some of the other “haggling” things that you do in The Times.

SEGAL: Okay.

HEFFNER: Are you as successful or as unsuccessful with them?

SEGAL: I’m much more successful, when it comes to the Haggler because I take on smaller foes …

HEFFNER: Aha …

SEGAL: … so … yeah, the idea with The Haggler is that people write in with their particular problem with, say, FedEx and the, the very specific things that FedEx did to them by, by smashing their oven that they were having delivered … the glass top oven that they were having delivered, and it showed up smashed.

I can call FedEx and we can have a discussion about the, the rules and the by-laws of FedEx and whether or not this was something that they should not have done, by charging this guy and not reimbursing him and nine times out of ten I, I will win that. But mostly because I only pick fights that I think I can win. That’s the key to The Haggler.

The … this is the difference between this and law school, obviously. I mean … this is a much bigger set of institutions … 200 law schools as opposed to one customer at FedEx.

HEFFNER: Yeah. But FedEx, after all, is a major … is a giant. And as I’ve reads The Haggler … there have been some times when you’ve been told to go fly a kite.

SEGAL: Yes.

HEFFNER: But I’ve been interested in the number of small victories, but victories … that you’ve had. What is it about this … the companies don’t want the bad publicity that you give them in telling about the letters you’ve received?

SEGAL: Yes. The Haggler is the … the, the leverage here is shame. That’s it. That’s, that’s what the Haggler brings to the table. I mean these are people who have generally made their only phone calls to FedEx or whatever, I don’t want to pick on FedEx which, by the way, was very responsive and, and in fact, did refund this guy’s money.

But, the difference is that they … you know, I print these letters in the, in the newspaper and, you know, generally speaking I’d say more than 90% of the time they are appropriately concerned and they understand that it might be the right thing to take another look at, at whatever situation I present them with.

And, by the way, I also make sure that what I do is present them with a legitimate grievance. I mean what I would not want to do is present them with something that would require them to bend their rules, and make some exception. Because that would feel like bullying.

What I … my … what I … the cases that I take … and by the way they’re very hard to find good cases because of this very feature. They need to be instances where I’m asking the company to honor its own policy.

And it hasn’t done so when the consumer himself or herself has gotten in touch with the company.

HEFFNER: You know, I’ve read a number of The Haggler’s … obviously I went back … that’s one good use for the computer.

SEGAL: MmmHmm.

HEFFNER: I could print out a number of them. And the strange thing, as I read them, I began to wonder … well, when, when I meet David, am I going to feel … am I going to see reflected the cynicism …

SEGAL: (Laugh)

HEFFNER: … that must grow in him as he gets these complaints about what it is we do to each other … the advantage so many of us take over so many of the rest of us.

SEGAL: Yeah.

HEFFNER: So have you become a prime cynic?

SEGAL: I think … that’s a great question. I, I actually … my instinct is to, is to find a happy ending. And, and so while these all start with … like “I made a phone call … this company did this to me … it was completely awful, they’ve taken my money … they’ve done this, they’ve done that and they weren’t … aren’t responsive”.

My, my dream situation and I’ve actually done this many times … is to have a three way phone call … a conference call of reconciliation I like to call it … where the three of us … the three parties get together and we … literally, I’m like Kissinger … I’m just talking in between these two and trying to get them to make peace and also saying to the company, “I think if you do or say the following things, this guy might actually be a customer of yours again”. And then I would say to the customer … is like, is, is that possible … is it even possible you would use FedEx or whatever again if they did x,y,z?”

And often they would say “yes”. And I … although I understand exactly why you would think this would make a person more cynical … I’m constantly striving for the happy ending. It’s not always easy to achieve, but that’s kind of my, my ultimate goal.

HEFFNER: But I repeat the question because I wonder whether you have seen, over the time you’ve done The Haggler …

SEGAL: MmmHmm.

HEFFNER: … have you seen this growing? This effort to take advantage in every which way, because I must admit, as I pick up my paper in the morning … I think, “My god, we’re getting worse on every level …

SEGAL: MmmHmm.

HEFFNER: … we’re getting worse”. And I wondered whether The Haggler finds that, too?

SEGAL: I think that it would be a mistake for me to draw a lot of conclusions based on my email to The Haggler because this, of course, is a column that invites people to send …

HEFFNER: To complain.

SEGAL: (laugh) to him … to send to me the worst things that have happened to them. You know, I don’t ask them for, like, wonderful, cheerful news … if I did … I might get some nice stories. And, in fact, the reality is that I’d say one out of fifty letters is someone saying “I had a great experience, I know you don’t write about this, but I had this … such a wonderful experience with … you know … United … I just want to tell you about it.”

And I have written a column or two where I just say, “I have collected the following, you know, five emails from people complimenting a company … and just to take a break from, you know, criticizing, I’m going to focus on, on the upside”.

I usually then will get an email from, from a reader saying, “Come on, don’t, don’t do that. The Haggler is all about, you know, making justice … producing justice”.

HEFFNER: Well, aside from accentuating the positive instead of the negative, are there areas … and we have a minute or so left in, in our time today … are there areas of American life where you think things are getting more exploitative, because that’s what we’re talking about?

SEGAL: More exploitative? Hmmm …

HEFFNER: Banks? Airlines? Whatever?

SEGAL: Well, I mean … I … certainly the number of emails that I get about airlines is a, is kind of staggering. And I’ve had a bunch of experiences myself with airlines that are really pretty terrible. I had actually an interesting combination of positive and terrible, recently …

HEFFNER: In 30 seconds.

SEGAL: Okay. So UPS … I’m going to write about this … lost my passport … I was supposed to go to Canada … UPS overnighted by passport and it was gone. Literally they can’t find it. They still haven’t found it. This was days ago.

