Tag Archives: law

Will Google Buy Its Way Out Of Trouble For A Mere $7 million?

Google

Reports were circulating in the tech press Friday that serial privacy violator Google is about to cut a deal with state attorneys general to close their investigation of the Wi-Spy scandal.

Remember what happened?  Google sent specially equipped cars to travel the highways and byways of the world snapping photos of everything they passed.  What Google did not say was that were also sniffing out Wi-Fi networks and sucking up private data on those networks.

They got passwords, account numbers and email messages, including in France a couple trying to arrange an extramarital affair.

When first confronted, Google executives denied sucking up the data.  Then they said it was all a mistake.  Then they said it was the work of a rouge engineer. Consumer Watchdog was among those to call on the Federal Trade Commission to investigate. The FTC did, but dropped the probe after Google essentially said, we’ll be nice.

John Simpson The Federal Communication Commission opened a probe ultimately fining Google $25,000 for hindering its investigation.  The FCC also found that the Wi-Fi snooping had been deliberate and that senior managers had been aware of it.  The FCC said it could not determine if the law had been broken because the engineer who designed the Wi-Fi snooping exercised is Fifth Amendment rights and declined to testify.

Google tried to spin the FCC probe by saying the commission found they had not broken the law. That’s not what happened; the FCC said they could not determine if the law had broken. A big difference.

Meanwhile, under the leadership of then Connecticut Attorney Richard Blumenthal, more than 30 state attorneys general launched their investigation of the incident, which is really the largest case of wire tapping in history.

It’s that state attorneys general probe that is reportedly about to be settled for $7 million.  That may sound like a lot, but it’s not even pocket change to the Internet giant, which made $10.7 billion profit on revenues of $50.2 billion in 2012. Divide the fine among the states and it comes out to about $230,000 for each.

I asked Susan Kinsman, spokesperson for Connecticut Attorney General George Jepsen, now heading the investigation, about prospects for a deal.  She said, “I spoke to our attorneys for a status report. As we’ve stated before, the Google investigation is active and ongoing. I can’t comment about any prospect for a settlement.”

Nonetheless, there are enough sourced reports out there, focusing on the $7 million deal that it sounds like it’s accurate.  It was probably leaked on Friday by Google itself. That’s the way they usually play the PR game. By the time the settlement is officially announced it will be old news.

What’s important, by the way, is not the measly $7 million fine.  It’s understanding what’s really happening. Once again it looks like Google, the serial privacy violator, is buying it’s way out of a jam with what for the Internet giant is pocket change.

We’ll need to see what other provisions the settlement contains.  Will the state attorneys general give Google the same sort of pass that the FTC did when it allowed Google to explicitly deny it broke the law in the Safari hacking scandal and charged Google $22.5 million? What will happen to the data Google sucked up? Will there being any meaningful injunctive relief?  Given Google’s record of repeated privacy violations and of bamboozling regulators, I’m not optimistic that much of anything significant will emerge.

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Posted by John M. Simpson. John is a leading voice on technological privacy and stem cell research issues. His investigations this year of Google’s online privacy practices and book publishing agreements triggered intense media scrutiny and federal interest in the online giant’s business practices. His critique of patents on human embryonic stem cells has been key to expanding the ability of American scientists to conduct stem cell research. He has ensured that California’s taxpayer-funded stem cell research will lead to broadly accessible and affordable medicine and not just government-subsidized profiteering. Prior to joining Consumer Watchdog in 2005, he was executive editor of Tribune Media Services International, a syndication company. Before that, he was deputy editor of USA Today and editor of its international edition. Simpson taught journalism a Dublin City University in Ireland, and consulted for The Irish Times and The Gleaner in Jamaica. He served as president of the World Editors Forum. He holds a B.A. in philosophy from Harpur College of SUNY Binghamton and was a Gannett Fellow at the Center for Asian and Pacific Studies at the University of Hawaii. He has an M.A. in Communication Management from USC’s Annenberg School for Communication.

On Holding Down The Conversational Fort, Or, Jobs, Republicans, And Hooey


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As the next Congressional fight over payroll tax extensions and unemployment benefits and pipelines gets set up in the next few weeks for either its final chapter or to be kicked down the road a bit farther, one or the other, you’re going to hear a lot from our Republican friends about how much they value work and workers; most especially, they’ll tell you, they value American jobs for American workers.

After all, they’ll say, creating American jobs is the most important thing of all.

But if we were to look back over just the last few months, some would tell us, we could quickly find examples of how Republicans promote ideas that don’t seem to value work or workers at all, much less American jobs.

Well as it turns out, “some” seem to be right; to illustrate one of those examples we’ll look back a month or two or three to a time some Republicans might wish was long, long, ago, in a galaxy far, far away.

A successful comedian usually becomes more megalomaniacal as the success barometer rises. Initial success might be achieved from stand-up but then the comedian envisions a sitcom, then Broadway, albums, extended tours, Europe, and then his or her own production company.  These things are all fine. Don’t do dinner theater. Don’t open stuff, like shopping centers or bowling alleys. Don’t do fairs, especially if you follow the pig contest.

–From the book “How To Be A Stand-Up Comic”, by Richard Belzer

So…the House Republicans went and promoted and passed out their payroll tax cut plan, and within that plan was a demand that the Junkie XL Pipeline – sorry, that should be Keystone XL Pipeline – get special “expedited” approvals, despite the objections of those who are worried about their water supply, and we have to do this, right now, those same House Republicans tell us, in order to put more or less 6500 folks to work getting the thing built.

And as we mentioned above, this is because the House Republicans care about American jobs and American workers.

So…it may strike you as a bit odd that the exact same House Republicans sent to the Senate in September the “Protecting Jobs From Government Interference Act” (HR 2587),  which has only one purpose: it tells the National Labor Relations Board (the “NLRB”) that if workers at a company decide to form a union, or the company even thinks a union might be coming, and the company, in retaliation, decides to move work from that plant – or, for that matter, decides to move the entire plant – then neither the NLRB nor the United States Courts shall have the authority to do anything about it.

All of this stems from an effort by Boeing to move work from Washington State to South Carolina in retaliation for union activity by the Puget Sound workforce; the NLRB has ruled that Boeing cannot move the work, and the Company and its friends in Congress have joined forces with other anti-Union Members of Congress to move this legislation.

Need a third-party expert opinion to help make sense of the NLRB’s involvement and remedies? Consider this comment from University of Pennsylvania Law Professor Ellen Dannin, via Dennis Kucinich:

The NLRB has decades of experience with cases of this sort, and the National Labor Relations Act is clear that employer actions like Boeing’s violate the law. If this were a murder case, it would be a case in which the police found a person saying : “I did it,” while standing over a fresh corpse with smoking gun in hand.

Decades of experience, did she say? Yes she did – and she was right. In 1964, the Supreme Court ruled that the NLRB had the power to order remedies that include making companies “bring work back”, the relevant case being Fibreboard Paper Products Corp. v. Labor Board, 379 U.S. 203.

The 250 law professors who wrote a letter explaining why HR 2587 is such a bad idea point out that it’s not just about Boeing: companies will no longer have any reason to even bargain with unionized workers (or those who wish they were) before closing plants and moving work overseas, as they have to do now under the law; again, that’s because no one will have the power of enforcement in these cases anymore.

