“When there’s civil unrest, people like to come and support small business.” In Washington DC, residents enjoy a Sunday afternoon reprieve while staying vigilant

Originally published in Insider on January 17, 2021.

At the Dupont Circle farmers market on Sunday, Abbye Prelip, who traveled to Washington DC to sell vegetables, said she was keeping an eye out for “any crazies.” But apart from the enormous security presence in downtown, and some delays caused by road closures, the day had been uneventful, even busy.  

“We’ve come to the conclusion that, when there’s civil unrest, people like to come and support small business, which is really cool,” Prelip said. Shenandoah Seasonal, her business, is an organic farm about an hour-and-a-half away in Virginia. 

Washington DC was on high alert Sunday as anxious residents readied themselves for the unknown. With the city still reeling from the insurrection at the U.S Capitol, the FBI warned that violent protesters could take to the streets just days before President-elect Joe Biden’s inauguration, and thousands of National Guard troops packed downtown. 

Sunday, Jan. 17 has been marked as a day for right-wing extremists to protest President Donald Trump’s defeat since at least late November. There were calls on Parler, a social media platform used by right-wing groups that has since been shut down, for a so-called “Million Militia March” on Sunday, and the New York Times reported the extremist Boogaloo movement was also planning rallies for the 17th. Appearing on Meet the Press on Sunday morning, the city’s mayor, Muriel Bowser, said she was concerned about attacks in residential neighborhoods, where there is less of a formal security presence. The mayor recently requested that businesses hang signs that stress weapons, “including concealed firearms” are not welcome on the premises.

But with the recent crackdown on right-wing organizing by tech companies like Facebook and Twitter, and the booting by Apple, Google and Amazon of the social networking app Parler, the warnings so far appeared to be mostly false alarms. By mid-afternoon, there was an eerie calm in the city of some 700,000 residents. The Washington Post reported that two people had been arrested, a woman for impersonating a police officer and a 22-year-old Virginia man who was reportedly carrying a Glock 22 firearm and ammunition. 

It was less than two weeks after President Donald Trump rallied his supporters to “Stop the Steal” and a mob stormed the Capitol building, overwhelming police and ransacking congressional offices. Federal prosecutors now say they have “strong evidence” the rioters intended to capture and assassinate members of Congress, and  in the days since local residents have witnessed a dramatic ramp-up in policing and security, including new fencing, barriers, and closures of subways, bike-shares, streetcars, stores, and restaurants. 

For now, people are continuing to make essential trips, like scheduling their vaccine appointments and stocking up on groceries. Few if any political protesters were seen around the city.

Back at the farmer’s market, Amanda Humphrey, working a stand for the D.C-based Little Wild Things farm, which sells microgreens, said their sales were actually up on a per-hour basis from the week before. “We thought that maybe it would be dead but traffic is pretty consistent and honestly I don’t notice a real difference,” she said.

Emily Zaas, co-owner of Black Rock Orchard, a family farm in Lineboro, Maryland, said she had been doing good business. Zaas recalled almost two decades ago when there were sniper attacks in the D.C region that killed ten people and critically wounded three more. “We were afraid then that people wouldn’t come out, that there’d be no business, but the markets were so busy that weekend,” she said. 

Maybe people were looking for “a reprieve,” she said. “It’s peaceful here.”

Even local composters didn’t pass up their opportunity to drop off food scraps, taking advantage of a weekly city-wide program that launched in 2017. At the Dupont market, volunteers confirmed their compost collection was not lower than a typical Sunday. “People have a habit, and we’re going to make it easy for them to keep that going,” said Read Scott Martin, a volunteer. “This is really a city that comes together when we’ve got pressure.”

Gannon Pitre, manning the Sexy Vegie stand at the Dupont Farmers Market, which sells plant-based vegan and vegetarian food, noted one of his colleagues from Maryland decided to stay home this week. And JC Clark, owner of Capitol Kettle Corn, a local popcorn vendor, said he got a call on Saturday asking if he wanted to launch a pop-up on Sunday, meaning there were some vacancies. Clark felt comfortable saying yes, noting his normal popcorn deliveries were more challenging with all the road closures across the city.

“Yesterday I had 38 popcorn deliveries and I finished only about 20 of them,” he said. “Getting around in a car was so hard.”

How Education Secretary Nominee Miguel Cardona Works With Teachers

Originally published in The American Prospect on January 4, 2021.
Miguel Cardona, a former teacher, school administrator, and currently Connecticut’s education commissioner, was recently nominated to lead the federal Education Department. Cardona’s selection reflects a shift from those who spearheaded education policy under Joe Biden’s Democratic predecessor, Barack Obama.

As president, Obama aligned himself with the pro–charter school PAC Democrats for Education Reform, which, as co-founder Whitney Tilson put it, was founded “to break the teacher unions’ stranglehold over the Democratic Party.” Obama tapped DFER’s top choice for education secretary—Chicago Public Schools CEO Arne Duncan—and for the next seven years Duncan pushed controversial reform policies, including charter school expansion, weakening teacher tenure, and tying teacher salaries to student test scores. Unions despised Duncan, and Obama, who largely left the dirty work to his appointee, made clear he approved of the job Duncan was doing. “Arne has done more to bring our educational system—sometimes kicking and screaming—into the 21st century than anybody else,” Obama said in 2015.

While Biden didn’t go so far as picking former National Education Association president Lily Eskelsen García to lead the Education Department, the choice of Cardona has nonetheless been a relief to union advocates, who knew education reformers were lobbying behind the scenes for other candidates. It’s another example of how Democratic leaders have drifted away from the Obama-era agenda and more toward a platform focused on traditional public schools and their schoolteachers.

During his confirmation hearing for education commissioner, Cardona made clear that under his leadership, Connecticut would be focusing its energy on “neighborhood schools” rather than charters. He’s also echoed some of Biden’s criticisms of evaluating teachers by standardized test scores. “Not reducing a teacher to a test score and bringing the voices of teachers and leaders into the process of professional learning. Those are the two things I really felt like I had to champion,” Cardona told CT Mirror in 2019.

As an assistant superintendent for Meriden Public Schools—located about 20 miles south of Hartford—Cardona was intimately involved in one of the nation’s most successful so-called labor-management partnerships in public education. Cardona helped lead reforms to boost student achievement in collaboration with the Meriden Federation of Teachers, at a time when educators nationally were being framed as the barrier to such efforts.

Labor-management partnerships are collaborations between executives and their unions that extend beyond traditional collective bargaining over wages and benefits. The partnerships have existed in the private sector for decades, with firms recognizing that expanding labor’s role in decision-making can lead to improvements in productivity, quality, and overall competitiveness. Some well-known labor-management partnerships include UAW’s collaboration with General Motors in the 1970s, and health care unions like SEIU working with hospital systems to drive improvements in patient care.

In public education, these types of partnerships have been more rare. But interest in the model started picking up about a decade ago, partially in response to attacks on teachers unions, and also as a way for reformers to push their preferred policies through new vehicles.

In 2010, with a grant from the Bill and Melinda Gates Foundation, Rutgers labor scholar Saul Rubinstein and his student John McCarthy started researching labor-management partnerships in education. One school district stood out in particular, the ABC Unified School District in Cerritos, California, which put a labor-management partnership in place in 1999. That collaboration helped drive student gains in the district, and also helped ABC Unified weather the 2008 recession with no layoffs, loss of employee health benefits, or increase in class size. This surprising success led to a 2014 paper where the Rutgers academics found “strong evidence” that such partnerships can help boost school quality and student achievement.

In 2007, Meriden’s then–teachers union president, Erin Benham, shared an article with school superintendent Mary Cortright about what was happening in Cerritos. Cortright and Benham met to discuss the piece, and afterward more regularly, in part due to the growing recession. Cortright’s successor, Mark Benigni, was eager to expand the conversations, and starting in 2010, union and district leadership began scheduling regular meetings on the first Monday of every month to discuss whatever was on their minds. Cardona would sit in on the meetings, too.

“We’d just sit there and bring up issues and use the time to hash things out,” says Benham, who retired as president in 2019 and now serves on the state education board. “We’d come up with a plan, and that just became a way of life.”

One of the biggest innovations that came from Meriden’s labor-management partnership was a push to expand the school day at three elementary schools. Research has shown that more instructional time is one of the most effective ways to boost student learning, and union and district leadership wanted to figure out how to deliver that opportunity to more students. The union applied for a $150,000 American Federation of Teachers grant in 2012, and by leveraging volunteers and community organizations, and giving annual stipends of $7,500 to staff, the district managed to offer 40 additional days of instructional time. While funding dried up after about five years, Meriden Federation of Teachers president Lauren Mancini-Averitt says they plan to bring at least one extended-learning school back after the pandemic.

A spokesperson for AFT says there are about 50 labor-management partnerships in various stages of depth and development today, but that “Meriden’s is among the most fully developed.”

Shaun Richman, a labor expert at SUNY Empire State College, says one drawback of labor-management partnerships is that union reps can end up having to do more work with management in improving the company’s product than in organizing members. Benham and Mancini-Averitt agreed the partnership was time-consuming, but defended the commitment, saying it’s proven to be the best way to actually solve problems, which is what their members want.

Richman says these partnerships sometimes draw criticism from more radical workers, who would rather spend their time fighting with management. But he said the partnerships generally tend to be quite popular, as most union members don’t want to be fighting. “For most unions, it’s this cycle where you have two years of fighting and six years of peace,” he said. “I’m a real boss hater and it’s something I struggle with, that most workers would prefer not to be fighting.”

One major initiative Cardona led as part of the labor-management partnership involved developing Meriden’s new teacher evaluation system. Unlike the dominant education reform model sweeping the nation at the time, Benham says their team wasn’t looking at teacher evaluations as a punitive tool to weed out low-performers, and instead believed evaluations should be constructive tools to help all educators improve. “We were very intentional about keeping those things separate,” says Benham. “Evaluations were about being a helping tool, not a gotcha.”

While Connecticut had some requirements to use student test scores in teacher evaluations, Meriden, under Cardona’s leadership, pushed to make those measures weigh less than they were being counted in neighboring districts. In Meriden, relevant department chairs also provided feedback for teachers, rather than just leaving evaluations to administrators less familiar with the assessed subject areas.

Cardona “was assistant superintendent for four years, and if there was any personnel issue, any really sensitive issue, he is who we would meet with,” says Benham. She praised his openness and said together they worked on areas ranging from restorative practices and professional development to improving school climate.

“He was a good partner to us, very personable, and the fact is he’s a parent,” adds Mancini-Averitt, noting Cardona has two of his own children in Meriden Public Schools. AFT president Randi Weingarten shared the enthusiasm. “There is great potential for a renaissance in public education after years and years of the school wars,” she said in a statement, adding that Cardona’s “deep respect for educators and their unions will travel with him to Washington.”

Newly Elected Michigan Prosecutor Will Stop Seeking Cash Bail

Originally published in The Appeal on January 4, 2021.

Eli Savit, the new chief prosecutor of Washtenaw County, Michigan (Ann Arbor), announced today that his office will no longer seek cash bail. His policy is the latest victory for advocates nationwide who are working to eliminate financial conditions for pretrial release. It comes on the heels of similar announcements in December by prosecutors in California and Virginia.

Savit, the county’s first new prosecutor in 28 years, ran on ending cash bail during his 2020 campaign. “One’s wealth must never play a role in their detention,” he told The Appeal: Political Report in August.

He is issuing a 20-page policy directive today that cites several reasons for opposing cash bail, including that debtors’ prisons are illegal in all 50 states and that cash bail stands at odds with the country’s legal principle of “presumption of innocence.” 

“We’re very excited about Eli’s no cash bail policy,” said Twyla Carter, national policy director at The Bail Project. “We’d love to see other elected and appointed officials follow suit, and ultimately what we want to see is the decriminalization of poverty, mental health and addiction.”

According to a state task force report released last year, people detained pretrial have comprised roughly half of Michigan’s jail population in recent decades, often because they couldn’t afford their bail. And this sparks great disparities in incarceration. Preliminary analysis by the ACLU of Michigan found that Black people in Washtenaw County were 8.55 times more likely than white people to be incarcerated because they couldn’t pay bail. 

These trends are not unique to Michigan. Nationwide Black and Latinx people are more likely to be incarcerated pretrial than whites charged with similar crimes, and nearly half a million legally innocent people sit in local jails every day, according to an analysis by the Prison Policy Initiative. 

Researchers have found even brief periods in jail can hurt job and housing prospects, negatively impact children, and increase the odds that a defendant will plead guilty

Prosecutors don’t set bail themselves, but their recommendations and motions weigh heavily on what judges do. Over the last few years, prosecutors elected on progressive platforms have reformed the use of cash bail, including Kim Gardner in St. Louis, Larry Krasner in Philadelphia, and Rachael Rollins in Boston, especially for lower-level offenses. Studies have found that jurisdictions that have experimented with bail reform have not seen an increase in crime.

