Arkansas Could Give Amy Coney Barrett Her Big Abortion Moment

Originally published in Rewire on December 16, 2020.
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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.
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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.
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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.
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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.
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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.

1: REPRODUCTIVE RIGHTS

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.

2: CIVIL RIGHTS

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.”

3: ENVIRONMENTAL LAW

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.”

4: POLICE MISCONDUCT

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.”

5: IMMIGRATION

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.”

6: ECONOMY

Labor

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.
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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.”

Latino Organizers Work to Mobilize Georgia Voters Ahead of Senate Runoffs

Originally published in The Intercept on November 16, 2020.
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ALL EYES ARE on Georgia and its upcoming U.S. Senate runoffs, races that will clarify which party will control the chamber for Joe Biden’s first two years as president. For Democrats interested in flipping the Senate blue, organizers stress that there is no viable path without mobilizing Latino voters, who now make up a decisive 5 percent of the state’s electorate and were key to running up Democratic margins in the presidential race. Biden won Georgia by about 14,000 votes, and exit poll data showed that Latinos there voted for him over Donald Trump, 62 to 37 percent.

Latinos broke for Democratic Senate candidates, too, though exit poll data suggests the split was more narrow than in the presidential contest, with about 52 percent of Latinos breaking for Democratic candidate Jon Ossoff, and a combined 57 percent of Latinos breaking for Democratic candidates Raphael Warnock and Matt Lieberman. Though Latinos represent a significant portion of the electorate, they have rarely been targeted with the same focused energy that candidates have dedicated to mobilizing other groups, a price Democrats might pay in the upcoming runoffs.

Political leaders “don’t do outreach, they don’t have Spanish-speaking mailers or ads that are resonant with our community,” said Susi Durán, the Georgia state director for Poder Latinx, a group focused on building Latino political power. “They’ll throw in a few Spanish key words, maybe a few Spanish-speaking hit songs and Latin artists, but they don’t give us anything of substance or anything to vote for.”

Durán’s group made 219,000 calls to Latino voters in Georgia leading up to the November 3 election and ensured that every phone-banking session was 100 percent bilingual. “Language accessibility is one of the biggest things to focus on, and you’d think that would be common sense across the political world, but it just doesn’t happen,” she said. “It makes such a big difference, and Latino voters are often really surprised and appreciative to get information from one of their own.” Durán said Poder Latinx is planning to make 300,000 more calls for the January runoffs.

Jerry Gonzalez, executive director of the Georgia Association of Latino Elected Officials, noted that Latino turnout has been rapidly increasing and even outperforming national Latino participation rates in 2016 and 2018. Yet while much attention has been given to the efforts led by 2018 gubernatorial candidate Stacey Abrams in helping to register more than 800,000 new voters in Georgia, and more than 240,000 Latinos were registered to vote in Georgia leading up to the general election, about 137,000 eligible Latinos were not registered.

Organizers and activists are grappling with some of the more unique challenges of reaching Latino voters. One national survey released on November 4 found that 47 percent of Latinos in the U.S. said they were neither contacted by any Democratic or Republican party representative during the 2020 cycle nor by any independent community organization. On election night, Democrats were caught off guard by the surge in Latino turnout for Trump in South Texas and Florida.

Maria del Rosario Palacios, an organizer in Georgia and chair of the state Democratic Party’s Latino caucus, said one obstacle to reaching potential voters has been a deprioritization of the kinds of digital platforms Latinos are most likely to be using. “Who is doing WhatsApp electoral outreach?” she asked. “Nobody. WhatsApp is a big deal for Latinos.” Palacios also noted that many Latinos are more likely to have pay-as-you-go phone plans compared to other voters, and so may be less likely to answer calls from unknown numbers. She also critiqued national pollsters for not asking Latinos questions in conversational, accessible language that could better gauge where voters stand.

One of Palacios’s main mobilization strategies has been to distribute political literature and organize voter outreach in partnership with major businesses, grocery stores, and laundromats that Latinos regularly frequent. “There hasn’t been a lot of centralized efforts historically,” she said, though she acknowledged that things have been evolving since the surge in voter registrations over the last few years. “2018 really changed how we did politics in Georgia, so we’ve been working on it.”

Overlapping with the U.S Senate runoffs are other races in Georgia where Latino activists have been getting galvanized. On December 1, Deborah Gonzalez, a Democrat, is facing a runoff for district attorney in the Western Judicial Circuit, which includes Athens-Clarke County — where the University of Georgia is — and Oconee County. Gonzalez would be the first Latino DA in Georgia history and is running on a platform of criminal justice reform, including ending death penalty prosecutions, declining to prosecute low-level marijuana possession, and reducing the use of cash bail. She is running against James Chafin, a nonpartisan candidate.