As you might imagine, that’s going to accelerate the departure of jobs overseas, and it won’t take very long to get to 6500, which makes all that Republican fussin’ and fightin’ and sanctimoneoussin’ about Keystone look a bit hollow, eh?

Let’s jump to the side track, as it were, and take a moment to talk about why the question of which Party controls Congress matters: HR 2587 was introduced into the House, and if the Democrats controlled the Chamber it would have died in Committee, and that would have been that…but they don’t, and it didn’t, so the bill made it to the House floor, where it passed with no Democratic “aye” votes and six Republicans voting “nay”.

Then it went to the Senate.

Senate Majority Leader Harry Reid (D-Sometimes Frustrating) has a bit more power than a Speaker of the House to kill any bill before his Chamber, if he’s so inclined; in this case the bill sits on the Senate Legislative Calendar, and unless he says otherwise, that’s where it’ll stay. Of course if Mitch McConnell (R-Hates Obama With The Fire Of A Thousand Suns) were Majority Leader, he would have that bill on the Senate Floor in a heartbeat – and it would pass with a Republican majority, unless Democrats were willing to stand firm and filibuster the thing or the President was willing to use the veto pen, neither of which seems particularly certain.

A companion bill, S 1523, was introduced by Lindsey Graham; it was referred to Committee, possibly to never be seen again – which is also thanks to Harry Reid, with an assist from Tom Harkin, who is the relevant Chair.

At this point I was going to move on to the “what have we learned today” part of the deal, but before I do, I want to take a moment to show you just what kind of legislation our GOP friends will bring to the table, given the chance:

S 1720, the “Put All Your Crazy Eggs In One Basket Act” (not the real bill title, but close enough), was introduced by John McCain just before Halloween (it’s now on the Legislative Calendar, not doing much), and it’s a classic.

This one single bill calls for a Balanced Budget Amendment vote, a semi-flat income tax, repeals “ObamaCare”, repeals Dodd-Frank (Wall Street reform), says you basically can’t sue for medical malpractice anymore, says that if Congress fails to approve any Federal Agency regulation in 90 days, it’s invalid, and then says no Agency can pass any regulation, of any kind, until unemployment hits 7.7%…and there’s a lot more besides, including, I kid you not, forbidding the EPA from regulating the discharge of pesticides into water.

So now let’s get to “what have we learned?”

How about this:

We are going to hear a lot over the next 60 days about how the GOP loves you, the American worker, but at the exact same time they are looking to…well…put all the crazy eggs in one basket, if they can get away with it, and at the same time they’re looking to make it easier and easier to send more jobs to more countries than ever before, even to the point of trying to tell courts and regulators that they can no longer enforce laws Republicans can’t get repealed.

As our GOP friends stand before you, these next couple months, professing their undying love, remind them of this conversation today, and HR 2587, and S 1720, McCain’s “Crazy Egg Basket” bill, and then ask them if they think the GOP really cares about American jobs, or if they’re just getting hustled by slightly-slicker versions of used-car dealership credit managers?

Then you lean in close, look ’em in the eye, smile just a bit, and you say to ’em: “And hey, while you’re here…what do I gotta do to get you into a slightly used 1993 Buick Roadmaster Estate Wagontoday?”

Then you can both have a little laugh – while you take their money and run.

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On Protecting The Innocent, Or, Is There A Death Penalty Compromise?

I don’t feel very good about this country this morning, and as so many of us are I’m thinking of how Troy Davis was hustled off this mortal coil by the State of Georgia without a lot of thought of what it means to execute the innocent.

And given the choice, I’d rather see us abandon the death penalty altogether, for reasons that must, at this moment, seem self-evident; that said, it’s my suspicion that a lot of states are not going to be in any hurry to abandon their death penalties anytime soon now that they know the Supreme Court will allow the innocent to be murdered.

So what if there was a way to create a compromise that balanced the absolute need to protect the innocent with the feeling among many Americans that, for some crimes, we absolutely have to impose the death penalty?

Considering the circumstances, it’s not going to be an easy subject, but let’s give it a try, and see what we can do.

Let’s Fix An Error Dept.: Apologies are in order, because in our last story we identified The Riverside Church in Manhattan as the place where George Carlin learned to be Catholic – and that could not have been more incorrect.  Bad research was the culprit here, and it’s something that we’ll obviously be working to improve. So, once again: sorry, and my bad.

Now if all the states want to limit the imposition of the death penalty to just the guilty (and after what we just saw in Georgia, that’s no longer 100% certain), one way you could do it would be to make it a lot harder to prove guilt – and that’s what we have in mind for today’s proposal.

As you may recall, we convict today with a “burden of proof” that is described as “guilt beyond a reasonable doubt”; as we now know, it is possible to prove guilt, beyond a reasonable doubt, even when there’s a whole lot of reasonable doubt to be found.

In Davis’ case, he was given a chance on appeal to prove his innocence, and despite this conclusion from the Judge hearing the case…

“Ultimately, while Mr. Davis’s new evidence casts some additional, minimal doubt on his conviction, it is largely smoke and mirrors…”

…Davis was still executed.

So the way I would get at this problem would be to change the burden of proof in these cases: if you want to execute someone who is facing an aggravated murder or other capital charge, instead of “guilt beyond a reasonable doubt”, I would require “guilt beyond all doubt”.

If you can’t get to guilt beyond all doubt, but you can prove guilt beyond a reasonable doubt, then you could impose no sentence harsher than life without parole.

If this proposal had been in effect in Davis’ case, there could have been no execution after he argued that he was denied the effective assistance of counsel, because that would have erased “all doubt”; after that he would have had the rest of his life to demonstrate that he was wrongly convicted.

There are going to be a few reasons people might not like this proposal, and I’ll try to address some of them briefly:

Right off the bat, many will complain that because of the new burden of proof it will be virtually impossible to have executions at all; I would tell those folks that if that were to occur…then the system is working. The entire purpose of this plan is to make executions an extraordinarily rare occurrence and to move just about everyone on Death Rows nationwide to a “life without parole” future.

Beyond that, many will say that capital punishment is morally unacceptable under any circumstances, and to those folks I would respond that y’all make a pretty good point…but at the moment there are a lot of Americans who do not hold that moral position – and they have strong feelings too – and unless we can move them to a different point of view, then the best chance we have to prevent the innocent from being executed is to find some sort of compromise like this one.

(Don’t believe me about that “strong feelings” thing? How many of the readers here would be OK with the death penalty for Osama Bin Laden, if he were proved “beyond all doubt” to have been the person behind 9/11?)

A similar line of thought is expressed in the idea that we are seeing more and more voters who do oppose capital punishment, and with a bit of patience, this problem will go away.

After what happened to Troy Davis, I think there’s more urgency now than there was in times past, and that’s because we now see that at least one State will quickly kill a prisoner in order to “clear the case”, suggesting to me that patience is not as good an option as it was before.

Finally, I suspect many will feel that the effort to pass a proposal like this one would distract from the effort to end the death penalty, which is, again, a pretty good argument.

