Jason Perry: On this episode of "The Hinckley Report," leaders scramble to keep critical services running as the government shutdown continues, lawmakers debate key issues facing Utah, and Governor Cox announces a pivotal appointment to the state's highest court.

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 Frank Pignanelli, partner at Foxley and Pignanelli and columnist with the Deseret News; Damon Cann, a political science professor at Utah State University; and Heidi Hatch, anchor with KUTV 2 News.

Thank you for being with us.

This has been quite a week in politics, federal side, the state side, and there's some very interesting nuances we're going to get into on the program today.

Let's start with the government shutdown for just a moment, Frank, because you watched a few of these.

We're as of filming day 17, so not the longest, but getting, you know, like, third longest.

Talk about this shutdown in terms of kind of is this just like others?

Are there any differentiators here from this shutdown that we've--from those we've seen in the past?

Frank Pignanelli: Yes, I think there is.

I mean, usually what's happened with the shutdowns is that, you know, we've had one, the first Trump administration lasted about a month, but the effects, they were there, but they went away.

This could be different for a couple of reasons.

Number one, Trump 2.0, he's out there wanting to fire federal employees, and he's targeting the Democrats that way.

Secondly, they seem to be more dug in on ideological positions, and so that--so that makes it different also.

The other thing, this is like an arm wrestling match where they just--whoever can inflict the most pain is going to win, and the rest of the audience just doesn't care.

They just want it over with.

What's really fascinating about this too is that the Republicans blame the Democrats and Democrats blame the Republicans.

In the polling, the independents blame both of them, and over a third of the Americans that are polled blamed them both.

But what's also interesting to me is that in the polling it shows that over half of the Democrats are wondering if this is even worth it.

That was a week and a half ago.

So, as the pain increases, whether because you can't get your plane ride or you can't go to your state park, is that--is it going to be the Democrats to concede or is it going to be the Republicans because of other issues?

But the polling dynamics are different than they have been in prior shutdowns.

Jason Perry: Damon, break this down for us just a little bit, particularly through the historical lens.

It's great having a political science professor on this, because the polling does kind of give equal blame all the way around.

So, if that's the case, if Frank is saying is right, is who can inflict the most pain, I mean, who wins this one?

Damon Cann: Well, there's the old saying that when elephants fight, only the grass gets trampled.

And so in this instance, the metaphor, of course, elephants are not the Republicans, they're the two political parties fighting.

But there are some indications, of course, Republicans in the electorate blame Democrats more than they blame Republicans.

Democrats in the electorate blame Republicans more than they blame Democrats.

And at the end of the day though, one thing that I think is interesting about this is that if I were an elected official of either party I'd be paying attention to, if you add the people who say the Democrats are responsible to the people who say Democrats and Republicans are equally responsible, you get about 2/3 of people.

If you have the people who say Republicans are primarily responsible and the people who say both are equally responsible, you get about 60% of people.

So, no matter what party you are in out there right now if you're an elected official, 2/3 of America thinks you have substantial blame for what's going on in politics, and I think that they should pay attention to that.

Jason Perry: Heidi, you have great reporting on this, so I was really kind of curious.

I mean, are the people paying attention to this?

And at what point does it hurt enough to the right people?

Heidi Hatch: Yeah, I think a lot of people, when you talk to them, they say Congress has one job, they should do it, lock them up inside.

Don't give them food and snacks until they come out with a decision.

But here at home in Utah we take away some of those pressure points by allowing the parks to remain open.

Right now we're in fall break for a lot of the kids in school, college, and also local schools.

So families, if they're trying to get to the parks and all of a sudden they can't get in, they're going to complain.

People are going to get mad.

It spreads on social media, ends up on the news.

At this point it'll probably pressure points when we're talking about the families that work for TSA or if we have air traffic controllers that don't show up and you can't get to where you're supposed to when you're flying.

Hill Air Force Base is one of our larger populations of federal employees.

At this point they've been taken care of, which is an interesting kind of in between of this, but I think it will get to the point where both parties have to come to the table and figure out how to get together and make a decision when it starts to look bad for them on TV.

Right now there's not enough people complaining.

Jason Perry: Heidi brings up an interesting point, because one of those pain points was do you pay your military.

They found a way, Democrats and Republicans both on that issue.

That's interesting.

Frank Pignanelli: Short term, short term, they're still reallocating that.

All that really needs to happen, you just need to pick up two or three more moderate Democrats in the Senate and then the bill passes, and the pressure points are going to start happening for that.