“I can remember the first time I ever ran for office, I was told, you’re not Black, you’re not white, you can’t win here,” recalled Gonzalez, who formerly served in the state legislature. She said she’s proud of the diverse coalition her campaign has built and that her candidacy has been backed by the Latino Victory Fund and Galeo.

One challenge for Georgia organizers is that unlike in the general election, voters can’t cast their runoff votes for district attorney or the state legislature and the U.S. Senate together. Gonzalez said it can be frustrating how even with all the national Democratic money and energy being funneled into Georgia for Ossoff’s and Warnock’s campaigns, little has been trickling down to races like hers.

“When people say all eyes are on Georgia, well, we’re not getting that attention, and sometimes there’s a little shortsightedness,” she said. “We don’t need the millions. We can do a lot with $10, 20, 30,000, and that wouldn’t take away anything from them.” Gonzalez emphasized that there need to be Democrats as district attorneys, public service commissioners, and state legislators, and the party shouldn’t discount the momentum that can come from winning those races. “Democrats need wins, it makes people feel good,” she said. “You want those wins heading into January. [The party] tends to only think about the big goal, but underneath those are the down-ballot races that  make important local decisions and keep those people on top.”

Both nationally and in Georgia, one of the most important issues to Latino voters is Covid-19 relief aid. Latinos are falling ill and dying from the coronavirus at disproportionate rates, and in Georgia, Latino poultry workers have gotten sick at much faster rates than other workers. Moreover, the federal government denied stimulus checks to families in which at least one member of the household was undocumented. In Georgia, that affected 488,000 residents living in so called mixed-status families, including 176,000 children and spouses who are U.S citizens or green card holders.

Local groups like Georgia Latino Alliance for Human Rights, Galeo, Mijente, the Latin American Association, and Latino Community Fund have been pressing political leaders to take Latinos’ needs more seriously for years. Activists and organizers are focusing now on mobilizing Latino voters to cast their ballots again in the runoff, to combat misinformation from the right, and to register the thousands of Latino voters who are turning 18 between November 4 and December 7. According to exit polls, young Latino voters broke even harder for Biden, with 18 to 29-year-olds backing him over Trump 74 to 25 percent.

A spokesperson from the Warnock campaign said it has been working to ensure that its website’s issue pages are available in Spanish, as well as developing “talking points tailored to Latino communities.” In addition, the Warnock campaign said it hired a Latinx coordinator, purchased ads in the Latino print market, and hosted a single Latinos for Warnock meet-and-greet and a text/phone-bank volunteer event for Spanish speakers. The Ossoff campaign did not return a request for comment.

Palacios said she believes the Latino grassroots organizations “have been getting a lot of love” since the election. “I’ve seen Google Doc after Google Doc listing some of the amazing on-the-ground work of Latino organizers, even beyond electoral politics,” she said. What Palacios worries about are Latino voters who might be deterred from voting by mail again due to issues with their absentee ballots during the general election. According to the U.S. Election Project, 34,676 Latinos in Georgia voted by mail, and 71,176 Latinos voted early in-person.

“The No. 1 outreach I was getting on Election Day was from Latinos who had to cure their ballot because they got notices that their signature on their absentee ballot was off or something else,” Palacios said. (Just 71 Latino absentee ballots were ultimately rejected in Georgia, according to the U.S. Election Project.) Durán said some of her phone bankers have had to focus on addressing misinformation, like voters who say they were told that they were only eligible to vote in one election and not in the runoff.

Activists and organizers stress that while Latinos in Georgia are no monolith, it’s important to recognize that many Latinos see voting as a collective act: a ballot cast not just for themselves but also for their family and community. “Whether the voters were formerly undocumented or their parents were or their friends, I think for us, when we go out to vote, more uniquely than other folks, we don’t just vote for ourselves,” said Palacios.

Why Reopening Schools Has Become the Most Fraught Debate of the Pandemic

Originally published in The American Prospect on October 28, 2020.
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Many families are desperate to get their kids back to school, and many political leaders agree, worried about harm to children’s educations and believing that key to fixing the economy is making it easier for parents to work. But the pandemic, which is still raging and getting worse nationwide, has made many of these school plans more challenging, if not elusive. It’s also led to one of the most politicized and divisive debates in America: Can we safely reopen schools?

The go-to academic on this question has become Emily Oster, a prominent economist at Brown University. Oster doesn’t have a background in public health, but over the last decade she has earned a reputation as a data-driven, empathetic, and trusted parenting expert, writing best-selling books on pregnancy and child-rearing. Her email newsletter, ParentData, is one of the most highly subscribed publications on Substack. Since March, she’s been helping families navigate questions around school reopenings, giving numerous interviews on what the available research suggests, and writing op-eds for outlets like The New York TimesThe Washington PostThe Atlantic, and Slate.

