Colin Seeberger: Hey, everyone. Welcome back to “The Tent,” your place for politics, policy, and progress. I’m Colin Seeberger, and I’m here with lead producer Erin Phillips, who’s filling in for my co-host, Daniella Gibbs Léger.
Erin Phillips: Hey, Colin, glad you could make it here through all this snow and freezing weather. It’s kind of spooky out there.
Seeberger: Only by the powers of open day care am I able to be here with you. So it was very exciting to drop my little one off this morning after a four-day long weekend, which is—if you have a very young one, like I do—very, very exciting. And I know she was excited to see all of her friends and whatnot. It was a ton of fun taking her out in the snow.
Phillips: Yeah, well, snow days are the perfect excuse to curl up on the couch and watch a movie, in my opinion. And I hear you have a recommendation for one our listeners might want to check out this week.
Seeberger: I sure do. This week, I spoke with filmmaker Melinda Maerker about her new Hulu documentary, “We Live Here: The Midwest.” We talked about LGBTQI+ identity in the region, why we’ve seen a resurgence of hate among extremist politicians, and what can be done about it.
Phillips: It’s a great film, and I can’t wait to hear more from Melinda about these issues. But first, we have to get to some news because despite the terrible weather on Monday, we still have results from the Iowa caucuses, the first Republican primary contest in the nation. And surprise, surprise, Donald Trump dominated. Now, we should note that Iowa is historically no sure indicator of who a party’s nominee will be. Since 1972, only three candidates who went on to become president won contested races in the state. Another key piece of context here is that only 110,000 voters cast a ballot on Monday night. That’s less than 15 percent of the state’s registered Republicans. So this is a tiny fraction of the extreme base in a very conservative state.
But it’s still clear after yesterday’s showing that Donald Trump is the Republican to beat this year. And that should frighten everyone who understands the importance of protecting our democracy. If you need a refresher on why, go listen to last week’s episode with our special guest, Joyce Vance. This is a guy who calls his political enemies “vermin” and claims they’re a greater threat to our country than authoritarian regimes like Russia or terrorist groups like Hamas. He’s publicly released plans to weaponize the Department of Justice to go after his enemies if he’s reelected. And that’s just the tip of the iceberg.
Let’s be clear: It’s no surprise he did this well in Iowa. Every candidate that finished in the top four slots refused to condemn Trump for his rampant lawlessness, radicalism, and basic inhumanity. Nikki Haley still won’t forcefully speak out against Trump. Heck, she won’t even answer the question of whether she’d accept an offer to be Trump’s vice president with a straight face. And [Gov.] Ron DeSantis (R-FL) just started earnestly criticizing the former guy last week. This is why the Republican base in Iowa still clamors for Trump, even though he could very well be headed to prison in the coming months. It’s because they’ve seen virtually every Republican let him off the hook time and time again. And that is why Trumpism has become a core feature, not a bug, of today’s Republican Party.
Seeberger: Yeah, and I gotta say, quite frankly, it’s not great news for Republicans. We’ve seen time and time again that Donald Trump and MAGA extremism is their political death knell when it comes to general elections—just look at 2018 or 2020 or 2022, or even the elections just this past November, for proof. If this week is an indicator of what’s to come, it seems like it could really spell trouble for the Republican Party, especially when we compare Trump and other candidates’ MAGA antics with President Biden’s real impressive record of actually delivering for the American people. President Biden has passed landmark legislation to grow the economy, create new good-paying jobs Americans can raise a family on, and strengthen the middle class. And consumer confidence reports show that voters feel better about the economy today than they have in nearly two years. Let’s remember that things actually weren’t that great back in 2011 following the Great Recession when President Obama launched his reelection effort. Yet despite those headwinds, he was able to win a second term because he demonstrated that he understood voters’ economic anxiety and painted a clear contrast with where his opponent wanted to take the country. The good news for President Biden is that our economy today is actually much stronger on nearly every metric than it was in 2011. And he’s fighting for policies that are going to lower the cost of living, things like lower child care costs. Earlier this week, he rolled out plans to cut overdraft fees from banks that want to prey on people who don’t have much in their checking accounts. And that’s all far more popular than what the Republicans are pushing: more tax cuts for the wealthy, repealing health care for tens of millions of Americans.