What you might see is the left wing Democrats saying we're never going to concede, but they'll have maybe some deal with the moderate Democrats to go over votes so the thing passes with an attempt to save face.

But others Republicans say the Republicans will concede.

To me, I just don't see President Trump, the Republicans, it's such an ideological issue for them in terms of funding these subsidies for health insurance.

Jason Perry: Damon, break that down a little bit on these tax subsidies for healthcare insurance, because at least it's said that that is the heart of it for what the Democrats are holding onto.

What is the breaking point on this?

It's not completely clear what will create one side to cave on that particular issue.

Damon Cann: It's been--I've seen reports in the media that supposedly there was an offer to have a vote in the Senate up or down on whether to continue these health care subsidies that were enacted during the Biden administration that expanded the amount of people who would qualify under the Affordable Care Act for subsidies for health insurance, and for the Democrats that was not enough.

They said they want a guarantee of passage before they would end.

And so, the struggle and the fight is going to continue.

Moving on here, the question that we should maybe be thinking about in terms of who could be pressured to go one way or the other and make a change on their current status is how many people in their districts rely on these expanded subsidies and if that will put pressure on anyone enough to get them to change votes.

Heidi Hatch: Yeah, tens of thousands of people here in Utah, Republicans and Democrats alike, get those subsidies right now.

They rely on them, and so I think whether you're looking at a Republican state or a Democratic state, there's going to be people from both sides who are saying, "Hey, my insurance rates are going up drastically.

This isn't good for us."

Although you have to look at the long term and say can we continue these pandemic era subsidies?

Can we afford it and can we make it happen?

The problem is it's popular to give these subsidies so families can support themselves.

Frank Pignanelli: One thing to remember, Jason, also is that just to fund it for in 2026 it's $24 billion.

Which sounds like a lot, but in terms of the whole federal budget, it's small.

So that this fight is over what I would say a small fraction of the budget, which means it's an ideological fight for both sides.

Jason Perry: Interesting, Heidi, you bring up an interesting point about who's getting paid and not being paid.

It's interesting, are all members of Congress talking about, wait a second, they're getting paid, and so people like our Congressman Kennedy are talking about maybe there should be some legislation that keeps them from getting paid to feel the pain just a little bit.

Heidi Hatch: I feel like this happens every time though.

It's a selfless thing to say, "You're right, if you guys aren't getting paid, we shouldn't be able to get paid."

But constitutionally, or at least since about the '80s, I think is when it changed, when they started getting paid and it's part of, I guess, a permanent appropriations.

So, I guess if they want to have an act of Congress to change it, I just don't know that they're going to.

I think it's just a cool thing to say, "You're right, we shouldn't get paid either if you're not getting paid."

But I don't know.

Jason Perry: Is that true, Frank?

Is this just what you do?

Frank Pignanelli: Yeah, you slam down your fists, "You're right, we should not get paid," and nothing happens.

Jason Perry: Okay, great.

Heidi Hatch: But you get points on the moral high ground.

Damon Cann: It's always popular.

When Senator Curtis was in the seat that Representative Kennedy is in now, he did the same thing.

And then as soon as the shutdown goes away, nobody talks about it again until the next showdown-- shutdown shows up.

Jason Perry: Okay, there's just one more issue on this statement, while we're talking about the impacts on Utahns.

The idea that traditionally these workers are furloughed.

In this case there is some move to do some RIFs, actually eliminate the workforce, and the courts are already weighing in on this just a little bit.

Give us some context on that.

Damon Cann: Yeah, and it's interesting, the Utah first congressional district especially has one of the largest percentages of federal employees as residents of the district out of all 435 congressional districts in the United States, so it's an issue that affects us a lot here.

For the moment, a judge has paused, saying you can't just fire people because there's a shutdown, but that's going to-- my hunch, the way the legal process moves, is that the shutdown will be resolved long before the legal case is resolved, and we'll just have to wait and see how that plays out.

Jason Perry: Is it going to be soon?

Are you calling it?

Damon Cann: No, the shutdown or the legal, the legal case, definitely not, shutdown, I think we've--we're in this for a couple of weeks yet.

Jason Perry: Okay, I'm gonna get to another issue we're gonna be in for a few weeks.

Just so interesting and complicated when it comes to redistricting and what's happening in the state of Utah.

And we've talked on this program a little bit before, the state constitution talks about how the powers of legislation are held equally between the people and also those who are called to elect them.

But Frank, I'm going to start with you on this because some interesting things.

The GOP have filed their own two sorts of things right here.

The first one is maybe I'm guessing none of our viewers have really talked about before.