Oster tells her audiences that she’s using data to help inform the best decisions possible, though at times she’s adopted more explicit advocacy on the need to reopen schools. Occasionally, she has downplayed negative research findings that complicate the picture, and amplified studies that experts say were weak.

Back in early May, for example, Oster concluded that “infection among kids is simply very unlikely. It’s not that they are infected and don’t know it, it seems like they are just not infected very often.” But this ignored some conspicuous caveats to those early studies—for example, kids were rarely tested in the spring (as tests were in short supply), and children were stuck at home, with far less opportunity for exposure.

In late July, when a study came out that suggested children with COVID-19 have a higher viral load than adults, Oster quickly wrote a piece saying it would be a “very big leap” to apply these findings to school reopening discussions. Instead, she urged focus on a large South Korea contact tracing study, which suggested younger children transmitted the virus in their households at a lower rate than other groups. A month later, the leaders for that South Korea study said it wasn’t really clear who infected whom in the households, and called for further research. Even today, how effectively children transmit the virus to others remains one of the fuzziest, and most pressing, questions.

Parents and writers (many of whom are parents) have embraced Oster’s thinking, along with some oft-quoted public-health experts like Ashish Jha, also of Brown, and Jennifer Nuzzo of Johns Hopkins, who say we can move forward more quickly with reopenings, especially at the elementary school level. But a growing number of epidemiologists—generally ignored by the media—have been urging caution, stressing that our understanding of child transmission remains far more limited than some of the louder voices in the conversation have suggested.

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SUPPORT THE PROSPECT

These debates over the science have grown more charged, as leaders seek to bring more students back to the classroom, but as Congress continues to drag its feet on stimulus funding. Many cash-strapped districts are struggling to implement the kinds of mitigation strategies that experts say have worked well abroad and that more-affluent schools have adopted. As COVID-19 cases rise nationwide, the question remains if reopening schools is a tolerable risk or a dangerous gamble, especially for communities of color ravaged most hard by the virus.

IN LATE AUGUST, Oster announced a new project of “systematic data collection and reporting” on COVID-19 in schools, in partnership with associations of school superintendents and principals. “Once we have a dashboard for these data, the media could use these sources to drive their coverage,” she wrote. “Even if they chose not to—because ‘Day 45 with infection rate below 0.01 percent’ doesn’t generate a lot of clicks—citizens would be empowered to analyze the relevant information themselves.”

With a public desperate to return to normalcy and school reopening at the forefront of that, it didn’t take long for national outlets to start reporting Oster’s data. On September 23, The Washington Post ran a story boldly headlined “Feared Coronavirus Outbreaks in Schools Yet to Arrive, Early Data Shows.” Featuring figures from Oster’s new tracker, the Post reported that, for a two-week period beginning August 31, 0.23 percent of students in her database had a confirmed or suspected case of COVID-19, and just 0.49 percent of teachers. About two weeks later, Oster published an op-ed in Insider with the provocative headline “School Infection Rates Are Low Even in Areas With High COVID-19 Rates, According to Data on 550,000 US Students.”

A growing number of epidemiologists have been urging caution, stressing that our understanding of child transmission remains limited.

These stories clearly suggested that COVID-19 infections in schools were few and far between. But they also reflected an extremely small and unrepresentative sample of schools. There are over 50 million K-12 students in 130,000 public and private schools across the United States, but the database used in the Post story had just 550 public and private schools nationwide voluntarily reporting data, including at least 200 schools that were fully remote. And of the 550,000 students in the Insider article, less than a third (about 175,000) were learning in person.

Oster acknowledged that more data would be needed to understand what was going on in areas with high transmission, but she made no mention that students are still getting tested at significantly lower levels than adults, and that many schools have no requirement for even symptomatic students to be tested.

Nevertheless, her findings were soon echoed by influential media figures, like MSNBC host Chris Hayes, who tweeted out to his 2.2 million followers, “We now have pretty good data” to show that schools can open in person even in places “with pretty high community transmission.” The authoritative assurances brought relief to tired families, but when some public-health experts offered objections and reason for skepticism, the media establishment either ignored them or cast them as liberal hysterics. In fact, anyone who objected must be unreasonably searching for a world where zero risk exists. This is a straw man, of course, but an effective one—and one easily found in many articles about school reopenings, including Oster’s pieces.

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Here are some additional facts about the COVID-19 School Response Dashboard dataset, as it existed on October 25. There were 1,322 schools voluntarily reporting data, or about 1 percent of all K-12 schools in the country. It did not say how many school districts were reporting, though Oster told me last week they currently have “about 150.” There are 13,500 school districts across the United States.

