WEBVTT 00:00:00.000 --> 00:00:02.730 Welcome back to the deep dive. Today we're pulling 00:00:02.730 --> 00:00:05.549 a file off the shelf that sounds, at first blush 00:00:05.549 --> 00:00:07.889 anyway, like it belongs in a herpetology textbook. 00:00:08.130 --> 00:00:11.570 We are talking about the Hiss Act. It definitely 00:00:11.570 --> 00:00:14.470 has a very distinct serpentine ring to it. But 00:00:14.470 --> 00:00:18.550 unless you consider the maneuvering of 1950s 00:00:18.550 --> 00:00:21.469 congressional hearings to be snake -like behavior. 00:00:21.870 --> 00:00:23.769 Which, you know, honestly is a toss -up depending 00:00:23.769 --> 00:00:26.550 on who you ask about Congress. Fair point. But, 00:00:26.710 --> 00:00:28.910 strictly speaking, there are no actual reptiles 00:00:28.910 --> 00:00:30.769 involved today. Right. We aren't here for biology. 00:00:31.019 --> 00:00:32.780 We're here to talk about a piece of legislation 00:00:32.780 --> 00:00:35.679 from 1954. It's officially known as Public Law 00:00:35.679 --> 00:00:39.479 769. And looking at this stack of research you've 00:00:39.479 --> 00:00:41.100 pulled together, I mean, we've got the legislative 00:00:41.100 --> 00:00:43.740 history, court rulings from the 70s, right up 00:00:43.740 --> 00:00:46.479 to a National Taxpayers Union report from 2022. 00:00:47.000 --> 00:00:49.659 It is a wild ride. It really is. And the reason 00:00:49.659 --> 00:00:51.719 we're dedicating an entire deep dive to this 00:00:51.719 --> 00:00:54.960 obscure law is that it's the perfect case study 00:00:54.960 --> 00:00:57.560 in what I like to call legislative rage. Legislative 00:00:57.560 --> 00:01:00.060 rage. Exactly. We tend to think of laws as these 00:01:00.060 --> 00:01:02.840 cool, calculated decisions made in marble rooms 00:01:02.840 --> 00:01:06.000 by people thinking about the next century. But 00:01:06.000 --> 00:01:08.260 the Hiss Act is what happens when Congress gets 00:01:08.260 --> 00:01:11.280 furious at one specific person, tries to build 00:01:11.280 --> 00:01:14.379 a legal weapon to destroy them, and ends up accidentally 00:01:14.379 --> 00:01:16.459 blowing up the retirement plans of thousands 00:01:16.459 --> 00:01:19.900 of innocent bystanders. Precisely. It's a classic 00:01:19.900 --> 00:01:22.599 case of unintended consequences. We are going 00:01:22.599 --> 00:01:25.260 to trace how a law designed to crush a Soviet 00:01:25.260 --> 00:01:28.840 spy named Alger Hiss somehow ended up targeting 00:01:28.840 --> 00:01:31.599 postmen for petty theft, stripping pensions from 00:01:31.599 --> 00:01:34.540 World War II veterans, and then in a twist that 00:01:34.540 --> 00:01:36.180 feels like it was written by a screenwriter, 00:01:36.319 --> 00:01:38.540 completely failing to hurt the spy it was named 00:01:38.540 --> 00:01:40.719 after. And then just to twist the knife a little 00:01:40.719 --> 00:01:43.359 more, we'll look at why even today, despite all 00:01:43.359 --> 00:01:45.379 the tough talk we hear about stripping pensions 00:01:45.379 --> 00:01:48.099 from corrupt politicians, the system is surprising. 00:01:48.239 --> 00:01:50.780 bad at actually doing it. It's a journey from 00:01:50.780 --> 00:01:52.959 the Red Scare right up to the modern era. It 00:01:52.959 --> 00:01:55.159 reveals a lot about the gap between passing a 00:01:55.159 --> 00:01:57.480 law to make a statement and passing a law that 00:01:57.480 --> 00:02:00.200 actually functions in the real world. So let's 00:02:00.200 --> 00:02:02.599 start with a namesake, the target on the bullseye, 00:02:02.739 --> 00:02:06.659 Alger Hiss. For the listeners who might not be 00:02:06.659 --> 00:02:09.379 steeped in Cold War lore, we need to set the 00:02:09.379 --> 00:02:12.300 scene. Who was this guy and why did Congress 00:02:12.300 --> 00:02:15.840 hate him enough to write a law specifically for 