You've got to be really wonky on this, indirect initiatives.

All right, can you give us a little primer on that, and then Damon, be ready for the political science professor, because I want everyone to understand this very nuanced area of the law.

Frank Pignanelli: In a section of the Utah Code where it talks about initiatives, it lays out the initiative process that we're all used to, the 8%.

There's another provision of the code that allows for an indirect initiative, and what it is is that if you have an idea for legislation, you get 4% of the electorate plus 4%--26 out of 29 counties, and that gets certified by lieutenant governor's office, that then it becomes a bill that's voted upon by the legislature.

Now, you can use those signatures if you--legislate disagrees for another initiative later on, but it's something that's never been tried before.

This is what the GOP has decided to do is that we're going to get these signatures and then we're going to have a vote at the beginning of the session to repeal Proposition 4, which is to set up all the maps.

And so, it's very clever, and what it does is because the issue that's--because the Supreme Court decision is, is an initiative a super law when it deems to be government reform that cannot be touched by the legislature?

What the legislature has done is they're now throwing this issue up.

Say, "We think we can touch that law."

So, it's--this is like five-dimensional chess that you see in Star Trek, because you have all these different players using both the legal system and the political mechanics dealing with this, and so what they're trying to do is figure out a way to stop these maps from being implemented.

And now the issue really is do they have enough money to get all the signatures that they need?

And so, what that either means, they drain what they have or are national groups now playing into this?

Jason Perry: Damon, just to set the stage a little bit here too, so this initiative, this indirect initiative, the referendum, interesting, signed first by the GOP chair, Rob Axson, but also he had several other people.

Attorney General Derek Brown, former US Rep Rob Bishop, Republican National Committeeman Brad Bonham, Cody Stewart, Carolyn Phippen, and Axson on these as well.

So, give us that as well as some of these provisions of this indirect, because this goes straight to the legislature, this indirect initiative, straight to them.

They vote it up or down.

Talk about that, including some of the requirements for that initiative.

Damon Cann: Yeah, so this is a really powerful group of Republicans coming together to advocate for this.

An indirect initiative is unique for us.

We haven't--this is not something Utahns are accustomed to, but the idea is you gather enough signatures, and instead of forcing a vote on the ballot by the population writ large, you force the legislature to take it up and consider it.

And while it's a little unique for us in Utah, about 1 in 5 states in the country have this indirect initiative process where if enough citizens say, "Hey, we care about this," instead of making all citizens vote on it, you make the legislature consider whether they should vote on it.

And so, it's different for us, but it's not wild or unusual on the broader American political scene because there are a number of states that have this kind of set up.

Jason Perry: Heidi, there are a couple of parts of this that are different.

On your normal ballot initiative, for example, it's about 144,000 plus signatures that you would need to get for this.

This initiative here, which will go to our legislature as an indirect initiative, about 70,374, about half the number of signatures are required for this.

Talk about that just a little bit because this is by statute on this where there's lower thresholds.

Heidi Hatch: Well, I think 140,000 is always a big job, but 70,000 is certainly more doable.

You have a short amount of time.

I don't think money is going to be an issue though.

You talk about whether they have the money.

I can't imagine that there's not national money going to come in and help with this.

You see the money pour in when we have congressional races where all of a sudden you have a seat that could be going either way.

This is a way where they could pour the money in before it even gets to that point.

So, I would think if they need the money, they'll have the money to get people knocking doors.

So, I would suspect that they would get those 70,000 fairly easily.

Jason Perry: But this is by November 15.

Frank Pignanelli: Yeah, that's-- Heidi's right.

That's fast, and you're gonna have to hire signature gatherers at a, you know, at a higher rate, because you have to have all these little public hearings, and then you have to gather the signatures, and they have to be certified by the lieutenant governor's office.

So, you've got to gather more than probably 70,000.

It's probably gonna have to be 80,000 just 'cause some issues there.

So, that's why this, actually, if this works, it's probably the most cleanest version because then you repeal Proposition 4 and then you go back to the maps.

But don't think there's not going to be challenges, because what's happened now is that the the League of Women Voters, they're challenging this.

And what they've done, they've actually challenged it even before it's been certified.

They're saying we just think this whole thing is unconstitutional, which is kind of unusual because usually you wait till you have standing, so they've really jumped the gun on challenging that.

And so, that becomes an issue in itself, because you have this challenge saying Lieutenant Governor Henderson, you don't get to certify this, because it's unconstitutional, even though the signature has not been certified.

Jason Perry: So interesting.

