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The Lawfare Podcast
Lawfare Archive: Election Anxieties and the U.S. Postal Service with Kevin Kosar and Anne Joseph O’Connell
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- [01:12]
Marissa Wong
I'm Marissa Wong, intern at Lawfare, with an episode from the Lawfare archive for April 11, 2026. On March 31, President Trump signed an executive order purporting to heighten restrictions on mail in voting ballots and expand federal control over state run elections. This is not the first time that Trump has opposed the use of mail in ballots or questioned their integrity. For today's archive, I chose an episode from September 1, 2020, in which Margaret Taylor sat down with Kevin Kozar and Ann Joseph o' Connell to discuss the litigation and implications so surrounding an incident during the first Trump administration in which Trump stated his opposition to supplemental funding for the US Postal Service because it would fund the delivery of universal mail in ballots for the 2020 presidential election.
- [02:10]
Margaret Taylor
I'm Margaret Taylor and this is The Lawfare Podcast September 1, 2020 On August 13, President Trump said in a news interview that he opposed supplemental funding for the United States Postal Service because such funding is needed for the delivery of universal mail in ballots for the 2020 election. His comments sparked panic about whether the Trump administration is slowing postal service delivery in order to sway the election. Images of blue mailboxes being removed and anecdotes about slow mail delivery added fuel to the fire. Postmaster General Louis Dejoy was called to testify before Senate and House Oversight committees. Lawsuits were filed by a host of state attorneys general. So what's really going on here is this election interference, the implementation of legitimate policies, or something else. I sat down with Kevin Kosar of the American Enterprise Institute and Ann Joseph o' Connell of Stanford Law School to sort through the facts, the policy changes, the investigations and the lawsuits, and what it all means for the 2020 election. It's the Lawfare podcast, September 1st election anxieties and the US Postal Service with Kevin Kosar and Ann Joseph O'. Connell. So I want to start with why the Lawfare Podcast is doing a podcast specifically dedicated to the US Postal Service, not necessarily the first thing one thinks of when we talk national security, which is what law firms focus on. Except just want to note for our listeners that we did publish an article on May 1st of this year titled why the Postal Service is Critical to National Security by Jeffrey Block. And I encourage all of our listeners to go and read it. There's some interesting facts in there about how the Postal Service is designated deliverer in 72 cities to deliver medicine in the aftermath of a biological attack. They have played a crucial role in disaster response United States and also the public safety issues related to the delivery of mail, including mail fraud, identity theft and terrorism. So there is a connection here. But the specific reason I've asked the two of you, Kevin and Anne, on the podcast today is to talk about something that is much more in the news right now, which is sort of safe and secure elections and the seeming crisis that erupted earlier this month, right about the time when President Trump said in a Fox News interview the following about vote by mail. I'm going to play the clip in the context of negotiations with House Democrats over a new round of stimulus funding to support the economy.
- [04:52]
Kevin Kosar
They want three and a half trillion dollars for the mail in votes. Okay. Universal mail in ballots. Three and a half trillion. They want $25 billion billion for the post office. Now they need that money in order to have the post office work. So it can take all of these millions and millions of ballots. Now in the meantime, they aren't getting there. By the way, those are just two items. But if they don't get those two items, that means you can't have universal mail in voting.
- [05:24]
Margaret Taylor
So for most Americans, I think this was the first time it was really front of mind that the post office might not be able to handle an in which because of the coronavirus, a lot of people want to and intend to vote by mail. So, Kevin, I'm hoping can you take us through sort of what your impression was of why the president made Those comments on August 13th and then what sort of happened in the aftermath of that, since then.
- [05:54]
Kevin Kosar
Sure, sure. Well, when Politico asked me about the President's statement the other week, my characterization of it was it's a wet hot mess. And it's the characterization I stick by because the President has maladroitly managed to conflate two separate policy areas, postal operations and elections policy, and to do so in a way that really doesn't make much sense. You know, he said that the post office needs the money to be able to handle all these ballots. And that's just so incorrect. You know, number one, the Postal Service delivers about 2.8 billion mail pieces per week. So even if 150 million people drop ballots in the mail in a single week, which of course won't happen, it's a rounding error to the Postal Service. They're a way bigger operation than that. And by the way, ballots dropped in mail, absentee request forms dropped in mail, there's postage paid on that, so they don't need the money. So the President just really, really confused a lot of stuff, which he is one to do because we know he's not exactly particularly attentive to policy details. But his statement really was just the match that hit the tinderbox because we've seen various factors coming into play that set the stage for this. You know, number one, COVID 19 people are being confronted with an existential choice. If I go to a polling place, I may die or get horribly sick or bring the sickness back to my family. So let's vote by mail. So states are expanding the use of absentee ballots, which I think is a very, very sound strategy. Second, you had the Postal Service got new leadership on June 15, PMG took over. And PMG, Louis DeJoy is a Trump donor. And that has made a lot of people uneasy and made people question whether or not he was independent or if he was simply a tool for the administration. So you got that factor in. Since the 13th, we've had this almost freak out about the Postal Service. A kind of conspiracy theory with dots being connected was drawn wherein mail collection boxes were being stolen from the streets, mail sorting machines were being taken away by the evil pmg. Trump was going to stop voting by mail by blocking money, et cetera, et cetera. And the response was Congress acted. Democrats in particular saw an excellent issue where they could draw a line between themselves and the President and make the President in the process look very bad. And so they held hearings. They first called a hearing in the House, but they were co opted when the Senate Republicans called a hearing Instead. So we had a hearing on the Postal Service by the Senate, had a hearing on the House about the Postal Service, and there's also a House admin hearing about election and voting by mail. So we've seen a whole host of action, including a House bill which would prevent the Postal Service from doing anything that might slow mail service. And this is where we're at at the moment.