A more detailed look brought its glaring gaps into sharper relief. There was not a single urban traditional public school reporting data across 27 states in her dataset, including from Florida, Texas, New York, Minnesota, Arkansas, and Mississippi. Some states, like Colorado, Kansas, Ohio, and Alabama, had just one urban traditional public school reporting data. Oster told me they’re working to make their dataset “more representative” and conceded that those who opted to voluntarily report tended to be a “higher-income sample, and more suburban.”ExpandCohen-School reopening 102820 screenshot1.png

SCREENSHOT

An examination of suburban traditional public schools, though, was not much better. Twenty states in her tracker had zero traditional public schools reporting; Nevada and South Carolina had one; Texas and North Dakota had two; Connecticut and Oklahoma had four.ExpandCohen-School reopening 102820 screenshot2.png

SCREENSHOT

The resulting concentration of private schools, coupled with the dearth of public schools, makes it especially difficult to draw inferences, especially for less-resourced areas and communities with high concentrations of Black and brown students. This work-in-progress dataset wouldn’t be such a concern if Oster wasn’t disseminating broad conclusions based upon it. In a Wall Street Journal article published last week on school reopenings, Oster told the reporter that her data “suggests the risks to kids from going to school are small.”

Rebekah Jones, a former Florida Department of Health data scientist who says she was fired in May over a refusal to manipulate her state’s COVID-19 stats, has publicly pushed back on Oster’s claims. Over the summer, Jones launched her own national tracker of school coronavirus cases called COVID Monitor. It’s run in partnership with Google and FinMango, a financial-literacy nonprofit. To date, it has data from nearly 4,000 school districts, over 26 times the number in Oster’s dataset.

Oster approached Jones’s team in August about potentially collaborating, and they offered Oster full and free access to their data. “But she basically decided to just pick what data she wanted, not what’s available,” says Jones. “It’s offensive to researchers, when you see something so unabashedly unscientific, and when the opportunity to do something scientific was there.” Jones added, “You can’t just have one point in a state and claim you have a grasp on what is occurring for a wide spectrum of school types and incomes, but that is literally what she does.”

Oster says she thinks Jones’s tracker is a “great project,” and it’s “really valuable to have such a comprehensive view,” but that her goal was to also study individual school rates. COVID Monitor, however, does track school rate data.

THINGS CAME TO A HEAD following a viral Atlantic piece Oster published earlier this month, with the controversial headline “Schools Aren’t Super-Spreaders.” Her argument, that schools are minor sources of transmission, hinged primarily on her own dataset, though she also pointed to reopenings in places like Florida, Georgia, and Texas. There were no caveats about why those states’ data might be interpreted with caution, and no mention of their rising caseloads.

Instead, Oster employed the straw man. “These numbers are not zero, which for some people means the numbers are not good enough,” she wrote. “But zero was never a realistic expectation.”

While surveys of parents have shown reticence to schools reopening, especially among parents of color, Oster chalked up slower reopenings to “fear and bad press.” She dinged Chicago, Los Angeles, and Houston for remaining remote, despite having relatively low positivity rates, and bluntly concluded, “Predictions about school openings hurting the broader community seem to have been overblown as well.”

Her piece said nothing about low in-person attendance rates for districts that have reopened, the lag time in reporting, and the persistent inadequacy in testing and tracing school-related cases. It also didn’t mention the major public-health fear that transmission could change as the weather gets colder. It made no mention of the fact that children now make up 10 percent of all COVID-19 cases in the U.S., up from 2 percent in April.

Oster’s story also said nothing about race. “It’s myopic. The piece of analysis that’s missing both in her Atlantic article and the dashboard is that Black and brown communities have been disproportionately hit hard by COVID,” said Constance Lindsay, an education policy researcher at UNC. Black and Latino communities have been contracting COVID and dying of it at higher rates, and while Oster targets Chicago, Los Angeles, and Houston specifically for not reopening schools, there was no mention that these cities have higher concentrations of Black and Latino families. Another study published in mid-September also estimated that up to 44 million high-risk adults in the U.S. either work in schools, or have school-aged children. “You can have a low overall positivity rate and it still be a place where you don’t want to open schools because it will further the health disparities and minority children will be at greater risk,” says Theresa Chapple, an applied epidemiologist who focuses on child and maternal health.

Lindsay adds that she’d feel a little better if Oster’s database broke out information about Title I schools and the percentage of Black and brown students at each school. Oster told me “that’s something we can certainly do, and I think those kinds of covariates are on our to-do list.”

A number of epidemiologists started speaking out following Oster’s Atlantic article, concerned about the way she had used her preliminary data with strong selection bias to draw sweeping conclusions about risk.