So we’re going to have to wait and see what happens in the coming weeks. But no matter who prevails on the Republican side, these results tell us Donald Trump and MAGA extremism, they’re deeply impacting this race. And while that radicalism might play well with the Republican base in Iowa, radical revenge politics, tax giveaways, and banning abortion—those are not things that Americans want. What they want is their elected officials to make their lives easier, to give them a little less stress by cutting the cost of living—all those things that President Biden and Vice President [Kamala] Harris are focused on every single day.
Phillips: Hear hear, Colin. Now, the campaign trail is not the only place we’re seeing MAGA extremism threaten the integrity of our federal government. Here to tell us about two important Supreme Court cases that heard oral arguments this week is Devon Ombres, senior director of Courts and Legal Policy at the Center for American Progress Action Fund. Devon, welcome to “The Tent.”
Devon Ombres: Hey, guys, thanks so much for having me.
Phillips: So before we get to these cases, can you tell us about the legal precedent they’re looking at, which is called the Chevron deference? What does that mean?
Ombres: So Chevron deference, Chevron doctrine, it’s a case stemming about 40 years ago. And I’ll take you even a little farther back, because before Chevron deference, there was a thing called Skidmore deference, which said that agencies had persuasive power, and then the courts could take their persuasive power and rule based on the regulations that they’re going on. But the problem was courts were being very political, and they were allowing their policy preferences to take over what should have been agency deference. So Skidmore deference didn’t actually mean a whole lot.
Then in 1984, it was actually a conservative movement that brought Chevron deference into play. And they said, “Judges, you’re not in the best place to decide what is a policy.” You should defer to agency interpretations of the statute and take the politics out of it. Congress directs agencies to do things. Agencies fill in the gaps. We give the deference to the agencies. And so that stood for about 40 years. It’s been relied on 19,000 times in various court cases. The Supreme Court’s relied on it more than 70 times. So it’s a big deal. And it touches absolutely every facet of modern governance.
Seeberger: Devon, can you talk a little bit more about those two cases that were heard in the courts this week? What are the stakes for each?
Ombres: So the cases bring up the identically same question: Should the court overturn Chevron? And they stem from the same question—whether under the Magnuson Stevens Act, the National Marine Fisheries Service is allowed to have commercial fishing vessels pay for monitors that are on the boats. The statute itself says that monitors may go on the boats. And the purpose of these folks is to collect data, to determine whether there is overfishing, what the best policies to implement are regarding fishing. Herring, which these fishermen fish for, are markedly overfished. And so the monitors are actually doing a great service for these folks by making sure that their fisheries are sustainable, that they’re able to maintain their well-being and their livelihoods for years to come. And they’re saying that $700 a day accounts for 20 percent of their profits—and therefore, it’s unsustainable and the agency never had the authority to implement this rule in the first place.
So instead of taking up this very narrow rule about whether the commercial fishermen have to pay for the monitors, the court is just taking a huge swing and saying we’re going to overturn Chevron deference. And if you look at the amici who signed on in favor of the plaintiffs, it is wildly overpopulated with folks with very, very deep financial connections to the Koch brothers, who happen to be the regulated industries. We’re talking about environmental industries, health care industries, transportation industries. The Kochs don’t want to be regulated, they want to extract max profits. And they’re the ones who are funding—they actually funded the litigators who represented these folks. And also, of course, our dear, dear friend, Leonard Leo has deep financial ties to these. There’s a great Politico article a few weeks ago that shows 70 percent of the amicus briefs in the major cases in the last couple of terms have deep financial ties to very, very, very right-wing causes.
Seeberger: Well, just a minor coincidence, I’m sure.
Phillips: I’m sure, yeah. Can you talk about the oral arguments and what we heard during them? And sort of based on your observations, do you have any ideas which way the justices might rule? And what happens next in each of those scenarios?