- [09:02]
Margaret Taylor
And so, Anne, do you have anything you want to add, things you would like to emphasize that have sort of happened in this time frame that struck you?
- [09:10]
Marissa Wong
Sure. I guess two things come to mind. First, I don't know if I would necessarily. In fact, I wouldn't label it a conspiracy, though feelings were running high. I don't think the main concern was about blue mailboxes being removed, but rather about delays that were being seen in the delivery of the mail and the connection that could have with regard to the election. And the moves that the new Postmaster General did take credit for in the hearings kind of linked to the delays, right, Were a decrease in overtime, decrease in return trips, an idea that all the trucks had to leave at a certain hour whether they were filled or not filled. So I do think that there were changes that did fall under the new Postmaster General that have been linked with delays. And I think that caused understandable concern about delays with regard to medicine. I mean, you had a Republican senator in a hearing worried about veterans not getting their medicine at the pace they normally got it. And then of course, the connections to the election. And then I guess the second thing that comes to mind is with this new leadership is to remark that there were many months, years when the Postal Service had no governors on the board of Governors. And hence there was no ability to change who was the Postmaster General. And so I think we're going to talk about this later. But the Postal Service in a way also kind of fits in with long standing vacancies in federal entities. And that plays a role too.
- [10:50]
Margaret Taylor
So I want to save the discussion of the structure of the Post Office for a little bit later. I want to just drill down first a little bit more on this question about the delays. And the reason I want to do that is because a lot of what has happened over the last few weeks with this seeming crisis is nobody has quite known what the facts are. And it's taken several weeks actually for the facts to come to light. You know, whether that's from the Postal Service itself or other sources. And so it seems, and I want you all to correct me if you think I'm wrong, it seems that certain policies were implemented right at the same time that the postmaster general, Louis Dejoy, came to be postmaster general, which was on June 15th. Part of them were policies that he wanted to pursue, part of them were policies that were already slated to be implemented. But in any event, it seems that in that June July timeframe there were significant delays in the mail service. What the reasons for that was is what people I think are arguing about somewhat. But there were actual delays that people experienced that constituents wrote to their members of Congress about. And so I mean my view and Kevin, please comment on this. My view is that it took those experiences that were happening about the delays. What the president's comment did was kind of link them to potential delays around ballots being delivered on the election. That was sort of the key. But there were these actual delays that appeared in the June timeframe that seemed obvious to me, at least from the congressional hearings. Was that obvious to you as well? As a factual matter, it is, although
- [12:37]
Kevin Kosar
there's an element of nuance there. You know, first class letter delivery speed on time percentage has gone down steadily over the last five years. And what we saw in June, we have very imperfect data. This is a beef I have at the Postal Service does show a drop off. And it appears that this drop off had disparate effects. Different male classes had different levels of drop off. Periodicals, funny enough, had a very severe drop off. Apparently so. Yeah. And I think that most probably when they have the inspector general or someone like that dig deeply into the weeds that they'll probably identify as factors. First, the COVID features. When you do have members of the Postal Service workforce who go down sick, it's going to affect the system. But also the dejoy changes involving when the letter carriers had to get out in the morning. The other stuff, the collection boxes, the mail sorting machines, I don't think any of that is probably going to be identified as significant factors. And what we're kind of waiting to see now is where the dejoy policies and are the COVID sicknesses, is there going to be a correction? You know, it's one thing to implement a policy and have people uncoordinated for a time, but then they snap to and you get the results that you want. It's another thing if in fact you don't.
- [14:08]
Margaret Taylor
Kevin, one thing I want to ask you before I turn to Ann for some more of the details about the Postal Service itself is and this relates to the clip, which is the money. Seems like there's a lot of confusion about money that the Postal Service Needs? Does it need it generally? Does it need it to deliver ballots? There was this $75 billion number. There was a $25 billion number. Then one amount was announced in April about what the Postal Service would need to sort of get through Covid and other crises. Then that was walked back. What is the real story with the money? Does the Postal Service actually need money right now to have there be a successful mail in ballot for the elections?