00:02:15.840 --> 00:02:18.530 him? You have to understand, Alger Hiss wasn't 00:02:18.530 --> 00:02:21.370 just some low -level clerk. He was the golden 00:02:21.370 --> 00:02:24.289 boy of the American establishment. He was a high 00:02:24.289 --> 00:02:26.849 -ranking State Department official. He had been 00:02:26.849 --> 00:02:29.830 at the Yalta Conference with FDR. Wow. Yeah. 00:02:29.930 --> 00:02:31.889 He helped organize the founding of the United 00:02:31.889 --> 00:02:34.430 Nations. So he's really in the room where it 00:02:34.430 --> 00:02:36.169 happens. He essentially built the room where 00:02:36.169 --> 00:02:39.110 it happens. Yeah. But in the late 1940s, amidst 00:02:39.110 --> 00:02:41.689 the growing panic of the Cold War, he was accused 00:02:41.689 --> 00:02:44.280 of being a Soviet spy. It was the trial of the 00:02:44.280 --> 00:02:46.240 century. The whole nation was glued to it. This 00:02:46.240 --> 00:02:49.280 is peak McCarthyism era. The Red Scare is ramping 00:02:49.280 --> 00:02:51.060 up. Right. And while the government couldn't 00:02:51.060 --> 00:02:52.819 get him on treason due to statutes of limitations, 00:02:53.199 --> 00:02:56.419 they got him on perjury. In 1950, he was convicted 00:02:56.419 --> 00:02:58.560 on two counts of lying about his contacts with 00:02:58.560 --> 00:03:01.099 the Soviets. He goes to prison. But here is the 00:03:01.099 --> 00:03:03.139 detail that drove Congress absolutely insane. 00:03:03.379 --> 00:03:05.939 The pension. Yes. Because he had been a civil 00:03:05.939 --> 00:03:08.560 servant for so long, he was still eligible for 00:03:08.560 --> 00:03:10.620 his federal pension. I can imagine that didn't 00:03:10.620 --> 00:03:13.319 sit well. The idea that tax dollars would fund 00:03:13.319 --> 00:03:15.900 the retirement of a man convicted of betraying 00:03:15.900 --> 00:03:17.840 the country? It was politically intolerable. 00:03:17.860 --> 00:03:21.560 It looked weak. So in 1954, Congress decided 00:03:21.560 --> 00:03:24.300 to fix it. They drafted an amendment to the Civil 00:03:24.300 --> 00:03:27.960 Service Retirement Act, Public Law 769. Which 00:03:27.960 --> 00:03:30.750 everyone just called the Hiss Act? Correct. And 00:03:30.750 --> 00:03:32.870 the intent was surgical. They wanted to make 00:03:32.870 --> 00:03:34.949 sure that anyone convicted of crimes related 00:03:34.949 --> 00:03:37.689 to national security or, and this was a big one 00:03:37.689 --> 00:03:39.870 at the time, anyone who pleaded the Fifth Amendment 00:03:39.870 --> 00:03:42.210 during those security investigations would be 00:03:42.210 --> 00:03:44.110 stripped of their pension. So the message was 00:03:44.110 --> 00:03:47.050 clear. If you're a spy or if you refuse to testify 00:03:47.050 --> 00:03:49.330 about being a spy, the government cuts off the 00:03:49.330 --> 00:03:52.370 check. That was the pitch. And initially, it 00:03:52.370 --> 00:03:55.069 worked exactly as planned. The law passed on 00:03:55.069 --> 00:03:58.120 September 1st, 1954. The Treasury immediately 00:03:58.120 --> 00:04:01.099 stops sending checks to Alger Hiss. Mission accomplished. 00:04:01.319 --> 00:04:03.860 The bad guy pays the price. But this is where 00:04:03.860 --> 00:04:06.199 the legislative rage problem kicks in, because 00:04:06.199 --> 00:04:08.759 when you write a law in anger, you tend to cast 00:04:08.759 --> 00:04:11.039 the net wide to make sure the target doesn't 00:04:11.039 --> 00:04:13.500 slip through. You sent me the text of the act, 00:04:13.580 --> 00:04:16.120 and it lists job -related federal felonies. It 00:04:16.120 --> 00:04:18.699 doesn't just say treason. No, and that is the 00:04:18.699 --> 00:04:22.500 fatal flaw. To ensure they caught Hiss and anyone 00:04:22.500 --> 00:04:25.670 vaguely like him, They broadened the language 00:04:25.670 --> 00:04:28.189 to include a whole host of felonies involving 00:04:28.189 --> 00:04:31.949 a breach of trust. The logic was, if you betray 00:04:31.949 --> 00:04:34.769 the public trust in any federal job, you don't 00:04:34.769 --> 00:04:37.029 deserve the public pension. Which, you know, 00:04:37.089 --> 00:04:39.490 on a bumper sticker sounds reasonable. No pensions 00:04:39.490 --> 00:04:42.230 for crooks. But in practice... In practice, it 00:04:42.230 --> 00:04:45.430 was a total disaster. Between 1954 and 1961, 00:04:45.930 --> 00:04:48.370 the government started enforcing this law aggressively. 