Jason Perry: On this episode of "The Hinckley Report."

In a special election, voters choose a new legislator from a third party.

Utah's governors weigh in on national headlines.

And leaders respond to a controversial executive order on artificial intelligence.

announcer: Funding for "The Hinckley Report" is made possible in part by the Cleone Peterson Eccles Endowment Fund, and by donations to "PBS Utah" from viewers like you.

Thank you.

♪♪♪ Jason Perry: Hello and welcome to "The Hinckley Report."

I'm Jason Perry, Director of the Hinckley Institute of Politics.

Covering the week, we have Maura Carabello, president of The Exoro Group; Jay Evensen, opinion editor with the "Deseret News;" and Chris Bleak, partner with RRJ Consulting.

So glad to have you with us this week.

We have a couple of very interesting political issues that are top of mind right now with policymakers and around the country, and they may bleed into some issues next year, particularly with our legislative session.

I want to get your take on a few of those.

And Maura, I want to start with you on the Utah Supreme Court.

This is an issue that came up again this week.

Our legislature and the governor are talking about expanding the size from five to seven.

Talk about this a little bit because there are a couple of sides to this issue.

Maura Carabello: There are a couple of sides, good pro/cons.

I'm having to resist the urge.

So on face this appears, and I think the evidence is that it's politically motivated.

But that still creates a paradox in which you say, "Does that mean it's a bad idea?"

If the genesis was maybe a political conflict, does that mean it's a bad idea?

The pro/con is interesting because one of them is the same.

One side says, "Hey, things are going too slowly.

We need to unstick things, and adding two justices will do that."

The other side says, "Well, I don't know.

There's a chance that adding two justices makes it slower."

The other interesting question is it will definitely cost more money.

This is one of the most expensive ways to fix what is, if in fact the problem is a logjam, it would be one of the most expensive ways.

So one has to ask the question, too, "Are there other ways to get, if in fact the solution that we're seeking is a logjam, are there other ways?"

So that's what makes it interesting.

We will note, I think that there's consensus with the governor's office and the legislative branch that they both agree that they're ready to make our courts, our Supreme Court bigger by two.

Jason Perry: Let's get into a couple of those issues that Maura just brought up, Jay, because the court has not changed since 1917.

1917, it's been a very long time, but break down a couple of those two points that Maura just brought up because one side, the governor and the legislature, are saying, "The state's grown a lot.

There's a big backlog."

Talk about that for just a moment because that seems to be the argument from that side.

Jay Evensen: Yeah, well, the elephant in the room is that the tension's between the governor and the legislative branch and the courts.

They don't like some of the recent decisions the courts have made.

But you know, this is interesting because it's not quite the same as on the federal level where you have, you know, a Democrat and Republican split.

Just about every, I think every justice on the Supreme Court has been appointed by a Republican governor, and they don't always rule the way Republicans want once they're seated, so that makes this, you know, a little harder to kind of parse.

You're adding two more seats, so you'd have to get a four-member majority instead of a three-member majority.

And the legislature is saying, "Look, if we wanted to effect the decisions, we would add four more justices."

So, it's a little bit harder.

This is not 1930s FDR court-packing, right?

It's a little bit more nuanced than that.

Jason Perry: Explain the nuance just a little bit, too, because that really is sort of at the heart of this.

You have the argument about backlog, even though our justices, Chief Justice Durrant saying it's not about backlog necessarily.

In fact, he argues that maybe having more would slow things down a little bit.

Consensus is harder.

Talk about that, but through the broader political landscape, Chris, because that can't be ignored in this particular case.

Chris Bleak: Yeah, absolutely.

A couple of things I'll note.

There's always tension between the legislature, the executive branch, and the courts that's built into the system.

This is not--these issues come up all the time.

I remember back in the day when we were working up at the Capitol together, there was a lot of discussion about the judicial nominating commissions, and the judicial evaluation, and how we go about doing that.

And so there's always these kinds of issues that are popping up.

This is specifically is an issue that Senator Todd Weiler has been talking about for a couple of years.

Then Representative Moss had a bill to expand the court, so I think this is kind of an expansion of what has happened in the past.

I think that it's important that we recognize that most states, particularly of our size, have around seven.

That is not uncommon.

And so increasing the court, looking at that is certainly valuable.

But I think Maura makes an interesting point, and I know others have made this.

You know, where are the greatest needs within the court system?

And I think the legislature is always looking at balancing that, and making sure that, you know, the courts have the resources that they need.