“Places where you have people sitting, talking, and stationary, where those three things overlap, that’s where you run into potential for superspreading clusters, and schools hit all those things,” says Dominique Heinke, an epidemiologist who critiqued Oster’s piece. “For the most part, we just don’t have good data on kids and spread. It doesn’t mean kids will spread it; it means we don’t have the research right now to say either way.”

The general premise of Oster’s piece, of whether schools are “superspreaders,” also reflected how the goalposts around school reopening debates have shifted throughout the last few months. “A place is not a superspreader, a superspreader has to do with k, it has to do with the conditions that make a virus more likely to spread,” Chapple says.

We had no study showing the White House “was a superspreader” for eight months of the pandemic. Yet when the White House had a superspreading event, few were surprised, given the conditions that were tolerated there. Wedding ceremonies can be superspreaders, and they can also be small, held outdoors, and safe. Indoor dining can lead to superspreading clusters, though limiting customers and taking other precautions can reduce that probability. Japanese officials have chalked up conditions that increase the likelihood of superspreading events to the “three C’s—close contact, closed spaces, and crowded places.

Chapple thinks many leading the conversation have lost sight of the goal, which is to reduce the rate of the coronavirus in the community. “If opening schools is adding to community transmission, then we’re fighting a harder battle, even if we raise transmission by a tenth of a point,” she says. “People don’t want to come out and say they’re OK with others dying, so instead they just cite a small percentage number and avoid talking about what that actually translates to for people, families, and communities.”

The conventional wisdom has also not caught up to rising caseloads and a long-expected fall wave. Over the last two weeks, there’s been a 43 percent increase in COVID-19 cases across Texas. Cases among students and staff have risen to over 21,000, even as most districts do not require students to be tested, and the state only reports test-confirmed cases. Nevertheless, last week The Texas Tribune reported that some districts say they will no longer accommodate educators at high risk from infection by allowing them to work remotely.ExpandCohen-School reopening 102820 infographic.jpg

SOURCE: TEXAS DEPARTMENT OF STATE HEALTH SERVICES

Meanwhile, Florida is on the verge of a COVID-19 resurgence, with modelers warning that Miami-Dade and Broward Counties are particularly at risk for case increases. Jones’s tracker has reported over 11,000 school-age cases, from more than 7,000 Florida schools, since September 8. Two of the state’s largest school districts—Broward and Miami-Dade—didn’t even open up for in-person learning until this month.

The CDC estimates that 40 percent of all COVID-19 cases are asymptomatic, and younger students are less likely to show symptoms than older ones. “While there are numbers of students being reported as positive, it is unclear how well those counts are capturing the true spread of COVID on a campus,” Dan Potter, the associate director of Houston Education Research Consortium, told me last week over email. Potter puts the blame on his state and federal government for failing to provide districts with the resources to proactively measure and monitor COVID-19 spread. In the absence of that support, he said, districts have to rely on parents and staff to voluntarily self-report test results.

PUBLIC-HEALTH GROUPS that initially made firmer declarations about the safety of kids and coronavirus have since tamped down their statements. One of the most prominent is the American Academy of Pediatrics, which made waves in late June when it issued strongly worded guidance urging schools to open for in-person learning, and stating that “the preponderance of evidence indicates that children … may be less likely to become infected and … to spread infection.” In August, the association updated its guidance to say more research is needed to understand infectivity and transmissibility in children, and that opening schools to all students is “likely not feasible” in many places because of community spread.

“I think the stance the AAP took in the beginning was that since negative health outcomes to children seem low with coronavirus, and the risks of not being in school are high, therefore children should be back, but that’s a very child-centered stance and children are not the only ones at school,” says Chapple. “We do not know the impact that infected children can have on our vulnerable populations. The conversation can’t just be about children, it has to be about children and communities.”

One hurdle is the poverty of strong data. The first U.S. child death related to COVID-19 didn’t happen until May, a few months into the pandemic and after thousands of seniors had already died. This helped deprioritize research into specific areas involving children: transmissibility, the long-term effects of infection, and the need for testing.

In late August, Laura Garabedian, a professor of population medicine at Harvard Medical School, and Rebecca Haffajee, a health policy researcher at RAND, co-authored an op-ed in USA Today on the limitations of existing studies that had suggested children could transmit less COVID-19 than adults. Both are parents in the Boston suburbs, and after attending Zoom meetings to learn about their schools’ plans for reopening, they realized quickly that leaders were making decisions based on shaky research. “Right now, the evidence on children’s rates of infection and transmission is inconclusive,” they wrote, and urged “aggressive” mitigation strategies until more is known.

By September, the CDC had published a new study again complicating our understanding of transmission, finding that children who likely got infected in Utah child care centers spread the virus to others outside, including to adult household members. The centers had varying mask policies.