00:04:49.050 --> 00:04:51.149 And they weren't catching Soviet sleeper agents. 00:04:51.329 --> 00:04:53.269 They were catching mail carriers. This was the 00:04:53.269 --> 00:04:54.810 part of the research that really surprised me. 00:04:54.850 --> 00:04:56.730 You have these cases of postal workers who maybe 00:04:56.730 --> 00:04:59.509 stole $5 from an envelope or maybe they took 00:04:59.509 --> 00:05:02.209 a magazine from the mail room. Right. Now, we 00:05:02.209 --> 00:05:04.370 have to be clear. These are federal felonies. 00:05:04.750 --> 00:05:06.930 Tampering with the mail is a serious crime. You 00:05:06.930 --> 00:05:09.670 shouldn't do it. But we have to ask, is stealing 00:05:09.670 --> 00:05:12.689 $5 from a birthday card a national security threat? 00:05:13.269 --> 00:05:16.250 Not exactly espionage. Is it on the same level 00:05:16.250 --> 00:05:18.910 as selling state secrets to Moscow? I think most 00:05:18.910 --> 00:05:21.910 reasonable people would say no. But under the 00:05:21.910 --> 00:05:25.129 Hiss Act, the penalty was mandatory. Mandatory 00:05:25.129 --> 00:05:27.550 and automatic. It created this massive justice 00:05:27.550 --> 00:05:30.290 problem, as legal scholars call it. Let's paint 00:05:30.290 --> 00:05:32.310 a picture here. Imagine you're a judge in 1958. 00:05:32.769 --> 00:05:34.529 You have a postman in front of you who stole 00:05:34.529 --> 00:05:37.230 $10. You look at the case and say, OK, you broke 00:05:37.230 --> 00:05:39.269 the law. I'm going to give you a suspended sentence 00:05:39.269 --> 00:05:41.370 and a small fine. Because you think you're giving 00:05:41.370 --> 00:05:43.670 him a slap on the wrist. The crime was minor. 00:05:43.949 --> 00:05:46.509 Exactly. The judicial system is trying to be 00:05:46.509 --> 00:05:48.829 proportional. But the moment that conviction 00:05:48.829 --> 00:05:51.870 hits the books, the HISS Act triggers administratively. 00:05:51.910 --> 00:05:53.910 The Civil Service Commission steps in and says, 00:05:54.069 --> 00:05:56.990 convicted of a job -related felony, pension gone. 00:05:57.310 --> 00:06:01.209 So that $50 fine actually costs the postman his 00:06:01.209 --> 00:06:04.269 entire life savings. We're talking about an annuity 00:06:04.269 --> 00:06:06.689 worth tens of thousands of dollars back then. 00:06:07.069 --> 00:06:09.550 That's hundreds of thousands in today's money. 00:06:09.750 --> 00:06:12.410 It effectively turned a minor theft into a life 00:06:12.410 --> 00:06:15.230 -ruining event. The punishment was completely 00:06:15.230 --> 00:06:17.600 disproportionate to the crime. And it wasn't 00:06:17.600 --> 00:06:19.959 just Postman. There was a report in the New York 00:06:19.959 --> 00:06:23.240 Times from June 1960 that highlighted an even 00:06:23.240 --> 00:06:26.240 uglier side of this. Oh, right. The GI pensions. 00:06:26.240 --> 00:06:29.600 Yes. The law was written so broadly that it was 00:06:29.600 --> 00:06:32.180 voiding pensions for veterans if they committed 00:06:32.180 --> 00:06:34.180 these breaches of trust while in the civil service. 