“We know from our almost 16,000 bailouts, including in Washtenaw County, that when a defendant’s financial needs are met, when they have rides, text message reminders, child care, they show up to court,” said Asia Johnson, a communications associate at the Bail Project.

But only in January 2020, when Chesa Boudin became the district attorney of San Francisco, did a prosecutor announce that they would no longer request cash bail under any circumstance. 

Others have since joined Boudin. Sarah George, the prosecutor of Vermont’s Chittenden County (Burlington), rolled out a similar policy in September, followed in early December by George Gascón, the newly elected DA of Los Angeles. A few weeks later, Steve Descano, the chief prosecutor of Virginia’s largest county (Fairfax County), announced that his office would also not request cash bail, formalizing a practice he established after taking office a year ago.

“Simply put, cash bail creates a two-tiered justice system—one for the rich and one for everyone else,” said Descano in his recent announcement. 

Still, criminal justice reform advocates are wary of some limits of these prosecutorial reforms and of the continued reliance on pretrial detention, including for factors tied to money.

In Washtenaw County, according to Savit’s directive, prosecutors “can and will” still seek unsecured and surety bonds, which require payment from a defendant or third party if they fail to show up in court or otherwise break the conditions of their release.

Michigan law requires that in some cases judges must impose a cash or surety bond, though Savit’s directive also enables prosecutors to seek secured bonds more broadly. He told the Political Report this would be “very rare.” Surety bonds require a third-party to show they could afford to pay a bond if a defendant breaks release conditions, which hinders the ability of defendants with impoverished families to gain release. In some cases, surety bonds can even require a defendant to provide upfront payment to secure a third party’s intervention, but Savit said he is steering staff away from for-profit commercial bond agents. “It is not appropriate to require a defendant to secure a surety from a for-profit commercial actor,” his directive notes.

“I don’t want anybody to be put in a position where they have to pay upfront money—to the court or a third party—to secure their release,” Savit said. “If surety bonds are being used by courts to require such an upfront payment, we’ll re-evaluate and adjust as needed.”

Phil Mayor, a senior staff attorney with the ACLU of Michigan, says the “knee-jerk reaction” shouldn’t be a threat of financial penalty later in the legal process either. “We need to continue to be worried about the poverty trap that our criminal legal system easily devolves into,” he said, noting that defendants sometimes miss court hearings for fear of losing their jobs, or failing to find child care or reliable transportation. 

Savit’s prosecutors can also choose to recommend the denial of pretrial release for some serious offenses, including murder, armed robbery, and repeat violent offenses. Advocates worry that asking prosecutors to decide who presents a safety risk before they have been afforded a trial poses problems, especially when those determinations are made with algorithmic tools that researchers say are faulty and racially biased. Savit, however, is avoiding the algorithmic tools, and told the Political Report he “consciously chose not to go down that route” because he “read the studies and knows those can often reinforce human and racial biases.” 

Washtenaw  prosecutors will still be permitted to request nonfinancial conditions for pretrial release like drug and alcohol testing, GPS tethers, and in serious instances, oversight by a “responsible” member of the community, though Savit will encourage his staff to articulate specific reasons for seeking such conditions. 

In many jurisdictions the cost of GPS tethers is borne by the defendant, which can either lead to new forms of debt or an inability to leave jail altogether. Savit told the Political Report that while he sees a tether as “far preferable” to forcing someone to sit in jail, he does worry about the costs of the devices charged to the defendant. 

“We need to put our heads together and work collaboratively, and some of this probably will take changes at the state level,” he said. Michigan’s legislature recently enacted some reforms spurred by the state task force on pretrial justice, but lawmakers have yet to tackle bail.

Mayor, who consulted on the new Washtenaw policy, told the Political Report that he had urged Savit to make any pretrial restrictions limited and rare. “I think his new written policy reflects that, but the proof is going to be in the implementation,” he said. “I have strong optimism that it is Eli’s intent to implement things in a way that’s designed for pretrial detention to be the dramatic exception and not the rule, but the test will be in the buy-in from line prosecutors and judges.”

There have been similar concerns in Fairfax, Virginia, where advocates note that an end to cash bail—while positive—will not inevitably lead to justice or even pretrial release.

“What’s been more prevalent in Fairfax is the over-conditioning of release—like requiring a probation officer, mandatory drug testing or mental health treatment,” said Bryan Kennedy, a public defender in the county. “The judges definitely over rely on it, and prosecutors ask for it more than they should.” Kennedy says Descano has also stayed fairly quiet when judges send people back to jail for missing court hearings due to poverty-related issues, and there have even been times when Descano appealed a circuit court’s decision to release somebody pretrial. (Descano told the Political Report that’s “not something that happens regularly.”)

In Virginia, unlike other states, there is also no constitutional right to bail, which means the list of eligible offenses for detention without bail includes everything from driving without a license to murder. Kennedy says he and his colleagues worry that, without addressing that on the state level, judges might just detain more people if cash bail is not an option. 

Descano has called on the state legislature to reform the pretrial system and end cash bail, as did the association of progressive Virginia prosecutors in a letter released today.

Michigan organizers say they will keep an eye on how things unfold in Washtenaw as well.

Trische’ Duckworth, an organizer of anti-police brutality protests in Washtenaw County and the executive director of Survivors Speak, told the Political Report that she’s thrilled about Savit’s new cash bail policy and that she didn’t have to “twist Eli’s arm” to take it on. “He came in with a vision,” she said. 

“But I tell him all the time, ‘I’m watching you,’” she added. “I say, ‘Don’t get your first protest.’”

Liberal Legal Organization Renews Amazon VP’s Position On Its Board Despite Member Protest

Originally published in The Intercept on December 22, 2020.

IN LATE MARCH, following an employee walkout at an Amazon warehouse in Staten Island to protest the lack of safety protections amid the new pandemic, Amazon fired the lead organizer, Chris Smalls, with the public rationale that he had violated rules around social distancing. Under pressure, Amazon pledged in early April to ramp up its distribution of personal protective equipment, but a leaked memo from a private meeting revealed company executives had discussed how to smear Smalls and damage any potential union efforts. Smalls is “not smart, or articulate,” argued Amazon’s general counsel David Zapolsky, who urged the company to tell reporters Smalls’s conduct was “immoral, unacceptable, and arguably illegal.”

Zapolsky’s comments outraged many left-leaning groups, including a group of lawyers and law students affiliated with the American Constitution Society, a self-described progressive legal organization that was created in 2001 to help build the bench of liberal judges and act as a countervailing force to the conservative Federalist Society. More than 100 individuals sent a letter to ACS’s president, Russ Feingold, the former Democratic senator from Wisconsin, and the ACS board of directors protesting the inclusion of a deputy of Zapolsky’s, Andrew DeVore, in its leadership ranks. DeVore, an Amazon vice president and associate general counsel, reports to Zapolsky and manages Amazon’s “labor and employment” issues, among other areas.

The signatories argued that Amazon’s conduct around Smalls was no isolated incident when it comes to “trampling worker rights” and also blasted the company’s record on privacy, surveillance, tax avoidance, anticompetitive practices, contracts with ICE, and bullying of local governments. “We urge you to ask for Mr. DeVore’s immediate resignation from the Board of Directors,” the letter read. DeVore was appointed in 2017.

Following the letter, ACS sought to handle the internal uprising in several ways, including organizing a virtual town hall for local chapter leaders with Feingold to discuss their concerns.

Feingold “expressed ACS’s respect for workers rights, but my feeling was he treated the meeting like a politician as a way to pacify the opposition rather than committing to specific actions,” said Hooman Hedayati, a member of the Washington, D.C., ACS chapter board who attended the town hall. Feingold declined to share with attendees how much money ACS receives from Amazon (it’s listed as a 2020 corporate sponsor on its website) but insisted the amount was negligible.

ACS also released a public statement reiterating the organization’s support for workers’s rights, and urged “employers to support the right of their employees” to form unions and demand safe working conditions.

Hedayati noted the statement failed to name-check Amazon specifically. “I think it was very concerning that ACS as a progressive organization won’t make a statement that specifically calls out Amazon and its bad track record,” he told The Intercept. “It makes me question to what degree they’d really be willing to speak up in support of the labor movement.”

Feingold also made a few personal calls, including to Leo Gertner, a labor lawyer and lead organizer of the letter, to suggest that the problem will basically go away when DeVore’s three-year term expires at the end of the year. “Feingold was very nice, diplomatic, and courteous and told me he was very supportive of our effort, but that the board was not interested in voting to remove Mr. DeVore or change his status in any way,” Gertner said. “But he told me DeVore was up for reappointment soon and his term was going to end this year.”

Since April, Amazon has continued to face charges of anti-worker activity, most recently this month, when attorneys for the company sought to blunt a union effort at an Alabama warehouse.

But in response to questioning, ACS confirmed to The Intercept that DeVore’s position on the board was actually renewed this year for another three-year term. David Lyle, ACS’s senior counsel for communications, said in a statement that keeping DeVore on “does not affect ACS programming or other decisions, at the national or chapter levels,” but maintained that leadership found him “to be a very engaged board member” and “valu[ed] representation of a diversity of experiences.”

ACS’S TIES TO Silicon Valley do not end with DeVore. Apple’s in-house counsel, Philippa Scarlett, was appointed to the board of directors in 2017, and now serves on ACS’s board of advisers, though her affiliation with Apple is not actually disclosed in her bio.

Over the last decade, ACS has taken at least $290,000 from Google, Microsoft, and Facebook, with other corporate sponsorships coming from Verizon and Amazon, according to pages detailing ACS convention donors. The contributions have raised questions among its members about how ACS positions itself on matters of antitrust, bankruptcy, and corporate power — areas where ACS has less clear stances than it does on issues around reproductive and civil rights. Some members say this is because ACS has molded its politics in the image of the corporate-minded Senate that serves as gatekeeper to the judiciary.

“ACS is an elite-driven organization based in D.C. with a board of directors full of Harvard, Yale, and Stanford alums, where most of those folks cut their teeth in corporate law and advised those megacorporations,” said Gertner. “I think they have an interest in putting themselves out as liberal and progressive because they have genuinely pro-choice views and are mildly anti-war, but the capture of the elite stratum by corporations is pretty much complete.”

ACS doesn’t shy away from questioning corporate power, though the bulk of its interrogation has been confined to panel discussions. Anti-monopoly advocate Barry Lynn of the Open Markets Institute says ACS could be doing more to offer a progressive vision on these issues, in the way the Federalist Society helps train and educate its conservative members on monopoly and antitrust.

Following the election of Donald Trump, some antitrust advocates, including Lynn, reached out to ACS to encourage the legal organization to take a firmer stance on these issues. In February 2017, Lynn, his colleague Lina Khan, antitrust attorney Jonathan Kanter, and Andy Green of the Center for American Progress met with Kara Stein, ACS’s vice president of policy and program.

“We said, ‘Hey, at least do no harm, don’t support people who are hardcore conservative on corporate welfare,’” Lynn said. “We want them to be a counterweight to the Federalist Society. Maybe they won’t take as radical a position as us, but we do think they should be pretty critical and at least work to educate its members about why the right takes the positions it does.” Lynn says the response they received was relative openness — if anti-monopoly advocates could fundraise for the work.

“They basically told us, ‘Well, if you really want us to engage on these issues around monopoly, then the way to do it would be to give us some money, build up a program,’” Lynn said, adding that Washington, D.C., “is full of these pay-to-play places.” David Lyle, ACS’s senior counsel for communications, didn’t deny Lynn’s characterization of the meeting and said it “was like many ACS holds regularly to explore partnerships and ways to collaborate on topics and issues.”

ACS has sponsored local and national events that have been critical of corporate power and encouraged stronger antitrust work, including an antitrust conference Khan organized at Yale. Hedayati says his ACS chapter has hosted several antitrust events in recent years — including one last month on political influence around antitrust investigations and a film screening in 2019 where members discussed shortcomings of antitrust law.

In response to questions, Lyle also pointed to a national panel ACS sponsored on consolidation of wealth and power in 2017, one on the constitutional dilemmas of Big Tech in 2018, and one on tech regulation in July. He also noted ACS has “been pleased” to publish scholars like Khan in ACS’s official law journal, and that the organization is publishing an essay by her this week with policy recommendations for the Biden administration.

In a statement to The Intercept, Khan said, “ACS’s leadership choices speak to the organization’s values, and it’s inappropriate for ACS to use my willingness to participate in past events as cover for its troubling choice to reappoint a top Amazon lawyer to the board.”