“What was really interesting about that study is that in each of those three [child care] facilities, they think the first case was from a staff member,” says Garabedian. “So it was an adult suspected of bringing it in, they spread it from staff to children, and then the next step was children brought it home. That was a really important study and I haven’t really seen anything similar to that.”

Evidence from other countries, though regularly cited as conclusive proof of the safety of reopenings, presents a mixed picture, and often comes with methodological limitations. Studies from Australia and Ireland suggest that schools with positive cases can control and prevent transmission if proper mitigation strategies are in place. A recent study from Spain found school reopenings were not linked to spikes in community rates, and in Germany, school reopenings were actually linked with lower rates of COVID-19 spread.

But European school outbreaks are occurring, particularly in places where community transmission is on the rise. Another study published in Science in late September used extensive contact tracing in India and found, among other things, more evidence of child transmission, including from young children to other young children. And last week, Israel’s health ministry released a report finding that Israeli children were more likely to be infected with COVID-19 than adults. The ministry warned that children can act as “super-spreaders” and noted that 51 percent to 70 percent of infected children were asymptomatic. A group of nine Israeli epidemiologists, though, rejected that report, arguing the government had misinterpreted its data.

Garabedian and Haffajee cite Australia and Ireland as encouraging examples in their USA Today piece, but caution about extrapolating too much from their experience, and noted some of the international research was also conducted when kids were spending more time outside.

In a joint interview, Garabedian and Haffajee said that in places where schools quickly test, contact-trace, and impose measures like mask-wearing, upgraded ventilation, and social distancing, reopenings seem to be working. But they acknowledged that not all communities have the resources to put those mitigation strategies in place, and they wonder what will happen in places where community rates rise, and contact tracing becomes overwhelmed. The researchers said we also have no clear idea of what would result if schools were again doing in-person learning at full capacity, which is happening in few places in the U.S.

THE FACT THAT scientists say we’re still trying to get a handle on kids and transmission hasn’t stopped many prominent writers and media outlets from declaring questions resolved, and the data decisive.

In a Wall Street Journal op-ed published last week entitled “End the School Shutdown,” a research fellow with the conservative Hoover Institution and an economics professor at the Naval Postgraduate School cited Oster’s tracker showing September case rates of .13 percent among students and .24 percent among staff. “That’s a shockingly and wonderfully low number,” they wrote, while providing no context.

New York Times education reporter Eliza Shapiro went so far as to tweet last week, “It seems increasingly like the choice to keep elementary schools closed in places where the virus is contained and there are school safety measures in place is no longer grounded in science.” Her tweet linked to a New York Times story where the third paragraph said, “The evidence is far from conclusive, and much of the research has been tarnished by flaws in data collection and analysis.” Shapiro’s post was amplified by Oster and FiveThirtyEight’s Nate Silver, though just two days after the aforementioned article came out, updated random sampling from the U.K. showed that children there were actually more prone to infection than adults, echoing the findings from Israel.

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Perhaps most influentially, in a widely read ProPublica piece from late September on students left behind by remote learning, journalist Alec MacGillis theorized that anti-Trump sentiment was a significant factor in why schools were not reopening faster in Democratic-run cities. (The argument, that liberals turned against school reopenings because the president started speaking more forcefully for them, was silent on Republican support also dropping in that same time period.)

MacGillis’s feature made the case that more schools could safely reopen, and even referenced the September Washington Post story on Oster’s tracker, noting that “so far there was little evidence of the virus spreading inside school buildings.” He omitted the CDC research on toddlers infecting their household members, and he downplayed news that cases were rising among children.

MacGillis’s main points were that in many places the cure appears worse than the disease; that we’re underestimating the long-term harms to students’ academic, social, and physical development; and that these policy choices threaten to widen already gross disparities between the rich and poor. There is absolutely truth to this, and research has long shown that in-person instruction is better for children. The nation’s inequitable access to broadband internet has made virtual learning even harder for millions of families to access, and the fact that bars and restaurants remain open for indoor dining while schools are closed is a staggering political choice.

Still, many adults work in schools, and illness and death can set back kids, too. If children infect their parents, teachers, or neighbors, or spend time in school anxious that they might, experts warn that too could yield harm. (Some students agree, and have rallied in solidarity with teachers against reopening plans.)

New research is still emerging almost every week, like a study from Sweden that found schools played an overall minor role in the spread of COVID-19, but that teachers in schools with older students had double the rate of infections compared to those who taught remotely, and their partners also had higher rates.

Jones, of COVID Monitor, told me she submitted a study two weeks ago to the CDC on trends in K-12 Florida school reopenings, but that the projected wait time for review is five weeks.