I (laugh) … so I had to cancel my trip to Canada and so I called Delta and I said “I have to cancel that flight to Vancouver, instead I’ve got to go back to New York because UPS has lost my passport.” The woman said, “Oh my god, I can’t stand UPS … let me tell you my …

HEFFNER: (Laughter)

SEGAL: … UPS story … and she did and then she said “I’m waiving all the change fees. I’m waiving them … this is outrageous. So, don’t, don’t worry about the fees.” So you get the good and the bad at the same time some times.

HEFFNER: Well, it’s on the good note then …

SEGAL: (Laugh) Okay.

HEFFNER: Thank you for joining me today.

SEGAL: My pleasure.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.”

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.

GUEST: Kim Phillips-Fein
VTR: 01/19/2012

I’m Richard Heffner, your host on The Open Mind.

And the brilliant young historian who joins me today is New York University’s Kim Phillips-Fein whose meticulously researched W.W. Norton volume, Invisible Hands – The Businessmen’s Crusade Against The New Deal, is so astutely praised by Princeton historian Sean Wilentz as “essential reading on the history of contemporary American politics”.

Journalist-historian Rick Perlstein wrote about Invisible Hands that “With ferocious archival spadework and a sharply honed critical intelligence, this study shifts the agenda of history-writing about American conservatism and marks a new stage in its maturity.”

Indeed, I understand so much better now, after reading my guest’s seminal study, the historical reasons why – when a few years ago my grandson Alexander Heffner and I presented the 8th revised and updated edition of my 1952 A Documentary History of the United States – I felt constrained to apologize for my easy reference a half century before to a “permanent Roosevelt Revolution”.

Wishful thinking on my part, perhaps. Whatever, I had been wrong…for in so many ways that “Roosevelt Revolution” has been countered, stymied, reversed by partisans on both sides of the aisle… and my guest’s researches into The Businessmen’s Crusade Against The New Deal show how and why.

So, let me begin then by asking Professor Phillips-Fein just what light she believes her researches shed, as Sean Wilentz noted, on contemporary American politics, and how they shift the agenda of history-writing, as Rick Perlstein noted, about American conservatism. How did those researches, which are so wonderful, do that?

PHILLIPS-FEIN: Well, thank you … first let me say, just thank you for having me on the show today. I think that Invisible Hands really tells two stories and they speak to both parts of your question.

First is a story about the political mobilization of business in the post war years. And I think that today the … we’re so deeply aware of the extent to which business is politically mobilized with the … especially after Citizens United … and with the reports … daily … in the past few weeks about Super PACs and the like … that we forget how relatively new this level of political mobilization really is and the ways in which it has shifted both political parties.

And so I think that’s the first thing that, that the book aims … seeks to shed light on … is how is it that business people became as deeply involved in politics as they are today.

The second part of the story is a story about a specific part of the business mobilization which is that connected to the Conservative movement.

And here the book seeks to intervene in a debate about where … what the origins of the American Right really are. A debate that goes back in some ways to the 1950’s and to the writings of people like Richard Hofstadter your, your teacher at Columbia who described the paranoid style of American politics and talked about Conservatives as though … Conservatism as though it was sort of a mental aberration and a, a … a, a really … a marginal group of dispossessed people who were driven by anxiety about their declining social status.

And I think in some ways this depiction of Conservatism, although it shifts somewhat it is still …. you know … it’s still very present even today and the way we all think about and the way Liberals think about the Tea Party for example.

And, I, I think also a lot of thinking about Conservatism has been informed by the sense that the Conservative Movement really grew out of the backlash against the Civil Rights and the Feminist Movements of the 1960’s and 1970’s.

And I think all of this has something to it. I, I love Richard Hofstadter and have nothing … I, I don’t say anything bad about him. But I think that they … what these stories miss, I think, is the extent to which Conservatism as a political movement in the post-war years drew upon the … drew upon the resources of wealthy and powerful people who are not really acting irrationally, but actually had a sense of the ways in which their wealth and their power had been politically constrained by certain aspects of the New Deal and of Liberalism. And who sought to undo those. And I think … so I think that, that … that, that starts to give some sense.

HEFFNER: Well, it’s certainly true that you made me think of Dick Hofstadter as I, as I wrote … years ago, following what Dick had taught me and what was the Liberal’s fancy at that time.

Indeed, as I read your book (cough) … excuse me … with great pleasure, I was thinking of that old New Yorker cartoon of the fat cats in probably the Union League Club sitting around say, “Let’s go down to the Translux and hiss FDR”.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: Ah, the … I wondered as I read your book … why … whether you would have some political motivation to write as you did …

PHILLIPS-FEIN: MmmHmm.

HEFFNER: … and whether Hofstadter teaching me … whether we had some …

PHILLIS-FEIN: Right.

HEFFNER: … political motivation. What do you think about that?

PHILLIPS-FEIN: Right. Well, I think … I mean just to say a little more … just about the book itself … I mean Invisible Hands is so … what Invisible Hands does … is it aims to tell the story of the rise of the Conservative Movement by looking at business activism and at business … at a group … first a small group … a fairly small group of Conservative business people who oppose the New Deal and sought to fight it and then mobilize in different ways over the course of the post-war years.

And so it talks about these business people and how they funded organizations like the American Enterprise Association which later becomes the American Enterprise Institute. It talks about the ways that free market intellectuals like Friedrich von Hayek were part of a community that included some of these disaffected business leaders. It talks about the role of anti-unionism at companies like General Electric where Ronald Reagan kind of got his first public … really became part of the Conservative Movement during his years at General Electric.

It talks about … and then it talks about what happens in the 1970’s which is a sort of a shift but at a deepening level and at a deepening sort of spread of political engagement among business conservatives. So that’s kind of what the book does.

My interest in this subject, I started writing this in the early part of the 2000’s … but I think my interest in it really actually dated back a bit earlier to the 1990’s. And my sense that … the kind of the widespread celebration of capitalism and of the free market in the wake of the fall of the Soviet Union and during the Clinton years. And so and during the stock market craze of those years.

And I think in some ways the ubiquity of that discourse was part of what led me to this subject. It wasn’t just the election of George W. Bush, but the, the sense of the ways in which the broader political climate of the country had changed.