ACS declined to comment on the donations it receives from tech companies or make Feingold available for an interview. “Our work in this field, including the promotion of leading advocates of more strict antitrust enforcement and critics of technology companies speaks for itself,” said Lyle. As a U.S. senator, Feingold was a leading champion on campaign finance reform, pushing major legislation to curb the influence of money in politics. He was also known among his colleagues — and often privately resented — for his strict and obsessive fealty to the spirit of Senate ethics rules.

Lynn told The Intercept that ACS’s corporate tech donations “can’t help but affect” the organization. “When those sorts of folks are in the room they’re going to affect the policy,” he said.

Other members argue ACS’s murkiness on corporate power is less a reflection of rank corruption and points more to the reality that ACS’s aim to be a “big-tent” organization for liberals means it effectively becomes more of a networking group, with inevitable vague policy positions palatable to the full Democratic Party. In the absence of drawing clearer lines in the sand and providing a sharper vision for what progressive lawyering means in the realms of corporate power and bankruptcy law, newer organizations like Demand Justice, the People’s Parity Project, and the Law and Political Economy Project will continue to fill what its supporters say is an intellectual and advocacy void for lawyers on the left.

The Biden administration, for its part, has recently appointed a number of leaders and alumni from big tech companies, though maintains it will continue serious investigations into the practices of these firms. The Trump administration filed a major antitrust suit against Google, which will continue under the Biden administration. The suit is seen as potentially the first of several such clashes with tech titans.

“I think antitrust and antimonopoly people feel listened to on the substance by the Biden administration,” said Jeff Hauser, the director of the Revolving Door Project, which advocates for progressive executive branch appointments. “But the question is whether there will be people appointed who will be able to slow the move of the government against these companies.”

Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment

Originally published in Rewire on December 16, 2020.

Amy Coney Barrett has been a Supreme Court justice for less than two months, yet Arkansas lawmakers wasted no time introducing an anti-abortion bill aimed squarely at the Court, whose new conservative supermajority puts the future of abortion rights in serious jeopardy.

Advocates have called the Unborn Child Protection Act, introduced in November ahead of Arkansas’ next legislative session, “so egregious”—particularly in light of the COVID-19 pandemic that continues to ravage the country with no federal relief bill in sight.

Arkansas already has a law banning abortion should the Supreme Court overturn Roe v. Wade20 other states have similiar laws in place.

The same lawmaker who sponsored the state’s so-called trigger ban last year, Republican state Sen. Jason Rapert, introduced this latest bill that he said was meant to more directly challenge Roe. He did not return multiple requests for comment.

SB 6 would ban all abortion unless a woman’s life was in danger, and like the trigger ban, it has language unusually directed to the nation’s high court.

“The State of Arkansas urgently pleads with the United States Supreme Court to do the right thing, as they did in one of their greatest cases, Brown v. Board of Education, which overturned a fifty-eight year-old precedent of the United States, and reverse, cancel, overturn, and annul Roe v. Wade, Doe v. Bolton, and Planned Parenthood v. Casey,” the legislation reads.

ACLU of Arkansas Executive Director Holly Dickson issued a statement calling Rapert’s bill “cruel and blatantly unconstitutional.” She urged state lawmakers to shelve the bill and focus on COVID-19 relief.

“Let’s be clear: if passed, this brazenly unconstitutional abortion ban will be struck down in court, and legislators who passed it will have achieved nothing but having wasted taxpayer dollars on an unlawful measure and diverted scarce resources from the urgent needs our communities face in the midst of an ongoing and devastating pandemic,” Dickson said.

Gloria Pedro, Planned Parenthood Great Plains Votes’ regional manager of public policy and organizing for Arkansas and Oklahoma, said the bill is the “equivalent of a demand letter to the Supreme Court, which is not how the Supreme Court works. And there’s already a trigger law passed, which is why this is so egregious.”

Patients can access abortion in Arkansas up to the 20th week postfertilization, or 22 weeks’ gestation. There are two clinics in the state, both in Little Rock, though only one provides procedural abortions.

Advocates for reproductive rights in Arkansas have had their hands full fighting back against anti-choice legislation over the last decade, with some bills landing in multiyear battles in federal court. Conservatives have long eagerly eyed the Eighth Circuit, a federal appellate court with jurisdiction over Arkansas, as a way to bring a challenge against Roe to the U.S Supreme Court. Back in 2015, Eighth Circuit appellate judges recommended the high court “reevaluate its jurisprudence” on abortion, and urged for more state discretion over reproductive decision-making.

One such challenge began in 2017, after Arkansas legislators passed new laws to criminalize doctors who perform dilation and evacuation (the most common second-trimester abortion procedure) and require a patient inform the person who got them pregnant before they could get an abortion. The ACLU of Arkansas and the Center for Reproductive Rights sued over those laws and additional state restrictions, like requiring doctors to notify local law enforcement when patients under 17 years old seek to terminate a pregnancy. The laws were temporarily enjoined.

This past August, a three-person Eighth Circuit panel ruled against the plaintiffs, citing Chief Justice John Roberts’ concurrence in the Supreme Court’s recent June Medical Services v. Russo decision. In that case, the Supreme Court ruled that a Louisiana law placing hospital admission requirements on abortion clinic providers was unconstitutional, echoing its 2016 position in Whole Woman’s Health v. Hellerstedt.

But in his concurring opinion, Roberts argued that while he agreed with his four liberal colleagues that the Louisiana case was virtually identical to Whole Woman’s Health, he believed the “undue burden” standard used to decide that case was wrong, and should not involve weighing costs and benefits of an abortion restriction when judging its legality.

“We don’t agree that one justice’s opinion can change the precedent set by Whole Woman’s Health that clarified the undue burden standard requires this balancing standard,” said Hillary Schneller, a senior staff attorney at the Center for Reproductive Rights, who asked the Eighth Circuit to review the decision en banc. (That means the case will be heard before the entire bench of judges, rather than a three-person panel.)

Schneller said “there’s always a chance” a case like this could wind up at the Supreme Court, but for now they’re just waiting on the Eighth Circuit.

That wait came to an end Tuesday afternoon when the Eighth Circuit summarily rejected the en banc request in a one-page order. Without further court intervention Arkansas’ restrictions could take effect as soon as December 22.

Meanwhile, reproductive rights advocates have also been dealing with harassment related to the pandemic. Arkansas health officials earlier this year sent a cease-and-desist letter to Little Rock Family Planning Services, arguing their procedural abortions were “elective” and should wait until after the public health crisis ends. State officials also tried to force patients to get negative COVID-19 tests within 48 hours of getting an abortion, even though tests were in short supply.

While advocates have successfully fended off some of the worst restrictions, reproductive rights groups concede there are more anti-choice bills passed every legislative session than could possibly be challenged.

“We can’t challenge every single restriction and those restrictions are continuing to stack on the books,” Dickson said. “They join together to create substantial obstacles and burdens for patients.” There was a 30 percent decline in the Arkansas abortion rate between 2014 and 2017, and according to the state’s health department, 2,963 abortions took place in Arkansas in 2019.

Pedro of Planned Parenthood Great Plains Votes noted that Arkansas has the fourth highest maternal mortality rate in the nation and one of the highest infant mortality rates. In 2016, Arkansas had the highest teen pregnancy rate in the country, and public schools in the state still do not provide comprehensive sex education and primarily endorse abstinence-only instruction.

“It’s not just that these bills take away reproductive rights, which is crucial, but they’re also having a real tangible impact in our state, and things are getting worse,” Pedro said.

Pedro and Dickson say the most helpful thing would be for residents to pressure their state representatives to avoid wasting energy and resources on more anti-choice bills.

“Arkansas does not need to fly the trial balloon and be the trendsetter on setting regressive law,” Dickson said. “We have so many other things that we need our state to focus on.”

After George Floyd, Carbon Capture Tech Tiptoes Into Racial Justice

Originally published in The Intercept on December 14, 2020.

IN MAY 2019, the Carbon Capture Coalition, a group of roughly 60 companies, unions, research institutes, and energy groups that support carbon capture technology, released a policy platform that was entirely focused on their desired federal investments. The agenda emphasized things like expanding tax credits and loan guarantees, as well as incentivizing new research and development.

Then came the police killing of George Floyd and a summer of protest that reshaped politics, influencing even the debate around carbon capture’s role in the fight against climate change. The coalition’s new policy platform, released in late October, is focused on ways that carbon capture projects could also contribute to environmental justice. 

Beginning in January, the Clean Air Task Force, a research and advocacy group that backs carbon capture, will be launching at least four case studies in California and Texas to study how, if at all, carbon capture technology reduces local air pollution. Their objective, said Deepika Nagabhushan, who is leading a new environmental justice initiative at the organization, would be to provide front-line communities with the information by the end of 2021, so residents can better determine whether carbon capture meets their needs. Nagabhushan told The Intercept that the protests over the last year “have really brought social equity and addressing systemic racism to the forefront” of all conversations, including for carbon capture. 

Some left-wing climate groups take a strong stance against carbon capture, seeing it as a distraction at best and a malign oil industry scheme that will only help prolong, rather than hasten, the industry’s decline. In his presidential climate change plan, Sen. Bernie Sanders echoed the stance of groups like Greenpeace, Friends of the Earth, and the Sunrise Movement, calling carbon capture a “false solution.” This past September, the House of Representatives passed a nearly 900-page clean energy package, though 18 Democrats, including Reps. Alexandria Ocasio-Cortez, Rashida Tlaib, Ilhan Omar, and Ayanna Pressley, voted against it, after a coalition of progressive climate groups protested the bill’s support for carbon capture.

Jessie Stolark, the public policy and members relations manager for the Carbon Capture Coalition, said her group is currently “undergoing an evolution” with regards to how they approach potential impacts and benefits to frontline communities. The political logic is sound: Carbon capture is a rare climate policy with Republican support, and unions and mainline Democrats are already on board, with the holdouts residing on the left. Demonstrating the benefits to marginalized communities could help erode that opposition.

Climate change, of course, is a global and universal problem for humanity. But its effects are being and will be felt earliest and hardest among those with the least means to mitigate it, and the least political power to confront the overlapping crises it produces and exacerbates. Major sources of carbon emissions, meanwhile, also tend to be sources of broader forms of pollution, often landing disproportionately on what have come to be known as front-line communities.

This year, in campaign memos sent to Joe Biden and Donald Trump, the Carbon Capture Coalition included language about the need to ensure that the tens of thousands of high-wage jobs associated with carbon capture projects actually benefit the disadvantaged communities where they may be cited, meaning “expanded support for training and apprenticeship programs undertaken in partnership with community colleges, trade unions and other local institutions in affected communities.” Stolark acknowledged that some communities may not want the projects even if they do come with high-wage jobs and said the coalition is “currently brainstorming” around those questions.

Biden’s election has given advocates for carbon capture a lot to be optimistic about. Back in July, his $2 trillion climate plan called for accelerating the development and deployment of carbon capture technology. On his new presidential transition website, where he lists four priorities including climate change, Biden mentions a commitment to innovating “negative emissions technologies” — an umbrella term that includes so-called direct air capture, or machines that suck already emitted carbon dioxide out of the air.

“It remains to be seen what they’re going to do but one area I’m really excited about is just developing the workforce,” said Stolark. “Biden’s climate plan said it would create 10 million jobs, so our question is what is that going to look like.”

In a letter sent September 18, progressive groups including Friends of the Earth, 350.org, and Food & Water Action argued that other environmental justice components of the House’s Clean Economy Jobs and Innovation Act would be undermined by its carbon capture provisions, and that it would perpetuate burdens on front-line communities and communities of color. “[A]ny new investment toward fossil fuel companies is unacceptable and quite simply incompatible with tackling environmental injustice and the climate crisis,” Lauren Maunus, the legislative manager of Sunrise Movement, told the New Republic after the vote. (This year BP, Shell, and Exxon Mobil wrote down billions in their fossil fuel reserves, telling investors they recognize that some of their reserves will never be pumped out of the ground.)

Despite the 18 protest votes, carbon capture has no shortage of Democratic support, and the House bill garnered votes from the majority of the Congressional Progressive Caucus and nearly all the Green New Deal resolution co-sponsors. Sen. Ed Markey, the original co-author of the Green New Deal with Ocasio-Cortez, also has a record of supporting carbon capture technology and assured the Carbon Capture Coalition of his support in 2019.

Unions are also strong supporters, and last year the BlueGreen Alliance, a coalition of labor and national environmental groups, released a plan for tackling inequality and climate change that included support for carbon capture tech. The environmental groups include the Sierra Club, the Natural Resources Defense Council, the National Wildlife Federation, the Union of Concerned Scientists, the Environmental Defense Action Fund, and the League of Conservation Voters — collectively known in environmental circles as “big green.” The unions include both building trade unions and unions representing industries that wouldn’t necessarily be directly impacted by investments in carbon capture, like the Service Employees International Union, the American Federation of Teachers, and the Communication Workers of America. Both the SEIU and the AFT have passed resolutions in support of the Green New Deal.