Ombres: So I want to preface this by saying, so many times, we progressives run around with our hands in the air like Kermit the Frog saying, “The sky is falling, the sky is falling.” That’s not what is going to happen in these cases. This is a slow burn. We are frogs in a pot, and the Supreme Court is turning up the heat. It’s going to take years and years for these cases to really have their full impacts felt. And it’s part of the larger piece that is going on in this term with the Jarkesy case, with a case that’s being argued next month called Corner Post. The Supreme Court has taken up the question: Is modern functional governance constitutional? And quite frankly, at this point, the conservative justices seem to be leaning strongly towards, “No.” That’s what we’re facing. And again, slow burn—it’s going to take about a decade for this all to happen. So with regard to the arguments today, the judges seem to have their minds made up that Chevron is going the way of the dodo in some fashion, whether that is broad, whether that is narrow. Amy Coney Barrett and Brett Kavanaugh seem to have a thought about limiting application with a slight reversion to Skidmore. Alito, Gorsuch, and Thomas are throwing the baby out with the bathwater. Chief Justice Roberts kept his cards relatively close. But I think it’s fair to say we’re all going to come out and he’s going to write a highly technical legal opinion that undermines regulatory and congressional authority, but still maintain like he’s playing balls and strikes.
Seeberger: Well, Devon, you talked about, really, the fundamental question—being having a modern functional government—is really what the court is taking on and deciding here. Can you talk a little bit more about what actually could be the impact from a policy standpoint? Or what taking an axe to Chevron deference could actually mean for real people?
Ombres: Well, I’m going to plug myself here and note that we on the Courts and Legal Policy team put out a series of one-pagers and fact sheets that highlight the actual benefits that the American people receive from regulations and the things that are at stake from the perspective of health care, civil rights, education, labor laws, environmental protections. It touches everything. But the fact of the matter is, environmental regulations are going to be extremely trimmed down. We’ve already seen the court taking a hatchet, as you said, to broad environmental protections. Next month, we’re going to hear argument in Ohio v. EPA, which deals with the “good neighbor” rule that deals with ozone pollution, which is one of the key components in smog. And there’s a good chance that the Supreme Court is going to say, “No, EPA, you can’t regulate smog pollutants.” From a health care perspective, CMS [Centers for Medicare and Medicaid Services] puts out a new rule every two weeks because it is an incredibly technical aspect of the law that only people with hypertechnical ability are able to determine. I think what you’re going to see also is in the labor context, there’s going to be a lot less deference as to unions’ ability to organize. The former deputy solicitor for labor under the Trump administration said—and I’m going to paraphrase because I don’t want to misquote him—all of the protections for tipped wages and overtime rely on Chevron deference. So what you’re going to see is agencies’ inability to protect people from wage theft, from being underpaid, from savvy corporations who set up shell corporations to prevent people from being able to unionize. All of these things are on the table. And it’s going to really hurt everyday American workers. It’s not going to touch the white-collar folks as much as the blue-collar folks, but it’s really going to hammer them. And it’s going to hammer them in a bad way.
What the Supreme Court is doing, I equate to calling a plumber to come fix your toilet. You say, my toilet is clogged, I need your help. And the plumber takes a sledgehammer and smashes the tank. And he says, your toilet just doesn’t work. Toilets are bad, you should not do anything. That’s what these conservative justices are doing to American government. They’re hitting it with a sledgehammer, saying, “It doesn’t work. Here, let me hit it with a sledgehammer again and see if I can fix it a little bit better.” It’s a self-fulfilling prophecy. It’s ludicrous.
Seeberger: And Big Toilet and all the other greedy corporations out there will be laughing all the way to the bank.
Phillips: Yeah, it is absolutely terrifying. But I wanted to just wrap up by asking: Is there anything we can do from a policy perspective in the progressive camp to try to protect the integrity and autonomy of these federal agencies?
Ombres: So I think that there’s a lot of things that can be done. But it just depends on where the judges land and the justices land. Paul Clement, who was the solicitor general under George W. Bush, said that Congress cannot effectively codify Chevron, which I don’t think is an accurate representation of the law. But that’s a question that might come up. He also said that Congress should be acting more succinctly and more directly because if not for Chevron, Congress would be able to act and answer these questions. Well, two points to that. One, Congress is unable to look more than a week in the future, as per I believe Justice Kagan said that today. But Congress speaks broadly. And they give this deference to agencies. They give this explicit and implicit delegation to agencies to work, and they’re going to take this away. And they’re saying that Congress should speak more explicitly, [sarcastic tone] apparently because the filibuster doesn’t exist, and you don’t need a supermajority to enact any facet of law. But be that as it may, we’re not living in the real world when we’re in front of the justices. I think Solicitor General [Elizabeth] Prelogar gave a fantastic off-ramp to anybody who wants it. I’m not going to get into what Kaiser-ising Chevron means because that’s way too administrative law nerdy, and I’m sure most of our listeners have already zoned out—because admin law—but she gave them an off-ramp. And if the justices want to take it, they can minimize the damage that they’re going to do today. There’s going to be damage any way you cut it. It’s just a matter of how bad it’s going to be.