00:06:34.560 --> 00:06:36.959 So now you have Congress, who wanted to look 00:06:36.959 --> 00:06:39.459 tough on communism, having to explain why they're 00:06:39.459 --> 00:06:41.279 stripping retirement benefits from World War 00:06:41.279 --> 00:06:44.100 II vets. for minor offenses. That is a political 00:06:44.100 --> 00:06:46.139 nightmare. You set out to hunt a wolf and you 00:06:46.139 --> 00:06:48.160 end up shooting the family dog. That's a very 00:06:48.160 --> 00:06:50.560 apt analogy. And the pressure started to mount 00:06:50.560 --> 00:06:53.100 almost immediately. By 1959, you have hearings 00:06:53.100 --> 00:06:54.860 where Congress is basically saying, oops, we 00:06:54.860 --> 00:06:56.899 went too far. It's rare to see Congress admit 00:06:56.899 --> 00:06:59.120 a mistake that quickly. Usually they double down. 00:06:59.339 --> 00:07:01.439 Well, the optics were terrible. You can't really 00:07:01.439 --> 00:07:03.500 run for reelection on a platform of starving 00:07:03.500 --> 00:07:07.220 veterans. So in 1961, they passed a fix. Public 00:07:07.220 --> 00:07:11.129 law, 83 -769. They amended the Hiss Act to restore 00:07:11.129 --> 00:07:13.370 benefits for employees involved in minor offenses 00:07:13.370 --> 00:07:16.290 not connected with national security. OK, so 00:07:16.290 --> 00:07:19.110 sanity prevails. They narrow the scope back to 00:07:19.110 --> 00:07:20.730 what they originally claimed they wanted, spies 00:07:20.730 --> 00:07:23.290 and traitors. If you steal a letter, you pay 00:07:23.290 --> 00:07:25.470 a fine, but you don't starve in your old age. 00:07:25.589 --> 00:07:28.430 Correct. The balance was restored. The innocent, 00:07:28.610 --> 00:07:30.790 or at least the minorly guilty, were protected. 00:07:30.970 --> 00:07:33.490 The law was now focused solely on national security. 00:07:33.930 --> 00:07:35.870 But here is the plot twist that I absolutely 00:07:35.870 --> 00:07:38.350 love. While Congress is scrambling to fix the 00:07:38.350 --> 00:07:41.209 law for the postman, the man who started it all, 00:07:41.350 --> 00:07:43.930 Alger Hiss, is sitting in the background plotting 00:07:43.930 --> 00:07:47.370 his comeback. He was. And this brings us to 1972. 00:07:48.370 --> 00:07:51.370 Alger Hiss is out of prison. He's broke. And 00:07:51.370 --> 00:07:53.329 he decides to sue the U .S. government to get 00:07:53.329 --> 00:07:55.550 his pension back. The audacity is incredible. 00:07:55.709 --> 00:07:57.550 I'm the guy you wrote the law for, but I want 00:07:57.550 --> 00:07:59.779 my money. But he wasn't arguing that he wasn't 00:07:59.779 --> 00:08:01.860 a spy, right? He wasn't relitigating the espionage 00:08:01.860 --> 00:08:04.180 charges? No, and that's what makes this a fascinating 00:08:04.180 --> 00:08:06.779 legal case. This wasn't about guilt or innocence 00:08:06.779 --> 00:08:09.399 regarding the espionage. It was about the Constitution. 00:08:10.680 --> 00:08:13.620 Specifically, a clause that forbids ex post facto 00:08:13.620 --> 00:08:16.639 laws. Latin for after the fact. Exactly. The 00:08:16.639 --> 00:08:18.660 framers of the Constitution were very specific 00:08:18.660 --> 00:08:21.199 about this. The government cannot pass a law 00:08:21.199 --> 00:08:23.339 today that punishes you for something you did 00:08:23.339 --> 00:08:26.100 yesterday. If it wasn't illegal or if the specific 00:08:26.100 --> 00:08:28.019 punishment wasn't established at the time you 00:08:28.019 --> 00:08:30.399 did the act, they can't retroactively apply it 00:08:30.399 --> 00:08:32.580 to you. So let's map the timeline here. Hiss 00:08:32.580 --> 00:08:35.080 is convicted in 1950. The Hiss Act is passed 00:08:35.080 --> 00:08:38.840 in 1954. You see the problem. When Hiss committed 00:08:38.840 --> 00:08:41.779 his crimes and when he was convicted, the penalty 00:08:41.779 --> 00:08:44.620 was prison. It was not loss of pension. That 00:08:44.620 --> 00:08:47.080 penalty didn't exist yet. So the government effectively 00:08:47.080 --> 00:08:49.100 moved the goalposts after the game was over. 00:08:49.320 --> 00:08:51.820 That's