To those folks I would respond that we may get some states to end the death penalty today, but there are a lot of other states that are not going to want to give up the death penalty for some time to come (remember the people who cheered Rick Perry’s execution record?), and if we aren’t going to be able to end the death penalty completely, then I think we have to offer some sort of compromise; a compromise based on the concepts of “killing the innocent isn’t The American Way” or “you could still execute Osama” could appeal to voters who simply won’t give up on the death penalty altogether.

So that’s what we have for you today: even though I personally would prefer that we end the death penalty and just go to life without parole for all these crimes, I don’t think we’re going to achieve that in a lot of states; with that in mind I’m proposing a compromise that would protect the innocent by ending virtually all executions, even as it allows an extraordinarily difficult to reach exception that could satisfy those who absolutely do not want to see the application of the death penalty come to an end.

It’s an imperfect compromise, I’ll admit – but in a big ol’ swath of America that runs from roughly Florida to Idaho, it may be the best compromise we can make right now, and right now, in those places, that might have to be good enough.

Entirely Off The Subject Dept.: We are still trying to get signatures for the petition to change the name of Manhattan’s W 121st St (one block from Seminary Row) to George Carlin Street, and we need your help; you can sign right here. The goal is to reach 10,000 signatures by Monday, so…get to it.

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Tragic Death of Teen Farm Worker in 2008 Propels Uncle to Fight for Labor Rights

By Edgar Sanchez, Special to the UFW

Doroteo Jimenez, a Lodi farm worker, remains outraged over the death of his niece Maria Isavel Vasquez Jimenez, a 17-year-old farm laborer.

When Maria Isavel fainted from heat exhaustion on a farm east of Stockton on May 14, 2008, “no one made any effort to help her,” least of all her supervisors, who failed to dial 911, Jimenez said this week.

The delay in getting her to a hospital led to her death two days later, he said.

This May 16, the third anniversary of Maria Isavel’s tragic passing, the Assembly will vote on SB 104, the Fair Treatment for Farm Workers Act.   Jimenez will join hundreds of other farm workers at the Capitol, to advocate for the bill, amid a sea of colorful United Farm Worker signs.

Jimenez has picked crops for more than 20 years, but never at a union farm.

Yet he supports SB 104, stating, “I hope the governor signs this new law…so that farm workers will take advantage of it …”

Previously approved by the Senate, SB 104 would allow farm laborers to select unions through traditional polling place elections in the workplace, or through a new procedure away from the fields.  The new process, involving confidential state-issued ballots, would help workers avoid intimidation from anti-union bosses.

Jimenez began fighting for farm workers’ rights three years ago this month, “to ensure that no more farm workers die” the way Maria Isavel did.

For Maria Isavel and her uncle, May 14, 2008 dawned as just another day in the cycle of the fields.

“Both of us arrived together that day” at the Farmington vineyard owned by West Coast Grape Farming Inc., he said.  It was only her third day on the job, at the place where her uncle had toiled for three weeks.

Water-filled thermoses would be placed for the workers along the edges of their work areas.  But, on May 14, the thermoses were not delivered until after10 a.m., roughly four hours into her shift, Jimenez said.

As afternoon temperatures climbed into the mid-90s, Maria Isavel, who had also been without proper shade as she pruned vines, collapsed.  Her fiancé, Florentino Bautista, who is in his early 20s, was also on her work crew.

“If someone had dialed 911, an ambulance would have responded from the fire department, which is not too far away,” Jimenez said.

Instead, at the end of the work day, Maria Isavel was driven to her Lodi home, a trip that took an hour, Jimenez said. That evening, she was taken to a Lodi clinic, then to the nearby hospital where she died.

Her death was triggered by an accidental, work-related heatstroke, the San Joaquin County Coroner concluded.

Maria De Los Angeles Colunga, owner of the now-defunct Merced Farm Labor Contractors, and her brother, Elias Armenta, initially were charged with involuntary manslaughter in the death of their employee, Maria Isavel.  According to the Associated Press, it was the nation’s first criminal case involving a farm worker’s heat-related death.

As part of a plea deal, Colunga pleaded guilty in San Joaquin County Superior Court to a misdemeanor count of failing to provide shade.  Armenta , the firm’s safety coordinator, pleaded guilty to a felony count of failing to follow safety regulations that resulted in death.

Both were sentenced to community service and probation.  Colunga was also fined $370, while her brother was fined $1,000.

“There was no justice for my niece,” Jimenez said, maintaining that the crime demanded prison time.

Jimenez was fired from the Farmington ranch a few days after his niece died. According to Jimenez, he had requested and given a day off to meet with the Deputy Chief of Staff of former Gov. Arnold Schwarzenegger.

“The permanent supervisors told me I didn’t have a job any more,” he said, noting that by then, Merced Farm Labor was out of business, its license having been suspended by the state.

Jimenez currently works at a Napa vineyard.  “My boss has given me permission to be in Sacramento on May 16,” he said.

Edgar Sanchez is a former writer for The Sacramento Bee and The Palm Beach Post

On Happy-ing Their Gilmores, Or, Will Body Bags Be The New Gold Watch?

We are continuing a recent theme here today in which two of my favorite topics are going to converge: Social Security and in-your-face political activism.

I have been encouraging folks to take advantage of the recent Congressional recess to have a few words with your CongressCritter about the proposed Death Of Medicare and all the proposed cuts to Social Security…and you have, as we’ll discuss…and now we have an opportunity to do something on a national scale, just as we did a few weeks ago in support of Social Security.

This time, we’re going to concentrate on fighting the idea that retirement ages should go up before we become eligible for Social Security and Medicare (and elements of Medicaid, as well), and that Americans should just keep right on working until the age of 67 or so-which isn’t going to be any big problem…really…trust us.

Now that just makes no sense, and to help make the point we have a really cool video that you can pass around to all your friends-and your enemies, for that matter, since they’ll also have to worry about what happens to them if they should ever make it to old age.  

“…Art can create a climate of sensitivity in which it is possible for change to occur…”

Shabana Azmi, on Riz Khan’s Al Jazeera program One on One

Members of Congress are at home this week, and they love to go out and meet the voters-but it hasn’t been as much fun all of a sudden for some of them, and there are several videos out on the Web right now where it looks like Members wish they hadn’t been hanging out where the public could see them so easily.

Now some of these videos are loud and boisterous-but the one that should really scare Republicans was Charlie Bass’ appearance in Hillsboro, NH on the 4/20 holiday.

If you look at the crowd, they’re older, for the most part-and for the most part they came to the meeting with their own information, meaning that they weren’t so much looking for the Congressman to tell them what was up as they were looking to tell Mr. Bass (who represents the State’s 2nd District) that they weren’t too happy with him about this “entitlements reform” deal.

Now they weren’t there with pitchforks and torches by any means, and a lot of them were supportive of many of the Congressman’s other positions-but they were extremely unhappy about the idea that Medicare would become a voucher system (just so you know, Bass would insist that it’s a “premium support system” whenever the word “voucher” came up), and they did not find the argument that “this won’t affect you” very convincing, either.