HEFFNER: Well, the word you used … ubiquity … it’s such an important one …

PHILLIPS-FEIN: Right.

HEFFNER: … because you’re talking about both sides of the aisle.

PHILLIPS-FEIN: Yeah. Yeah. No, I think you know … it is … there is a way in which this … I think it’s, it’s … Invisible Hands is focused on Conservatism, but I think the things that I describe in it have affected the Democrats as well.

I mean not, not … you know, not exclusively … but I think it’s, it’s not something that is at all just about the Republican Party. It’s not just a partisan story.

I did …there’s one other thing that led me to this subject, which is, you know, just a, a sense of the ways in which the new Left in the 1960’s had perhaps, I thought, been unfairly criticized for some of the shift towards the Right. I think there’s a sense …

HEFFNER: Now, wait a minute, wait a minute … say that again ….

PHILLIPS-FEIN: Well, this is … that people sometimes think of Conservatism gaining strength out of the 1960’s and 1970’s and developing as a backlash to the radicalism of the anti-war movement, say … or the backlash against Black power and that these types of … and so in a way, the Left is blamed for the tactical failures of the Left …

HEFFNER: The Social Movement …

PHILLIPS-FEIN: Yeah … are seen as responsible for leading to the rise of the Right. And I felt … I think it … in, in a way politically I felt this was … it left out a very important part of the story. And it maybe gave, in some ways, too much agency to the Left.

I think one of the things to understand about Conservatism is its deep roots in American history. And the extent to which, as a movement it’s been able to triumph and survive in part because of its connections to people who are not at all socially marginal.

And so I think it’s, it’s a really … so I was interested in the deep roots of conservatism and in looking at it, not just as a reaction to the developments of the sixties and seventies, but its longer … its, its older past.

HEFFNER: Maybe only old fogies like me can point back to people who were so important in their growing understanding.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: Maybe mis-understanding of the past. What influenced you to think in those terms?

PHILLIPS-FEIN: Well, I think I … a … certainly think my … I … my education at the University of Chicago, which is … was a very conservative institution in a lot of ways, even in the 1990’s … my interest in the Labor Movement, which came out of my reporting background.

HEFFNER: Tell us about that.

PHILLIPS-FEIN: Well, I … I was … I did a lot of journalism in college and afterwards and I quickly became very interested in unions and actually writing about labor unions at the University of Chicago .. the hospital worker’s union, I wrote a whole story … the University of Chicago Hospital I wrote a series of stories about contract negotiations there.

And I think I was very interested in the way that the … I was very drawn to the labor which is kind of an unusual thing in some ways in the mid-1990’s. But I saw the unions there as, as … it was a very … the local … that particular local was a very good local, a very democratic local … it kind of has this group of insurgent reformers in it and it was … just by … it occurred to me how the union was standing up for, sort of individual rights and giving people a certain measure of freedom of expression on the job. So I think I had a sense of idealism about the labor movement … that is one of the things that led me to this subject, I think.

HEFFNER: And the decline of the Labor Movement?

PHILLIPS-FEIN: Yeah. And, and an interest in wanting to explain the reasons for the decline of labor movement.

HEFFNER: So that you feel you can trace it … in part, at least … to the dollars, to the monies …

PHILLIPS-FEIN: MmmHmm.

HEFFNER: … that were spent by business investing in the American Enterprise Institute, putting it into the Chamber of Commerce, the National Association of Manufacturers … and those names loom so large today, too.

PHILLIPS-FEIN: Yes. And I think also in the case of unions the intense interest of companies in fighting the power of unions, you know, at … at … and that the ways in which those … you know, that’s not just an automatic thing … that there are a set of strategies and techniques and tactics that companies develop over the course of the post-war period that stay within the letter of the Wagner Act and of Labor Law, but … may not always stay within the letter of the law … they break it, too.

But that are really, you know, a concerted effort to fight the power of unions.

HEFFNER: One of the most interesting parts of your book has to do with the late Supreme Court Justice, Lewis Powell …

PHILLIPS-FEIN: Mmmm, hmm, mmm.

HEFFNER: How, how could it have been that a newspaper reader … a teacher, in fact, like myself … could not remember what it is you reveal in your book about the importance of what Lewis Powell before he went on the bench … did. Why don’t you describe …

PHILLIPS-FEIN: Right. Well, I guess in … it was a couple of months before … Powell was actually nominated by Nixon for the Supreme Court … he had …

HEFFNER: He had turned him down before …

PHILLIPS-FEIN: Had he? I … I … yeah …

HEFFNER: I believe so … he had been offered the job.

PHILLIPS-FEIN: Uhuh … well he … this time … in, in late ’71 he, he didn’t … he went for it, but he, he was … his friend … a friend of his in Richmond, who was involved with the US Chamber of Commerce … he and his friend were clearly in a dialogue over the course of 1971 about the state of American politics.

And in the Powell archives there are kind of copies of newspaper articles that they must have been reading or discussing and the friend asked him to craft a memorandum which the friend … his friend would then present to the head of the US Chamber of Commerce, which at that time was a fairly sleepy organization, it wasn’t really doing that much.

And Powell agreed and, and wrote this astounding memorandum which people … you know, some people maybe are familiar with this … program … but called it an attack on the free enterprise system.

And in this he talks about what he feels is a growing attack on free enterprise in the early 1970’s. And he said the least of it is the New Left and the radicals. And I think it’s, it’s … we have … you know thinking back to the early 1970’s this is a moment of extraordinary popular upheaval in the United States … the growing unpopularity of the Vietnam War, the mass demonstrations, there are a certain level of, of bombings and the like that are happening … fire bombings at the Bank of America, for example.