Brad Markell, the executive director for the AFL-CIO Industrial Union Council and a strong advocate for carbon capture technology, was tapped to serve on the Department of Energy transition team for the Biden administration. Also serving on that team is Noah Deich, the executive director for Carbon180, a group focused on carbon removal, like direct air capture.

One advantage Biden and carbon capture supporters have on their side is the growing scientific consensus that the only way to reach global climate targets by mid-century would be to utilize carbon capture technology, which can both help reduce future emissions and remove some of the carbon dioxide that’s already been released. This past September, for example, the International Energy Agency released a report warning it would be “virtually impossible” to reach net zero without carbon capture tech. In 2018, the Intergovernmental Panel on Climate Change also affirmed carbon capture tech would be necessary to hit climate targets absent rapid reforestation and major changes to global diets and energy consumption. There’s also the fact that renewable energy alternatives like wind and solar are not viable solutions for reducing carbon emissions in the industrial sector, and nearly a quarter of all U.S greenhouse gas emissions come from industry.

“Even if we close every coal fire plant in America — which I don’t think we’re going to do for a while — but even if we did that, it doesn’t change the basic fact that if you believe and follow the science, carbon capture is a thing we must do globally at scale or we won’t make it,” Lee Anderson, director of governmental affairs for the Utility Workers Union of America, told The Intercept last year.

While advocates for carbon capture have been outlining priorities they’d like to see the Biden administration take on, Congress is also currently considering new legislation that could pass as soon as this month. Lawmakers are considering bills both to extend a tax credit to incentivize carbon capture projects and to authorize new demonstrations in the power sector.

Notably, while groups like Sunrise and Friends of the Earth have cited environmental justice as a reason to oppose carbon capture, leaders within the carbon capture movement have been crediting progressive climate organizations for pushing them to think more deeply about environmental justice.

“I think a lot of these movements around a Green New Deal have been really responsible for pushing more groups to center environmental justice in the climate discussion,” said Erin Burns, policy director for Carbon180.

“We’re in a great place where the Department of Energy has done really great R&D and we have a lot of information on how to do things like saline storage safely and securely, but when you’re talking about the need to inject millions of tons of CO2 into the ground, you need to think about how do we talk to communities about that, and what are the questions those communities will have,” said Burns. “We want to make sure we’re thinking about developing clear materials to ensure communities can have a strong voice in how these projects go forward, and that there can be really robust, meaningful engagement.”

Burns declined to share specific names but told The Intercept that Carbon180 has started having conversations with environmental justice groups and expressed gratitude to activists who have lent their time and expertise. While “we absolutely expect resistance and skepticism,” said Burns, from some carbon capture organizations that may balk at pressure to change their practices, “at this point I think we are at least cautiously optimistic.”

The Desperate Last Days of Local News

Originally published in New Republic on December 14, 2020.

The Desperate Last Days of Local News | The New Republic

In 2018, in an act of defiance that would become known as the Denver Rebellion, a group of current and former Denver Post staffers wrote and designed a six-page Sunday spread of op-ed pieces aimed at the paper’s owners, the New York–based hedge fund Alden Global Capital. The project, which led with the title, “As vultures circle, The Denver Post must be saved,” detailed how Alden’s ownership decimated the outlet.

As just one example, the Denver newsroom shrank from more than 250 employees to fewer than 100, even as management reported solid profits. Journalists no longer had enough manpower to report on all the hearings and local events that warranted coverage, even as subscription prices continued to rise.

Prior to the closure, CNHI had been a relatively fair steward of the paper. Robert Carter, a journalist who worked at the North Jefferson News for more than seven years, told me that while he felt CNHI was not very adept at guiding its properties into the digital age, he felt little pressure from his corporate owners on how to do reporting, and praised them for keeping the business side separate. (CHNI only intervened editorially once that Carter can recall, in 2016, when CHNI execs requested the papers write editorials endorsing Hillary Clinton.  “That didn’t really please many people,” Carter recalled. “Maybe it works for their northern Massachusetts papers, but if you ran that thing in Cullman or Gardendale, Alabama—which is one of the most heavily Republican districts in the country—needless to say, it didn’t go over well.”) Bronner declined to comment for this story, and Ketter said it was not mandatory and some papers chose to forego an endorsement. 

The role of hedge funds and private equity is familiar fare for anyone following the economics of the news industry over the past decade. The extraordinary protest in Colorado led to front-page coverage in The New York Times and editorials from leading media writers, such as The Washington Post’s Margaret Sullivan—she called Alden “one of the most ruthless of the corporate strip-miners,” whose subsidiary Digital First is “wreaking similar havoc all over the country.” An American Prospect feature story, “Saving the Free Press From Private Equity,” detailed the rapacious role these financial entities have played in driving local media’s decline.

And yet what’s become clear is that this narrow focus on the “vultures” of Wall Street—the cartoonish capitalists singularly focused on profits with no loyalty to news production or the communities their outlets serve—is still not quite the full picture. Ending private equity’s grip on journalism would surely decelerate some of the massive cuts in reporting but wouldn’t be anywhere near sufficient to address the underlying challenges that capitalism ultimately poses to journalism. The problem is a lot bigger than these firms.

The importance of news access to functioning democracies has long been clear, so much so that the Founding Fathers actually viewed the Postal Service for its first few decades as primarily a way to deliver periodicals throughout the country. Federal lawmakers understood that this great democratic experiment could never work if voters were not informed on their communities and leaders. Today we have even more evidence to support the case that local journalism and democracy go hand in hand: Researchers have found the presence of newspapers can make elected officials more responsive and encourage more people to run for office. When newspapers close, studies have found government costs go up, driven by less scrutiny over local deals.

While media watchers have long grasped the threat private equity poses to this democratic mandate of news-gathering, the reality is that even alternative business models that are supposedly more sustainable, like pension-backed journalism and billionaire-sustained news, are proving far more unreliable than previously understood. Journalism is a public good, and it’s well past time we treat it that way.

The Community Newspaper Holdings Inc. is one of the largest chains of daily and weekly newspapers across the country. CNHI is fully owned by the Retirement Systems of Alabama, the state pension fund that manages more than $40 billion in investments and covers roughly 360,000 Alabama teachers, state employees, judges, and retirees. In addition to its venture in small local newspapers, the RSA has earned national headlines for some of its other unconventional investments, including golf courses, resorts, and even the largest commercial skyscraper in Manhattan.

Directed for decades by CEO David Bronner, the Alabama pension fund is considered by media industry experts to be a much more benevolent owner than, say, Alden Global Capital. Indeed it’s difficult to picture a more public-minded investment vehicle than a teachers’ pension fund, where the members are passionate about educating their communities. And Bronner himself has said he believes in the mission of local news. “There’s still a huge need throughout the country, and the more isolated the community, the greater the need for local news, because nobody knows about anything if you don’t have a local newspaper,” he said in 2018, when RSA increased its CNHI ownership stake from 87 percent to 100 percent.

The more than 100 CNHI papers nationwide are overseen day to day by Senior Vice President of News Bill Ketter, the former editor in chief at the Pulitzer Prize– winning Eagle Tribune in North Andover, Massachusetts, which CNHI purchased in 2005. Ketter says their charge is to produce “local journalism to the best of our ability” and credits RSA with being “very hands-off” editorially. With rightful pride, he pointed to one of its small papers, in Palestine, Texas, which won the Pulitzer Prize for editorial writing earlier this year. Its dailies have an average circulation of roughly 10,000; its weeklies, 7,500; and, as of 2016, nearly 60 percent of CNHI papers served rural areas.

CNHI merged with the television company Raycom in 2017, but a year later, when Raycom was acquired by the Southern outfit Gray Television, its new owner had no interest in newspapers, so CNHI was put up for sale. Soon after, RSA put in a bid to acquire the remainder of the company. “Everyone was relieved,” Ketter told me, “because they had been a longtime investor in the company and knew us.” CNHI had fended off what the newsrooms perceived as the more existential threat of private equity ownership.

Al Cross, director of the Institute for Rural Journalism and Community Issues at the University of Kentucky, shared Ketter’s assessment of the sale. “CNHI did many good things journalistically, and they did so under the Retirement System’s ownership,” he said.

Yet even with Bronner’s professed commitment to local news, the primary motive of the pension fund—to generate returns for workers and retirees—couldn’t and can’t be obscured. This was evident even before the Covid-19 crisis ravaged the news industry, for instance when CNHI began moving to a more regional model, which helped save costs but also meant a small group of editors would manage news across larger swathes of the country.

“It makes all kinds of business sense for CNHI to regionalize. The question is, does it make journalistic sense?” said Cross, who noted that some of the company’s newly merged papers were quite distant from one another.

While not as extreme as private equity, the pressures of CNHI’s pension-backed ownership have also placed strains on local coverage. Between 2004 and 2016, CNHI sold or closed at least two dozen papers, according to research compiled by Penny Abernathy, the Knight Chair in Journalism and Digital Media Economics at UNC Chapel Hill.

One example was the Leeds News, a local Alabama paper CNHI acquired in 1998 that had been serving its community for 70 years. In 2011, CNHI merged it with another paper. “The community of Leeds is today getting some coverage from The Trussville Tribune, but it’s not the same,” said Tom Arenberg, a journalism instructor at the University of Alabama. Aside from Leeds, The Trussville Tribune, which is a weekly paper, covers seven other cities across two counties. Despite valiant efforts of journalists at these outlets, that kind of consolidation often leads to a loss in local specificity: Entire beats can disappear, and it’s harder to cover local government with fewer staff.

These concerns have been heightened under the current public health crisis and subsequent economic collapse, as a greater number of CNHI papers have been closed or reduced circulation. The Gardendale, Alabama–based North Jefferson News, founded in 1970 and acquired by CNHI in 1997, was one of the pandemic recession’s newsroom casualties.

Prior to the closure, CNHI had been a relatively fair steward of the paper. Robert Carter, a journalist who worked at the North Jefferson News for more than seven years, told me that while he felt CNHI was not very adept at guiding its properties into the digital age, he felt little pressure from his corporate owners on how to do reporting, and praised them for keeping the business side separate. (Carter said David Bronner only intervened editorially once that he can remember, in 2016, when Bronner wrote an editorial endorsing Hillary Clinton and required his CNHI papers to run it. “That didn’t really please many people,” Carter recalled. “Maybe it works for their northern Massachusetts papers, but if you ran that thing in Cullman or Gardendale, Alabama—which is one of the most heavily Republican districts in the country—needless to say, it didn’t go over well.”) Bronner declined to comment for this story.

This past April, CNHI closed the paper, “merging” it with another based in a town 40 miles away. Arenberg said he thought North Jefferson News, which served the northern part of his county, “was a very good paper.” The publication covered everything from public schools and sports to local government and businesses and impacts from natural disasters. It ran obituaries and local op-eds, and featured birthday, graduation, and engagement announcements.

In April, CNHI also consolidated a number of its northeastern Kentucky weeklies into one daily, for example merging The Morehead News with a paper covering a town 55 miles away. “Many dailies have swallowed up sister weeklies, but it’s unusual if not unprecedented for such consolidation over such a distance,” Cross wrote. In the following months, Indiana, Iowa, Oklahoma, and Florida endured more mergers of long-standing papers. The three North Florida CNHI papers to close in July—the Suwannee Democrat, the Mayo Free Press, and The Jasper News —had covered rural Florida communities since the 1800s.

Abernathy, the UNC professor, said there are “degrees of aggressive management” of investment entities over journalism, and thinks CNHI “is by no means the worst.” That said, Abernathy predicts CNHI will continue to sell off its properties, pointing to the summer of 2018, when CNHI announced its plans to step back from newspaper ownership, and noted the pension fund has faced mounting pressure to increase the return on its investments. While the Retirement Systems of Alabama does not break out financial results for CNHI, back in 2001 the pension fund was fully funded, but since then its investments have frequently fallen short of expectations. By 2015, it faced $13 billion in state pension debts and $11 billion in unfunded liabilities. “Like the readers and advertisers who abandoned the CNHI papers in recent years, RSA has decided to shed its newspaper habit,” Abernathy wrote. In effect, the local news crisis is converging with the nation’s looming pension crisis. No pension fund would now consider making the kind of investment Alabama’s made back in the late twentieth century.

Ultimately, though, it’s not just financial investment vehicles that cannot be counted on to give local journalism the security it needs to effectively serve communities. Billionaires—once viewed as potential media saviors—are increasingly ducking out, too. Earlier this year, Warren Buffett, who at the time was the third-richest man in the world with a net worth of $88 billion, felt dissatisfied with the returns on his chain of newspapers and decided to sell. That was quite a change in tune when, just a few years earlier, he told CNN, “In towns and cities where there is a strong sense of community, there is no more important institution than the local paper.”