In addition to the obvious question (basically, “why would the plan be better if it only sticks it to our kids and grandkids?”), a woman from the crowd asked a question I don’t think Karl Rove ever thought would come up: you might not be sticking it to senior citizens today…but she wondered what’s to prevent conservatives from coming back in a few years and asking those under 65 why they should be supporting those old people and their “Cadillac plans”-at which point it will be “stick it to the old folks” season, and Medicare will officially die, along with a lot more old and disabled people, sooner than they should have.

And he wasn’t the only one to have a bit of a tough week at what used to be really friendly Town Halls: Pat Meehan (PA-07) got himself into a shouting match with his putative employers, so did Lou Barletta, he of Pennsylvania’s 11th…and so did Catfood 2.0’s architect, Paul Ryan, who had to face what he politely described as an “enthusiastic” crowd in Milton, Wisconsin.

“Happy learned how to putt! Uh-oh!”

–Adam Sandler, from the movie Happy Gilmore

To put it bluntly, the Members are hating it, big-time, as it appears that their 2009 “Town Hall Goose” has suddenly become just a little too good for the gander.

And if we’re already making life hot for these folks…why not just keep on pushing?

That’s the idea behind “Don’t Make Us Work ‘Til We Die“, which is an effort of the fine folks at Strengthen Social Security to highlight the fact that a lot of people right now are proposing to raise the retirement age; either to 67, or to something north of that…for the good of America, of course.

After all, if you’re a firefighter, or a nurse, or maybe you work in the trades, or a restaurant kitchen, or you drive a gasoline truck…or maybe you’re a smokejumper for the Forest Service…why would working until 67 be a problem for you?

Here’s a video that makes the point very nicely:

(By the way, they would love for you to spread this video far and wide; grab the embed code and just go nuts-or, if you prefer, email the link-and in the interests of Full Disclosure: I’m associated with the Campaign for America’s Future and they’re one of the members of the Strengthen Social Security coalition.)

.

On Wednesday and Thursday all of this goes outside and hits the streets all across the country, and to make it easy, the same website can help you find an event near you-or, if you live in Wyoming or something, you can attend the “virtual event”-either way, just visit the handy website and go from there.

So there you go: we have Republicans feeling mighty uncomfortable all of a sudden, we have a chance this week to get out in public and make the point in a bigger way-and now you even have the perfect video to send to that one relative who always forwards you Michael Savage’s latest missives.

Now get out and keep the momentum going forward-and don’t forget, it’s really easy to look at the person next to you in line at the grocery store and say: “Can you believe how they’re trying to screw us out of Social Security?”

That’s about all it takes to get a pretty good conversation going…and if you repeat that process, about a million times…well, that’s how politics gets done.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.

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On Living Up To Your Words, Or, Tornado? That’s Not In The Constitution.

There are lots of big tough words coming out of our friends in the Tea Party these days, especially when it comes to the permissible functions of the Federal Government.

“If it’s not specifically enumerated in the Constitution,” they say, “It must be a function of the States-and the 10th Amendment says so!”

None are tougher in their language than those living in the States located below the old Mason-Dixon line-and by an amazing coincidence, just this weekend pretty much all of those States got a bit of a “gut check” in the form of dozens of tornados that slammed into the area.

So we’re going to put the Tea Party philosophy to the test today, and see just what exactly the Federal Government should-and should not-be doing to fulfill the Tea Party vision and to help those folks who were hit by this particular natural disaster.

“…For that was not true; his attitude was not to be explained by greed, or at any rate by greed alone, but rather by the touchiness which his great labors and their complete unsuccess had bred in him.”

–From the story The Village School Master [The Giant Mole], by Franz Kafka

Stories often begin by setting the terms of the discussion; that will be true today, and the framework for where we’ll start is Article 1, Section 8 of the US Constitution, which is the “unless it’s enumerated…” part of the Tea Party argument:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and Post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

OK…so, let’s talk about “who’s who” in this little drama (for the record, this won’t be a complete list of events or people; it’s just a sample for the purposes of discussion):

Arkansas had tornados Friday night; seven people died (five of those from winds not attributable to a tornado), and according to “The Post and Courier” of Charleston, SC, there had been three days of warnings from the National Weather Service before this particular weather event.

The paper also reports that Oklahoma, Louisiana, Tennessee, and Mississippi were hit.

North Carolina was hit with as many as 62 tornados over the weekend, with at least 22 dead.

In Virginia, Saturday, a 12-mile swath of Gloucester County was severely damaged, with a total of 5 dead in the Commonwealth.

North Carolina, Alabama and Mississippi have declared a State of Emergency, so has Virginia. Oklahoma has been under one State of Emergency due to wildfires since March, a second Emergency was declared over the weekend, and Federal assistance was again requested by Governor Mary Fallin to help make things better.

To keep this to a reasonable length, we’re going to drill in on three States, and three Governors; those States are Virginia, Alabama, and Oklahoma.

Alabama’s new Governor, Robert Benchley, is one of those “enumerated powers” kind of guys, in fact, he signed The 10th Amendment Pledge; the parts which concern us here read as follows:

The phrase, “General Welfare,” in Article I, Section 8 does not authorize Congress to enact any laws it claims are in the “General Welfare” of the United States.  The phrase sets forth the requirement that all laws passed by Congress in Pursuance of the enumerated powers of the Constitution shall also be in the General Welfare of the United States…

… I do, and will continue to, oppose any and all efforts by the federal government to act beyond its Constitutional authority.

Let’s move on: the Tenth Amendment Center is proud of Oklahoma’s Mary Fallin for turning down the Federal grant to set up the State’s “Obamacare” insurance exchange (officially part of the Patient Protection and Affordable Care Act [PPACA]) on 10th Amendment grounds-and she would also want you to know that:

“…I believe, as I know many of our legislators and the majority of our citizens do, that the PPACA is unconstitutional, fatally flawed and ultimately harmful to our economy and the health of our citizens…”

And then there’s Virginia:

Gov. Bob McDonnell on Friday drew cheers from the tea party crowd as he announced support for a “Repeal Amendment” to the Constitution.

“There has been a bi-partisan trampling of that federal compact of the 10th Amendment,” said McDonnell as he spoke at the Virginia Tea Party Patriots Convention in Richmond.

A “Repeal Amendment” was proposed last month by House Speaker Del. Bill Howell, R- Fredericksburg. The amendment to the U.S. Constitution would allow a federal act to be over-turned if two-thirds of state legislatures voted against it. Such an act would sway power to state legislatures, and is a popular concept in tea party circles.

When the panel moderator asked McDonnell is he would support such an amendment, he replied “yes.”

And now it’s disaster time, and these Governors are looking for disaster help…but they have a very particular view of how the Federal Government and the States ought to relate to each other…so… at this moment of urgency, just what precisely are the specifically enumerated powers that the Federal Government has at our disposal for disaster relief?

Well, according to my quick re-reading of Article 1, Section 8, that would be exactly…no power at all, except to act in case of insurrection, to try any Federal criminal offenses that might occur, and to repair any Federal docks or other needful Buildings.

(You’ll note I did not say “try and punish” any Federal criminal offenses. That’s because there’s nothing I can see in Article 1, Section 8 about Federal prisons.)

I don’t see anything in there about the National Weather Service, either, so from now on, if a State wants to know if a tornado’s coming, I guess they better pony up the cash and start themselves a State Weather Service, or buy the forecasting and warning services from a private contractor.