So, Damon, the lieutenant governor does have some things to say about this since then.

I was going to read to you what she said, and then you tell us, give us some context on this too.

This is what Deidre Henderson said.

"Just with the new map," this is beyond ours, "just with the new map, it was already a tight and chaotic process.

This is injecting a level of chaos and confusion into this process that is completely unprecedented."

Damon Cann: And the challenges for election workers broadly are very real and very substantial.

The lieutenant governor had previously indicated November 10 was the very latest that they would need to have a new map adopted and certified as legal in order to have that map to be able to function in time for the 2026 midterm elections.

And so, and there's a lot to do, right?

Candidates have to file, they have to know where to file, they have to start making plans for which districts and precincts for the caucus convention process, as well as for primaries, are going to fall into which districts so they can prepare ballots, get things mailed to the right people, and all that logistical planning takes months.

And so, if we do get a referendum and this referendum and initiative, the two pieces of this indirect initiative process pass, and then it doesn't get acted on until partway, even if it happened at the beginning of the legislative session, it would be too late to take that new map and put it in place for the 2026 election.

And all of this is going to end up on a judge's desks to try to resolve, which doesn't happen terribly quickly.

Heidi Hatch: Which is maybe the point.

The agents of chaos, whether it's the League of Women Voters, the GOP, the maps, maybe it's just gridlock so they can wait until 2028 and kick the football down the road, no decision made.

Frank Pignanelli: And I actually think this issue, because you have other issues on redistricting that deals with race and other characteristics, never before has there been a discussion whether at the state or at the Supreme Court level, does the legislature, which is given by the Constitution of the United States and the state the authority to draw boundaries, this is going to the United States Supreme Court.

So, I think the GOP is looking not only do they want to fight as much as they can, as they should as a political party because the Democrats will be doing the same thing, but also I think there's a larger audience.

This is going up, and we want to be able to demonstrate what is the will of the people?

Was it Proposition 4 or is it going to be this, you know, indirect initiative.

And so, it's an interesting legal and political tactic.

Damon Cann: There's a case for both sides, right, and this is what courts are for.

They serve a dispute resolution function in government, because on the one side you have the Utah Constitution that says the legislature is responsible for redistricting.

But you also have a constitution that says legislative powers are shared jointly by the people and those who are elected to serve them, and that the people have a right to say something about the nature of their form of government.

Which one of those statements in the Constitution carries the day when there appears to be a conflict between them?

And is there anything in the US Constitution that would give the Supreme Court grounds to step in instead of ruling solely on the basis of the Utah Constitution?

Fascinating set of legal questions, but in the meantime we're all just waiting here, trying to figure out how to run the government in the meantime until we can get answers on the legal question.

Jason Perry: Heidi, talk about the people you're discussing these issues with.

Do they see it the same way?

Because it sounds like it's being framed a little bit, yes, you have your ideas about maps, redistricting, but the heart of this is who has the power to reform the government?

Heidi Hatch: I think that's, who has the power, who has the power of Grayskull, who has the ultimate whatever out there?

I had a couple of legislators in.

I had Speaker Mike Schultz and Representative Doug Owens on my podcast yesterday.

And when you're listening to them, depending on which side you're on, Representative Owens was saying, hey, the legislature, we really should be representing the people.

You talked to Speaker Schultz, and he's saying we're giving too much power to the judiciary.

We have seen in this case that the judge laid out some rules for the legislature and actually pulled back on part of that.

So, how much control should that judge have?

Should they have the final say?

Is it the people at home with this initiative process?

And so, I think that's the question right now.

We know that we have these checks and balances, but ultimately, one of those branches is going to have the end all, be all say of what happens and who should have that power.

Jason Perry: In fact, to that great point, Frank, we're going to have a change in our courts, so let's talk about the implications of that.

Of course, on December 1 we're going to be losing Supreme Court Justice John Pearce, who is stepping down, and we have a new appointment in place by the governor.

His name is Judge John Nielsen, but talk about this for just a minute because it was interesting to me as Governor Cox announced his appointment, he talked about the fact that he is this judge, and you're an attorney, so just explain this a little bit, that the governor liked that this new judge is a textualist and an originalist in his approach to how he views and interprets statutes.

Talk about that for just a moment, what this may change for the court or if at all.

Frank Pignanelli: Well, obviously between this decision and other decisions, there's been a fair amount of frustration by the legislature and the executive branch with the Supreme Court.

And so what you're seeing is they said, ok, even though it was approved by a Republican governor and approved by a Republican Senate, there's a frustration.

