Welcome back to the deep dive. Today we're pulling
a file off the shelf that sounds, at first blush
anyway, like it belongs in a herpetology textbook.
We are talking about the Hiss Act. It definitely
has a very distinct serpentine ring to it. But
unless you consider the maneuvering of 1950s
congressional hearings to be snake -like behavior.
Which, you know, honestly is a toss -up depending
on who you ask about Congress. Fair point. But,
strictly speaking, there are no actual reptiles
involved today. Right. We aren't here for biology.
We're here to talk about a piece of legislation
from 1954. It's officially known as Public Law
769. And looking at this stack of research you've
pulled together, I mean, we've got the legislative
history, court rulings from the 70s, right up
to a National Taxpayers Union report from 2022.
It is a wild ride. It really is. And the reason
we're dedicating an entire deep dive to this
obscure law is that it's the perfect case study
in what I like to call legislative rage. Legislative
rage. Exactly. We tend to think of laws as these
cool, calculated decisions made in marble rooms
by people thinking about the next century. But
the Hiss Act is what happens when Congress gets
furious at one specific person, tries to build
a legal weapon to destroy them, and ends up accidentally
blowing up the retirement plans of thousands
of innocent bystanders. Precisely. It's a classic
case of unintended consequences. We are going
to trace how a law designed to crush a Soviet
spy named Alger Hiss somehow ended up targeting
postmen for petty theft, stripping pensions from
World War II veterans, and then in a twist that
feels like it was written by a screenwriter,
completely failing to hurt the spy it was named
after. And then just to twist the knife a little
more, we'll look at why even today, despite all
the tough talk we hear about stripping pensions
from corrupt politicians, the system is surprising.
bad at actually doing it. It's a journey from
the Red Scare right up to the modern era. It
reveals a lot about the gap between passing a
law to make a statement and passing a law that
actually functions in the real world. So let's
start with a namesake, the target on the bullseye,
Alger Hiss. For the listeners who might not be
steeped in Cold War lore, we need to set the
scene. Who was this guy and why did Congress
hate him enough to write a law specifically for
him? You have to understand, Alger Hiss wasn't
just some low -level clerk. He was the golden
boy of the American establishment. He was a high
-ranking State Department official. He had been
at the Yalta Conference with FDR. Wow. Yeah.
He helped organize the founding of the United
Nations. So he's really in the room where it
happens. He essentially built the room where
it happens. Yeah. But in the late 1940s, amidst
the growing panic of the Cold War, he was accused
of being a Soviet spy. It was the trial of the
century. The whole nation was glued to it. This
is peak McCarthyism era. The Red Scare is ramping
up. Right. And while the government couldn't
get him on treason due to statutes of limitations,
they got him on perjury. In 1950, he was convicted
on two counts of lying about his contacts with
the Soviets. He goes to prison. But here is the
detail that drove Congress absolutely insane.
The pension. Yes. Because he had been a civil
servant for so long, he was still eligible for
his federal pension. I can imagine that didn't
sit well. The idea that tax dollars would fund
the retirement of a man convicted of betraying
the country? It was politically intolerable.
It looked weak. So in 1954, Congress decided
to fix it. They drafted an amendment to the Civil
Service Retirement Act, Public Law 769. Which
everyone just called the Hiss Act? Correct. And
the intent was surgical. They wanted to make
sure that anyone convicted of crimes related
to national security or, and this was a big one
at the time, anyone who pleaded the Fifth Amendment
during those security investigations would be
stripped of their pension. So the message was
clear. If you're a spy or if you refuse to testify
about being a spy, the government cuts off the
check. That was the pitch. And initially, it
worked exactly as planned. The law passed on
September 1st, 1954. The Treasury immediately
stops sending checks to Alger Hiss. Mission accomplished.
The bad guy pays the price. But this is where
the legislative rage problem kicks in, because
when you write a law in anger, you tend to cast
the net wide to make sure the target doesn't
slip through. You sent me the text of the act,
and it lists job -related federal felonies. It
doesn't just say treason. No, and that is the
fatal flaw. To ensure they caught Hiss and anyone
vaguely like him, They broadened the language
to include a whole host of felonies involving
a breach of trust. The logic was, if you betray
the public trust in any federal job, you don't
deserve the public pension. Which, you know,
on a bumper sticker sounds reasonable. No pensions
for crooks. But in practice... In practice, it
was a total disaster. Between 1954 and 1961,
the government started enforcing this law aggressively.