(This could be good for the economy, by the way: forecasting the weather requires satellites, and if every State that believes in self-reliance each launches their own satellite constellations…that’s some jobs, right there.)

FEMA? In the view of those who truly understand, it’s unconstitutional on its face, and, therefore, the Governors shouldn’t be looking to them for help.

The loans that businesses and citizens rely on to get back on their feet? Show me the “enumerated” language that permits those activities, because I can’t find it.

Grants to States to cover their extraordinary expenses? I don’t see anything authorizing such activities, and with that in mind…I don’t think so.

According to the “purist” view, the 10th Amendment requires all of this to be handled by the States, not the Federal Government; that’s why, for the life of me, I can’t figure out why these Governors weren’t thinking about disaster planning from the start of their terms.

Why weren’t these supposedly self-reliant States ready when this happened?

I mean, each of these States already has an emergency management department, and I’m sure they can manage much better locally than the Feds (or at least they claim they can), so why are they even asking for Federal help in the first place?

How is it possible that these Governors never considered that protecting the citizens of their States would be “Job 1”, to steal a phrase, and, to make a moral point, why should the rest of us be bailing them out now?

I mean, hey: you told us these were State problems, and now you have problems, and you still have States, so you know what?

Live up to your words: get all “10th Amendment-y”, and suck it up, and deal with it yourselves.

That’s what you told us you wanted, when you were Full Of Big Campaign Talk, so now do it, Governors, and stop all that crying and whimpering to us for outside help, and go make that 10th Amendment work for you.

Show us how much better local control is than when the Giant Hand Of The Federal Government Tells You What To Do.

Be the self-reliant Brawny Men that you were in your campaign ads.

And I’d pose the same challenge to anyone who voted for these Governors:

Remember how you all cheered when your candidates told you Government wasn’t the solution; that it was, instead, the problem?

If you really believed that, then what in the world are you doing asking for the Federal Government’s help now?

After all, you said you wanted Government “off your back”, and “the Government that governs best governs least”, right, so why would you want Government in your faces at a time when you’re trying your hardest just to get back on your feet?

Why aren’t you (and I’m thinking specifically of you, Tri-Corner Hat Patriot Guys) demanding that the Federal Government stay out of this and leave the States alone?

And it’s only fair: there was no tornado in California this weekend, so why should Californians pay taxes for your disaster?

And remember how adamant you were, just a couple of weeks ago, that the budget cuts associated with those Continuing Budget Resolutions weren’t deep enough?

Well, how are we supposed to make the kind of budget cuts y’all wanted on the Federal side when you’re coming around here demanding more money?

We have a deficit, remember, and we can’t be spending money we don’t have-and even if we had the money, we couldn’t spend it on helping you, because, as you all recall, there’s nothing specifically in the Constitution to allow it.

This is your problem, Constitutional purists, and, according to your own logic, it’s not ours…so if you want your roads and schools fixed, ask your citizens to volunteer to do the work or something.

Since we can no longer help you, maybe the Red Cross or some other private charity could fund the rebuilding of your communities.

Since so many conservatives believe corporate and religious philanthropy will fill in the gaps in the shrinking “social safety net”, you could try asking churches and private industry to do the work for you as a community service; I’m sure they’ll jump right in and pick up all the slack.

Hey: you were the ones full of tough talk last November, my Tea Party friends, and now it’s 10th Amendment “gut check” time, and I want to see you live up to your own words, if you have the “man pants” to do it…or I want you to see you acknowledge that this was all a giant load of hooey.

That maybe there’s a place for a United States of America, that maybe there is such a thing as “general Welfare”…or maybe even that being a 10th Amendment purist might be great down at the ol’ Heritage Foundation when you’re hustling for campaign money, but that once the big winds start blowing, ideology ain’t worth spit compared to a system of weather radars and satellites and a FEMA that will come and bail your butt out if it all goes wrong.

And if you voted for one of these clowns…either you need to get smart, right now…or maybe we need to cut the cord.

Maybe you need to see what your own vision of “10th Amendment reality” is really all about.

Maybe, just as so many of you have demanded, we should mind our own Federal business and let local government govern best.

And if it doesn’t work out, then, maybe, you’ll wake up and realize that Ronald Reagan was wrong: sometimes Government is the only game in town, and when it’s not around, providing helpful solutions…that’s when you got real problems.

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Social Security: Get On The Phone Tuesday And Wednesday And Help Fight Cuts

So it’s been about three weeks since we last had this conversation, but once again we have to take action to try to keep Social Security from being the victim of “deficit fever”.

I know that doesn’t make a lot of sense, considering the disconnect between Social Security and the deficit-but once again it’s “Continuing Resolution” time on Capitol Hill, where some use the threat of an impending shutdown of the Federal Government to extract concessions from the other side…and some on the other side try to make points with the voters by out-conceding their opponents.

So Tuesday and Wednesday of next week, there’s a national push on to get voters to call their Senators and remind them to vote for an Amendment that is a big ol’ “I’m not willing to cut Social Security just because other people philosophically want to cut Government any way they can” kind of reassurance to the voters, and I’m here to encourage you, once again, to make a couple phone calls and do some pushing of your own.

I’ve also been storing up a couple somewhat facetious random thoughts which will be the “garnish” for today’s dish; you’ll see them pop up as we go along.

First, the I’m A Bit Confused Dept.: There’s an ad currently running on TV for a drug called Intuniv.  The drug is for children who are suffering from ADHD, and the visual image features a mother coming out the doors of the school with her “now-perfectly-behaved” 11- or 12-year-old child.

What comes next is the warning that the drug might-well, I’ll just quote the Intuniv website…

“Patients should not drive or operate heavy equipment until understanding how INTUNIV affects them”

…and every time I see the ad I think that if my 11-year-old could drive and operate heavy machinery I might suggest giving the other kids ADHD so they, too, could grow up and have a valuable skill of their own one day.

As we discussed “above the fold”, the Strengthen Social Security folks are doing a nationwide Senate call-in Tuesday and Wednesday to drum up support for passage of S.AMDT.207, the Sanders-Reid Social Security Protection Amendment, and they’ve created a process to painlessly put you directly in touch with both of your Senators, even if you have no idea who they might be.

I tried it out myself, just to see what would happen, and here’s how it works:

You call the phone number (1-866-251-4044) and the friendly automated phone voice automatically determines your location and then informs you that you “are represented by Senators [insert names here]”-and all of this without your having to navigate a menu or push a button.

The friendly phone voice then tells you to choose a Senator (“…push one or two…”), and you’re then directly connected to that office. Before you go, you’re encouraged to call back and leave a message with your other Senator as well…and you’re also offered “the commercial”: a fairly precise (roughly) 10-second script for a message that you might choose to leave, suggesting that your Senator vote for that Sanders-Reid Amendment.

I have a plan to make nuclear reactors in this country safer, and to do it fast: every Member of the Nuclear Regulatory Commission, everyone who votes on granting or renewing plant licenses, every nuclear power plant inspector, and the top executives of any nuclear licensee…should all be required to move into on-site housing at the nuclear power plants they’re in charge of within one year.