Phillips: Well, we will stay tuned and hope for the best we can get. Devon, thanks so much for joining us on the show today.
Ombres: Thank you, guys. Have a great one.
Seeberger: That’s all the time we have for this week. If there’s anything else you’d like us to cover on the pod, hit us up on Twitter @TheTentPod, that’s @TheTentPod. And stick around for my interview with filmmaker Melinda Maerker in just a beat.
Seeberger: Melinda Maerker is a documentary filmmaker. Her most recent film, “We Live Here: The Midwest,” follows the stories of five LGBTQI+ families in the Midwestern United States. It’s available to stream now on Hulu. Melinda Maerker, thanks so much for joining us on “The Tent.”
Melinda Maerker: Thank you, happy to be here. Thank you very much.
Seeberger: So I want to start off by asking you broadly about your new documentary, “We Live Here.” What drove you to document the stories of these LGBTQI+ families? And why did you choose to focus on the Midwest specifically?
Maerker: Well, the backlash that was so evident following the 2016 election really was the impetus for me and my co-producer, David, to just look at what was happening to the LGBTQ community and families in particular. I think people suddenly felt emboldened and empowered to speak against the community if they were so inclined in the first place. And the Midwest, in particular, it was the irony—the irony that this is the heartland of “family values.” Interesting when those values often exclude families, which should be the opposite of family values, which is about inclusion, about recognizing your neighbor, about being helpful and kind and considerate.
Seeberger: Throughout the documentary, many of these families that you focus on say despite the legalization of gay marriage years ago in the states they call home—Ohio, Kansas, and Iowa, for example—there’s actually been a sharp swing in the opposite direction when it comes to equity in recent years. Can you talk about how growing extremism is actually contributing to backlash against the LGBTQI+ community? And why radical politicians are stoking the flames of bigotry once again?
Maerker: Well, that’s a good question and a big question. I think that with the legalization of marriage equality, the LGBTQ community felt that we were really making advances, we were making great strides. It was a joyful time. And yes, the backlash for me was quite shocking. But then I thought about it, it was sort of like the “don’t ask, don’t tell” bill, that the minute you say this is real in society, this is codified in a certain way, that can stoke backlash. It’s like, “Oh, shoot, as long as we don’t talk about it, it’s OK.” But once it becomes real in a certain way, I think that can elicit a whole different response, again, among extremists who already held those views.
Seeberger: What do you think is driving them in this in this unique moment?
Maerker: In some ways, I think there is the extremism. There will always be extremism. But I like to think that that is on the far end of the spectrum. Often, we find that people are simply not thinking it through. For example, we had a premiere in Los Angeles, and my partner brought her Trump-supporting cousin. And at first, I thought, what a horrible idea. Why? And then I realized, this is actually going to be interesting. She’s a lovely person. She supports us as a couple. But after watching the film, first of all, she said, “This is really entertaining.” And that was a big goal of ours: not to be preachy, not to be forwarding a certain issue, per se, but to bring you closer to these families and to be more aware. And after watching the film, she sent me an email, and it said, “I need to think more. I need to think more about this community.” And I said, that’s really it. She’s not thinking it out. Like the couple in Nebraska, Mario and Monte—they are good friends with their Trump-supporting Republican neighbors, who love them. But I don’t think they’re thinking it through, that when they go to the ballot box and they vote for a certain candidate, they are voting against their neighbors, or their cousin and her partner.
Seeberger: I am curious, and this kind of gets to my next question actually is, one of the areas where we’ve seen this really be driven into the fore is in our public schools. They’ve really become kind of a battleground for the extremist culture wars. And this came up several times in your film. Why public schools, specifically? And when anti-LGBTQI+ hatred is introduced in those spaces, what kind of impact does that have on students and teachers and parents and the broader community?