exactly how the court saw it. In the case 00:08:51.820 --> 00:08:54.039 Hiss v. Hampton, the suit was actually filed 00:08:54.039 --> 00:08:57.039 by the ACLU on behalf of Hiss and another plaintiff 00:08:57.039 --> 00:08:59.409 named Richard Strasburger. And the U .S. District 00:08:59.409 --> 00:09:03.590 Court ruled on March 3rd, 1972. They sided with 00:09:03.590 --> 00:09:05.809 Hiss. The Emergency Civil Liberties Committee 00:09:05.809 --> 00:09:08.409 hailed it as a massive victory. The court said 00:09:08.409 --> 00:09:11.009 that denying the pension was penal rather than 00:09:11.009 --> 00:09:13.330 regulatory. Penal rather than regulatory breaks 00:09:13.330 --> 00:09:15.490 that distinction down for me because that seems 00:09:15.490 --> 00:09:18.029 to be the pivot point. It's crucial. If the government 00:09:18.029 --> 00:09:20.789 changes a regulation, say they change the retirement 00:09:20.789 --> 00:09:22.649 age for everyone moving forward, that's fine. 00:09:22.750 --> 00:09:25.289 That's just managing the workforce. But the court 00:09:25.289 --> 00:09:27.330 said this law was clearly designed to punish. 00:09:27.759 --> 00:09:30.159 It was a penalty. And because it's a penalty, 00:09:30.360 --> 00:09:32.779 it has to follow the strict rules of criminal 00:09:32.779 --> 00:09:35.580 law. And rule number one is you can't punish 00:09:35.580 --> 00:09:38.240 retroactively. So because Congress was so eager 00:09:38.240 --> 00:09:40.720 to hurt his specifically, they rushed a law that 00:09:40.720 --> 00:09:43.279 violated the Constitution. And because of that 00:09:43.279 --> 00:09:46.039 violation, Hiss got his money back. He did. The 00:09:46.039 --> 00:09:48.080 government had to restore his pension with back 00:09:48.080 --> 00:09:50.779 pay. That is just amazing. The irony is dripping 00:09:50.779 --> 00:09:53.580 off the page. The Hiss Act successfully hurt 00:09:53.580 --> 00:09:56.240 a bunch of random mail carriers for seven years. 00:09:56.419 --> 00:09:58.899 But when it tried to touch Alger Hiss, it bounced 00:09:58.899 --> 00:10:01.419 right off the Constitution. It's a powerful reminder 00:10:01.419 --> 00:10:05.350 that the Constitution protects everyone. Even 00:10:05.350 --> 00:10:07.970 the people we designate as the bad guys. It's 00:10:07.970 --> 00:10:11.450 designed to stop exactly this kind of emotional, 00:10:11.669 --> 00:10:14.870 reactive legislation. So Hiss gets paid. The 00:10:14.870 --> 00:10:17.049 postmen get their benefits restored. You'd think 00:10:17.049 --> 00:10:18.850 the Hiss Act would just fade away at this point. 00:10:18.970 --> 00:10:21.169 But it stays on the books, right? Yeah. Just 00:10:21.169 --> 00:10:23.370 without the retroactive part. It does. It's still 00:10:23.370 --> 00:10:25.830 federal law. If you commit a treasonous act today, 00:10:26.009 --> 00:10:28.149 you'll lose your pension. But as we move into 00:10:28.149 --> 00:10:30.429 the modern era, we start to see how selective 00:10:30.429 --> 00:10:32.750 the application really is. Let's fast forward 00:10:32.750 --> 00:10:36.450 to 1977. We have the case of Richard Helms, former 00:10:36.450 --> 00:10:39.029 director of the CIA, a titan of the intelligence 00:10:39.029 --> 00:10:41.409 community. A very different figure from Alger 00:10:41.409 --> 00:10:43.149 Hiss, certainly in terms of public perception 00:10:43.149 --> 00:10:45.799 at the time. But he gets into trouble. He pleads 00:10:45.799 --> 00:10:48.559 no low contender, no contest to two counts of 00:10:48.559 --> 00:10:51.200 misleading Congress. He lied to the Senate Foreign 00:10:51.200 --> 00:10:53.820 Relations Committee about CIA operations in Chile. 00:10:53.960 --> 00:10:57.039 Now, lying to Congress about national security 00:10:57.039 --> 00:11:00.340 operations, that feels like it lands squarely 00:11:00.340 --> 00:11:02.440 in the breach of trust territory the Hiss Act 00:11:02.440 --> 00:11:04.240 was supposed to cover. You would certainly think 00:11:04.240 --> 00:11:06.419 so. It's a felony. It involves national security. 