And that's something that they're balancing in everything that they're doing.

Jay Evensen: It's interesting, though, that the court, the Supreme Court, is making the argument that if you add two more justices, it will actually slow things down because you'll have to vet decisions through two more people.

It's just interesting to me that we have one branch of government offering to expand and increase funding to another, and the other branch saying, "No, we don't want that."

Maura Carabello: But that brings in the suspicion of politics, right?

Because you do see, unusually so, two justices speaking in public about their perception that it's not needed or wanted from their point of view.

It makes it, then, question motive and look to politics a little bit more than you would if the branch receiving the additional resource wanted it.

Jason Perry: Let's talk about expansion a little more, Jay, because it's been a big interesting week when it comes to the Affordable Care Act and the extension of the subsidies that have been put in place.

It seems to me like we just had the longest shutdown in history, but at the heart of it was this very issue.

Talk about what's happening right here, because there was an interesting movement this week in Congress to maybe extend these subsidies for an additional three years.

Jay Evensen: Well, and there are some Republicans who represent districts that are a little more evenhanded, and their constituents want these subsidies.

Utah is, I believe, the fourth highest recipient of these subsidies in the country, which is a little bit of a surprising statistic.

But there aren't enough votes, I think, for Republicans to keep these subsidies, and so we're facing another situation.

The Democrats have to decide, "Is this worth another government shutdown at the end of January or not?"

And so stay tuned and see what happens there.

Jason Perry: Maura, Jay brought this up, this point, 12% of Utahns, and a lot of them are kids, which not something many would realize, are relying on these subsidies that are part of this Affordable Care Act.

Maura Carabello: We disproportionately have a share of these subsidies, most falling under the 18-year-old.

So the question of, will Utahns feel this if something isn't done?

But I think where most of us are frustrated, so at the risk of just pointing out the problem, not the solution.

I think where most of us are frustrated on this is this represents congressional gridlock.

It represents gamesmanship, but it represents a chronic not being serious about our healthcare.

American healthcare is very, very, very, very expensive.

And when you talk about subsidizing, we're talking about the patient.

What we don't tend to talk about is the subsidy that happens to the providers, and the doctors will tell you that they're in a bind.

But until we handle the marketplace, which we've been unwilling, both sides, Republicans and Democrats have been unwilling to look at the marketplace that's providing these services and make them take any cuts.

Now we're back to not talking about the substance.

We're talking about the gamesmanship of politics and another deadline to see if Congress will slip it.

Chris Bleak: I think you nailed it absolutely, Maura, here.

I think congressional gridlock, not looking at the issue, the core issue, is what is causing this problem.

Should the subsidies be extended, expanded?

I don't know, but that goes back to, what is the plan?

We've kind of, they've changed so dramatically through court actions and other things what is actually happening with the Affordable Care Act.

And so now you have things like subsidies that need to be done to meet certain populations.

And I think, you know, to enter into that political crassness, I think that part of the problem the Democrats had with the ACA subsidies in the past was the pain hadn't hit yet.

And so it could be a very different equation come January when people actually see these increases coming in.

And how people start reacting to that I think could be a lot more significant, and Republicans could, you know, rue the day that they didn't extend this when all of a sudden the pain is actually hitting people, and they're starting to hear it, and that's being amplified.

Jay Evensen: Republicans have this talking point that you can get subsidies if you earn up to 400% of the poverty level, which is $60 something thousand per year.

It seems to me like there's room in here for compromise and for, you know, phasing out or something like that.

But I think, Maura, you hit it right on the head.

We have this habit of trying to hit the symptoms instead of the actual disease, right?

And so the problem is that healthcare is too expensive.

I made this point a couple of years ago on this program when they were talking about tuition forgiveness.

The loans are not a problem in our education system.

It's the cost of education.

We never want to really hit at what the problem is because that takes hard work, and it takes compromise.

Jason Perry: Now Maura, these subsidies end on December 31, if not extended.

To break the logjam a little bit, we did have four Republicans this week in the House that said they're willing to move forward, at least to have this vote.

Put that in context for us, because there is a lot of political, you know, power hanging on the line here, as all of you have just said.

Democrats are holding on to this through the government shutdown.

This is what the next step was.

Who wins or who loses in this?

Other than the people, I'm talking about the political side.

Maura Carabello: Yeah, I mean, I think that's the big, that's the question right now, is framing up who wins and loses.