Some businesses—like Google and The New York Times—have recently announced they will continue to allow remote work until July 2021, and some teachers believe they should be allowed to do the same, especially if states and the federal government continue to deny resources to schools to help them implement robust mitigation strategies. Other districts are considering returning to in-person learning just for elementary-aged children, or those who are homeless or have special needs. In Washington, D.C., the mayor wants to allow 21,000 elementary school students to return beginning November 9, although 14,000 of those students would do virtual learning from inside classrooms, supervised by non-teachers.

Moving forward, Chapple suggested researchers like Oster partner more with local health departments to gather better surveillance data on children. Whitney Robinson, an epidemiologist at the University of North Carolina, also noted the federal government has given no additional funding to the National Institute of Child Health and Human Development, a decision, she says, that reflects the government’s deprioritization of young people.

“People are resilient, children are resilient, families are resilient, but over and over we see tragedies that if you’re not getting what you need at critical points in development it can have really long-term consequences,” Robinson says. “So I think about the short-term and long-term risks. Still I can say something is pretty safe, but people need to feel safe.”

Oster, unlike others and to her credit, does acknowledge that some people will get sick and even die if schools reopen. In addition to emphasizing the social, emotional, and academic harms students face by missing in-person school, Oster says we accept mortality risks in normal times, like allowing people to drive cars, have swimming pools, and avoid the flu shot. “There will be some in-school transmission, no matter how careful we are,” she wrote in July. “This is the unfortunate reality. Some of these people may get very sick. If we are not willing to accept this, we cannot open schools.”

Organizers Push For Stronger COVID-19 Utility Shut-off Protections As Winter Nears

Originally published in The Intercept on October 22, 2020.
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IN AUGUST, AT the same time that Illinois environmental activist Georgia de la Garza was sick with the coronavirus, her water was shut off for nonpayment. “I had been sick for several weeks and that bill was stacked up with the mail,” she recalled. “In the height of my Covid, like 102.6 fever, I was by myself, feeling delirious, [and] I went to get cold water from my shower, and my water was shut off.” Mortified, de la Garza, who lives in the southern Illinois town of Carbondale, begged her city’s water company to take her credit card number over the phone, but they said she’d have to pay on their website. She spent the next few hours unsuccessfully trying to pay online, and eventually managed to get her water turned back on by reaching out to a friend who works on her county’s board.

The Illinois Commerce Commission had announced in March an emergency moratorium on all utility shut-offs to protect customers during the public health crisis, but the patience of utility companies was wearing thin, even as the state unemployment rate hit 11.5 percent, up from 4.2 percent a year earlier.

After this experience, de la Garza joined an organizing effort led by Urbana resident Allan Axelrod, who had his own scare with a potential gas and electric shut-off in July. He had received a letter from his utility company saying that service disconnections would be resuming within 30 days of Illinois entering “Phase 4” of reopening, or September 1, whichever came sooner. When Axelrod tweeted out his letter, his utility provider Ameren promptly replied that they were planning to disconnect service due to nonpayment by August 11.

Axelrod, who had fallen behind on payments because he was trying to catch up on his credit card debt, managed to pay off his utility bill but knew others wouldn’t be able to so easily and was alarmed at how quickly companies were moving. He started reaching out to other activists, and together they launched a grassroots effort to pressure Illinois’s Democratic Gov. J.B. Pritzker to impose a mandatory utility shut-off during the pandemic, as at least 17 other states and D.C. had done. 

The Illinois activists, organizing under the banner of #NoAmerenShutoffs, have been calling the governor’s offices in Springfield and Chicago en masse, showing up to his press conferences, speaking out at Illinois Commerce Commission public meetings, pressuring local city councils to pass resolutions, and raising awareness on social media. They say their pressure has yielded some success — namely Illinois’s utility shut-off moratorium has been extended until March 2021 — but unlike in some other states, it’s not a mandatory ban. “The governor has politely asked those multi-billion dollar corporations to not shut people’s water off but he has the power as the governor to issue a legally-binding moratorium,” said Emiliano Vera, a coalition member who disrupted a press conference Pritzker gave last month. State filings show that at least 16,165 Illinois households were disconnected in September alone, with the majority of shut-offs from Ameren and Commonwealth Edison.

Early on in the pandemic, as millions of people lost their jobs and became unable to pay their bills, some state and local governments began offering relief in the form of moratoriums on evictions and utility shut-offs. But it didn’t last long. According to the National Energy Assistance Directors’ Association, 33 states have either let their Covid-19 utility moratoriums expire or never passed them at all, and seven states, with a combined 20.5 million people, have moratoriums that are set to expire in early November. Already more than 205 million people across the U.S. are at risk of having their utilities shut off, according to NEADA. 