00:11:07.039 --> 00:11:09.740 But when it came time to decide on his pension, 00:11:10.039 --> 00:11:12.759 the Department of Justice issued a ruling saying 00:11:12.759 --> 00:11:15.419 the Hiss Act did not apply. How did they justify 00:11:15.419 --> 00:11:18.679 that? It came down to the specific statutes he 00:11:18.679 --> 00:11:21.240 was charged under and the technical definitions 00:11:21.240 --> 00:11:24.320 of national security offenses in the act. They 00:11:24.320 --> 00:11:26.500 parsed the language very carefully. He kept his 00:11:26.500 --> 00:11:29.259 annuity. So we have a pattern emerging. The law. 00:11:29.740 --> 00:11:32.620 hammers the little guy, misses the specific target 00:11:32.620 --> 00:11:34.860 it was named after, and then gives a pass to 00:11:34.860 --> 00:11:37.600 the powerful CIA director. It's not exactly a 00:11:37.600 --> 00:11:40.159 shining example of blind justice. And this double 00:11:40.159 --> 00:11:42.000 standard is what keeps bringing the Hiss Act 00:11:42.000 --> 00:11:44.419 back into the headlines. Every time a politician 00:11:44.419 --> 00:11:46.500 gets caught doing something terrible, the public 00:11:46.500 --> 00:11:49.220 asks, wait, do we still have to pay them? Which 00:11:49.220 --> 00:11:51.860 brings us to a name that screams mid -2000s scandal. 00:11:52.480 --> 00:11:55.960 Duke Cunningham. Duke Cunningham. U .S. Representative. 00:11:56.740 --> 00:12:00.139 Fighter pilot. And as it turned out, massively 00:12:00.139 --> 00:12:03.179 corrupt. In 2005, he pleaded guilty to taking 00:12:03.179 --> 00:12:06.279 millions of bribes. We're talking cash, yachts, 00:12:06.279 --> 00:12:08.500 antique furniture. And naturally, people were 00:12:08.500 --> 00:12:10.919 furious. Why should a guy who sold his office 00:12:10.919 --> 00:12:13.980 for a yacht get a taxpayer pension? Senator John 00:12:13.980 --> 00:12:16.379 Kerry jumped on this at the time. He introduced 00:12:16.379 --> 00:12:19.039 the Federal Pension Forfeiture Act, which everyone 00:12:19.039 --> 00:12:21.929 called the Duke Cunningham Act. The goal was 00:12:21.929 --> 00:12:24.350 to close the loopholes. They wanted to make it 00:12:24.350 --> 00:12:27.070 crystal clear that lawmakers convicted of official 00:12:27.070 --> 00:12:30.389 misconduct lose their pensions, period. Because, 00:12:30.450 --> 00:12:32.549 correct me if I'm wrong, the original Hiss Act 00:12:32.549 --> 00:12:35.250 was a bit murky on whether it applied to Congress 00:12:35.250 --> 00:12:38.049 itself. It was mostly for civil servants. It 00:12:38.049 --> 00:12:40.389 was ambiguous. Congress has a long history of 00:12:40.389 --> 00:12:42.190 writing strict laws for the executive branch 00:12:42.190 --> 00:12:43.789 while leaving a little wiggle room for themselves. 00:12:44.149 --> 00:12:46.490 Kerry wanted to shut that door. So did the Duke 00:12:46.490 --> 00:12:48.950 Cunningham Act pass. It died in committee. I 00:12:48.950 --> 00:12:52.039 am shocked. Shocked, I tell you. I know. Stunning. 00:12:52.580 --> 00:12:55.600 But the public pressure didn't go away. The anger 00:12:55.600 --> 00:12:58.940 was real. So eventually, on September 12, 2013, 00:12:59.399 --> 00:13:02.200 Congress did pass an expansion. They extended 00:13:02.200 --> 00:13:04.440 the provisions of the Hiss Act to explicitly 00:13:04.440 --> 00:13:08.179 include members of Congress. Okay, so 2013, we 00:13:08.179 --> 00:13:10.799 finally have a law. If a congressman commits 00:13:10.799 --> 00:13:13.440 a felony related to their job, they lose the 00:13:13.440 --> 00:13:15.759 pension. That's the rule. That is the rule. And 00:13:15.759 --> 00:13:18.259 they've even tried to expand it further. In 2019, 