And they weren't catching Soviet sleeper agents.
They were catching mail carriers. This was the
part of the research that really surprised me.
You have these cases of postal workers who maybe
stole $5 from an envelope or maybe they took
a magazine from the mail room. Right. Now, we
have to be clear. These are federal felonies.
Tampering with the mail is a serious crime. You
shouldn't do it. But we have to ask, is stealing
$5 from a birthday card a national security threat?
Not exactly espionage. Is it on the same level
as selling state secrets to Moscow? I think most
reasonable people would say no. But under the
Hiss Act, the penalty was mandatory. Mandatory
and automatic. It created this massive justice
problem, as legal scholars call it. Let's paint
a picture here. Imagine you're a judge in 1958.
You have a postman in front of you who stole
$10. You look at the case and say, OK, you broke
the law. I'm going to give you a suspended sentence
and a small fine. Because you think you're giving
him a slap on the wrist. The crime was minor.
Exactly. The judicial system is trying to be
proportional. But the moment that conviction
hits the books, the HISS Act triggers administratively.
The Civil Service Commission steps in and says,
convicted of a job -related felony, pension gone.
So that $50 fine actually costs the postman his
entire life savings. We're talking about an annuity
worth tens of thousands of dollars back then.
That's hundreds of thousands in today's money.
It effectively turned a minor theft into a life
-ruining event. The punishment was completely
disproportionate to the crime. And it wasn't
just Postman. There was a report in the New York
Times from June 1960 that highlighted an even
uglier side of this. Oh, right. The GI pensions.
Yes. The law was written so broadly that it was
voiding pensions for veterans if they committed
these breaches of trust while in the civil service.
So now you have Congress, who wanted to look
tough on communism, having to explain why they're
stripping retirement benefits from World War
II vets. for minor offenses. That is a political
nightmare. You set out to hunt a wolf and you
end up shooting the family dog. That's a very
apt analogy. And the pressure started to mount
almost immediately. By 1959, you have hearings
where Congress is basically saying, oops, we
went too far. It's rare to see Congress admit
a mistake that quickly. Usually they double down.
Well, the optics were terrible. You can't really
run for reelection on a platform of starving
veterans. So in 1961, they passed a fix. Public
law, 83 -769. They amended the Hiss Act to restore
benefits for employees involved in minor offenses
not connected with national security. OK, so
sanity prevails. They narrow the scope back to
what they originally claimed they wanted, spies
and traitors. If you steal a letter, you pay
a fine, but you don't starve in your old age.
Correct. The balance was restored. The innocent,
or at least the minorly guilty, were protected.
The law was now focused solely on national security.
But here is the plot twist that I absolutely
love. While Congress is scrambling to fix the
law for the postman, the man who started it all,
Alger Hiss, is sitting in the background plotting
his comeback. He was. And this brings us to 1972.
Alger Hiss is out of prison. He's broke. And
he decides to sue the U .S. government to get
his pension back. The audacity is incredible.
I'm the guy you wrote the law for, but I want
my money. But he wasn't arguing that he wasn't
a spy, right? He wasn't relitigating the espionage
charges? No, and that's what makes this a fascinating
legal case. This wasn't about guilt or innocence
regarding the espionage. It was about the Constitution.
Specifically, a clause that forbids ex post facto
laws. Latin for after the fact. Exactly. The
framers of the Constitution were very specific
about this. The government cannot pass a law
today that punishes you for something you did
yesterday. If it wasn't illegal or if the specific
punishment wasn't established at the time you
did the act, they can't retroactively apply it
to you. So let's map the timeline here. Hiss
is convicted in 1950. The Hiss Act is passed
in 1954. You see the problem. When Hiss committed
his crimes and when he was convicted, the penalty
was prison. It was not loss of pension. That
penalty didn't exist yet. So the government effectively
moved the goalposts after the game was over.