Likewise Laurene Powell Jobs, who has a $21 billion net worth, waded into journalism but has made brutal cuts. In 2019, she purchased a majority stake in The Atlantic, and just two months into the Covid-19 pandemic, the company laid off nearly 20 percent of its staff, including 22 editorial employees, despite Powell being financially equipped to help her magazine weather the tough advertising tides of the pandemic many, many times over. Powell Jobs also purchased the award-winning magazine California Sunday in November 2018, only to shutter the entire publication in October.

To save journalism—which desperately needs saving—it’s clear policymakers need to act, and finally grasp that neither financial investment entities nor the wobbling interest of the ultrarich are real solutions.

Some journalists have resisted the idea of public subsidy for journalism—arguing it violates a sacred firewall of reporting. Accountability-driven reporting requires independence, and if the state funds a publication, then that could implicitly or explicitly affect coverage. It’s an understandable concern, but in 2020 it’s an overblown fear when considering the potential tradeoffs. Thankfully, many leaders in media have been changing their tune, recognizing there frankly just is no viable alternative if we believe access to news is something all citizens deserve.

Besides, journalists already have the tools to hold outlets and fellow reporters accountable. We have extraordinary reporters providing hard-hitting local news with public subsidy through NPR and PBS, and as Victor Pickard, a media studies scholar at the Annenberg School for Communication, has pointed out, the United States is a global outlier among democracies for how little it spends on public media.

Times are changing. In March, the Department of Homeland Security designated newsrooms as “essential” services throughout the pandemic, and hundreds of newspapers received federal Paycheck Protection Program loans over the last few months to stay afloat. On the state level, advocates have been organizing for more public subsidy, too. In 2018, New Jersey became the first state to pass legislation establishing a new consortium that will fund local reporting with public funds. Activists in states like Colorado and Massachusetts are considering similar ideas.

We already subsidize the arts nationally, and electrical power in rural areas. If we believe local journalism is a public good, essential for citizens in every democratic community, then we need to ensure everyone has access to it. Billionaires and pension funds were never going to save us from the news desertification of the U.S. And if, like universal mail delivery, news outlets can’t survive through market forces and charity alone, then the government must step in and make that possible.

Philadelphia Teacher Faces 65 Years In Prison After Another Person Torched a Police Car During a Protest

Originally published in The Appeal on December 9, 2020.

Federal agents raided the West Philadelphia home of Anthony Smith on the morning of Oct. 28 and arrested him for allegedly aiding the destruction of a police car during racial justice protests. Federal prosecutors said Smith, a 29-year-old social studies teacher and an organizer with the Philadelphia Coalition for Racial Economic and Legal Justice, posed on May 30 for “celebratory photographs” on a flipped and spray-painted Philadelphia police vehicle and then placed “combustible materials” inside after an unnamed person lit it on fire. 

Smith was hit with multiple charges in the October indictment; he faces a combined mandatory minimum sentence of seven years, and a maximum of 65 years. The raid on his home came just two days after Philadelphia police shot and killed 27-year-old Walter Wallace Jr. as his mother watched nearby. Philadelphia magazinerecognized Smith this year as one of the city’s “most influential” leaders. He is also a plaintiff in an NAACP lawsuit filed over the Philadelphia Police Department’s use of chemical weapons and rubber bullets against protesters in the spring.  

Smith’s case is one of nearly 300 nationwide brought by federal prosecutors against protesters over the last six months, and activists say that many of those charged have social justice backgrounds. Smith’s is also not the only case involving burning police vehicles. In late May, federal prosecutors charged two young attorneys in New York City with throwing a Molotov cocktail through the broken window of an unoccupied police car. No one was hurt—but if convicted they would face mandatory minimum sentences of 45 years in prison. In Salt Lake City, federal charges were brought against four people for flipping and burning a police car during a spring protest. Some legal experts have questioned the federal government’s decision to get involved in what are typically considered local crimes.

Carissa Byrne Hessick, a University of North Carolina law professor who studies prosecutors, says conservatives have tended to argue more often against federal prosecutions in traditionally local matters, but liberal-leaning experts have leveled those critiques more frequently during the Trump era. “The decision to bring these cases seems like part of a broader Justice Department strategy to prosecute crimes committed at these protests with a level of harshness that local officials aren’t necessarily doing,” she said. “And to deal with complaints about policing and police violence not by working with activists or trying to calm the tensions, but instead to take a very hard line law-and-order stance.”

During the late October raid, Smith, one of three men charged in the indictment, was detained at his home and sent to Lehigh County Jail. On Nov. 5, prosecutors acknowledged that Smith has “no known criminal history prior to this offense” and has “substantial ties to the community” but argued that he should be detained pretrial “following his dangerous and violent activity that has resulted in these serious federal arson charges.” In their motion for pretrial detention, prosecutors cited a June social media post by Smith, a cartoon displaying a police car on fire with the caption “quit your day job.” They also said that during the raid on Smith’s home they found a T-shirt with the phrase “[I don’t] fuck with 12” (“12” is slang for  “police”). 

Smith’s lawyer, Paul Hetznecker, criticized the decision by William McSwain, the U.S. attorney for the Eastern District of Pennsylvania and a President Trump appointee, to bring the charges. He called it a political stunt aimed at criminalizing dissent. “The U.S. attorney charged Smith because he’s part of a politically progressive movement and the message [Attorney General] William Barr is sending is a political one on what are traditionally state court crimes,” Hetznecker said. “It’s a dangerous abuse of federal, prosecutorial, discretionary power.”

Local activists immediately began organizing for Smith’s release, planning rallies, collecting over 8,000 petition signatures, and writing more than 70 letters of support to the judge handling the case. On Nov. 9, Hetznecker filed a court brief calling the government’s evidence that Smith poses a threat “weak and ill-conceived” and a dangerous abuse of First Amendment protected speech. Hetznecker also noted “there is not one shred of evidence” that Smith had done anything in the months since the May incident to suggest he was a danger to the community. 

Shima Baughman, a criminal law professor at the University of Utah and a national expert on bail and pretrial detention, told The Appeal she has never heard of prosecutors using T-shirt slogans and social media posts as evidence for pretrial detention. But prosecutors always aim to depict defendants as “high risk,” Baughman added, because people languishing in jail pretrial are easier to negotiate with. “They’re captive audiences in jail, more likely to take whatever deal they’re offered,” she said. “And if a defendant is in pretrial detention it makes it easier for a prosecutor to then say in court ‘look, this person was deemed dangerous.’”

On Nov. 9, a federal judge ruled that Smith was not high risk, could return to his home, and continue teaching his YouthBuild Charter School students over Zoom. (Sarah Burgess, YouthBuild’s director of curriculum and instruction, testified before the judge that Smith is a “deeply valued, and respected” member of their community.) 

After being released from jail, Smith posted several updates on Facebook, including one where he claimed he’s been under surveillance and that federal agents seized pictures of his loved ones during the raid on his home. “Advocating for black life can never be wrong,” he wrote in a Nov. 11 post. “Police wanted to embarrass me and ruin my name but it backfired. I got the best support system on the planet.”

Smith has a trial date scheduled for January. Hetznecker says he expects it to be delayed in part because the Eastern District of Pennsylvania has a major backlog of cases and the court has prioritized other cases during the COVID-19 pandemic.  

Some advocates are hoping that the case against Smith and his co-defendants never goes to trial under a Joe Biden presidency. In September, McSwain told Philadelphia magazine that he’d resign if Trump wasn’t re-elected, and rumors are floating that he might mount a U.S. Senate bid. Although a Biden-appointed U.S. Attorney could choose to drop the charges or prosecute the defendants on different terms, Justice Department veterans say career staff members are typically loath to drop existing criminal cases, even when there’s a change in administrations.

“I think we really don’t know what’s going to happen in a Biden DOJ in part because Biden has been signaling that he wants DOJ to be more independent, but a lot of people would characterize that to mean a return to how things were before President Trump,” says Hessick. “If [Biden appointees] come in and switch course on a bunch of individual cases then it makes it seem like the decisions were initially political…The question is will folks in the department continue on in the name of normalcy when the things that they were doing are not particularly normal?”

Jennifer Crandall, a spokesperson for the U.S attorney’s office, told The Appeal that McSwain is unable to comment on the Smith case. Last month, however, McSwain told the Philadelphia CBS affiliate that “Mr. Smith was not in any way targeted by my office. I knew nothing about Mr. Smith or his affiliations until the investigation was nearly complete. We do not investigate people at the U.S. Attorney’s Office. We investigate alleged criminal behavior.”

But Hetznecker maintains the federal government made a political decision in bringing charges against Smith one week before the election, and not leaving matters to state courts where there are lesser penalties. Barr has urged his U.S. attorneys to bring charges against Black Lives Matter protesters, including charges of “seditious conspiracy.”

When asked about Smith’s case, Philadelphia District Attorney Larry Krasner told The Appeal that he “usually has little to say” about cases brought by prosecutors outside his office and noted that he expects there to be a new U.S. attorney in the Eastern District of Pennsylvania soon. “And as with any federal case, if the feds chose not to pursue it and it came back into our laps we would look at it and we would try to do individual justice,” he said. “I’m not in a position to comment on the case, but I can say that the current U.S attorney, like so many Trump appointees, has tended to be far more interested in politics than justice.”

As he awaits trial, Smith said he’s been thinking about protesters who do not have a wide base of community support. “I think about other prisoners who weren’t able to accumulate 70+ character letters,” he wrote on Facebook on Nov. 16. “Humility and kindness are very important to me. But for the innocent, and the targeted, their freedom should belong to them no matter how ‘nice’ they are.” Smith pledged to avoid being “shoved into a box of respectability” so someone else could remain incarcerated based on their personality.

Congress Has Power to Override Supreme Court Decisions. Here’s How.

Originally published in The Intercept and American Prospect on November 24, 2020, co-authored with Marcia Brown.

FROM 1979 UNTIL her retirement in 1998, Lilly Ledbetter worked at Goodyear Tire and Rubber’s plant in Gadsden, Alabama. Once she had left the job, she learned a disturbing fact. When Ledbetter had started, her supervisor salary was comparable to men in similar positions. But with each performance review, the men she worked alongside got bigger raises, and she gradually fell further and further behind. By the time she retired, she was earning $3,727 a month: hundreds of dollars less than the lowest-paid man in her position, and significantly below the average man.

Ledbetter took Goodyear to court, alleging a blatant violation of Title VII of the Civil Rights Act, which guarantees equal treatment in the workplace. But in 2007, the Supreme Court held that the statute of limitations on her claims had expired, and she could no longer seek redress. She would have had to file her claim shortly after Goodyear hired her, the court ruled. This was an absurd request — Ledbetter didn’t know how she was being cheated until she neared retirement — and it served to gut the ability of any woman to reasonably enforce the law.

The Supreme Court had issued what’s known as a statutory ruling, which is distinct from a constitutional ruling. In other words, the court had not deemed the law itself to be unconstitutional but merely ruled that the way the statute had been written rendered it unavailable to Ledbetter.

Supreme Court Justice Ruth Bader Ginsburg wrote a dissent that urged Congress to intervene. The court’s interpretation, Ginsburg said, was out of step with modern wage discrimination and the realities of the workplace. She recommended Congress amend the law and fix the court’s “parsimonious reading” so workers like Ledbetter could have a shot at restitution. Ginsburg added: “The ball is in Congress’ court.”

Ledbetter became a proxy for the cause of equal pay for equal work, and Democrats pledged to fight the ruling the first chance they got. And they did, rewriting the statute so that the clock would start ticking on the statute of limitations each time a discriminatory paycheck was issued, not at the time an employee was first hired. The very first piece of legislation President Barack Obama signed in 2009 was the Lilly Ledbetter Fair Pay Act.

What makes Ledbetter so unusual is that Democrats have not similarly fought equally absurd yet consequential rulings from the Supreme Court, instead throwing their hands up in despair at the unfairness of a particular decision and then moving on.

But a joint review of dozens of Supreme Court cases by The Intercept and the American Prospect finds dozens of statutory rulings similar to Ledbetter’s that Congress could overturn simply by tweaking the statute to remove whatever ambiguity the court claimed to find in its text. Even where the court has ruled on constitutional grounds, there is often much room left to legislate the boundaries, just as conservatives have done in relation to Roe v. Wade and abortion restrictions. From salvaging the Voting Rights Act gutted by Shelby County v. Holder in 2013 to protecting workers’ free speech rights on the job or safeguarding reproductive rights, the list of cases awaiting a creative Congress runs long.Join Our NewsletterOriginal reporting. Fearless journalism. Delivered to you.I’m in

Overrides can be passed on an individual basis, as part of larger omnibus bills, or even tacked on to unrelated appropriations or debt ceiling bills. Even the Affordable Care Act, which is currently under judicial review yet again, could be rescued from the court’s clutches with a simple legislative tweak. Most of the legislation necessary to overturn these decisions is short: just a few lines to reinforce congressional intent in a way that the judiciary cannot distort it.