Maerker: Well, it has a tremendous impact. It truly ripples through a community on multiple levels. And think about it. You can’t, in certain states, talk about your parents. You can’t claim, these are my parents, when they go to pick you up from school, potentially. And again, going back to the couple in Nebraska, later on, I had a conversation with the neighbors, who are, again, lovely people. And I just happened to say, “How do you feel about the book banning?” And they said, “Oh, we’re for book banning.”
Maerker: Interesting! And I said, “OK, why is that?” And they said, “Well, we don’t feel that our children should be exposed to a certain—as though it were sex education—at that age.” And I said, “Well, what if it’s just about representation?” Because that’s what we’re really looking at here. And I said, “Marayla, the daughter of your neighbors, Monte and Mario—shouldn’t she be able to see her two dads depicted?” The same way because they’re people of color, she should be able to see her parents of color represented. And then they thought about it. And they said, “You know, yes.”
Seeberger: That makes a lot of sense.
Maerker: That makes a lot of sense. So, again, I think it’s a lack of, in some ways, imagining what that means to these people, of just flipping the conversation and saying, gee, you know, not taking the first instance of negative rhetoric, which is mostly wrong. This is not what we’re talking about in terms of these books. We’re talking about representation. That’s a very simple thing. And it’s taken out of context, and it’s used in a really ugly way. And I think people will jump at that. It’s like, we do listen to the loudest voice in the room, even if that voice is totally wrong.
Seeberger: For sure. These book bans are also a fundamental threat to our civic education and our democracy. And our democracy is being tested like we’ve not seen in many, many, many, many decades. You can’t discount the impact of trying to use the hateful rhetoric to justify a policy change, to ban books, to discount certain people or their history, and not appreciate the fundamental threat that that poses to our democracy more broadly. All of these things are connected. And I think that oftentimes, those dots cannot be connected for folks. But I think the implications are quite clear.
Just to end on a more positive note, while we saw a record number of anti-LGBTQI+ bills introduced at the state and federal levels in 2023, we’ve also seen a lot of momentum in a positive direction in recent years. And we’ve seen new leaders emerging, like some of the LGBTQI+ Minnesota state lawmakers you spoke with for the film. What can we learn from those leaders, and how do we protect this vulnerable community from attacks at the state level moving forward?
Maerker: Well, I think you’re right in that this is a really scary time. And not wanting to dismiss that or ignore that or downplay that in any way, I think in the film, what we tried to do—in “We Live Here”—we tried to show the joy within families, that in spite of this pending legislation, in spite of these, what, plus-500 bills that are out there, we can find moments of joy within family as a community. And I think that, again, as a filmmaker as, not as, obviously, a politician—and I’m so happy for people like [state] Rep. Heather Keeler (D-MN), who are really helping us and taking the hit on the front lines and moving change forward—I think as filmmakers, our responsibility is to tell stories. Not to tell people what to do or what to think, but to engage them, hopefully, one person at a time. The minute that you relate to someone—and I’ve had a few people tell me, “I suddenly found myself rooting for these people in the film. I forgot who they were, to a certain extent. I forgot that they were necessarily LGBTQ. I just was rooting for these people.” And I think once you’re doing that, and once that you identify with certain people and their stories, because maybe you’ve had similar stories, it’s hard to unthink that. So those to me are the more joyful moments, if you bring awareness sort of one person at a time, if you bring people to the table, I like to think it’s hard for them to leave. So the goal for us, and I think what can be very joyful, is when you humanize issues. As Nia, one of the trans women in our story says, “We’re not issues, we’re people.”
Seeberger: Well, Melinda Maerker, thank you so much for joining us on “The Tent.” It was great to have you.
Maerker: Thank you. Thank you so much.
Seeberger: Thanks so much for tuning in. Be sure to go and check out previous episodes. Erin.
Seeberger: We are deep into the NFL playoffs. Unfortunately, I do have to report that my Dallas Cowboys failed to even show up to the game on Sunday. So we will not be proceeding to the divisional round.
Phillips: Is that what happened? None of them showed up?
Seeberger: Yeah, I’m afraid that’s what happened. You know, I think we’ll just leave it at that.