I hope, famous last words, that there's room for this deadline to have two winners.

And one of the things that's happening is, do you go back to your echo chamber and create a win there?

So that's not good public policy that we're not all talking to each other, but it does create a situation when you can undo a logjam.

So, can you find enough that Republicans can go declare a victory going into the midterm?

And can you find enough that the Democrats can declare victory?

I'll stipulate, still, it doesn't solve a problem, but it gets you away from, I think, what we can do, which is I do think we won't prolong the deadline if we can find the political language that both sides can win.

Jason Perry: Yeah, before we leave this, Chris, just one thing about the politics of this, too, because this is coming as we're getting ready to get into these next election cycles.

So a lot of these candidates are looking at this particular issue, trying to sort of set their base to their policy on this, and this could have ramifications at the ballot box.

Chris Bleak: Absolutely, and the way we elect candidates in this country with our primary systems, you're going to have the most passionate, on the right and the left, care more about an issue like this.

You know, the right will see this as conservative spending run amok.

The left will see this as not taking care of its citizenry.

I'm not suggesting either of those issues aren't important, but as those passionate bases get engaged on this issue, there absolutely is agenda-setting on this.

And that's why you see, kind of to Jay's point, you see four Republicans defect on this.

I think that opens up another interesting issue, this concept around discharge petition.

We're seeing Congress operate on a number of key issues, or big issues I should say, this last couple of months on discharge petitions.

And I'm curious, will that open up the door for more discharge petitions?

Because people are going to want to be making a point rather than solving an issue.

Jason Perry: Well, this leads into such a very interesting question about power in Washington D.C.

Who has it?

Who's been able to wield it?

And Jay, I want to talk about what's happening, first, with executive orders.

Can we talk about that for just a moment?

And to set the stage a little bit, to kind of put these two in context, Congress has passed 57 pieces of legislation in this Congress in this past year.

And in that amount of time, 221 executive orders from the president.

Jay Evensen: It's just, it's completely topsy-turvy.

This has been a case over the last several decades, actually.

Politicians with certain issues find it's easier to do fundraising if you don't reach a solution.

I'll use immigration as an example.

It's easier to just sit back and say, "Well, we need money because the other side is going to do something really horrible if we're not properly funded."

George W. Bush made this one of his priorities, was to try to get immigration reform.

It never happened.

So what happens instead, then, is the president comes in and gives an executive order to solve the issue, and then almost immediately that gets challenged.

And then you have the Supreme Court actually either writing law, or saying, "This is appropriate," or saying it's not.

That's not how our system of government is supposed to work.

The legislative branch, the Congress, is supposed to write law, and they're not doing it.

And it's creating this other system that's not good for our republic.

Maura Carabello: Political power signals.

I don't think it's a matter of opinion to say the executive branch has dominant power right now between Congress and the President of the United States.

The signaling there, I'll give an anecdote locally, if you ever talk to a legislator about the executive, the governor's budget, they'll good-naturedly tell you that they look at it and throw it in the garbage.

It's a good nod to balance of power.

We don't see that.

You look at the Speaker of the House of Representatives of the United States, and his remarks focus as much on pointedly referring to the executive, which is just a signal of where they think the power is.

The one, though, I sort of am very critical of Congress has one main action.

They've failed to do that year after year, which is pass our budgets, and they're failing to pass legislation.

But the one thing we need to remember is that, for as much as I criticize our elected officials, without doubt they're a reflection of us.

They are a mirror of us.

So if we start rewarding independence, if we start not rewarding ideology, but rather report rewarding decision-making, if we give them the room to decision-make, if we elect people not who we like, but rather who will take action, they will adjust to our expectations of them.

Chris Bleak: You know, it's interesting.

I'll give President Trump credit on the executive orders.

The man does understand and know good TV and what the sort of sells, because the way he presents it all is very different, right?

He loves to put on the big show when he goes about doing it, as opposed to other executive orders that, you know, just get signed in sort of the normal course of business.

And President Trump loves to really tee it up.

It does frustrate me from two perspectives.

One, I'm old enough to remember when Republicans complained about executive orders.

And so the fact that we're sort of running amok makes me a little bit frustrated that we don't have any consistency.

Now that Republicans are in power, it's okay to do executive orders.

But more importantly, Congress has given up its appropriation power.

You look at what's happening within the executive branch, and impoundment, and changing where appropriations are going, and some of these things.

If I was a legislator, when I worked there, we would have lost our minds that the executive branch isn't carrying out the orders of the Congress.