That's exactly how the court saw it. In the case
Hiss v. Hampton, the suit was actually filed
by the ACLU on behalf of Hiss and another plaintiff
named Richard Strasburger. And the U .S. District
Court ruled on March 3rd, 1972. They sided with
Hiss. The Emergency Civil Liberties Committee
hailed it as a massive victory. The court said
that denying the pension was penal rather than
regulatory. Penal rather than regulatory breaks
that distinction down for me because that seems
to be the pivot point. It's crucial. If the government
changes a regulation, say they change the retirement
age for everyone moving forward, that's fine.
That's just managing the workforce. But the court
said this law was clearly designed to punish.
It was a penalty. And because it's a penalty,
it has to follow the strict rules of criminal
law. And rule number one is you can't punish
retroactively. So because Congress was so eager
to hurt his specifically, they rushed a law that
violated the Constitution. And because of that
violation, Hiss got his money back. He did. The
government had to restore his pension with back
pay. That is just amazing. The irony is dripping
off the page. The Hiss Act successfully hurt
a bunch of random mail carriers for seven years.
But when it tried to touch Alger Hiss, it bounced
right off the Constitution. It's a powerful reminder
that the Constitution protects everyone. Even
the people we designate as the bad guys. It's
designed to stop exactly this kind of emotional,
reactive legislation. So Hiss gets paid. The
postmen get their benefits restored. You'd think
the Hiss Act would just fade away at this point.
But it stays on the books, right? Yeah. Just
without the retroactive part. It does. It's still
federal law. If you commit a treasonous act today,
you'll lose your pension. But as we move into
the modern era, we start to see how selective
the application really is. Let's fast forward
to 1977. We have the case of Richard Helms, former
director of the CIA, a titan of the intelligence
community. A very different figure from Alger
Hiss, certainly in terms of public perception
at the time. But he gets into trouble. He pleads
no low contender, no contest to two counts of
misleading Congress. He lied to the Senate Foreign
Relations Committee about CIA operations in Chile.
Now, lying to Congress about national security
operations, that feels like it lands squarely
in the breach of trust territory the Hiss Act
was supposed to cover. You would certainly think
so. It's a felony. It involves national security.
But when it came time to decide on his pension,
the Department of Justice issued a ruling saying
the Hiss Act did not apply. How did they justify
that? It came down to the specific statutes he
was charged under and the technical definitions
of national security offenses in the act. They
parsed the language very carefully. He kept his
annuity. So we have a pattern emerging. The law.
hammers the little guy, misses the specific target
it was named after, and then gives a pass to
the powerful CIA director. It's not exactly a
shining example of blind justice. And this double
standard is what keeps bringing the Hiss Act
back into the headlines. Every time a politician
gets caught doing something terrible, the public
asks, wait, do we still have to pay them? Which
brings us to a name that screams mid -2000s scandal.
Duke Cunningham. Duke Cunningham. U .S. Representative.
Fighter pilot. And as it turned out, massively
corrupt. In 2005, he pleaded guilty to taking
millions of bribes. We're talking cash, yachts,
antique furniture. And naturally, people were
furious. Why should a guy who sold his office
for a yacht get a taxpayer pension? Senator John
Kerry jumped on this at the time. He introduced
the Federal Pension Forfeiture Act, which everyone
called the Duke Cunningham Act. The goal was
to close the loopholes. They wanted to make it
crystal clear that lawmakers convicted of official
misconduct lose their pensions, period. Because,
correct me if I'm wrong, the original Hiss Act
was a bit murky on whether it applied to Congress
itself. It was mostly for civil servants. It
was ambiguous. Congress has a long history of
writing strict laws for the executive branch
while leaving a little wiggle room for themselves.
Kerry wanted to shut that door. So did the Duke
Cunningham Act pass. It died in committee. I
am shocked. Shocked, I tell you. I know. Stunning.