So there’s a whole … there’s a really … a very militant and a … an explosive political situation. But Powell said that that’s not actually what the real threat is. The real danger is not just that, but it’s a deepening level of disaffection towards free enterprise and capitalism in business that he says is spreading throughout the population and is associated with the, the kind of developments like the passage of the environment … the creation of the Environmental Protection Agency and OSHA and regulation and so … he, he kind of links these three things that don’t necessarily seem like they should be linked, but he puts them together and says, this is a, a attack on free enterprise and what … and business needs to fight back. Business people need to find a way to fight back in a concerted way, this fight should take place on the ideological level by bringing speakers into classrooms and finding ways to, to effect public debate on campuses. This fight should take place in the courts through appointing … finding ways to use the court, courts to advance a business friendly agenda. And this, this should take place in politics, too. Business people really need to mobilize politically to effect what’s happening to the country.

And Powell’s memorandum went to the US Chamber of Commerce and never surfaced in his … the hearings around his nomination to the Court …

HEFFNER: Strange.

PHILLIPS-FEIN: Strangely enough. But then about a year later if falls into the hands of Jack Anderson, the Washington Post columnist who publicizes it and actually it’s through that public … I mean that, that level of publicity, you know, many people criticize Powell, but a lot of business people learned about the memorandum that way, many more than would have known about it otherwise, I think. And the Chamber of Commerce does actually take up many of his recommendations and does become much more activist, much more aggressive group by the end of 1970’s … and the idea that Powell talks about also effect people like Joseph Coors who goes on to help fund the Heritage Foundation, so they … and they, they percolate outwards.

I mean I think sometimes people look at the Powell memorandum and say you know, this is, this is crazy and it sounds sort of like, you know, a conspiracy that this man is putting out there. And this, this must have been just rejected … surely nobody actually believed that American capitalism was about to topple in the early 1970’s.

But I think it … what is actually interesting is that if look at it archivally and other historians have been doing this work, too, or kind of have done much more in-depth work than I have, really, on the 1970’s and business politics, and have shown the ways that Powell’s ideas were not, by any means, his alone, but were widely shared by the people who, you know, for example started the Business Roundtable … an organization that’s composed of CEO’s, it’s one of the country’s largest corporations and so they’re not really marginal at all.

HEFFNER: What fascinates me is that you seem to quote, with approval …

PHILLIPS-FEIN: MmmHmm.

HEFFNER: … those people who thought it rather “kooky”.

PHILLIPS-FEIN: No, no. Not with approval. I just think … I think when you’re writing … one of the challenges of writing about this subject actually is that it’s hard sometimes to take seriously the level of fear and anxiety on the part of these business people.

Because with historical retrospect, it’s difficult to believe that people actually thought that capitalism could be in this kind of danger at these moments.

And I think also it’s a little tricky because I think these, these activists … these were activists and they had a vision of what they wanted to achieve. But they aren’t, by any means omnipotent. I mean they have certain kinds of power and certain kinds of resources, but they don’t, you know, it’s not like they can make things happen.

Or they don’t … they don’t … I think they don’t, you know, wield some sort of …

HEFFNER: Yes, but the question I’m asking you is whether you’re willing, quite so quickly to dismiss …

PHILLIPS-FEIN: Right.

HEFFNER: … what Powell was conjuring …

PHILLIPS-FEIN: No, I mean I think …

HEFFNER: … up …

PHILLIPS-FEIN: … Yeah …

HEFFNER: … wasn’t so wrong.

PHILLIPS-FEIN: Yeah. Yeah, well I think … I think it … well thinking back to the early 1970’s … I, I think that’s the thing about that moment … is that it was actually a moment of great social tension.

And it was also a moment when the great … not quite 1971 … but shortly there afterwards, the great … the post war boom, the economic expansion that had powered Liberalism would come to an end.

And I think it … there were fundamental questions about the way forward for the country. And so Powell’s memorandum, you know, becomes part of that struggle.

HEFFNER: But Powell’s memorandum also was drawing upon the past.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: The New Deal past.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: And couldn’t one say, without too much criticism that, indeed though FDR said his mission was to save capitalism … cannibal capitalism, anyway as it has been called …

PHILLIPS-FEIN: MmmHmm.

HEFFNER: … recently … that, in fact, what took place with the strength of labor, with all of the regulations, might be hamstringing capitalism. Now the next thing …

PHILLIPS-FEIN: MmmHmm. MmmHmm.

HEFFNER: … I would say is … so what?

PHILLIPS-FEIN: Right.

HEFFNER: But I wonder whether that concession mustn’t be made.

PHILLIPS-FEIN: Yeah, well I think it … the New Deal does. I mean … I think the New Deal is not … it doesn’t end capitalism or it doesn’t completely transform capitalism. I do believe that, you know, FDR meant what he said when he … remember the idea that he acting to save capitalism.

I think is, is true, but I also think that the business … I mean I think the, the business people who reacted against it were not crazy and that they did … and they were actually … their, their power was curtailed and their sense of what they could do in their companies was changed by having to bargain with powerful unions; their sense of what they could do with their profits was changed by extremely high corporate income taxes and personal income taxes in the post war years. Ahemm, that’s less a product of the New Deal years themselves, but of the, the war and the, the legacy, I would say, of the New Deal in the post-war period. So, there is …

HEFFNER: Do you think he turned it around?

PHILLIPS-FEIN: Turned … turned what around?

HEFFNER: Do you think they turned around what Powell was describing … correctly or incorrectly. Do you think …

PHILLIPS-FEIN: Oh, do I think the business … do I think the business …

HEFFNER: Yeah.

PHILLIPS-FEIN: … people have been able …

HEFFNER: Do you think what the invisible hands … that the crusade …

PHILLIPS-FEIN: Has been successful?

HEFFNER: Yeah.

PHILLIPS-FEIN: I mean I think in many ways … yes … I think that the … and again, I mean I think it’s not just … you know I think the context changes as well and that changes the meaning of their activism. So it’s not just a question … I think that it’s not just a question of their success. But, yes, in a, in a … to a large measure I think that the … a lot of the things that they wanted to see realized have actually come to pass.

HEFFNER: And where do you think we’ll go from here?

PHILLIPS-FEIN: Oh, well, I don’t know. I’m a historian so we, we traffic in the past, not the future. I don’t know. I mean I think that the …

HEFFNER: That sounds as though you’ve said it before.