And so I think Congress has to instill its power, not because they think, "Oh, the executive branch is run amok," but this is the power that they have given to them by the Constitution.

And if they care about that, they should care about that power and how things are being implemented at the executive branch level.

And right now it feels like they just don't care or aren't paying attention to it.

Jay Evensen: There's evidence that the public kind of understands what's going on.

And we did a poll with the Hinckley Institute of Politics.

Jason Perry: The "Deseret News" did.

Jay Evensen: "Deseret News" did, yes, and asked the three branches of government, if we felt that they were exercising too much power.

Fifty-two percent said they felt the executive, the president was exercising too much power.

That was much higher than what they said for either of the other branches.

I think the courts was like 20 something percent.

Jason Perry: Twenty-nine in Congress, thirty-seven.

Jay Evensen: Thirty-seven, so people are paying some attention.

Jason Perry: Before we leave this, Maura, I just come back to your point that you made a moment ago, is Senator Curtis, Congresswoman Malloy, just this past week, were starting to have more comments about how the oversight needs to increase of what's happening, not just in the executive branch, but overall.

And this is, I guess, what Chris was saying as well, is their responsibilities to oversee these things and to reclaim some of that power?

Maura Carabello: We should expect from our members of Congress to identify and claim their power, and we shouldn't see that as adversarial.

We should see that, as Chris well said, their action within their constitutional duties.

But we do need to insist that they start saying it to us.

We don't have to throw the bums out, but let's bring it up as issues.

Let's say it matters to us that you are pushing back, and start distinguishing a little bit between action and the tribe it's associated with.

Jay Evensen: But there's still, there could be a political price for pushing back against President Trump if you're a Republican.

Maura Carabello: I agree that that is the perception, but that is a paper tiger.

I mean, good for him.

The man is the consummate showman.

But if you look at his track record, you don't do any better as an incumbent with his endorsement.

He hasn't got a lot of teeth when it comes to whether you win or lose with the Trump endorsement.

But certainly, he has the perception that that's true.

Certainly he controls money, and money matters in politics.

But I think he's a bit more of a paper tiger than I would like to see Congress relate to him as.

I think they, I think the members of Congress are giving him more power than he has earned.

Jay Evensen: And the next election will be the last one that he plays a role in.

Maura Carabello: Right.

Chris Bleak: And just going back to a point we made earlier, you know, there's sort of a theory that Republicans have long talked about, you know, Dick Cheney talked a lot about this unitarian executive authority power.

And the court right now is giving the executive branch a lot of leeway in terms of how they approach some of these things.

You know, I just noticed this week that the FCC commissioner was testifying before Congress, and they removed the word "independent."

You know, this goes to, what is the executive branch's power?

And so all of the branches right now seem to be ceding a lot of that power and authority to the executive branch.

I don't like that.

I don't think it's the way our system is set up, and I'd like to see some of that pulled back.

I'm sure once the power dynamics switch in Washington D.C., everyone will change positions and agree, "Oh, we should have less power there and more power here."

I wish we could get to a more consistent idea of how those powers are utilized and where they're properly situated, because it would allow our government to function on the issues that matter, as we talked about.

Maura Carabello: Jay brought this up, and this bookends to the first subject, is that when Congress and the executive branch don't exercise their power, it then falls to the judiciary to be the decider.

So if you don't like what you see as too much judicial rulings, then look to the executive and legislative branch and ask them why they're failing, which leaves only the judiciary to make the decision.

Jason Perry: Jay, this leads perfectly into what we might see as another executive order.

It's interesting.

All the states are trying to do their own thing in artificial intelligence.

This is a big financial issue.

It's something big for the states.

And just this week, our own, our congressional delegation and our state leaders are pushing back on an effort to take the national level all control over AI.

Jay Evensen: Well, this goes to the question of federalism, and a key part of what it means to be a conservative.

Our states are supposed to be laboratories of democracy, and they're supposed to be the place where we test out ideas to see what works and what doesn't.

Utah has been a leader in AI legislation.

And now the president says, "No, we want a top-down type of a thing with AI."

So we are seeing the local government, or I'm sorry, state government pushing back on that and some of our delegation as well.

And they're not alone.

Other Republicans around the nation are pushing back on that as well.

Jason Perry: Chris, that's just an interesting dynamic because they are.

Representative Fiefia here from the state of Utah, even Congressman Moore has been talking about this as leave it to the states as this laboratory, as we just talked about.