Seeberger: It was not a pretty sight. The Cowboys continue to have perhaps one of the worst playoff records of any team in the last three decades. I think we have gone to the playoffs so many times and lost, I think, every single game in the first or second round that we’ve ever played, except for two in the first round and made it to the divisional round twice, I think, two or three times in the past three decades. We’ve not even gone to the NFC Championship, of course not the Super Bowl. So for a team that likes to do a lot of talking, it is mightily disappointing to say the least. But I will say, I am rooting for the Detroit Lions. I am rooting for the Buffalo Bills. It’d be fun to see them take down the 49ers after some strong performances, take down the Chiefs over their strong performances the last few years. Please don’t hate me, Taylor.
Phillips: What about Travis Kelce, though?
Seeberger: I know.
Phillips: You’re not rooting for…?
Seeberger: No, of course I’m rooting for Tayvis. But we can spread the love and spread the joy to some other teams as well.
Phillips: Maybe if his team loses, they’ll have to comfort each other, and it’ll bring them closer together.
Seeberger: Let’s go with that. I will say, speaking of Tayvis, I will say: Taylor’s jacket that she wore to the game this past weekend that was custom-made by the wife of a player on the San Francisco 49ers, it was so sick. And I need one so badly for Cowboys, probably either Cooks or Ferguson.
Phillips: Or the next Taylor Swift concert. It’s versatile.
Seeberger: Yes, I get one for Eras tour take two.
Phillips: Exactly, wardrobe staple.
Seeberger: Yes, of course. So I will say, she continues to have some of just the greatest hall of fame football game looks of all time. But that was not the only thing on TV this past Sunday. It also was the Emmys.
Phillips: The Emmys! I’m not a huge current TV watcher. But I do like the award shows, and I like to see who wins and watch. I love watching acceptance speeches because people just are so joyful about all the work they’ve put into these projects, and it’s really just always beautiful to see people so emotional about being rewarded for this art that they’ve created.
Seeberger: Yeah, and they get to celebrate the people who have helped them get there, right? Their teachers, their families, the people who have put in their own blood, sweat, and tears—their crew—to make them look good. And yeah, it is always fun to watch. I will say, I am much more of a TV watcher myself than I am movies. So, this definitely was my medium. I was thrilled to see some of my “Succession” stars get the accolades that they most certainly deserved.
Phillips: They did well.
Seeberger: They definitely cleaned up, and it was hard-earned. But I also am looking forward to, it’s a new year. I’m looking forward to some new shows in 2024.
Phillips: What are you watching?
Seeberger: So I’ve actually not started watching it yet, but I desperately want to start watching “The Bear.”
Phillips: Oh, that looks like a good one. I love all the “Bear” memes on the internet. I probably won’t watch it because I’m just, I can’t really get into TV shows very much. But I love the people in their home kitchens saying, “Corner! Corner!”
Seeberger: Erin, you don’t know what you’re missing. OK, let me get on my soapbox for a second. But I think maybe it’s because I’m a relatively new parent—my child is turning 2 this week, so very exciting.
Phillips: Happy birthday!
Seeberger: Happy birthday, yes. But I don’t have a super long time to sit and focus on something dedicated for two, three hours, like a film. But I can squeeze in a 30- or 60-minute episode here or there on occasion. And so, that is one reason why I love TV. But I also am really excited for “True Detective.” They are doing a new one that’s based in the Alaskan tundra. I guess it’s called “Night Country,” and I loved early “True Detective.” It kind of went off the rails there for a little bit and got a little too weird for me.
Phillips: Jumped the shark?
Seeberger: Yeah, yeah, but I am excited to see—I like Jodie Foster. I feel like this is kind of the perfect series for her to do: “True Detective: Night Country.” So I will definitely be tuning in there.
Phillips: That’s fun. It sounds kind of spooky.
Phillips: I love a spooky show.
Seeberger: Yes. And I feel like that is the perfect way for us to wrap up this episode. Talking about the Alaskan tundra, it has been so cold all over the United States for the past week. We’re expecting more snow here in Washington, D.C., at the end of this week. So if you are traveling or commuting home, listening to this podcast of course, or just spending time with friends this weekend, make sure to be careful. Stay warm to the extent that you can, and we’ll talk to you next week.
Seeberger: “The Tent” is a podcast from the Center for American Progress Action Fund. It’s hosted by me, Colin Seeberger, and co-hosted by Daniella Gibbs Léger. Erin Phillips is our lead producer. Kelly McCoy is our supervising producer. Em Espey is our booking producer. You can find us on Spotify, iTunes, Google Play, or wherever you get your podcasts.