- [14:55]
Kevin Kosar
No. The Postal Service is a self funding entity. The last time that it received an emergency appropriation was just after 911 when funds were appropriated to help the Postal Service. I think it was around 650 million to put in biohazard detection technologies into the mail sorting facilities. So this is an entity that is used to funding itself and despite its financial difficulties, it's in a terrific cash position. It has $14 billion in cash on hand. It has an additional $10 billion in borrowing authority thanks to the CARES act that we got the other month. And so it is in no danger of a liquidity crisis that would affect its ability to deliver the balance.
- [15:39]
Margaret Taylor
That is, that's enlightening. And I, I haven't quite sorted through why there was all this confusion about the money, but I do understand that the agency's Board of Governors was the entity that was originally asked in Congress for actually 75 billion in total financial relief in the coronavirus spending bill that was sort of being talked about in April. Still being talked about. So Anne, why don't you tell us a little bit more about that Board of Governors, how it relates to Louis Dejoy, how he sort of came to be Postmaster General in June. And just for context for me, I was a staffer on the Senate Foreign Relations Committee for years and part of my portfolio was nominations. So the model I'm accustomed to is that the President nominates someone. The Senate either gives its advice or consent or it does not. This situation with this position is obviously much different. It's difficult I think in some ways because members of Congress didn't really know who he was exactly, which I think has contributed a little bit to this. So can you just walk us through the agency structure and the Postmaster General?
- [16:45]
Marissa Wong
Sure. So until 1971 it worked much like other major agencies. I mean the Postmaster General was considered to be a cabinet level official appointed by the President, confirmed by the Senate. But after millions of pieces of mail got stuck in Chicago and there were task forces and the like, they transformed the Postal Service into a quasi governmental corporation. And it has this unusual structure. And what's the Structure? Well, there's a board of Postal Governors and there are nine Senate confederates, confirmed governors appointed by the President, confirmed by the Senate, nine slots. Right now we only have six confirmed postal governors. There are three slots that are open and we can talk about what a new administration might be able to do. And of these nine governor slots, they're party balancing requirements. So no more than five of the nine can be from the President's party. They have certain experience and expertise requirements. But once you have a sufficient number of governors, they can and have to, if there's a vacancy, select the Postmaster General. So it's the Board of Governors chooses the Postmaster General, and then the Postmaster General, along with these governors, are supposed to choose the Deputy Postmaster General. So right now we don't have a Deputy Postmaster General and we have three open governor slots.
- [18:14]
Margaret Taylor
And Ann, who are the six on the board? You know, are they from different presidents having nominated them, or like, who are they? What is their sort of makeup?
- [18:27]
Marissa Wong
Well, if you look at them, I mean, there's a certain irony to the leadership of the Postal Service because, of course, the Postal Service itself is one of the most diverse workforces in the country. Nearly 25% of postal workers are black, but the Board of Governors is seemingly all white males. So the six postal governors were all appointed, all nominated by President Trump and confirmed by the Senate because there was a period of time sort of where we didn't have any governors. So it took a bit of time into the Trump administration. And we now have these six governors. Four are Republican and two are Democrats, and some have some pretty considerable ties to the Republican Party.
- [19:13]
Margaret Taylor
Okay. And so just again, referring. My context for these things is when we would look at confirming someone to a government position, we had these pretty thorough documents that we reviewed that were produced by the executive branch and the nominee, but that kind of outlined any conflicts of interest that the person might have. And that was sort of part of our consideration in the Senate of, you know, sorting through that, figuring out if there was anything in there that, you know, was, was a non starter or what the agency had done to mitigate potential conflicts of interest. Is there a similar kind of process that goes on with board members or with the Postmaster General, him or herself? And the reason I ask this is, you know, Kevin referred to this before. It was, I gather that Louis DeJoy has some investments in his firm that he, that he came from, which is, is a contractor, I guess, of the U.S. postal Service. So what is the process for sort of who is doing oversight on potential conflicts by the person that holds this position.
- [20:16]
Marissa Wong
Right. So the governors, the six governors, they went through the Senate confirmation process, so they went through the traditional vetting of Senate confirmed appointees because the Postmaster General is not chosen that way, but is instead chosen by the governors. There's a different process which the Inspector General is now looking into. But as I understand it, the Board of Governors was looking for a new Postmaster General after the first woman Postmaster General decided that she was going to leave. And they hired a search firm. And the search firm, you know, proposed various names, did investigations. There's information that Dejoy was not on the Original list of 50 or so names that the search firm came up with for the post. He was added. And then the Postal Service itself and government ethics officials do various vetting on various financial disclosures and the like. And this is one of these issues that the IG is looking into because as you said, the new Postmaster General holds a pretty large equity stake in his former company, XPO Logistics. That's at least $30 million and continues to hold that equity investment. And so Senator Warren and other Democratic lawmakers who requested the IG investigation are concerned about conflicts of interest.