(This idea might also be adapted to improve the lives of nursing home residents, and it’s the same kind of “enforced safety” thinking that led to the old rule that Army paratroopers had to pack their own parachutes.)

We’ve made other calls like this recently, and just like before, the goal here is to keep the pressure on, and to remind all 100 Senators that they all have voters who absolutely do not want cuts in Social Security, and that this is not the time to be trying to sneak something in under cover of “Continuing Resolution” darkness.

So there you go: on Tuesday and Wednesday call the handy number (1-866-251-4044), let the automated voice guide you to your Senators, tell them you want them to vote for the Sanders-Reid Amendment…and while you have them on the phone, don’t be afraid to suggest that nuclear power plant on-site housing idea either.

Fighting for want you want is a process, not something that happens all in one day, and you should expect more messages like this one as we go along, asking you to make your voice heard-but you should also keep in mind that we’ve been doing pretty well so far, and when we speak, we’re being heard.

So make those calls, apply that pressure…and let’s win this thing.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.

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On Monday Morning Philosophy, Or, Founders Tell America: “You Figure It Out”

In our efforts to form a more perfect Union we look to the Constitution for guidance for how we might shape the form and function of Government; many who seek to interpret that document try to do so by following what they believe is The Original Intent Of The Founders.

Some among us have managed to turn their certainty into something that approaches a reverential calling, and you need look no further than the Supreme Court to find such notables as Cardinals Samuel Alito and Antonin Scalia providing “liturgical foundation” to the adherents of the point of view that the Constitution is like The Bible: that it’s somehow immutable, set in stone, and, if we would only listen to the right experts, easily interpreted.

But what if that absolutist point of view is absolutely wrong?

What if the Original Intent Of The Founders, that summer in Philadelphia…was simply to get something passed out of the Constitutional Convention, and the only way that could happen was to leave a lot of the really tough decisions to the future?

What if The Real Original Intent…was that we work it out for ourselves as we go along?

“…you see, all the majesty of worship that once adorned these fatal halls / was just a target for the angry as they blew up the Taj Mahal…”

–From the song Gasoline, by Sheryl Crow

The reason this is coming up today is because I’ve been writing a lot about Social Security lately, and I keep getting comments from folks who see no Constitutional foundation for such a program.

To sum up what I often hear, if there is nothing in the Constitution that specifically provides for Social Security, then, if it’s to be done at all, it’s something that should be left to the States. (The 10th Amendment is used to reinforce this point.)

A lot of these folks, from what I can see, hearken for a simpler time, a time when America had no “foreign entanglements” or National Banks…a time when men of the soil worked their farms with no fear of Debt or The Taxman….a time when government worked best by using local wisdom to deal with local problems.

In other words, we’re basically having the same arguments over the shape of this Government that Thomas Jefferson and Alexander Hamilton were having in 1787-and for those who don’t recall, Hamilton won, which reflects the reality that we don’t all live on farms and hunt turkeys and Indians, and that State Governments are just as capable of ignorance and foolishness and greed and blind hate as any Federal Government.

To reinforce their arguments “fundamentalists” fall back on some version of the Original Intent theory, which basically assumes the Constitution was written by men who miraculously created a perfect document, and that all the answers to today’s problems would be found by simply allowing the Original Intent to shine through.

I’m here to tell you that couldn’t be more wrong-and to prove my point you need only consider the Civil War.

Despite what you might have heard in Virginia, the Civil War really was about slavery, and the reason we had that fight in the 1860s was because there was no way the question could be settled at the Constitutional Convention.

Those Founders who supported ending that “peculiar institution” were never going to convince slaveowning Founders to give up their property, and as a result of the desire to get a Constitution drafted that could be ratified by “the various States” there were compromises made, including the 3/5ths Compromise and Article Four’s requirement to deliver fugitive slaves to their owners upon demand, which resulted in the Fugitive Slave Acts of 1793 and 1850.

The Intent Of The Founders, on the question of slavery, was to let time work it out.

The same kind of “let time work it out” thinking led us to Article 1, Section 8, and the “general welfare” clause.

Congress is empowered to enact legislation that provides for the “common defense and general welfare of the United States”…but there is no specific interpretation of what the phrase means (in fact, there is no glossary at all for the Constitution, which means there are plenty of other examples of, shall we say, “unclear phrasing”).

Since there is no specific reference as to how Article 1, Section 8 and the 10th Amendment are supposed to interact or what the Founders’ Intent might be, we are again forced to apply our own interpretations, over time, to figure out how to resolve the inevitable conflicts.

We had to do that because, even as there were proponents of a Federal system, there were plenty of Delegates at the Convention who wanted nothing to do with a strong central government. They wanted to keep a system in place that resembled what we had under the Articles of Confederation, where the Federal Government had no ability to compel the payment of taxes and States had the choice of whether to “accept” Federal laws…or not.

Over time, of course, we’ve come to realize that having one air traffic control system, and not 50, was a good idea, and that funding things like disaster response on a national level makes sense, even if Texas wants to go it alone or something, and we probably all agree today that if States are willing to allow 12-year-old factory workers to work 16-hour days, then Federal child labor laws are a reasonable thing to make that stop-and all of this progression of history is happening because the Original Intent was to let the future figure out where the 10th and Article 1, Section 8 would “find their center”.

The Original Intent Of The Founders, apparently, was that white men who did not own property, women, and those not pale and fair and of European descent had no reason to be involving themselves in the affairs of government, as that was the list of who was not allowed to vote at the time we began our experiment in democracy; over time we’ve seen fit to change that-and at every step along the way there have been Cardinals of Interpretation ready to tell us that with each change we were doing violence to the letter and the spirit of the Constitution as they knew the Founders would have intended it to be.

Am I entitled to create or possess any form of pornography because the First Amendment prevents Congress from abridging free speech, or is the general welfare furthered by allowing society to protect itself from the exploitative effects of pornography by limiting or banning completely the production or possession of certain materials that are considered unacceptable?

The Founders seem to have offered no obvious intent when they created this conflict, which makes sense, because the possession of child pornography didn’t really exist as an issue in 1789.

I’m guessing that today we are not anxious to have each of the 50 States adopt their own rules (after all, who knows what some crazy State might do?)-but they did put that “general welfare” clause in Article 1, Section 8, and over time, our view of Constitutional law has come to accept the compromise that the Founders could not have foreseen.

The fact that the Supreme Court resolves these kinds of conflicts at all was not laid out in the Constitution, nor was the fact that the Federal Government’s powers are superior to those of the States; it took the 1803 Marbury v Madison and 1819 McCulloch v Maryland rulings to figure out, when there are multiple claims of liberty, which were to be put ahead of the others.

Can you guess why?

That’s right, folks: it was because they had Delegates at the Constitutional Convention (and States who had to ratify the finished product) who did not want to give the Court or a Federal Government that kind of power, and the only way to get something passed was to sort of “leave things open” and let time work it out.

Here’s an example of how one of the Founders tried to tried to kill the “Original Intent” argument before it even got off the ground: James Madison, who kept the only known complete set of notes during the Constitutional Convention never released those notes during his lifetime (he’s also credited with being the principal author of the document, possibly because his were the best notes).