These statutory overrides offer a road map for progressives left paralyzed by the court’s new composition, with the installation of Amy Coney Barrett as a sixth conservative justice. Congress can place an important and ever-needed check from a co-equal branch on an increasingly conservative judiciary, which has not shied from defanging legislation, especially regulatory law. Just as the court sets the boundaries of congressional intent, Congress can move those boundaries.

Since the death of Ginsburg in September, the left has debated various options for reforming what many see as an overly partisan judiciary. Some have called for increasing the number of justices to help restore the court’s ideological balance. Others have suggested term limits, or requiring a supermajority for certain decisions. In mid-October, then-presidential candidate Joe Biden said that if elected, he would convene a bipartisan group of scholars to make recommendations on court reform.

While changing the rules and the makeup of the judiciary holds promise, demoralized activists should not lose sight of Congress’s power to temper or reverse existing court decisions. Statutory overrides and chipping away at conservative constitutional decisions should be part of any future progressive agenda, and the set of demands brought to negotiations by the White House and Democrat-controlled House of Representatives.

Overriding judicial decisions, while always an important tool in Congress’s legislative toolbox, has fallen by the wayside over the last two decades. One study, by Yale law professor William Eskridge Jr. and then-federal law clerk Matthew Christiansen, traces the turning point in the nation’s history of judicial overrides to the mid-1970s, when emboldened post-Watergate Democrats passed major omnibus legislation (like the Tax Reform Act of 1976) that updated laws and rejected various Supreme Court decisions at once. It helped that this new wave of overrides overlapped with big increases in congressional staff; House committee staff increased by two-thirds between 1973 and 1975, and the House and Senate judiciary committees grew by even more.

For the next 20 years, up until 1998, Eskridge and Christiansen found that the Democratic-controlled Congress was “energized, aggressive, and highly … interventionist in matters of state policy” and therefore “happy to denounce and reverse anti-regulatory” judicial rulings. Popular policy areas targeted for judicial overrides included civil rights, federal jurisdiction, and tax law, but were not limited to those. Even in the polarized decade of the 1990s, Congress overrode more than 80 rulings, more than any in the preceding four decades. But following Clinton’s impeachment in 1998, judicial overrides slowed to a trickle.

Federal lawmakers currently take something of a piecemeal approach to judicial overrides. Several recent bills that have passed the House override Supreme Court decisions as part of more comprehensive larger legislation, like the Protecting the Right to Organize Act and the For the People Act. But Congress has yet to take up the mantle of congressional overrides as an organized, concerted strategy to take back power.

Some observers, like University of California, Irvine law professor Rick Hasen, predict that judicial overrides would likely require near-unified control of Congress and the presidency, like Democrats had in 2009 when they passed the Lilly Ledbetter Act. In other words, whether Democrats retake the Senate following two Georgia runoffs in January could have a major impact on their ability to get judicial overrides through the legislative grinder, especially as many areas of once bipartisan lawmaking, particularly civil rights, have grown more polarized.

However, despite Congress’s hyperpartisanship, there may be some opportunity for lawmakers to take action on judicial overrides where there’s bipartisan agreement. Moreover, even if Democrats can’t push multiple judicial overrides as standalone legislation, lawmakers could try to tack fixes onto must-pass legislation like the annual National Defense Authorization Act. (These bills — known in congressional jargon as “riders” — are common ways lawmakers leverage the appropriations process to push pet projects through each year.)

Some of this is about finding the right window of opportunity, but a great deal is about refocusing the minds of federal lawmakers, who have for too long accepted the rulings of the Supreme Court as intractable, when they have the power to respond in many cases. “The energy has just not always been there,” said Charlotte Garden, a professor at the Seattle University School of Law who specializes in labor and employment law. Congress should be reinvigorated to use its power, and not simply sit back in resignation.

For lasting progressive change, history shows us that simply passing a judicial override won’t be enough. Indiana University Maurer School of Law professor Deborah Widiss found that legal research services like Westlaw and LexisNexis do not reliably detect congressional overrides, especially if lawmakers do not explicitly identify in the law which case their new statute overturns. Advocacy groups will need to vigorously educate attorneys and judges about them, or the overrides could go ignored for years by the courts. “You might assume that all you have to do is change the law, but my research suggests courts don’t always implement even really prominent overrides,” Widiss says, pointing to the ADA Amendments Act of 2008, which updated the Americans with Disabilities Act of 1990.

While the future of judicial reform is hazy, holding courts accountable to changes is a challenge that lawmakers and activists, working together, can meet. By zeroing in on statutory decisions, Congress can reclaim its power, and advance change for millions. Here are several areas where progress can be made.


While current legislative momentum for reproductive rights is focused on overturning the Hyde Amendment — a federal provision that since 1976 has barred Medicaid funding for abortion services — and the long-term desire to codify Roe v. Wade into legislation, there are other statutory measures lawmakers could take to strengthen reproductive rights.

One way is by clarifying that the 1993 Religious Freedom Restoration Act — the statute that was at the heart of the Burwell v. Hobby Lobby case in 2014 — cannot be used as a tool of discrimination. RFRA was itself a statutory response to a poor 1990 decision that many groups felt weakened religious freedom, particularly for religious minorities. But advocates say RFRA has been twisted and abused over the last decade, allowing not only organizations to deny contraception coverage to their employees but also to fire transgender workers, as well as enabling federally funded child welfare providers to deny potential foster or adoptive parents deemed the “wrong” religion. In the Hobby Lobby decision, five justices concluded that RFRA permits for-profit companies to deny contraception coverage to employees based on a religious objection.

To fix all this, Congress could quickly pass the Do No Harm Act, an existing bill backed by several civil and reproductive rights groups which would clarify that RFRA is meant to protect religious freedom without allowing harm inflicted onto others, such as denying groups contraceptionIt was introduced in the House in 2019 by Democratic Reps. Joe Kennedy and Bobby Scott, and in the Senate by Sen. Kamala Harris, the vice president-elect. To date, it has 215 House and 31 Senate co-sponsors.

Brigitte Amiri, a deputy director at the American Civil Liberties Union’s Reproductive Freedom Project, said the Do No Harm Act would be a “more robust” way to get at cases like Hobby Lobby because it would bar RFRA lawsuits if they discriminate against third parties.


Voting Rights

Perhaps the most consequential legislation passed in the 20th century lost its potency in a Supreme Court ruling decided on statutory grounds. In Shelby County v. Holder (2013), the court held in a party-line, 5-4 vote that Section 4(b) of the 1965 Voting Rights Act, which required jurisdictions with histories of discrimination to get federal preclearance before changing voting laws, put untenable burdens on states, because the conditions at the time of the legislation are no longer true.

The decision was a disaster for voting rights advocates. In the aftermath, dozens of states implemented voter ID laws, including a North Carolina law that a federal court said discriminates against Black voters “with almost surgical precision.” The Leadership Conference on Civil and Human Rights documented that between 2012 and 2018, more than 1,600 polling places were closed. One of the most blatant flourishes of this renewed ability to curtail voting rights was Georgia Gov. Brian Kemp’s gubernatorial campaign. While secretary of state, Kemp oversaw the removal of 1.5 million voters from the rolls, as well as another 500,000 during his campaign for governor.

Courts have found at least 10 instances of intentional discrimination in voting rights decisions since Shelby County v. Holder, a direct counter to Chief Justice John Roberts’s majority opinion that conditions in 1965 no longer exist.

Like in the Ledbetter decision, the minority dissent made clear that an updated preclearance formula — which the court called unconstitutional — can and should be designed by Congress. The John R. Lewis Voting Rights Act of 2020, which overrides the Shelby ruling, among other voting rights protections, has already passed the House. The bill would update the statutory language for preclearance, as well as add new voter protections.

Democrats’ first bill of the 116th Congress was the For the People Act of 2019, legislation that expands voter protections; ratchets up ethics standards for executive branch officials, members of Congress, and Supreme Court justices; and provides for new campaign finance rules. It also addresses another voting rights case that can be overturned through a congressional override, Husted v. A. Philip Randolph Institute (2018), which ruled that Ohio’s voter purges were legal.

If a voter in Ohio hasn’t voted in two years, they receive a card in the mail; if they don’t return it, and do not vote in the next four years, the voter is kicked off the rolls. Voter advocates alleged that the policy violated the National Voter Registration Act of 1993, which explicitly bars states from removing someone on the basis of not voting. But the court decided that the law does not violate the NVRA because the failure to vote is not the only reason for removal: Ohio’s law also requires that the voter not respond to the mailed notice. The voter purges disproportionately impact Black voters, especially in Ohio’s three largest metro areas, which are also Democratic-leaning. The For the People Act specifically overrides the Husted decision by making voter purge schemes like Ohio’s illegal under the NVRA.

The bill also tackles another court decision, Citizens United v. FEC (2010), which famously prohibited the federal government from restricting political expenditures by corporations under the First Amendment. Because the decision was on constitutional grounds, Congress can’t overturn it simply by updating the law, and a constitutional amendment remains unlikely. But the new legislation seeks to temper its force through public financing, requiring more transparency, and restructuring the Federal Election Commission.

“Congress can have a real dialogue with the court, even when the Supreme Court strikes down a law Congress has passed as unconstitutional,” said Daniel Weiner, deputy director of the Brennan Center’s Election Reform Program. The strategy is not dissimilar from how the right reacted to Roe v. Wade, chipping away at the decision over time, he said. “If the other side doesn’t treat Supreme Court decisions as final, and continues to look for ways to accomplish its goals, I certainly think progressives should do that too.”

Disability Rights

Despite a bipartisan congressional disability rights caucus with over 50 House members, little energy has been put forth to proactively roll back statutory decisions that harm individuals with disabilities.

The most consequential case that Congress could address would be Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, a 2001 decision which has fundamentally distorted civil rights litigation over the last two decades. In that 5-4 decision authored by Chief Justice William Rehnquist, the court effectively rendered moot the possibility for a lawyer to collect attorney’s fees if a defendant corrects the issue before the case is completed.

The decision “has meant that far fewer civil rights lawyers take disability cases, since they know there’s a high chance they won’t get paid,” said Sam Bagenstos, a law professor at the University of Michigan who has argued four cases before the court.

To fix BuckhannonCongress would need to clarify the so-called catalyst theory, a rule courts used to rely on that says if a plaintiff’s lawsuit was the catalyst for a change that benefited the plaintiff, the plaintiff would be treated as having prevailed even if the plaintiff didn’t have to litigate all the way to a final judgment.

“I think you could write a statute that gives attorney fees to an attorney who makes a demand letter to a defendant that says, ‘Look I’m going to sue you unless you make these changes,’” Bagenstos said. “It’s not like the plaintiff lawyer would get some big windfall but it would ensure they get paid evenly for the time spent on the case to that point.” The Civil Rights Act of 2008 included a measure to overturn Buckhannon, but policymakers at the time were more focused on the economy and health care. A new Congress could revive it.

Congress could also make it easier for lower-income families to seek redress under the Individuals with Disabilities Education Act by effectively repealing Arlington Central School District Board of Education v. Murphy. In that 2006 case, the court ruled that expert witness fees were not compensable under the act, meaning families who wanted to bring in expert testimony would need to pay for it out of pocket. The Arlington Centraldecision also disincentivized lawyers from taking cases for families who wouldn’t be able to bring in the kind of evidence necessary to win.

“There are notorious class divides in IDEA cases,” said Bagenstos. “Upper-middle class and middle class parents do far, far better, and a lot of the issues really do require an expert witness to help families effectively press their case.”

Congress could also clarify that the burden of proof in IDEA cases rests on schools, not parents, which would be a reversal of the court’s 2005 decision in Schaffer v. Weast. “It’s hard to get people excited about burden of proof because they don’t understand it, but there’s no question that putting the burden of proof on the plaintiff as opposed to the schools makes it harder for families to enforce their rights,” said Chris Edmunds, a disability rights attorney.

Sasha Samberg-Champion, another disability rights attorney, said Congress should look at lower-court decisions too, since advocates have largely avoided bringing new disability cases over the last decade to what they view as a hostile judiciary. For example, Congress could clarify that the statute of limitations for an Americans with Disabilities Act case starts from the time someone with a disability is discriminated against by an inaccessible facility, not the time when the inaccessible facility was first constructed — an issue similar to the one Congress addressed with the Lilly Ledbetter Act. Congress could also confirm that the ADA covers online-only businesses.

“It used to be that if we got a bad Circuit court decision we could file for Supreme Court review, but we don’t dare do that now since we’d risk only making things worse,” Samberg-Champion said. “That makes it even more important for Congress to step in and provide relief where the Supreme Court won’t.”