PHILLIPS-FEIN: No, no, no. I haven’t said it before … other people certainly have. But I think that the, the … the … you know I think the events of, I think, last fall … Occupy Wall Street … brought a lot of these questions about economic inequality and the power of business to … into national political conversation the way that they had been … had not, had not been present. I think that that was … felt like a real opening … a breath of … a sense of possibility. So we’ll see what happens. This summer …

HEFFNER: What’s your … as a historian …

PHILLIPS-FEIN: MmmHmm.

HEFFNER: You and I both know that doesn’t mean you’re concerned only with the past …

PHILLIPS-FEIN: Yeah.

HEFFNER: … my bet is if I scratched a little around the surface I’d find that your interest in the past is a function of your interest in the present and the future.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: And that, as you said, your time in Chicago, your work with labor unions … molded your thinking.

PHILLIPS-FEIN: Yeah.

HEFFNER: So I don’t think it’s unfair to ask you …

PHILLIPS-FEIN: Oh, I just mean …

HEFFNER: … what happens next?

PHILLIPS-FEIN: … it’s so hard … it’s, it’s … I just mean it’s so difficult … I, I think there are so … I, I don’t … the future feels open to me, so I have a lot of trouble prognosticating about what will happen.

I mean I guess I also feel … you know, on the one hand I, I have … I think it’s important to have an attitude of hope, but at the same time … easy to have a sense of despair. So I think it’s, it’s … ahem … you know … I’m … I … I’m … I’m interested in seeing what will happen with the … whether the kind of the ferment of the … this past fall will carry forward into the future.

HEFFNER: Wilentz and Perlstein feel that what you’ve done really changes the picture. Have you seen changes … in the historiagraphical picture?

PHILLIPS-FEIN: I have actually. I think that there is … there is a ground swell of work that people are doing both on the role of free market ideas and economic ideas in the development of the Conservative Movement. There’s a real flowering of work on those subjects.

And also there’s a very striking expansion of work on business and conservatism. And I think that … and people are doing … a whole, whole group of people who are finishing their first books, or graduate students working on their dissertations are doing work that, I think, really digs into different parts of what … different areas that I wrote about in Invisible Hands … not that they’re all doing it just because of me or something.

But I think that there’s a real expansion of work in this field and that it’s by no means … I mean I think it was … when I started work on this … there were a couple of other books that were very useful and important for me. But there just was nothing like the, the expansion … nothing like the volume of scholarship that I know of myself now and that will be published in the next few years.

HEFFNER: You know, it’s so interesting that when I was a young man … and that’s a long, long time ago … I think I took for granted what you’re writing about … the businessman’s crusade against the New Deal.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: That’s what I saw it … because I was there. And I assume that what you write about now … about the individuals from GE and GM and so forth and so on, that they were doing what they did. We knew that then.

PHILLIPS-FEIN: MmmHmm.

HEFFNER: What happened to that knowledge?

PHILLIPS-FEIN: Well, that’s a great question and I think it, it comes … I, I think is actually … you know part of what … I think a lot of the material in this book is interesting to people because they have … I mean to a general readership because people have some intimation that this is happening and the book helps them kind of flesh that out or give them concrete evidence about it. About something that they had some impulse might be true, anyway. I think that in the historical profession, there had been much less attention paid to business people as political actors and that … that’s actually something that’s also starting to change a bit. Not just with regard to conservatism, but a whole range of different issues.

The, the field … in a way this is … you know, there had been a lot of interest in writing about subaltern groups … writing about women, writing about working class people, writing about African American politics and all of this … and, and looking at the politics of the dispossessed. The politics of the powerless. And I think I am a very big … I believe in that work. I mean I think it’s politically important … and … but I think that …

HEFFNER: Wait a minute … let me interrupt you and say what I believe is that I asked you too large a question at the very end …

PHILLIPS-FEIN: (Laugh)

HEFFNER: … of our program.

PHILLIPS-FEIN: Oh, dear.

HEFFNER: … so you’ve got to promise to come back again.

PHILLIPS-FEIN: Oh, I will certainly. Yeah.

HEFFNER: And thank you for joining me today, Kim Phillips-Fein.

PHILLIPS-FEIN: Well, thank you for having me.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as an old friend used to say, “Good night and good luck.

And do visit the Open Mind Website at thirteen.org/openmind to reprise this program online right now or to draw upon our Archive of 1,500 or so other Open Mind and related programs. That’s thirteen.org/openmind.

GUEST: Hendrik Hertzberg
TITLE: Back at The New Yorker with Hendrik Hertzberg AND a “National Popular Vote”
AIR DATE: 02/25/2012
VTR: 10/12/2011

I’m Richard Heffner, your host on The Open Mind.

And this is my second program recorded this pre-Presidential campaign year with Hendrik Hertzberg, who writes “Comment” for The New Yorker and has delighted us with its “Talk of the Town” for so many years now.

Senior Editor Hertzberg was early on a staff writer at The New Yorker, became Jimmy Carter’s Chief Speech Writer – memorably taking the rap for the President’s much maligned “malaise” speech. He was at the Liberal/Conservative or Conservative/Liberal New Republic for more than a decade, serving two terms as its Editor, then returned to The New Yorker, where – unless, perhaps, we’re in the White House – we so much enjoy reading him today.

A political (but presumably not partisan) theme my guest comes back to quite frequently these days is the crusade for a “National Popular Vote”. And I want to begin today by asking him just WHY … what is the magic of this reform that you look for?

HERTZBERG: Well, ahh, should I briefly say what the reform is?

HEFFNER: I think you’d better because I’ll be damned if that big book that you gave me …

HERTZBERG: (Laughter)

HEFFNER: … enabled me to encompass it all.

HERTZBERG: (Laugh) Well, the National Popular Vote idea is that if you can get enough states to agree … enough states that have 270 electoral votes, which is what you need to, to elect a President … if you can get them all to agree that once they’ve all said “we’re going to do this” that they will, that they will cast all of their electoral votes for whoever wins not the vote … necessarily the vote in their state, but the popular vote in the entire country.