Why did he do that? It appears to be because that Founder’s Intent was to make the Constitution’s words stand on their own, without his notes to frame the debate-and in fact the document had been in force for almost 50 years before those notes saw the light of day.  

The Cardinals of the Supreme Court, some of whom claim they can divine Original Intent for any and all situations, are hoping that you’ll forget that they really serve to resolve disputes where the intent of the Founders seems to collide with the intent of the Founders-and all of that brings us right back to Social Security.

It is true that the Constitution, as it was written in 1789, does not contain the words “you may establish Social Security”-but it is also true that there were no words that would allow anyone who is not a white male to vote, or to prohibit the ownership of slaves.

Congress, acting with the authority to provide for the general welfare, took Roosevelt’s proposal and enacted it into law. The Supreme Court, in 1937, took up the question of whether the 10th Amendment prevented Congress from enacting Social Security with a series of three rulings, and here’s part of what they had to say:

Counsel for respondent has recalled to us the virtues of self-reliance and frugality. There is a possibility, he says, that aid from a paternal government may sap those sturdy virtues and breed a race of weaklings. If Massachusetts so believes and shapes her laws in that conviction, must her breed of sons be changed, he asks, because some other philosophy of government finds favor in the halls of Congress? But the answer is not doubtful. One might ask with equal reason whether the system of protective tariffs is to be set aside at will in one state or another whenever local policy prefers the rule of laissez faire. The issue is a closed one. It was fought out long ago. When money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states. So the concept be not arbitrary, the locality must yield. Constitution, Art. VI, Par. 2.

So there you go: the next time someone tells you that a program like Social Security is unconstitutional because of Original Intent, be very, very, suspicious, and keep in mind that the Constitution was written, intentionally, with the idea that a lot of problems were simply going to be kicked down the road to future generations of Americans.

Constitutional Delegates, after all, were politicians, and if there is one thing that politicians love to do it’s to kick a problem down the road so that something can get done today.

The history of the last 225 or so years has been a long journey down a long road that took us past slavery and Reconstruction and suffrage and Jim Crow, and to assert, as the Cardinals of the Court do, that all those questions were answered that summer in Independence Hall is to be either amazingly blind or deliberately untruthful-and the fact that they get to dress in robes and sit behind something that looks quite a bit like an altar doesn’t change that even one little bit.

FULL DISCLOSURE: This post was written with the support of the CAF State Blogger’s Network Project.

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On Petals And Metal, Or, Today And Tomorrow, Street Actions Are Afoot

For the past couple months I have been talking a lot about “taking it back”, and I have two great chances for you to do just that over the next two days.

One of them involves actions that are taking place all over the USA-but the other is a very special and particular event which will be taking place in Vancouver, British Columbia on Wednesday.

This’ll be a short story…but by the time we’re done, you’ll have stuff to do this week.

A young lady visitor on the set of “Never Give a Sucker an Even Break” asked W.C.Fields if he liked flowers. Fields replied he was very fond of Four Roses.

–Ronald J. Fields, from the book W.C.Fields  By Himself

So here’s what’s up:

Tomorrow, MoveOn.org and a ton of others are planning “Defend the American Dream” rallies around the country…in fact, as of the time this was written there are 277 events planned, all on the same day.

A few weeks ago Social Security workers held “informational picketing” events at Social Security offices around the country to make Americans aware that proposed Republican budget cuts would create huge “bumps in the road” for those who want their Social Security checks to go out on time, or who might like to speak to an employee on the same day they call the office.

That’s part of tomorrow’s program as well, with Washington DC’s office a sort of starting point from which our anger with what’s been going on can spread.

So if you’re in DC tomorrow, right after office hours, the event will take place at 5:30 PM at the Social Security office at 2100 M Street NW, and there is a handy “meetup page” to give you more information if you need it.  

But maybe you’re not going to be in DC.

We still got you covered: this page right here will let you enter a zip code and find an event near you.

For example, there’s a Rally at the San Diego County Administration Center-which, as y’all know, is maybe eight blocks from the end of the runway at Lindbergh Field-and Jim Brown and Virginia Huschke, who are putting on the event, report that they had 1000 people show up last week at the same place for the same thing…so you gotta be there.

Maybe you’re in Michigan…and if you can get to the Veterans’ Memorial in Niles after work tomorrow, United Steel Workers Local 13729 and MoveOn Michiana want you. The Memorial, for those unaware, is located at Waterfront Park, right by the Main Street Bridge and across the street from Massimo’s Pizza-which means afterwards you can pick up a meatball sub or somethin’ and not even have to cook dinner. (Maybe it’s just me, but I am not down for the ranch pizza.)

If you’re in Mobile, Alabama, swing by the cannon at Mobile Memorial Park (on Government Street), where hundreds of protesters intend to use the cannon to take the city hostag-no, wait, I made that part up.

They are intending to have a lovely demonstration, however…and if you think Alabama is an unlikely place for this kind of rally, think again: folks who might have been big on the Tea Party a few months ago are starting to think again, and this is a great chance to help those with seeds of doubt do a bit of “germinating”, as it were.  

So that’s tomorrow’s set of events…but what about that Vancouver thing we were talking about?

Well this is good.

The Yes Men” are well-known pranksters, and some of their past efforts to “correct corporate identities” have been downright diabolical, including the time they pretended they were the Dow Chemical Corporation, and they held a press conference to announce that Dow was assuming all liability related to the industrial accident at Bhopal, India, which killed at least 3400 people…which, naturally, forced Dow to go on TV and immediately announce that the people of Bhopal could basically go suck an egg, because Dow wasn’t actually planning on forkin’ over a dime on their behalf.

Now on Wednesday, at noon, in beautiful downtown Vancouver BC, a prank is going down…and The Yes Men want you to help make it work…and they want you in costume.

Can you make yourself look like a reporter? They’re particularly looking for you to bring a camera-and if it’s on a tripod, that’s even better.

If you resemble a “businessperson at lunch”, they want you too.

Even random “crowd folks” are wanted in a “come as you are” kind of a look.

Now the only hitch we have on this is the meetup information, which they were supposed to send on Monday. For the moment, with no better information available, why not plan to hang out at the Downtown Vancouver Library around 11AM, and I will either update this story to add new information, or I’ll keep sending them messages to arrange for someone to come by the Library and find the group of “reporters” and “businesspeople at lunch” and “random crowd members”.

I told you this would be a short one, so that’s the deal: after work today, there are “Defend the American Dream” rallies all over the country for you to attend, which can be found right here, and on Wednesday, The Yes Men will be putting on one of their very special pranks in Downtown Vancouver-and they want you to come on down and join in the fun.

“Taking It Back” is important, but there’s no reason we can’t have a good time while we’re doing it, and that’s what these events are all about…so go have a good day at work-but on the way home, take some time to stand up for your country.

And if you can work it out, bring the kids.

After all, a really good education starts at home…and this, this thing we’re doing right here…this is education.

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On Being A Titan, Part One, Or, See It, Say It, Sue It

Got a simple little story for you today of a multinational corporation that wants to build a great big cement plant in North Carolina really, really, bad, and the local opposition to what appears to be a corrupt and distorted decision process.