- [21:44]
Margaret Taylor
So, Kevin, obviously you've done a lot of work on the history of the Postal Service. You are truly an expert on this. Is it unusual to have someone like this in this position and to have these questions come up? And if not, why haven't we kind of heard about this type of sort of controversy before? Where does the Postmaster General typically come from in terms of their background?
- [22:07]
Kevin Kosar
Well, Postmaster Generals in the last 20, 25 years have often come from inside the Postal Service. The last pmg, Megan Brennan, she worked her way up from the bottom. Prior to that, we had PMG Potter, who also worked his way up from the craft and became the pmg. But historically, that's not the norm. We've had any number of Postmaster Generals who came from business community, former heads of auto companies and other major industries, business executive, bankers. It's an interesting position. The pmg, you know, we, we saw highlighted at the House hearing the fact that the PMG couldn't, you know, Dejoy couldn't tell Representative Porter what the price of a postcard stamp was. And, you know, some people would look at that and say, well, that's disqualifying. It's, you know, here's, you know, if you're running the Postal Service, you need to know that sort of stuff. And this is why we need to have people hired from within who really know the particulars of mail pieces and all that. Others look at the position and say, like, no, this is ultimately about managing a sprawling corporate, like, enterprise. The Postal Service is more than $70 billion in revenue. It's got tens of thousands of facilities. It's got like 150,000 vehicles. I mean, it's a huge thing. So somebody who has kind of business type training that, you know, comes from the outside, that's really what you want. You look to Postal Law, you're not going to get an answer either. Perspective can be read into the law as being the appropriate resume to be Postmaster General.
- [23:57]
Margaret Taylor
Okay, so I want to telescope out a little bit. Kevin, you started to touch on this. I want to kind of go back to basically the beginning of the Trump administration, because I do recall, and I verified this just in preparation for this podcast that just very soon after he, you know, he was inaugurated, the President, you know, said that the, that the U.S. postal Service were like, losers. He called it a joke at some point. What's your understanding of where that hostility comes from? From President Trump?
- [24:35]
Kevin Kosar
Yeah, that's strange. President Trump didn't actually, you know, campaign on making the Postal Service great again or something like that. And, you know, the suspicion is that, you know, somebody in the White House has a, you know, a beef with the Postal Service and they flagged the issue of the Postal Service and parcel delivery. That's what Trump seized upon very early. He called the Postal Service the errand boy for Amazon. Now, you know, it's not clear. Was this Trump trying to lash back at Jeff Bezos because he owns the Washington Post? Was it because somebody is concerned in the White House is concerned that the Postal Service is growing its share of the parcel delivery business and it could be coming at the cost of private delivery companies. You know, we just don't know why the President got this fixation, but he started tweeting about it and, you know, per usual saying things that were not entirely accurate. And ultimately that issue is to some degree been eclipsed because as a practical matter, when it comes to delivering parcels, the Postal Service each year can ask for a price increase. And that's what it is, in fact done. I mean, some years, a couple years ago, they asked for like a 12% price increase and the Postal Regulatory Commission said that's just fine. And this year they're going to, they're asking for a price increase because the private parcel companies have already asked for a price increase due to Covid related costs. And I imagine the PRC is going to approve that too. So, yeah, who knows why the President got fixated on the Postal Service.
- [26:13]
Margaret Taylor
And just for our listeners, when Kevin says the prc, he means the Postal Regulatory Commission, right? Kevin?
- [26:20]
Kevin Kosar
Yes, indeed. Postal Regulatory Commission, which oversees postal services, request for rate increases and other things.
- [26:26]
Margaret Taylor
Perfect, because most of our listeners would associate that with China. So just to be very clear,
- [26:34]
Marissa Wong
so Trump's, the president's statements are perplexing on one hand in that the Pew Research center does these periodic surveys of Americans views of various government entities, and the Postal Service always tops the list. I mean, over 90% of Americans have a favorable view of the Postal Service. And it doesn't matter in those past surveys whether you're a Democrat or a Republican. So over 90% of Republicans have a positive view of the Postal Service. So the attack prior to this kind of focus on the election is perplexing to me given its popularity. I mean, it's more popular than the military. But then when it comes to the elections, there are partisan effects, Right? So there's this new Wall Street Journal NBC newspaper poll that shows for the upcoming November election that nearly half of the voters who back Vice President Biden plan to vote by mail. And that's compared to only 11% of Trump supporters who said in the survey that they plan to vote by mail. So it's this interesting mix of both the kind of nonpartisan and the deeply partisan.