Then, all of a sudden, you would be electing the President by the way we elect Governors, Senators and everybody else … count the votes … person with the most votes wins.

And everybody’s vote counts the same. And this has now been adopted in … I think … 10 or 11 states … it’s passed 31 legislative chambers … and it’s a way to get to a place that the great majority of Americans want to get to … without disturbing our Constitution or, or any of our institutions.

It’s just such a wonderful idea … it’s caught on despite the fact that nobody really knows who’s going to benefit. And so there isn’t a kind of great big lobby behind it.

It’s like … a Stanford professor invented it and people like me think it’s a great idea and when legislators sit down and think about it … Republicans and Democrats … mostly Democrats, but a lot of Republicans, too, they say “Well, that makes sense.

HEFFNER: Isn’t it a rather sneaky way and I’m being pejorative …

HERTZBERG: Mmm …

HEFFNER: … of amending the Constitution, of changing the concept that the framers had … without doing so?

HERTZBERG: No, it isn’t. Because what the framers had in mind bears no resemblance to what we have now. In fact it doesn’t bear any resemblance to what we had within 20 or 30 years of the adoption of the Constitution.

What we’ve got now is “winner take all” in every state. In every state, it doesn’t matter whether you win the, the … every state except two, two tiny little states … Maine and, and Nebraska … in, in every other state you could win … a candidate can get one more vote than the, the other candidate and gets 100% of the electoral votes. That’s, that’s the way it’s done.

That’s not in the Constitution. That’s not how it was done in the, in the first few decades of, of the Republic. It … the Constitution gives the power to the state legislatures to decide how their electors will be selected. Doesn’t even mention voting. There’s not even any right to vote for President.

The, the State legislatures make that decision and the State legislature can say, “Well, we’re going to give all our electors to the one that wins in our state”. They can say, “We’ll give all our electors to the one that wins in the whole country”… or they can say, “We’ll flip a coin and give all our electors to heads or tails.”

HEFFNER: So you’re saying that the original Constitutional provision was for the states to make the decision as to how they would vote for President of the United States?

HERTZBERG: Yes. And why did they make that decision? Why was that decision made? Why was it left to the States?

Well, we’re told, often by, by, by Conservatives, by, by Constitutional originalists who are not very well informed … that it all had to do with preventing mob rule and, and preserving the rights of the States. Actually the real reason for the adoption … the decisive reason for the adoption of this scheme was to increase the power of the slave states.

Kind of a dirty compromise between Rhode Island … not a slave state, but a very small state that was afraid of being swallowed up and the big slave states like South Carolina. (Clears throat) Because what the Electoral College does is to, is to … is to allocate the electoral votes by population, not by voter.

Not by the voting population, not by voters, so that that … the infamous … the infamous …

HEFFNER: Three thirds.

HERTZBERG: … three fifths rule gave those slave states extra electors. And that’s why.

And, and I’m not just making this up. The one record we have of, of the deliberations of the Constitutional Convention … Madison’s notes on this … makes it clear that that was the decisive factor … that was the sticking point.

Yeah, they considered popular election. They considered quite a few different schemes, but the decisive thing was that … that … was this extra power for, for the slave states.

HEFFNER: And your reason for doing it now? Having us do it now?

HERTZBERG: Well, I’ve been, I’ve been … I’ve been on this case for decades. But …and in fact right before the 2000 election, the last piece I wrote right before the 2000 election was … “What happens if … what happens if next week … what happens if next week a different candidate wins the popular vote than the electoral vote, then what?

And at the time, by the way everybody thought it would be the other way around. There was a lot of speculation that, that, that Bush would win the popular vote, Gore would win the electoral vote.

The biggest reason I’m for this is not because of the wrong winner problem. That’s a big problem, it’s a big problem …

HEFFNER: It has surfaced a number of times in our history.

HERTZBERG: It surfaced, it’s actually happened four times. It, it has … it’s come close to happening many more times, particularly in the last … particularly in the last couple of decades.

In quite a few elections, a, a small shift of votes in one state or two states could have given the, the Presidency to, to somebody who’d lost badly in the popular vote.

But the big reason I’m for this … is in fact … the big reason I’m for this is that right now you’ve got a maximum of 15 battleground states. That’s the only place the Presidential … the general election Presidential campaign happens. That’s the only place the candidates go. That’s the only place they advertise, it’s the only place they poll. That’s, that’s bad enough.

HEFFNER: Of course, the other not so …

HERTZBERG: … but what’s really bad …

HEFFNER: … certain things.

HERTZBERG: … The other ones are a sure thing, they’re a lock. You know George Bush in the, in the, in the 2000 election … Texas … that’s where he’s from, that’s his big state, huge Republican state … he spent $500 there in (laugh) …

HEFFNER: You’re kidding.

HERTZBERG: No, that’s, that’s the number. And did no, no polling … no polling outside of either … either candidate … none of the candidates … once they’re nominated do any polling outside of these … this, this handful of states.

The big problem is that for voters, for people … they’re left out in all these other … in all of those spectator states. So there’s no point in engaging in any kind of grass roots politics.

If you live in a, if you live in a state that’s a lock for one candidate or the other and it doesn’t matter whether it’s your candidate or the other candidate … there’s no point in going around your neighborhood and trying to persuade your neighbors to vote for your candidate or getting out and passing out leaflets or manning a headquarters. What’s the point of that?

You’ve got to go to a … if you can afford to and spare the time … and you actually want to participate in a meaningful way in, in a Presidential campaign … you’ve got to a battle ground state. You’ve got to get on a bus and go to Pennsylvania. That’s ridiculous.

And, and, and when you have an election decided by this handful of states it means also that the power of money is hugely magnified.

If you collect the money all over the place … New York and LA, especially and then you funnel it into poor little Ohio … so Ohio is … Ohio and the battleground states are overwhelmed with the money.