00:13:18.639 --> 00:13:20.960 Senator Steve Daines proposed a bill to strip 00:13:20.960 --> 00:13:23.379 pensions from civil servants convicted of child 00:13:23.379 --> 00:13:25.840 molestation. This was following an investigation 00:13:25.840 --> 00:13:28.779 into an Indian Health Service pediatrician named 00:13:28.779 --> 00:13:31.519 Stanley Patrick Weber. Which seems like the easiest 00:13:31.519 --> 00:13:33.659 yes vote in history. I mean, if we were taking 00:13:33.659 --> 00:13:36.000 pensions from postmen for stealing letters in 00:13:36.000 --> 00:13:38.279 the 50s, surely we can take them from a pediatrician 00:13:38.279 --> 00:13:40.320 convicted of that. You would think. But this 00:13:40.320 --> 00:13:42.179 brings us to the reality check portion of our 00:13:42.179 --> 00:13:44.879 deep dive. Because passing a law is one thing. 00:13:45.200 --> 00:13:47.299 Enforcing it, actually reaching into a bank account 00:13:47.299 --> 00:13:49.379 and stopping a check, is something else entirely. 00:13:49.799 --> 00:13:51.960 This is the part that made me stop and reread 00:13:51.960 --> 00:13:54.659 the notes. You found a report from the National 00:13:54.659 --> 00:13:58.279 Taxpayers Union Foundation from 2022. They went 00:13:58.279 --> 00:14:00.779 looking for the bodies. They wanted to know how 00:14:00.779 --> 00:14:02.720 many congressional pensions had actually been 00:14:02.720 --> 00:14:05.740 stripped since that 2013 law passed. And the 00:14:05.740 --> 00:14:09.629 answer is zero. Zero. As of that 2022 report, 00:14:09.950 --> 00:14:12.789 no congressional felons have lost their taxpayer 00:14:12.789 --> 00:14:16.110 -funded pension. But we have definitely had Congress 00:14:16.110 --> 00:14:19.070 members convicted of crimes since 2013. We absolutely 00:14:19.070 --> 00:14:21.570 have. But this goes back to the difference between 00:14:21.570 --> 00:14:24.610 performative legislation and practical application. 00:14:25.309 --> 00:14:27.850 The way these laws are written, there are so 00:14:27.850 --> 00:14:30.269 many off -ramps. Like what? How do they get out 00:14:30.269 --> 00:14:32.429 of it? Well, first, the conviction has to match 00:14:32.429 --> 00:14:35.350 the specific list of offenses perfectly. If they 00:14:35.350 --> 00:14:37.629 plead down to a lesser charge or a different 00:14:37.629 --> 00:14:39.610 charge that isn't on the list, they might keep 00:14:39.610 --> 00:14:41.590 the money. Then there's the appeals process. 00:14:42.049 --> 00:14:44.350 As long as you are appealing your conviction, 00:14:44.649 --> 00:14:47.210 you keep getting the check, and appeals can take 00:14:47.210 --> 00:14:49.750 years. And let's be honest, pensions are property, 00:14:49.990 --> 00:14:52.899 legally speaking. That is the core of it. Once 00:14:52.899 --> 00:14:55.039 you earn a pension, it is considered your property. 00:14:55.139 --> 00:14:57.700 It's deferred compensation. The courts are extremely 00:14:57.700 --> 00:14:59.799 hesitant to let the government seize property 00:14:59.799 --> 00:15:02.480 without an incredibly high bar of due process. 00:15:02.820 --> 00:15:06.179 It's hard to do. So let's recap this wild trajectory. 00:15:06.519 --> 00:15:10.419 We started in 1954 with a law designed to destroy 00:15:10.419 --> 00:15:13.460 Alger Hiss. It failed to hurt Hiss because of 00:15:13.460 --> 00:15:15.720 the Constitution. It accidentally hurt innocent 00:15:15.720 --> 00:15:18.559 mail carriers and veterans. It was fixed to stop 00:15:18.559 --> 00:15:21.299 hurting them. It was expanded to supposedly hurt 00:15:21.299 --> 00:15:24.440 corrupt congressmen. And now, decades later, 00:15:24.639 --> 00:15:26.679 it's not hurting the congressmen either. That 00:15:26.679 --> 00:15:29.320 is a painfully accurate summary. The Hiss Act 00:15:29.320 --> 00:15:31.440 is essentially a ghost story at this point. It's 00:15:31.440 --> 00:15:33.360 a scary name that politicians invoke to show 00:15:33.360 --> 00:15:35.259 they are tough on corruption. But when you try 00:15:35.259 --> 00:15:38.039 to actually use it, it vanishes. It feels like 00:15:38.039 --> 00:15:40.179 we keep trying to use the paycheck as a gavel. 