- [27:48]
Margaret Taylor
So maybe let's focus on that for a minute because in particular, in the run up to sort of the recent comments in that FOX News interview, Trump did say several times that he's asserting that mail in balloting could produce the greatest rigged election in history. He said that in various sort of forms for months. So I want to ask both of your views on that. Is this an attempt to sort of muddy the waters in the event that he does not win? And then he can have something he can point to that he said and that's why he lost, or sort of a more general desire to have Americans not have great confidence or what. How do you sort of interpret those claims and what their purpose is? Because it's actually sort of it's not utterly obvious to me. Kevin, you want to go first?
- [28:42]
Kevin Kosar
Sure, sure. No, it seems I think you're right. Trump has never been a gracious loser. He always blames other people. You know, I was in New York City 93 to 2003, and so I got plenty of news about Donald Trump during that time. And that was that was his M.O. and yeah, I mean, we've seen this across governing institutions generally where Trump wants to like so doubt around their Legitimacy as a strategy that he imagines benefits himself. And, you know, so he'll talk about the, you know. Well, you know, the reason this didn't get done was because of the, the deep state. You know, it's unfortunate, but, you know, it comes with. It comes with the man. He's not particularly respectful of governing institution or governing norms.
- [29:32]
Margaret Taylor
So maybe, maybe then that's a good pivot point to actually talk about the. A little bit more about this, the actual governance that sort of has been happening over the last few years. December 2018, there was a Treasury report on recommendations for how to change the post office. And so, Kevin, can you and Ann as well tell us about that report and how, you know, are those the policies that are being implemented by Louis Dejoy now or what? How do we understand that December 2018 report?
- [30:05]
Kevin Kosar
Sure. So that report, for the most part, was dead on arrival. Not least, the thing was written with very little stakeholder input. Democrats were shut out of it entirely. This was not kind of the presidential blue ribbon commission model like had been done under George W. Bush in approximately 2003. And so this report, which was not really well put together, it kind of read like you had a bunch of cooks in the kitchen at the same time. It didn't say, let's privatize the Postal Service. It basically rejected that. It did say that, you know, maybe some of the mail processing could be outsourced. It had all sorts of thinking about, you know, it's the 21st century, and maybe we should ask ourselves what really essential postal services are, and we should figure out how to fund whatever those essential postal services are, like the delivery of prescription drugs and presumably important stuff like jury notices or I would argue, also ballots by mail. It was vague in many ways, and the only thing it really did highlight was that kind of is part of the ongoing dialogue about the Postal Service is the structural deficits that the agency is suffering due to the fact that mail volume is down 33% since 2008 and that the Postal Service also has this kind of mounting unfunded obligations problem where, if you take a look at their retiree health benefits, their pensions, their borrowing from the treasury, et cetera, you get a number somewhere around $150 billion in unfunded obligations. And when you have a postal service that's not actually booking more revenue than costs on a consistent basis, really not clear how they're going to be able to pay those obligations, and it raises the possibility of a default and ultimately a taxpayer bailout.
- [32:03]
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- [36:26]
Marissa Wong
So it's not just the legislature, it's really sort of how little in a sense that the Postal Service itself can do. Because the way the Postal Service is set up, it wants to increase rates, right? It wants to increase the price of a first class stamp. It has to propose that to the prc, the non Chinese version, the Postal Regulatory Commission, and, and it's up to the Postal Regulatory Commission whether to approve that rate or not. And in fact, you see a lot of litigation. It's interesting. The Postal Service itself has independent litigating authority. It is not represented by the Department of Justice if it chooses to represent itself. And so you see litigation in the D.C. circuit somewhat frequently between the Postal Service and the PRC over, you know, kind of whether rates can be increased and the like. Now Kevin had indicated earlier that it seems that there's kind of more openness by the Postal Regulatory Commission to some rate increases given the budgetary situation. But I think the rate increases right. There are only so many postcards at 35 cents a pop that could help the Postal Service. And it really is congressional changes with regard to pensions and particularly prepaying the health care benefits of retirees that's going to be needed. And what was interesting in the congressional testimony by Dejoy was that he said that the Postal Service needed changes with regard to that. Right? He said, you know, Congress needs to relieve the Postal Service of these pre funding obligations with regard to health care. Now this is complicated and it's political in part because you move the retirees into Medicare, for example, but for certain financial changes you would need congressional help.
- [38:16]
Margaret Taylor
And you know, it seems to me that the Congress actually has been doing at least some stuff on the Postal Service this year, actually. And In February of 2020, the House passed a bill called the USPS Fairness act, which my understanding is that it actually would, if it were passed in a law, it would eliminate the need for the Postal Service to pre fund retirement benefits for the people it hires, which is sort of unique among these government agencies. And it passed on a bipartisan basis. And so, Kevin, what are the sort of politics around that kind of initiative where there seems to be bipartisan support but, you know, not clear that that bill's sort of going anywhere, for example, in the Senate.