If, if every vote counted the same all over the country and, and … this took me a while to get … but once, once … as I say once enough states have signed on to this … then it doesn’t matter whether you live in one of those states or not … your vote’s going to count the same as everybody … as any other vote anywhere in the country. That money that’s now raised and they raise as much as they can … would have to be spread out. It wouldn’t have the kind of impact on … that it has now. It would still have a lot, but it wouldn’t, it wouldn’t be as determinative as it is now.

HEFFNER: This is what I found it hard to understand. Why is this such a major point with you? That the money would be spread out?

HERTZBERG: Well, it’s a, it’s a … I’d be for it even if, if that weren’t the case. But the, the relative power under the current arrangement of money versus grass roots, versus people politics … money politics versus people politics is very disturbing. It’s disturbing in, in many parts of our government. It’s certainly disturbing in the lobbying that goes on in Congress.

But in a Presidential election it’s, it’s disturbing, too. I think it’s pretty intuitively obvious why one would want to increase the relative importance of citizen politics, participatory grass roots politics … where your … the ticket of admission is just the fact that you’re a citizen and a voter … over, over money politics.

HEFFNER: It’s funny … what I see is an increased desire for bigger and bigger pots of money because you’re spreading the areas …

HERTZBERG: MmmHmm.

HEFFNER: … where money can be used and must be used.

HERTZBERG: So … yes …

HEFFNER: That’s a plus? Minus in my book.

HERTZBERG: Well, here’s why it’s a plus in my book. For one thing, right now … Presidential campaigns raise as much money as is … as they can.

They don’t reach a certain point and say “Well, we’ve got enough now, let’s knock off this fund raising.

They … maybe they’ll try harder … if they possibly can, if that’s imaginable to raise more money and maybe they will. Let’s say they raise half again as much money.

Let’s say instead of costing … what is it now … does it cost a billion dollars …

HEFFNER: That’s …

HERTZBERG: … the whole election costs, maybe, two billion for both sides. Let’s say instead of two billion … they raise three billion. They’ll have to take that three billion and spread it over 50 states and the District of Columbia instead of 12 states or 8 states or 4 states. So, impact-wise, it will be … it will be less important … even though there’s more of it.

There is no such limit on citizen participation. I don’t think anybody would suggest that that there’s as much grass roots political mobilization as there possibly can be right now … there just isn’t. Only in those few states.

HEFFNER: Rick … do you see … if you look back and say … over the past twenty, thirty, forty years … we had the reform that you want, what would have happened differently?

HERTZBERG: Well, one way …

HEFFNER: In terms of results.

HERTZBERG: One way to look at it is to say … is to pretend that we had that system and just look at what the popular vote was and the electoral vote.

So a lot of people say, “Well, if we’d had the system I’m talking about Gore would have been President.”

But if we’d had the system I’m talking about, the campaign would have been conducted in a very different way, there would have been a whole different strategy on, on both sides. You really don’t know.

Same with the, with the, the … with the 2004 campaign where if 50,000, 60,000 votes in Ohio had, had switched to Kerry … Kerry would have been elected President without a dispute … not like Florida in 2000 … would have been elected President despite losing by three million votes.

The, the Humphrey Nixon campaign … where, where Nixon won by fewer popular votes than Gore, than Gore won in 2000 … the 1960 campaign … you could go back to the 1976 campaign … all of these cam … all of these elections could have, could have tilted … could have tilted very easily … but they would have all been fought differently … they would have been fought … they would have been fought all over the country … states … a few states would have not have been the decisive factors.

States would be important, but only in the sense that they’re important to voters.

You know if I, if all I cared about was the interest of New York, then I’d vote on that basis. But that’s not all I care. In fact it’s quite low on the list of what I care about. And I think for most Americans, virtually all Americans … the state …their state is not that relevant a category when they are looking to vote for President.

And compared to the way it was 1789 or throughout the nineteenth century … where you live … your geographic location at any given moment in your life is very low on the list of the things that are important to you.

Back then most people stayed in the same … didn’t get more than 50 miles from home in their whole lives, so geography was a very important category. Not now.

HEFFNER: What’s happening with your wished-for reform?

HERTZBERG: Well, it’s, it’s only … it’s only, I guess … what four years old since it was introduced.

It has been adopted by enough states to bring …to get it halfway the 270 votes that is needed.

HEFFNER: Excuse me, when you say “has been adopted”, what do you mean?

HERTZBERG: I mean that, that an identical bill has been passed by both houses of the State legislature and signed by the Governor into law.

HEFFNER: And the Bill provides …

HERTZBERG: The Bill provi … the Bill provides that, that we join an interstate compact under which, as soon as enough states have joined the same compact by passing the same Bill … to account for the 270 electoral votes that are needed to, to elect a President. When that happens this comes into effect and at the next election … our electors … we will choose the electors who … ah, the candidate who wins the most votes.

HEFFNER: And interstate compact such as this … are they worth … you know …

HERTZBERG: The paper they’re written on?

HEFFNER: Yeah. Yeah.

HERTZBERG: Yeah. There are hundreds and hundreds of them. A lot of them are a kind of technocratic things. The Port of Authority of New York is an example of an interstate compact.

There, there … there’s, there’s a long, there’s a long legislative and judicial history behind them. They’re kind of like treaties among the states. They can’t impinge on Federal power. But, apart from that, there’s a lot of things you can do with, with an interest compact.

HEFFNER: Do you think this one, so fundamental … is among the things you can do?

HERTZBERG: I think it is, yeah, and there’s … because … mainly because the, the case law about, about the provision of the Constitution that says the legislature … that, that the states will choose their electors according to how … that that legislature says they’ll be chosen.

HEFFNER: Right.

HERTZBERG: Even in, in Gore v Bush, the majority said, “Well they can do anything … they can choose him anyway they like.” You know if the … and in fact the Republican Florida legislature, when it was unclear which way it was going to turn out … was, was steeling itself to just give the electors to Bush no matter how the …

HEFFNER: Right.