So, they really delve deep.

Are you a true textualist?

So, that's what's happening there.

The other issue that was brought out at the point when this justice was confirmed is that there is a frustration level with the the Utah Supreme Court.

Do we expand the number of justices?

Now, the issue has been raised is that the number of opinions coming out from the Supreme Court has decreased in the last number of years, so there's been this question of how do we deal with that?

And so, but the bottom line is there is this natural friction that's really bubbled up in the last couple of years between the two branches of the government and the judiciary.

That's what you're hearing more than anything else.

Jason Perry: And I want to say, and Damon, talk about this for a minute on this expansion of the court.

Of course, Governor Cox didn't say the current Supreme Court justices are not textualists or originalists, certainly wasn't saying that about Justice Pearce.

But he was talking about how that's the lens he is definitely looking at his appointments right now, and talk about what this changing the court makeup might mean right now, because, of course, in Utah we have five Supreme Court justices.

Damon Cann: And this is part of an ongoing set of discussions that have been happening in the legislature going back to last session about whether there are different ways we should reform the court system in Utah.

Some of the ones that would make Utah more atypical failed rather quickly in the last session, but in terms of the size of the court, Utah, we're not way outside the norm.

I think there's about 12 or 13 courts, state high courts in the US that have 5 judges on them, but they tend to be really small states: North Dakota, South Dakota, Vermont, Rhode Island.

South Carolina, I think, is the only state left that is larger than Utah in population that still has a five member state Supreme Court.

Arizona was at five until the last decade or so.

They switched and went up to seven.

So, I think there's certainly a case to be made that the workload before a court in a state the size of Utah merits more justices to help share in that work so that each judge has fewer opinions that they're responsible for writing.

Even though all of them rule on everything, one judge takes a little bit more of a lead on majority opinion for these cases, and so it's not an unusual or wacky thing.

It's a discussion that the state should probably be having about whether the court system is the right size.

Frank Pignanelli: But there's friction.

Damon Cann: It's unlikely that there is not a political component to the discussion as well, but there's a case to be made on the merits as well as the political friction.

Jason Perry: I want to spend just the last couple of minutes, and Heidi, we'll start with you on this too.

I want to make the case tonight for municipal elections, why we should care about those municipal elections.

I'm not saying everyone doesn't, but we don't often know who these candidates are, and often these are the positions that are closest to the people, maybe the ones that impact you more than many of these other things.

Talk about that for just a moment.

We have some big mayor's races, for example.

Heidi Hatch: All politics are local.

When you look at the things that you complain about on a daily basis, the potholes in your roads or somebody picking up my garbage, what about my kid's school, these are all really at the municipal level.

And I know sometimes they're easy to ignore.

It's not as easy to go online and find information about the candidates to understand what's going on, but I think this is really where you want to dig in, you want to get involved, you want to know who's running.

There are some tight races.

We're seeing a lot of competition in the Salt Lake City council races, which is interesting, some new blood in there, very competitive.

And also a mayor that you would think would be an easy win in Provo with a very competitive race after two terms.

So, I think that we should pay attention to these, and if you haven't paid attention, you still have to November 4 to get educated, figure out who's running for your council races, and how does it affect you and what you're complaining about every day.

Jason Perry: That's excellent.

Frank Pignanelli: So when I was running for the legislature, I would knock, I knocked on every door in my district.

Half the questions, if not more, were all about city services.

And so, you're exactly right, because that's, at the end of the day, that's what people care about is garbage is being picked up, getting my water, making sure the streets are safe.

And so, that's why it is actually critically important that people really do pay attention to these local races.

Jason Perry: Go ahead, take--we got about 30 seconds.

Damon Cann: Okay, yeah, as a former mayor, local elections are near and dear to my heart.

Look, you shut down a local government.

and it's not going to go 14 days.

By the time if you've heard stories of cities that have had garbage strikes or you call 911 and no one responds, we just can't afford that in an age of government shutdowns.

Look, these may not be the highest profile races that you'll vote in in your lifetime, but they'll probably be more consequential for your day to day life than anything you vote for on a federal ballot.

So, folks out there, I hope we'll just get out, learn the issues, learn the candidates, and vote in these elections.

Jason Perry: It's interesting, as a local representative here, they would come find you pretty quick.

Damon Cann: Yes they would.

They know where you live, they know who you are, and they're not going to let you get away with it.

Jason Perry: A good lesson to learn from all of you, and that's another reason why we should all stay close to these elected--these elections and why they matter.

Thank you so much for your insights this evening.

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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