- [39:01]
Kevin Kosar
Yeah, there's no indication that the Senate will take it up. And it's a problematic piece of legislation because what it essentially would do is to make an accounting problem go away, but not deal with the problem itself. You know, under the 2006 Postal Accountability Enhancement act, the Postal Service was moved from paying for retiree health benefits out of pocket. You know, every year they'd reach in their pocket and pull out the billions they needed. And it was, you know, it was. The legislation instead said you got to start pre funding these benefits. And the legislation took some pension dollars and put it in a retiree health benefits fund, and they put the Postal Service on this payment schedule. Postal Service was supposed to be writing big checks to this retiree health benefits fund every year. It has not put a nickel into it since 2012. But regardless of whether it actually pays into the fund, it takes a charge on its financial statement each year for pre funding of retiree health benefits. And that has led to the Postal Service consistently having deficits every single year. You know, this legislation would basically get rid of that accounting requirement, and the Postal Service's financial statements would look better on kind of an annual basis. But the whole issue of how on earth it is going to fund these retiree health benefits is left unsaid. In fact, right now, the Postal Service is drawing money out of the retiree health benefits fund. It started doing that in 2017, which it is using to pay its retirees health benefits. GAO has said 10 years, that fund is going bankrupt. And we are back to where we were in 2006, where the postal Service has very high retiree health benefits to pay for and no clear way to do it, which means a default and a taxpayer bailout, unless there was some sort of other policy enacted, like a Medicare integration that would remove that cost entirely.
- [41:02]
Margaret Taylor
So I think that brings us to kind of a pretty fundamental kind of governance question, which I've seen people commenting on on Twitter. And, you know, I think the broader media environment is sort of thinking about the issue of not being explicit about it, which is there seems to be a bit of a difference of opinion about how to think about the Postal Service, whether it is, you know, whether we should think of it like a government agency like the Department of Defense or the Department of State or, you know, Congressional staff or, you know, CRS or whatever. Do we think of it that way as a government service that is provided, or do we think of it more as this sort of quasi private entity? And I've definitely seen on both sides of this issue, some people have said getting mail to rural areas is a key service, that the gap isn't going to be readily filled by the private sector. And it reminds me, I guess, to some extent about the debate that's going on right now over how to get 5G to rural areas where like, you know, it's just not going to happen if it's not subsidized by the federal government because the cost incentives aren't there. How do each of you think about the Postal Service? What's the right way to think of it? Is it more like a. Should we think of it more of a private entity that needs to be self sustaining year over year, or is it more like a public service, like another government agency?
- [42:35]
Marissa Wong
So I guess I don't want to make the choice. I wrote an article years ago called Bureaucracy at the Boundary and I think of the Postal Service as the classic example. It both has core public attributes and it also has some important private characteristics. And it's not the only governmental entity that fits that description. I mean, there's Freddie Mac and Fannie Mae and the Export Import bank and many, many others. And so I think it has deep public fundamental goals. But it did after all of these mail delays in the late 1960s when it got restructured as this quasi governmental corporation take on certain private characteristics. And so it sits in this uneasy space because it is neither a private business. And so the new Postmaster General can't operate it entirely as a private business. And the way he talked about it in the hearings definitely emphasized the running it like a private business model. But on the other hand, it's not entirely a fully public, like the Department of Defense type of agency. And so that presents difficulties in how it's operated and how it's managed and how it's overseas seen.
- [43:55]
Margaret Taylor
Kevin, what do you think?
- [43:58]
Kevin Kosar
Yeah, I think we all agree that we need a postal service that is a public service to do the things that we need done. How are we going to be judged? How is anyone going to be judged by one's peers if we can't call a jury through? Jury summons is sent out through the mail, are we going to vote? I mean, there's so many ways that the Postal Service is woven into our public life. And it really is, as we've seen in COVID 19, a kind of logistics network of last resort. It's carrying more parcels right now than it has ever carried. And the Postal Service wasn't built to carry parcels, it was built to carry paper mail. Yet it is flowed into this space and it is delivering. And so, yeah, we need this as a public service. And the question is, what is the scope of that public service? Which needs to be debated, you know, because there are mandates like the Postal Service needs to deliver paper mail six days a week. Is that still something we need? Is it something we don't need? And then there's the larger question of the model for delivering this public service. You know, as Ann alluded to, prior to 1970, Post Office Department was, you know, kind of your regular government agency. And that model wasn't very good. It just couldn't meet rising demand. It had terrible management, labor issues. I mean, we even had a wildcat strike by one of the unions. So we switched to this kind of self funding government corporation model, which as I alluded to, we've seen done with other kind of public goods like the fdic, their government corporation, Tennessee Valley Authority, it's a government corporation. And where we're seeing real stress right now, setting aside the issues involved with Mr. Trump, is that we want this Postal Service to do a lot for us, but we're in this situation where we've never been before, which is revenues for the Postal Service aren't going up again. Mail volume fell in 2008 with the onset of the Great Recession and it's never recovered. So the Postal Service is, if you look at their annual revenues, they're not as high as they were in 2006, 2007, and that is creating all sorts of strain. And you have legion postal workers who have been retiring in droves. I think there is something like 600,000 retired postal workers and spouses thereof who are drawing benefits and pensions and that sort of stuff. And that number is going to keep going up. And so we're in a situation where the model was designed to pay for itself, but now it's struggling to do that and we've got to figure out how to make that work.