Unlike other areas, environmental law largely rests on legislation passed 50 years ago during the Nixon administration. In the subsequent years, conservatives have carved out exceptions to protect their environmental interests from the judiciary — such as with laws around endangered species. Now, as federal agencies strain to meet new and growing challenges like climate change, Democrats should push for updates to those statutes.

Although experts say comprehensive legislation is preferable to statutory overrides, Congress could strengthen climate change regulations by clarifying that greenhouse gases are air pollutants covered under the Clean Air Act. That would overturn Utility Air Regulatory Group v. Environmental Protection Agency (2014), which said that the EPA had overstepped its authority by regulating greenhouse gas emissions from new motor vehicles. An earlier case, Massachusetts v. EPA (2007), determined that air pollution included carbon emissions. But without clarifying language in the statute, carbon reduction policies are effectively subject to a conservative court.

The Clean Water Act also badly needs clarification: The law regulates “the waters of the United States” but doesn’t specify which waters. In one prominent case, Rapanos v. United States in 2006, the court allowed for an “expansive” interpretation of the Clean Water Act but left “waters of the United States” undefined. Defining which waters are included would preserve important ecosystems and better protect the public.

A decision this year, U.S. Forest Service v. Cowpasture River Preservation Assn., enabled the Atlantic Coast Pipeline to crisscross the Appalachian Trail twice by sidestepping the Mineral Leasing Act, which allows the U.S. Forest Service to grant permits to pipeline companies. The decision allowed the Forest Service’s reach to extend into the Appalachian Trail, for which the National Park Service is technically responsible but which traverses national forest. A quick legislative fix could clarify that the trail is protected NPS land, and thus not subject to Mineral Leasing Act permits. But D.J. Gerken, lead counsel for Cowpasture River Preservation Association, also said Congress could go further by amending the Mineral Leasing Act and requiring pipeline companies to prove that the best possible route is through federal lands.

Under the Clean Water Act, the EPA regulates water pollutants that go into waters, like a pipe discharging into a lake, and the Army Corps of Engineers regulates filling in wetlands, such as a developer with a bulldozer. To better protect the environment, Congress could update the statute to require mining companies obtain permits from both agencies, to avoid a repeat of the court’s decision in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council (2009).

Trying to graft environmental rules on decades-old policies has proven difficult. In EPA v. EME Homer City Generation (2014), the court upheld the EPA’s 2011 transport rule, which regulated cross-state air pollution from upwind states to downwind states, as required under the Clean Air Act. But the case left the EPA with a flawed regulation program. Ann Carlson, environmental law professor at the University of California, Los Angeles, said that advocates have sought a cap-and-trade program to regulate cross-state air pollution, which would be cheaper and more cost-effective than regulating individual plants. “But the statutory language is really short and unclear, so it would be super helpful to have a statutory fix,” she said.

Other cases are relatively straightforward. In Michigan v. EPA (2015), the court ruled that the agency must determine costs when regulating power plants. An easy statutory fix would allow the EPA to deem those costs irrelevant.

A divided Congress has made bedrock climate change difficult to accomplish. “Environmental law is no longer bipartisan,” explained Lisa Heinzerling, a law professor at Georgetown University. “It’s also because the interests are incredibly vocal and well-resourced, the interests arrayed against environmental protection.”

But statutory overrides offer “room for tinkering on the edge,” Carlson said. “It seems crazy to not do anything.”


When George Floyd was killed in May, millions learned about qualified immunity for police misconduct. In a 1982 decision, Harlow v. Fitzgeraldthe Supreme Court ruled that government officials, including police, can avoid civil liability for violating an individual’s rights under Section 1983 of the Civil Rights Act, when those rights are not “clearly established.” It’s become clear since then that this provision protects rogue and violent cops, but despite a number of federal cases challenging the constitutionality of qualified immunity, the court announced this past summer it would not be taking up any of them.

Congress can fix this, and a bill passed by the Democratic-controlled House in June, the Justice in Policing Act, would end qualified immunity for police officers. (Joe Biden has said he supports “reining in” the doctrine.) As a group of criminal justice scholars explained, widespread indemnification would put the primary burden of liability on municipalities, not individual officers, which then puts more pressure on the institutions that most influence those officers. Restricting or eliminating qualified immunity would also force courts to confront constitutional questions in policing they can currently dodge.

“Section 1983 is relatively straightforward, and one idea is Congress could simply amend that law to address qualified immunity,” said Hernandez Stroud, counsel for the justice program at the Brennan Center. Congress could also add a damages action against federal officials who violate constitutional rights, which would be consistent with the 1971 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcoticsdecision. Some states have already started to do this: Earlier this year, Colorado passed a law creating a path for Coloradans to sue police officers in state court.

Another way Congress could increase accountability for government misconduct is by addressing a 2017 decision, Ziglar v. Abbasi, which ruled that the hundreds of immigrants held in mass detentions following 9/11 could not bring charges against federal officials for their confinement.

Amy Fettig, executive director of the Sentencing Project, said cases like Ziglar have helped “gut the power of people to protect themselves” from constitutional violations. “We know from history that when you want to roll back rights you start with a vulnerable and unpopular population, but it never stops there,” she said. “That’s just how you normalize it.”


The courts have always treated immigration law as an exception, dating back to the Chinese Exclusion Act of 1882, which prohibited Chinese laborers from entering the country and precipitated more exclusionary immigration law. In Chae Chan Ping v. United States (1889), the Supreme Court upheld the plenary power doctrine, allowing Congress and the executive branch to create policy around immigration without fear of court censure. That lack of oversight enabled Trump administration policies like child separation, extended detention, and ICE raids — measures that “as the Supreme Court itself has acknowledged, would be flatly and unquestionably unconstitutional if they were U.S. citizens,” as Kevin Johnson, dean of UC Davis School of Law, wrote in a law review article.

Over time, the Supreme Court has allowed Congress and the executive branch less immunity from judicial review. This year’s decision overturning Trump’s termination of the Deferred Action for Childhood Arrivals program is one prominent example. The court did not question Trump’s authority to end DACA but censured the administration for not doing so in accordance with administrative law.

With a newly strengthened conservative majority, the Supreme Court’s newfound tendency to treat immigration law like other law merits congressional action to prevent further anti-immigrant policy. There are several Supreme Court cases ripe for congressional override. In Demore v. Kim (2003), the court said that the Immigration and Nationality Act’s provision for no-bail, civil detention did not violate immigrants’ due process rights. Jennings v. Rodriguez (2018) and Nielsen v. Preap (2019) contested immigrants’ rights to periodic bond hearings during long-term detention; the court said no.

The simple fix, explained UCLA law professor Ingrid Eagly, is to grant everyone these same due process rights. The New Way Forward Act, introduced in the House last year by Rep. Jesús G. “Chuy” García, would end mandatory detention in some cases, end for-profit detention facilities, and bolster due process rights. It would bar immigration officers from interrogating someone on their immigration status based on race, religion, sexual orientation, or spoken language. Although it hasn’t passed, it has support from dozens of advocacy organizations and more than 30 members of Congress.

In another case, Sessions v. Dimaya (2018), the court ruled that the Immigration and Nationality Act’s “crime of violence” provision was unconstitutionally vague, which in this case protected the Filipino national James Dimaya. But clarifying and narrowing the “crime of violence” provision, as the García bill does, could strengthen immigrant protections.

Congress could also overturn Barton v. Barr (2020), where, in an ideological, 5-4 decision, the court interpreted the law to enable the government to deport a permanent resident for certain crimes committed years in the past. A statutory fix could amend the removal provision.

A case argued in October, Pereida v. Barr, addresses the burden of proof in deportation proceedings. Depending on the outcome, it too could be a candidate for statutory override.

“I think people are shocked that some bureaucrat in Washington can say ‘You’re deported and I won’t give you a good reason why,’” Johnson, the dean, said in an interview. “We get more due process on a parking ticket than that.”



Since the passage of the National Labor Relations Act in 1935, lawmakers and the courts have steadily eroded workers’ rights, and congressional attempts to repeal those changes failed — most notably in 1978 and 2009.

Many labor experts say Democratic lawmakers have been too deferential to anti-labor court decisions. “Democrats would rather raise money on Republican atrocities than change them,” said Shaun Richman, the program director of the Harry Van Arsdale Jr. School of Labor Studies at SUNY Empire State College.

That said, the usual torpor is starting to change. In February the House passed an omnibus labor reform bill, the Protecting the Right to Organize Act, which would overturn a number of anti-worker Supreme Court decisions. Among them are National Labor Relations Board v. Mackay Radio & Telegraph Co. (1938), which effectively allows employers to “permanently replace” workers who go on strike; Hoffman Plastic Compounds, Inc. v. NLRB (2002), which prohibits the NLRB from securing relief for undocumented workers; and H. K. Porter Co., Inc. v. NLRB (1970), which ruled that the NLRB could not force an employer to reach an agreement during bargaining.

Congress could also make it easier for workers to bring class-action lawsuits when their employers harm them. Legislation could address Wal-Mart Stores v. Dukes (2011), which was a case based on a rule of civil procedure that disallowed 1.5 million women from banding together to sue over pay discrimination, as well as Epic Systems Corp. v. Lewis (2018)which held that employers can force workers to give up the right to bring a class action and instead go through a mandatory arbitration system. In the former case, Congress could clarify that class members should be analyzed based on the similarities of their claims, not their differences; in the latter, Congress could clarify that allowances to engage in class actions via the National Labor Relations Act overrides the Federal Arbitration Act.

There are several other detrimental statutory decisions that the PRO Act does not address and that Congress could fix through legislation. A number of rulings, like Chamber of Commerce v. Brown in 2008, have held that the National Labor Relations Act preempts state law related to unions and collective bargaining, even though the NLRA does not actually contain a preemption clause. Over time, this has had the effect of blocking labor-friendly states from doing more to deter unfair labor practices. Congress could adopt the approach taken in the Fair Labor Standards Act, which says federal law sets the floor on policies like the minimum wage, and states can go further.

Congress could also address a 2009 decision, 14 Penn Plaza LLC v. Pyettwhich held that a worker could not bring an age discrimination claim to court given that their union contract required such issues to be handled through arbitration. Congress could amend the National Labor Relations Act to clarify that a collective bargaining agreement does not override an individual’s right to sue an employer for alleged violations of federal or state law.

Another area pro-labor lawmakers could address are the so-called management rights clauses in collective bargaining agreements that the Supreme Court deemed lawful (like NLRB v. American National Insurance Co. in 1952). Congress could clarify that management cannot insist on such clauses in collective bargaining agreements, and that if worker and employer rights are ever alleged to be in conflict, it’s Congress’s intent that employees’ rights are given priority.

To strengthen workers’ rights on the job, Congress should also override decisions like 1953’s NLRB v. Electrical Workers (Jefferson Standard)which said workers could be fired for “disloyalty,” and other decisions that radically reduced the scope of bargaining, such as NLRB v. Wooster Division of Borg-Warner (1958) and First National Maintenance Corp. v. NLRB (1981).

“All these cases have combined to eviscerate the duty of employers to bargain over what is likely the most important decision to workers, if their job will continue to even exist,” said Brandon Magner, a union-side labor lawyer. The NLRB under recent Democratic administrations did little to tackle this, Magner said, nor have Democrats in Congress seriously attempted to overturn the aforementioned cases.”

Corporate Power

Illustration: Michael Haddad for The InterceptOne area where bipartisan compromise may be possible is in antitrust law. In October, the House antitrust subcommittee’s Democratic majority released a 400-page report detailing monopoly practices in the digital economy. In their recommendations, which went beyond Big Tech and addressed how to improve antitrust policy more generally, subcommittee staff identified several Supreme Court cases Congress should overturn. Indeed, many of the problems of a highly concentrated market stem from court decisions themselves, subcommittee staff found.

“The courts have significantly weakened [antitrust] laws and made it increasingly difficult for federal antitrust enforcers and private plaintiffs to successfully challenge anticompetitive conduct and mergers,” the report reads. “The overall result is an approach to antitrust that has significantly diverged from the laws that Congress enacted.”

Republican subcommittee member Ken Buck released a simultaneous report he called “The Third Way” for antitrust enforcement. Though Buck said in a statement he doesn’t agree with the majority’s proposals, he plans to work with Democrats to find a solution. “Antitrust enforcement in Big Tech markets is not a partisan issue, I support the ongoing, bipartisan investigations of these companies,” he said in a statement.

In his report, Buck cited Ohio v. American Expressas one case where he believes “there is common ground.” In that decision, the court made it harder for antitrust plaintiffs to sue corporate behemoths by ruling that middleman American Express could only be cited for anticompetitive conduct if it harmed its cardholders and merchants. Congress could specify that plaintiffs don’t have to “establish harm to both sets of customers.”