Two local activists in particular have drawn the ire of Titan Cement, the Grecian corporation who seeks to build the plant-and because the Company doesn’t like what the activists have been saying about what the impact of that plant will likely be or how the deal’s going down…they’re suing Kayne Darrell and Dr. David Hill, residents of North Carolina’s New Hanover County, and the two folks who are doing the complaining the Company dislike the most.

The Company further claims that they were slandered and defamed by the damaging statements that were uttered by the two at a county commissioners’ meeting and that they have lost goodwill and the chance to do business with certain parties as a result of these statements.

But what if everything the Defendants said was not only true…but provably so-and the Company was, maybe…just looking to shut people up by sending teams of lawyers after them?

As I said, it’s a simple story today-but it’s a good one.

We have tomorrow

Bright before us

Like a flame.

Yesterday, a night-gone thing

A sun-down name.

And dawn today

Broad arch above the road we came.

We march!

–From The New Negro, by Alain Locke

So here’s the deal, as it sits today: for a number of years now Titan Cement has been looking to build this great big cement plant near the environmentally sensitive North Carolina coast (part of the site includes 600 acres of “pristine wetlands“), and part of running a cement plant is running cement kilns.

Ya gotta cook limestone, sand, and clay, along with some other ingredients, at very high temperatures (above 2700 degrees F), which sort of fuses everything together; that makes “clinker”, which eventually becomes cement, and that’s why you need giant kilns and, often, pre-heater towers.

You need fuel for those really hot kilns and towers, and our friends at the Army Corps of Engineers advise that, in the kiln fuel game, you can actually kill two birds with one limestone by burning hazardous waste as a substitute for anywhere from 20% to 50% of your original “fuel of choice” (which is often coal).

According to the Corps, you can burn 12 tons of fuel an hour in one kiln, and that means up to six tons of…

byproducts of pharmaceutical, cosmetic, and electronics manufacturers;

solvents and inks used to print newspaper and other publications;

solvents used to recycle paper;

dry-cleaning solvents;      

paint thinners and paint residues;

sludge from the petroleum industry;

used motor oil;

agricultural wastes;

and scrap tires.

…might be going into the mix every hour-and as it turns out, that stuff might contain:

…arsenic, cadmium, chromium, lead, nickel, thallium, and zinc.

Now if you’re burning that stuff, it’s either going up the smokestack or out the door as a component of the clinker you just made, and if you live anywhere near this plant, you’re going to be at least a little concerned…and if you have the impression that the people who are trying to get the permits are running a big ol’ hustle to get those permits, you’re going to be even more concerned…and it looks like that’s what’s been going on…and if you put all this together, and you lived in the neighborhood, you might show up at a local County Commissioners’ meeting and say something like this

“From lawsuits for price fixing and court-ordered mine closures of Titan’s Florida plant, to allegations of corruption coming from Raleigh, to emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary, the clouds of corruption grow dark as new controversies emerge almost daily.”

…or this…

“The bottom line is we know from numerous studies that if we build this thing, more children will get sick, a handful of them will die. We also know from the adult studies that more adults will get sick and quite a few more of them are going to die as well. Which ones? Can’t tell you. That makes it difficult, but there will be some.”

…which are the two utterances which are today at legal issue. (Ms Darrell is being sued for the first statement, Dr. Hill, the second.)

The reason we are all gathered here today is to figure out whether either of those statements are truthful or not…because if the statements are truthful, they cannot be either slanderous or defamatory.

So let’s break it all down, one clause at a time:

Ms. Darrell talked about lawsuits for price fixing, and sure enough, CemWeek (“Global Cement Industry. Knowledge”) ran a story in October of ’09 entitled “Nine US cement companies accused of price fixing“, describing a lawsuit filed for price fixing in which Titan was one of the Defendants.

Court-ordered mine closures? Coffey Burlington, attorneys at law, recount their success with a certain case on their website (Sierra Club v. Army Corps of Engineers, Rinker Group, Tarmac America, Florida Rock Industries, APAC-Florida and Miami-Dade Limestone Products Association), which did in fact result in a court-ordered mine closure of Florida facilities operated by Tarmac America, which is a Titan subsidiary.

Allegations of corruption? How about this, reported in January of 2010 by the Wilmington, NC, StarNews:

A corporation that shares an address and president with a Titan America subsidiary bought a Wilmington office building for more than twice its tax value from Democratic fund-raisers under scrutiny by state and federal prosecutors.

To add to this element of the story, the current Governor, Bev Perdue, has asked the State Bureau of Investigation (SBI) to look into Titan’s permitting process, which is something that usually follows allegations, if I recall correctly.

Let’s move on: the folks in the Wilmington, NC, area have a private economic development committee that has negotiated secretly with Titan for some time; the result of that effort was the decision to provide $4.2 million in local government incentives to Titan.

But here’s the thing: if Titan never meant to build anywhere but on that one site, and they still hustled the community for the incentives by using the threat of building somewhere else…well, that’s why Ms. Darrell was talking about:

“…emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary…”

In 2008, Keith Barber, he of Wrightsville Beach Magazine, documented Titan’s multi-decade interest in this particular location:

Titan has made very little effort to conceal the fact it plans to move forward with construction of a cement plant and limestone mining operation on the banks of the Northeast Cape Fear River. In a 2005 interview with Titan CEO Aris Papadopoulos in Cement Americas magazine, Papadopoulos confirmed the Greece-based company had been considering building a plant in Castle Hayne for nearly two decades…

… In addition, even though the permitting process is 18 months to 2 years out, the North Carolina Department of Transportation (NCDOT) Web site reveals that CSX Railroad is already constructing a new spur track at the site of the proposed Carolinas Cement Company.  

The Charlotte News & Observer documents the existence of those pesky emails in a January 2010 editorial:

…[Titan lobbyist John] Merritt said he would talk to then-Commerce Secretary Jim Fain. Earlier, he had advised a company spokeswoman on how to respond to questions without raising suspicions that Titan might not qualify for a state grant.

“It is very important that the company not do anything that suggests that this is the only site you are looking at,” Merritt e-mailed. And sure enough, in its application for incentives Titan asserted that it was considering sites elsewhere.

Let’s jump in for just a second and take a look at where we are:

Ms. Darrell made this statement…

“From lawsuits for price fixing and court-ordered mine closures of Titan’s Florida plant, to allegations of corruption coming from Raleigh, to emails raising suspicion whether Titan was ever even considering any other location, which would make incentives completely unnecessary, the clouds of corruption grow dark as new controversies emerge almost daily.”

…and based on what we’ve seen so far, every single word of that statement turns out to be absolutely, provably true:

–There was a price-fixing lawsuit.

–There was a court-ordered mine closure of Titan’s Florida plant.

–It’s alleged that something funny was going on with that office building, and North Carolina’s SBI is investigating.

–We did in fact discover that emails exist raising suspicions as to whether Titan was considering any other location.

–And here we are, talking about one of the new controversies that emerge almost daily.

Today’s tale of legal bullying is running pretty long already, and we still have half of the story to go…so let’s take a break for today, and we’ll pick this up by looking at the statement made by Dr. Hill when we get together next time.

In the meantime, if you’re keeping score…I’m thinking that after Round One, it’s Defendants, 1, Titan, 0.

Fair Districting?

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