- [46:41]
Margaret Taylor
So before we end, I want to get Back to just two more sort of core lawfare questions, which I can't, I can't resist asking. So, Ann, tell us about these state attorneys general lawsuits that have been filed against, I guess it's against Louis DeJoy for these recent operational and policy changes, alleging that, I think that they were illegal. Can you tell us what those lawsuits, what they charge? They're obviously in response to this most recent flare up around the question about mail in voting. But what is in those lawsuits? What are their prospects going forward?
- [47:19]
Marissa Wong
Sure. So there are two big lawsuits involving various states. One was filed in the Eastern District of Washington. That's by the state of Washington, Colorado, Maryland, Michigan, a bunch of states against not only Postmaster DeJoy, but also against President Trump. And there is a second lawsuit that was filed in the District of D.C. by New York, Hawaii, New Jersey, and then also by the City of New York in the city and county of San Francisco. And that too was filed against DeJoy and Trump. In terms of the overlap of these two lawsuits and their claims, the primary one is that the Postal Accountability and enhancement act of 2006 set up a procedure when the Postal Service wants to kind of quote, change in the nature of postal services, which will generally affect service on a nationwide or substantially nationwide basis, it has to submit a proposal proposal to the Postal Regulatory Commission requesting an advisory opinion on the change. This is section 3661 of title 39 of the United States Code. And then the Postal Regulatory Commission informing this advisory opinion on these nationwide or substantially nationwide changes is supposed to hold a hearing under sections 556 and 557 of the Administrative Procedure act, which for law students are the kind of federal formal rulemaking and formal adjudicatory proceedings. Right. Hearings on a record. And at this hearing, users of the mail are supposed to be represented, and an officer of the Postal Regulatory Commission is supposed to represent the interests of the general public. And they're supposed to issue this opinion in writing. So the primary allegation in these two lawsuits about the changes that were made by Dejoy are that these changes have named nationwide impact, and the Postal Service did not go through these procedures of Section 3661. So it's this statutory claim about changes that the Postal Service is making. Now, there are additional claims in the lawsuits. So there are constitutional claims also being raised in both lawsuits. The one in D.C. raises fewer claims. Right. So it has a statutory claim about 3, 6, 6 1. It also has a claim about the old Postal Reorganization act of the 1970s. And sort of how mail is to get delivered. And it just has one constitutional claim about Article 1, Section 4, which is the elections clause, that states get to determine the times, place, and manner of holding elections. The other lawsuit, which has more states attached to it as plaintiffs, in the Eastern District of Washington, it has a slew of other constitutional claims. It includes a claim under Article 2 about states appointing electors. It includes a constitutional right to vote. It has equal protection clause and Due process clause claims. It also has an additional statutory claim involving the Rehabilitation act with regard to those with disabilities. So I can give some sort of sense. I mean, it's early on in this litigation. We don't have a government response yet in either a lawsuit, though the judge in the Eastern District of Washington has asked for a response in early September. There are, of course, really big hurdles to any lawsuit, and that's sort of getting the court to even agree that this is something they should hear. And the biggest issue there is whether the states have the requisite standing to sue under the Constitution. And so they have to show the states that they're injured, that the actions by DeJoy have caused those injuries and that the lawsuits kind of success on the lawsuits would redress those injuries. Now, what's interesting on this big barrier to kind of getting a decision on the merits is there there's a big difference in these two lawsuits. So the case in Eastern District of Washington, the states really focus on their injuries with regard to managing election. And I think that makes it hard to show standing, because you're going to have to show that these changes are really going to impact kind of the mailing of ballots, the request for ballots, and the like. I think it can be done. I'm someone who has a broad view of standing. But what's interesting in the District of Columbia lawsuit by New York and Hawaii and the city and county of San Francisco is there when they discuss the harms of the standing states and the cities, it's greater than just elections. They talk about states trying to get tax payments and that, you know, payments to them are getting delayed by mail. They have to send kind of extra notifications by mail, which is a cost to them. And that seems to me kind of an easier way of kind of showing standing for the delays at least. So understanding is a big hurdle. And then mootness might be a hurdle because, of course, in the hearings, DeJoy indicated that he has stopped a bunch of the changes he had made with regard to overtime, for example, though some stuff he's not kind of going back to what occurred before.