00:15:40.320 --> 00:15:43.100 We have this instinct that justice means hitting 00:15:43.100 --> 00:15:45.039 them in the wallet. It's a very common instinct. 00:15:45.299 --> 00:15:48.539 We equate financial loss with moral punishment. 00:15:48.899 --> 00:15:51.419 But the legal system separates those two things. 00:15:51.899 --> 00:15:54.960 Criminal law puts you in prison. Civil law handles 00:15:54.960 --> 00:15:57.379 money. When you try to mix them, when you try 00:15:57.379 --> 00:15:59.440 to use a pension fund as a tool for criminal 00:15:59.440 --> 00:16:02.080 justice, it gets messy. And clearly ineffective. 00:16:02.659 --> 00:16:04.460 It highlights the difference between passing 00:16:04.460 --> 00:16:07.659 a law to send a message versus how the law actually 00:16:07.659 --> 00:16:10.240 works in court. Congress loves the performance. 00:16:10.519 --> 00:16:13.139 We are stripping pensions. It sounds great in 00:16:13.139 --> 00:16:16.059 a press release. It wins votes. But the practical 00:16:16.059 --> 00:16:18.700 application involves the Constitution. property 00:16:18.700 --> 00:16:22.240 rights and complex administrative codes. And 00:16:22.240 --> 00:16:25.039 usually the practical realities grind the performative 00:16:25.039 --> 00:16:27.460 intent down to dust. And maybe that's a good 00:16:27.460 --> 00:16:29.919 thing. Hearing about the postmen in the 50s, 00:16:29.919 --> 00:16:31.519 maybe it's better that the government finds it 00:16:31.519 --> 00:16:33.659 hard to seize people's livelihoods. There is 00:16:33.659 --> 00:16:35.840 a strong argument for that. The procedural hurdles 00:16:35.840 --> 00:16:38.460 that protect a corrupt congressman are the exact 00:16:38.460 --> 00:16:40.379 same hurdles that protect the innocent civil 00:16:40.379 --> 00:16:43.120 servant. The Constitution is a blunt instrument. 00:16:43.399 --> 00:16:46.500 It protects the unpopular and the guilty just 00:16:46.500 --> 00:16:48.440 as much as the innocent. Well, there you have 00:16:48.440 --> 00:16:51.399 it. The Hiss Act. A snake that bit the wrong 00:16:51.399 --> 00:16:54.259 people, lost its fangs when it tried to bite 00:16:54.259 --> 00:16:56.820 the right person, and is now sitting in the corner, 00:16:57.019 --> 00:16:59.679 largely toothless. A perfect description. It 00:16:59.679 --> 00:17:01.779 really makes you wonder, though. As you process 00:17:01.779 --> 00:17:03.460 all this, think about the broader implications. 00:17:04.220 --> 00:17:07.200 If a law named after a convicted spy couldn't 00:17:07.200 --> 00:17:09.500 even stop his pension because of the Constitution, 00:17:09.980 --> 00:17:12.940 what does that tell us about the real limits 00:17:12.940 --> 00:17:16.359 of congressional power? We tend to assume lawmakers 00:17:16.359 --> 00:17:19.160 can just legislate away bad behavior by threatening 00:17:19.160 --> 00:17:22.119 financial ruin. But if the Constitution walls 00:17:22.119 --> 00:17:24.920 off our property and our pensions from retroactive 00:17:24.920 --> 00:17:27.940 rage, we might need to rethink how we actually 00:17:27.940 --> 00:17:29.920 hold the powerful accountable because clearly 00:17:29.920 --> 00:17:32.160 the paycheck isn't the silver bullet we thought 00:17:32.160 --> 00:17:33.960 it was. It's a fascinating question to leave 00:17:33.960 --> 00:17:36.220 on. Indeed. Thank you for walking us through 00:17:36.220 --> 00:17:38.640 that legal labyrinth. And to everyone listening, 00:17:38.799 --> 00:17:40.740 thanks for diving deep with us. We'll catch you 00:17:40.740 --> 00:17:41.180 on the next one.