The Supreme Court has also manipulated congressional intent in antitrust law through its interpretation of “tying,” where a dominant firm controls the purchase of a separate product or service and forces customers to use both. Historically, this was considered de facto anticompetitive. But in Jefferson Parish Hosp. Dist. v. Hyde (1984)the court disagreed. Congress could clarify that the statute specifically states that “tying” goods and services together to force consumer adoption is anticompetitive.

Congress could easily override 1993’s Spectrum Sports, Inc. v. McQuillanwhich requires a monopoly “actually monopolize” a second market, by lowering that standard. Lawmakers could also make clarifications and updates to the Sherman Antitrust Act, which the court, in Illinois Brick Co. v. Illinois (1977), interpreted in a way that bars indirect purchasers of goods and services in a supply chain the right to sue for antitrust violations — even though they may also experience injury from anticompetitive behavior. Congress could overrule and specify the ability for indirect purchasers to sue.

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the court loosened a Sherman Act requirement that had made mandatory minimum price agreements automatically illegal. Congress could overrule and provide that vertical price constraints are per se illegal.

Two other cases, while not directly concerning antitrust law, similarly limit plaintiffs’ ability to bring lawsuits against corporations in particular. The court’s interpretation of the Federal Rules of Civil Procedure in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009) created stricter pleading standards that apply to all areas of the law, making it more difficult for plaintiffs to contest environmental degradation, anti-abortion laws, workplace safety standards — or any other area where the law is not being enforced. The Twombly and Iqbal standards are some of the most cited cases by federal courts of all time, allowing powerful parties to easily dismiss cases before they even reach court. Jones Day, a law firm known for defending corporate clients, called the decisions a “welcome development.” Both decisions are based on court interpretation of a federal rule, which can be changed through the federal rule-making process promulgated by Congress. In 2009, Sen. Arlen Specter and Rep. Jerry Nadler introduced companion bills in the Senate and House that would restore the more plaintiff-friendly standards of Conley v. Gibson (1957). A Democratic majority should tackle these cases again.

As the subcommittee report outlined, antitrust law is relatively toothless right now — and that’s partly because the court has so ratcheted up the standards for what kinds of cases parties can bring. “The practical effect is that antitrust laws are not routinely enforced. The goal of reform efforts is to ensure that the antitrust laws can actually reach antitrust violations,” said Lina Khan, a Columbia Law School professor who helped draft the majority report. Making it more difficult to be heard in court is a trend across the board, but Khan says it’s especially pronounced in antitrust law. But all this could change with Congress.

The Other Race on Georgia’s January Ballot

Originally published in The Intercept on November 23, 2020.

WHEN GEORGIA VOTERS cast their ballots in the U.S. Senate runoffs, with Democrats Jon Ossoff and Raphael Warnock facing off against Republicans David Perdue and Kelly Loeffler, they’ll also be weighing in on another statewide contest that had no clear winner on November 3: public service commissioner.

The Georgia Public Service Commission — a relatively obscure but highly consequential five-member body — makes important decisions like setting rates on Georgians’ electric bills and determining state investments into renewable energy. The commission has been controlled for years by Republicans who sit six-year terms, but this year District 4 Commissioner Lauren “Bubba” McDonald fell just shy of the 50 percent needed to win reelection, with Democrat Daniel Blackman earning 46.9 percent of the vote.

One of Blackman’s central campaign arguments is that the Public Service Commission has been too friendly to utility companies at the expense of customers and has not made fighting climate change an urgent priority. Georgia Power, a subsidiary of Southern Company and a regulated state monopoly with 2.6 million customers, has pushed the commission to charge higher rates even as Southern Company earns billions in profit. Georgia Power is also a major producer of coal ash, toxic residue created when coal is burned by power plants to produce electricity. Environmental activists have been pushing resistant state lawmakers to enact tougher regulations over coal ash storage, and they see the election of Blackman, a politician willing to speak out against Georgia Power, as a way to bolster their campaign.

Blackman said he knows no one in the state party really expected him to make it to the runoff, and his campaign didn’t depend on the party, either, which was focused on the U.S Senate and presidential races. “Democrats get excited when there’s a big election, but we have a real chance now to appeal to voters who have felt disenfranchised for a long time,” Blackman said, adding that his platform of “energy security, energy equity, and lower rates” has been a way to bridge coalitions between Democrats, Republicans, progressives, moderates, and those who never vote at all.

THE STATEWIDE Public Service Commission runoff was originally scheduled for December 1, but on November 11 Georgia Secretary of State Brad Raffensperger announced that due to the ongoing election disputes, the planned presidential recount, and the two U.S Senate runoffs, he would be postponing the commission runoff to make it easier for election workers.

Supporters of Blackman, like Travis Town in Troup County, Georgia, are relieved that the runoffs will be combined on one ballot, since it would likely boost turnout for the commissioner vote. “I don’t think people are informed about the PSC, the majority of folks are just eking out day-to-day existence,” Town said. “I was worried about that election being right after Thanksgiving.”

Blackman, who has advised the Congressional Black Caucus and the U.S. Environmental Protection Agency on environmental justice issues and served as Georgia’s political director for Sen. Bernie Sanders’s 2016 presidential bid, said he will also be an advantage to Warnock and Ossoff, because his contest deals with issues directly of concern to disenfranchised voters.

Blackman pointed to a recent study from WalletHub that found Georgia has the eighth-highest utility rates in the country and the fifth highest electric rates. “Everyone has an electric bill,” he said.“When you look at Warnock and Ossoff, their biggest arguments are the [Affordable Care Act], the Supreme Court, and election protection. No disrespect at all to those, but a lot of average people at their dinner table aren’t talking about that — but they are talking about their grandmother and grandfather on a fixed income with their lights about to be cut off.” Blackman also noted that many young voters are single-issue voters on climate, and the Public Service Commission has direct influence over investments into areas like solar energy. “What we are able to do is add value to the Democratic argument as it relates to climate change,” he said.

McDonald, who is 81 and would be 88 at the end of his next term if he wins, was originally appointed to fill a vacant commissioner seat after serving 20 years as a state representative. While he has touted his work in pushing the commission to invest in solar, advocates say he has not used his platform to make fighting climate change a top priority, including pushing back on some of the anti-climate measures coming from the Trump administration.

The PSC Accountability Project, an effort led by the Georgia Conservation Voters Education Fund and the Georgia Ethics Watchdogs Education Fund, has said that 85 percent of McDonald’s contributions have come from companies and people that may profit from the commission’s decisions. Utility companies can’t donate directly to commissioners’ campaigns, but individual employees can. McDonald told The Intercept that he could not comment for this story due to being tied up with hearings this week, though in October he told the Atlanta NPR affiliate that he’s not influenced by the industries he regulates. “As far as the influence of minor contributions, it’s no more than my neighbor giving me a contribution, or people in my church, or people that know me, it’s all within the framework of the laws,” he told WABE. “I’m not an expert in every area of the world, and when they bring advice, I listen. I listen to both the negatives of those and the positives of those, and at some point in time, I make a decision.”

One of Blackman’s central campaign arguments is that the Public Service Commission has been too friendly to utility companies at the expense of customers and has not made fighting climate change an urgent priority. Georgia Power, a subsidiary of Southern Company and a regulated state monopoly with 2.6 million customers, has pushed the commission to charge higher rates even as Southern Company earns billions in profit. Georgia Power is also a major producer of coal ash, toxic residue created when coal is burned by power plants to produce electricity. Environmental activists have been pushing resistant state lawmakers to enact tougher regulations over coal ash storage, and they see the election of Blackman, a politician willing to speak out against Georgia Power, as a way to bolster their campaign.

Blackman said he knows no one in the state party really expected him to make it to the runoff, and his campaign didn’t depend on the party, either, which was focused on the U.S Senate and presidential races. “Democrats get excited when there’s a big election, but we have a real chance now to appeal to voters who have felt disenfranchised for a long time,” Blackman said, adding that his platform of “energy security, energy equity, and lower rates” has been a way to bridge coalitions between Democrats, Republicans, progressives, moderates, and those who never vote at all.

Another area climate activists have expressed frustration with Public Service Commission members is around two nuclear reactors under construction at Plant Vogtle in Burke County. Blackman himself calls the project “one of the most fiscally irresponsible decisions in Georgia,” demonstrating how he employs rhetoric that appeals both to progressives and conservatives. Originally approved by state lawmakers in 2009, the Georgia Nuclear Energy Financing Act permitted Georgia Power to charge customers in advance for the construction of the two nuclear reactors, adding roughly $10 a month to an average customer’s bill. But today, the reactors are years behind schedule and billions over budget, and Blackman said thanks to the commission, ratepayers will have to pay those overruns in the form of even higher Georgia Power energy bills. “The Republicans on the PSC have approved every single Plant Vogtl monitoring report and every single integrated resource plan and every single budget for the last decade,” he said. “Those decisions were made to keep a very small group of folks in the utility industry very wealthy.”

In December 2019, the Public Service Commission voted to raise the rates of Georgia Power utility bills by $1.8 billion over three years. While this was less than what Georgia Power requested, commissioners approved the rate increases, saying they wanted to ensure that the company remained successful as it made new investments. The average customer saw their energy bill rise by about $6 per month in 2020, and will see another 2 to 2.5 percent increase in 2021 and another 4.5 to 5 percent in 2022. John Kraft, a spokesperson for Georgia Power, cited federal tax credits and interest savings from Department of Energy loan guarantees as ways the company has “actively pursued customer benefits” to reduce the impact to consumers. The loan guarantees, he said, will save customers “approximately $550 million in financing costs overall.” Kraft also emphasized that the company does not endorse political candidates.

“Folks don’t want to pay higher power bills, and Georgia Power doesn’t need the money,” said Brionté McCorkle, executive director of Georgia Conservation Voters, which has endorsed Blackman. “But they keep getting the PSC to do these things, and it just hurts the consumer.” Utility costs have become an even more serious issue for consumers during the Covid-19 pandemic; Georgia Power ended its pandemic utility shutoff moratorium in mid-July, and nationwide activists have been trying to raise awareness about the public health implications of utility disconnections.

In 2019, Southern Company CEO Tom Fanning’s pay jumped 30 percent, up $3.7 million in a single year. His total take-home compensation last year was $27.9 million.

ADVOCATES SAY Georgia Power’s resistance to being regulated is one reason state House Minority Leader Bob Trammell, the rare Democrat representing a rural Georgia district, lost his election in November. Trammell, a moderate first elected in 2014, held his seat in 2016, even as his district voted for Donald Trump, and in 2018, when his district voted for Republican Gov. Brian Kemp. Trammell’s seat became the Republican State Leadership Committee’s top target in the country this past cycle, with millions spent on electing Trammell’s opponent, David Jenkins. It was the most expensive statehouse election in Georgia history.

Trammell drew the ire of Georgia Power over the last year, as, among other things, he supported environmental advocates who have been calling to store coal ash in lined landfills. While Georgia lawmakers passed one bill this year — SB123 — that fixed a loophole that had made it cheaper to dump coal ash than regular trash, meaning that millions of tons of coal ash from neighboring states were being dumped in Georgia, the state legislature resisted Trammell’s bill — HB 756 — which would have required coal ash to be disposed of in lined pits. Georgia Power has been planning to excavate 10 of its 19 ash ponds into unlined pits, which advocates say do not adequately protect water sources.

Kraft, of Georgia Power, said the company has “worked with third-party professional engineers and geologists to design our plans on a site-by-site basis considering size, location, amount of material and the geology of the area among other factors.” He added that each closure design “is unique and designed to meet” state and federal coal ash standards. Environmental advocates plan to campaign again in the next legislative session for lined pit storage.

Residents from the rural city of Juliette, where a coal ash pond sits in contact with groundwater, traveled to the state capitol in February to advocate for Trammell’s bill and raise awareness of the contaminated water in their community. Georgia Power denies that its coal ash pods contributed to Juliette’s toxic water. In August, residents of Juliette filed a lawsuit against Georgia Power, alleging that the company polluted their water with coal ash. “Plaintiffs suffer from cancer, disorders of the cardiovascular, immune, renal and urinary, and respiratory systems; neurological, thyroid, liver, skin and cell damage; and developmental disorders, in addition to other personal injuries,” the complaint reads. “The cancer rate in Monroe County … is more than double the state and national averages. And Plaintiffs’ property values are devastated because of the contamination.” Georgia Power denies wrongdoing and the case is pending.

Blackman and his supporters say the Democratic Party needs to recognize that issues like fighting climate change and lowering utility rates have the potential to build broad coalitions capable of defeating well-funded conservatives, and there needs to be more attention paid to down-ballot races.

“It’s called the Public Service Commission because it serves the public,” said McCorkle. “What matters here is doing the right thing for the people of Georgia.”