- [52:43]
Margaret Taylor
Right.
- [52:43]
Marissa Wong
He's not going to put the blue boxes back or the mail sorting machines back.
- [52:47]
Margaret Taylor
Yeah. I mean, just before I get to my last sort of discussion point, I would just would note, as you said, Ann, it was actually on August 18 that DeJoy, in light of this backlash about these policies that the Postal Service was implementing, did say that they would suspend operational changes until after the 2020 election. And that leads to my last discussion point, which is Congress's oversight role, because it seems like at this point, having done the hearings, having gotten certain commitments out of Dejoy to suspend these changes, having elicited facts that actually were quite useful in my opinion, in sort of putting to bed or putting to rest some of these wilder sort of ideas people had about what was going on. My question is, you know, did congressional oversight sort of work in this instance? You know, when a problem arises in our society and people are upset about it. And you know, there were people with signs outside of Louis Joy's houses in D.C. and elsewhere sort of protesting what was going on. And then the House and Senate both had hearings on these issues, which I think actually helped help this process. So my question, Kevin, I know you worked in the Congress for a long, long time and have an interest in seeing it succeed. I mean, do you think the system worked here in sort of bring some, some answers or some, some clarity to, to these problems?
- [54:23]
Kevin Kosar
I'm not sure so far. And here's why I say this. First, a big problem with Postal Service, which the hearings kind of focused light on, is transparency about performance. And what I am really hoping is that going forward the Postal Service ups its communications game and starts making its performance data available in much more user friendly formats. That way the average citizen can just log in and be like, huh, what's the national trend? Is first class, moving faster, slower in the last month? Should I be worried right now? It's hard to do that. Postal Service has that data, but it doesn't make a lot of effort to make it readily usable to the public. And that's unfortunate because it's a legitimate public concern and people, you know, have a right to know. And Congress also has a right to know. I guess, you know, the hearings, you know, were troubling to me insofar as that we heard repeated in them a lot of the allegations about sort of Dejoy trying to cripple the Postal Service trying to do it, that being his objective that, you know, we've, we know no, he didn't steal those mailbox mail collection boxes for this purpose, but that was repeated. It was an effort at kind of reinforcing this narrative, which, you know, has a certain electoral value. And so that. That was disappointing. I am hopeful that Congress can come together and say, like, we can all agree that the delivery performance of the Postal Service is something we should focus on. But I have to say, you know, we got a report from the inspector general just last week that showed the Postal Service racked up last year more than $5 billion in overtime costs. And overtime costs over the last six years have been around $25 billion. So when DeJoy was trying to target overtime and reduce it, he was actually doing something that would be helpful to the Postal Service. But we've taken that tool away from him because, you know, politics and like, maybe taking a little more care and asking, like, can we reduce overtime without hurting service? Can we talk about how to do this? But that didn't happen. The hearing basically was, you screwed up, don't cap overtime, end of the issue. But the Postal Service deficits are just going to keep going on if we don't get a handle on, on costs.
- [56:56]
Margaret Taylor
Ann, any final thoughts?
- [56:58]
Marissa Wong
Sure. So I agree on the need for transparency, and we've seen in the pandemic the sort of use of COVID dashboards. You could imagine something similar at the Postal Service. I also agree, of course, not just these hearings, but sort of many congressional hearings have a theatrical aspect to them, which is not necessarily the most productive to reform and important changes. But I am very hopeful about the ig. And so Senator Warren and these other Democratic lawmakers have asked for the IG who is protected from firing. So unlike other IGs whom President Trump has fired, the IG can't be fired by the president. Right. Can only be fired by the postal governors and actually need seven of them. And there are only six of them actually there, but can be fired only for cause. And so with this independence, I am optimistic about the IG's report at getting at more transparency about the delays, about the causes of the delays, about who instigated the changes that led to delays. And I think of igs as part of congressional oversight. I mean, of course, igs, just like the Postal Service has kind of a dual private and public hat, IGs have dual hats, right, Both to the agency and to Congress. And so I think the combination of hearings and the IG and public attention, even if in part it has excesses, I think that oversight is critical.
- [58:32]
Margaret Taylor
We'll have to leave it there. Kevin Kosar and Ann Joseph o', Connell, thank you so much for coming on the Lawfare Podcast.
- [58:38]
Kevin Kosar
Thank you.
- [58:39]
Marissa Wong
Thanks.
- [58:43]
Margaret Taylor
The Lawfare Podcast is produced in cooperation with the Brookings Institution. If you haven't, please take a moment to share the podcast on social media and give us a rating and review wherever you found us. The podcast is edited by Jen Patia Howell and our music is performed by Sophia Yan. As always, thanks for listening.
- [59:28]
Kevin Kosar
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