Chris Bleak: Yeah, and I'm sympathetic to the AI companies.

I shouldn't be because they are huge, massive conglomerates.

But I am sympathetic to how that they develop a technology within the state boundaries and state lines, and it's not even a national technology, but it expands beyond that.

So it is a difficult challenge as trying to, you know, monitor and deal with those different issues.

But it goes to the problem, there haven't been clear guidelines given.

And because of some of the impacts of social media and people awakening to this concern, they're concerned about what AI is going to result on its impact for children.

That's where the majority of the regulation in Utah that we're seeing, is what's the impact this is going to have on our children.

We don't want to repeat the same mistake we just made with social media.

And so I think it's going to be interesting.

Will Republicans sort of revolt that the state power that they feel like they have on this issue is being taken from them in some way?

Maura Carabello: And sort of to rephrase that, I have been taught generationally to have an expectation of Utah Republican leaders.

One of the expectations is federalism.

We have pushed for state's rights for generations.

Openly, in fact, the Speaker of the House and the Senate President just this week were in an inaugural session in, I think Iowa, somewhere in the Midwest, in which a bipartisan group of leaders got together to talk about federalism, that we were leading that charge.

We have led the charge on social media.

We have led the charge on local control.

We've led the charge on concern with technology and regulatory environments.

All of this they have taught me.

It's all come from a conservative point of view.

And my expectation is you don't change your philosophy, and you don't change your approach to good government based on the issue.

You stick with that.

So I have an expectation that Utah leaders will continue to lead out on this issue, which will require them to disagree with the Trump administration.

Chris Bleak: Well, and because it hasn't been passed by Congress, you know, theoretically the way this will be implemented is the DOJ will sue states on regulations that aren't allowable or that they have problems with.

So once again, we're getting back into this, you know, then the courts are going to decide, which is going to be fascinating.

That will take time as well.

But in that lead up, is Congress going to actually give a framework in terms of what areas the states can touch and what areas are we going to make sure that we're allowing these companies to continue to grow, and implement, and develop, and improve, and all of these kinds of things, you know, to keep pace with that?

So it's going to be a fascinating sort of just federalism discussion there.

Jason Perry: We'll watch that one closely, 'cause I want to get to one more issue before we close too, Jay.

It is very interesting.

The makeup of our Senate is going to change a little bit in the Utah State Senate.

So this is just unique, which is why I want to talk about this for a moment.

Senator Daniel Thatcher resigned, and we have a new person.

Emily Buss of Eagle Mountain has just been put in in a very non-traditional way for this third party.

Jay Evensen: Well, so I've been thinking about this.

If you're a third party and you ever want to gain a seat in the legislature, this would be the perfect way to do it, because Senator Thatcher became a member of that party before he resigned his seat.

And it's up to the party to replace the person in that seat.

I thought they were pretty smart the way they went about it.

They had a vote for the entire Senate district.

They did a preference poll, which is something different.

You get to vote, I guess, for as many candidates as you want.

But they put--they actually got voters in that district to put a check mark next to a Forward Party candidate.

It's going to be interesting to see what the power of incumbency does to this, because that person had to sign an agreement saying they would run next year as a Forward Party candidate.

Jason Perry: Sixty seconds.

Maura Carabello: But to stay on wonky, 1,300 people voted for this compared to a delegate race, which has maybe 200 people, 300 people in the Senate delegate reelection, a special election.

So congratulations to a party who got 1,300 citizens in their district to participate in who the next senator is going to be.

Chris Bleak: She should switch parties, though, and run and change to a Republican because otherwise she's not getting elected next go around, despite Jay's concern there.

Maura Carabello: We will see.

Chris Bleak: And that is the best way for Eagle Mountain.

They should be out there advocating, change parties.

We want you in our-- representing Eagle Mountain.

Jason Perry: Yeah, it's gonna be so interesting.

This does change the dynamics a bit in our State Senate for sure, and I guess we'll see what happens in this next election.

A big kind of new way of approaching this one from that third party.

Thank you so much for your great insights this evening, and these very interesting issues that will bleed into next year.

And thank you for watching "The Hinckley Report."

This show is also available as a podcast.

Thank you for being with us.

We'll see you next week.

announcer: Funding for "The Hinckley Report" is made possible in part by the Cleone Peterson Eccles Endowment Fund, and by donations to "PBS Utah" from viewers like you.

Thank you.

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