But the public pressure didn't go away. The anger
was real. So eventually, on September 12, 2013,
Congress did pass an expansion. They extended
the provisions of the Hiss Act to explicitly
include members of Congress. Okay, so 2013, we
finally have a law. If a congressman commits
a felony related to their job, they lose the
pension. That's the rule. That is the rule. And
they've even tried to expand it further. In 2019,
Senator Steve Daines proposed a bill to strip
pensions from civil servants convicted of child
molestation. This was following an investigation
into an Indian Health Service pediatrician named
Stanley Patrick Weber. Which seems like the easiest
yes vote in history. I mean, if we were taking
pensions from postmen for stealing letters in
the 50s, surely we can take them from a pediatrician
convicted of that. You would think. But this
brings us to the reality check portion of our
deep dive. Because passing a law is one thing.
Enforcing it, actually reaching into a bank account
and stopping a check, is something else entirely.
This is the part that made me stop and reread
the notes. You found a report from the National
Taxpayers Union Foundation from 2022. They went
looking for the bodies. They wanted to know how
many congressional pensions had actually been
stripped since that 2013 law passed. And the
answer is zero. Zero. As of that 2022 report,
no congressional felons have lost their taxpayer
-funded pension. But we have definitely had Congress
members convicted of crimes since 2013. We absolutely
have. But this goes back to the difference between
performative legislation and practical application.
The way these laws are written, there are so
many off -ramps. Like what? How do they get out
of it? Well, first, the conviction has to match
the specific list of offenses perfectly. If they
plead down to a lesser charge or a different
charge that isn't on the list, they might keep
the money. Then there's the appeals process.
As long as you are appealing your conviction,
you keep getting the check, and appeals can take
years. And let's be honest, pensions are property,
legally speaking. That is the core of it. Once
you earn a pension, it is considered your property.
It's deferred compensation. The courts are extremely
hesitant to let the government seize property
without an incredibly high bar of due process.
It's hard to do. So let's recap this wild trajectory.
We started in 1954 with a law designed to destroy
Alger Hiss. It failed to hurt Hiss because of
the Constitution. It accidentally hurt innocent
mail carriers and veterans. It was fixed to stop
hurting them. It was expanded to supposedly hurt
corrupt congressmen. And now, decades later,
it's not hurting the congressmen either. That
is a painfully accurate summary. The Hiss Act
is essentially a ghost story at this point. It's
a scary name that politicians invoke to show
they are tough on corruption. But when you try
to actually use it, it vanishes. It feels like
we keep trying to use the paycheck as a gavel.
We have this instinct that justice means hitting
them in the wallet. It's a very common instinct.
We equate financial loss with moral punishment.
But the legal system separates those two things.
Criminal law puts you in prison. Civil law handles
money. When you try to mix them, when you try
to use a pension fund as a tool for criminal
justice, it gets messy. And clearly ineffective.
It highlights the difference between passing
a law to send a message versus how the law actually
works in court. Congress loves the performance.
We are stripping pensions. It sounds great in
a press release. It wins votes. But the practical
application involves the Constitution. property
rights and complex administrative codes. And
usually the practical realities grind the performative
intent down to dust. And maybe that's a good
thing. Hearing about the postmen in the 50s,
maybe it's better that the government finds it
hard to seize people's livelihoods. There is
a strong argument for that. The procedural hurdles
that protect a corrupt congressman are the exact
same hurdles that protect the innocent civil
servant. The Constitution is a blunt instrument.
It protects the unpopular and the guilty just
as much as the innocent. Well, there you have
it. The Hiss Act. A snake that bit the wrong
people, lost its fangs when it tried to bite
the right person, and is now sitting in the corner,
largely toothless. A perfect description. It
really makes you wonder, though. As you process
all this, think about the broader implications.
If a law named after a convicted spy couldn't
even stop his pension because of the Constitution,
what does that tell us about the real limits
of congressional power? We tend to assume lawmakers
can just legislate away bad behavior by threatening
financial ruin. But if the Constitution walls
off our property and our pensions from retroactive
rage, we might need to rethink how we actually
hold the powerful accountable because clearly
the paycheck isn't the silver bullet we thought
it was. It's a fascinating question to leave
on. Indeed. Thank you for walking us through
that legal labyrinth. And to everyone listening,
thanks for diving deep with us. We'll catch you
on the next one.