HERTZBERG: … how it turned out. So, I’m sure there’d be a court test of this … but, but I don’t think it would succeed … and by the way, one of the things that people say is “Well, if some state doesn’t like it, you know, once, once the results are in … and you know, New York, New York has signed on and it turns out that, that the Republican wins and New York wanted the Democrat … New York will say, okay, forget about that, we’re casting our votes for our candidate …

HEFFNER: And?

HERTZBERG: … won New York.

HEFFNER: And what about?

HERTZBERG: Well, part of the compact is you can’t get out of it … you can’t get out of it from … I can’t remember the exact interval … but for a period of months so that, that … you can’t, you can’t pull a switcheroo after the election.

HEFFNER: How many times in your lifetime have you dealt with things that you can’t do … but are done?

That’s what I mean … my uneasiness about this notion of these interstate compacts.

HERTZBERG: MmmHmm.

HEFFNER: And how easy they would be to undo … under the pressure that you just described where a state’s real candidate doesn’t win, thanks to this cockamikee scheme.

HERTZBERG: MmmHmm (Laugh) Well, this is, this is a very … this is a very remote and unlikely danger compared to all the dangers of the status quo … exemplified … under, under which the state can just do whatever the hell it pleases.

The, the idea of, of … (laugh) the idea of electing a President, the way we elect everybody else and doing it in this particular way where we can … in a sense we could try it and see if we like it. We don’t … we wouldn’t have to amend the Constitution, which is really hard to un-amend once you’ve, once you’ve amended it.

We could, we could do this and the, the, the fear that, that some state would change its mind at the last moment, even though it’s legally obliged not to and that that …

HEFFNER: Sue us.

HERTZBERG: … would go to a court … and, and that’s exactly what would happen … and, and, and the Supreme Court given its previous case law would be likely to say, “No, you signed the compact, you keep the compact.”.

HEFFNER: Unless …

HERTZBERG: And you would …

HEFFNER: … there were five Supreme Justices of one persuasion and four of the other and the five would do what I think you and I think they did in 2001.

HERTZBERG: It would be a lot harder for them to do it. And what you’re … what the, the worry you’re expressing is one that has already come true under the status quo.

And is surpassingly unlikely to come true under this. Because they … the notion of a disputed election where, where it’s too close to call nationally, that has never actually happened. There’s never been one of those. We’ve had … the smaller the electorate, the more likely you are to have that problem. The problem we had in Florida about 536 votes out of 90 million.

The closest we’ve come in the popular vote is around … is a little over 100,000 in 1960. That’s still a clear … that’s still a clear win. The, the idea that somehow a Florida type or a 2000-type situation is more likely under, under this than it is under … than it is under the status quo … it’s ridiculous.

HEFFNER: I …

HERTZBERG: The smaller … .you know you get a lot more disputed elections for a City Council seat than for a Governor-ship.

HEFFNER: But can you imagine, or have you imaged and rejected the idea that there would be many, many, many troubles arising out of a sufficient number of states signing this interstate compact …

HERTZBERG: MmmHmm.

HEFFNER: … and moving ahead as you, as you want. You don’t see this as even more fraught?

HERTZBERG: No. And, and, Dick, you’re going to have to tell me how it’s fraught because I, I, I don’t … I don’t see the problem.

HEFFNER: Because …

HERTZBERG: I don’t see the problem.

HEFFNER: … I, I guess the fraught comes in (laugh) with the manipulation, with the changing … you make it perfectly clear that the Founders left it up to the states to do this as they pleased … to determine how you pick your Presidential electors.

But, ahh, this is a change of a system that has been in effect for such a long time … that has lived through all these precarious victories where we could see that a victory didn’t belong to this person, it really belonged to that. I just think that the troubles would be just enormous.

HERTZBERG: But you haven’t told me what they are.

HEFFNER: What they are would be the challenges … you described it well enough … once they realized that even though it had signed on, it didn’t get what it wanted …

HERTZBERG: You’d have to, you’d have to have a situation where, where a state that has signed on … where, where an election was, was so close and a, a state legislature, a whole state government … both Houses of the state legislature and a Governor were so determined to overturn a popular will of the American people that they would, that they would … that they would try to repeal their agreement to the national popular vote plan. And it would have to be a situation in which that state was the decisive one. In other words where it wasn’t just … where the compact had been signed by enough states … more than … with more than 270 so that their withdrawal wouldn’t make any difference anyway.

And then you’d have to believe that having dared to do that, bringing on the outrage of the entire American population and the world, probably, that the courts would back them up.

Now that’s the worst, worst, worst case scenario. We’ve already had it.

HEFFNER: You’re right, we have had it.

HERTZBERG: And we’ve had it … and, and …

HEFFNER: And if continued along the same paths … we’ve had it, we swallowed it … and moved along.

HERTZBERG: We swallowed it because the, the alternative to swallowing it was too awful to contemplate. And that alternative was that we had undergone a kind of judicial coup de tat …

HEFFNER: MmmHmm

HERTZBERG: And that’s something that nobody wanted to face. It would have been a blessing in a way if, if, if … if, if …

HEFFNER: Gore had held out … fought?

HERTZBERG: No, no, if in the next election … if in the next election Kerry had been elected despite losing the popular vote. Then it would be clear that this is a problem for the whole country. And it … nobody knows who’s going to do better under this, under this plan. But what we do know is that, that the system of electing … the idea of electing who gets the most votes has worked very nicely in every other election in this country. And no why it should work very nicely for President.

HEFFNER: Rick, what we really do know is I’ve just gotten the signal that our time is up …

HERTZBERG: (Laugh)

HEFFNER: … so we’re going to have to fight this out …

HERTZBERG: (Laugh)

HEFFNER: … at another point. Thank you so much for joining me today on The Open Mind.

HERTZBERG: Ands thanks for hearing me out, Dick.

HEFFNER: And thanks, too, to you in the audience. I hope you join us again next time. Meanwhile, as another old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.