“What we’re seeing anecdotally is a real increase in utility debt,” said John Howat, senior energy analyst at the National Consumer Law Center. Howat said that utility shut-offs amount to de-housing people without it being counted as an eviction. “It’s a pernicious way to harm people,” he said. “It’s one of the most subtle and least obvious threats that poses the most immediate risk to people’s pandemic safety.”

While utilities are largely a local matter, some federal lawmakers have taken up the issue too. A national ban on utility shut-offs was included in both versions of the House Democrats’ HEROES Act, which passed in May and October. In the Senate, Democratic Sens. Jeff Merkley, Elizabeth Warren, and Kamala Harris introduced companion legislation, but it has not been voted on. More than 830 organizations have urged Congress to act. 

Michigan Democratic Rep. Rashida Tlaib, who is the vice chair of the House Subcommittee on Environment, in particular has been outspoken on the issue. Most recently, on October 5, she, along with subcommittee chair Rep. Harley Rouda, sent a letter to Centers for Disease Control and Prevention Director Robert Redfield urging him to use his authority under section 361 of the Public Health Services Act to issue a nationwide moratorium on drinking water shut-offs, citing the CDC’s issuance of an eviction moratorium in September. “Just as CDC acted to ensure that Americans are protected from evictions, access to water in each person’s home is also essential to preventing the spread of the coronavirus,” they wrote. The representatives quoted Redfield’s own words back to him on the importance of hand-washing to contain Covid-19.

“Without water you can’t wash your hands after changing a dirty diaper,” said Mary Grant, the Public Water for All campaign director at Food & Water Watch. “This is a public health crisis. It’s about protecting people, their families, and their communities.”

PRITZKER, THE ILLINOIS governor, has used his executive power to prevent pandemic evictions, and has faced heat to do the same with regard to utilities. On September 21, when asked at a press conference about utility shut-offs, Pritzker defended his administration’s approach, and said while they will continue to talk with companies, “I do want to also make sure people know that there is a limit to what the kinds of things that we can order businesses to do” and cited the need to “balance interests.” Activists started chanting at Pritzker to use his executive power to prevent the shut-offs.

An attorney at the National Consumer Law Center has filed a petition with the Illinois Commerce Commission, a quasi-judicial body which has three Democratic appointees and two Republican appointees, calling on the body to extend the shut-off moratorium. The activists have also tried to apply pressure on the ICC, and Axelrod says ICC’s members have listened to their concerns and pressured companies to avoid disconnections. ICC spokesperson Victoria Crawford said while they can’t comment on a mandatory moratorium because it’s an open petition issue on their docket, the Commission “has worked vigorously to protect all residential and small business consumers from losing access to utility service.” Pritzker’s office did not return a request for comment.

Similar actions have taken place in New Jersey, where activists achieved a major victory last week when the state’s Democratic Gov. Phil Murphy signed an executive order extending a mandatory moratorium through March 15, 2021. The order applies to all residential gas, electric, and water utilities, both public and private, and bars utilities from charging late fees or fees to reconnect services. 

Matt Smith, the New Jersey state director for Food & Water Action, said the momentum in their state was bolstered by the broader national social justice movement. “There’s been a sea change in what’s seen as possible,” he told The Intercept, crediting Murphy for “stepping up and showing leadership.”

Renee Koubiadis, the executive director of the Anti-Poverty Network of New Jersey, said it took months of organizing to finally get this issue at the top of leaders’ agenda. “From the start of the pandemic we felt like we weren’t getting a good response from leadership on utilities, that it was getting pushed to the backburner,” she said. According to data from New Jersey’s Board of Public Utilities, more than 440,000 residential electric and gas accounts were at least 90 days past due in August, an increase of 41 percent from 2019. The average overdue New Jersey utility balance was $600.

The rising costs of utilities and associated debt have taken on a new level of urgency in light of the Covid-19 pandemic, as people have been asked to stay home, and millions of Americans are now working and attending school from their residences. 

“In this country, without a basic level of electricity and heating service, your home is inhabitable,” said Howat. “And you’re not able to participate effectively in society at all.” Without electricity, households lack light, refrigeration, and are unable to maintain healthy indoor temperatures. In the time of Covid-19, utility shut-offs can prevent children from participating in virtual learning, make it difficult for adults to find jobs, and make it even harder to keep hands clean and take showers.

ONE CHALLENGE FOR understanding the scale of the utility shut-off crisis during the pandemic is a lack of clear data. Most states do not require electric or gas providers to report data on how customers are accessing or retaining services, though some states, like Ohio, California, and Pennsylvania, have better requirements than others. Utility companies have historically fought efforts by advocates, regulators, and policymakers to report comprehensive data, aware of the public relations nightmare that could follow.

Michael Thomas, a former journalist and founder of an energy efficiency startup Carbon Switch, leaned on his old reporting skills to compile as much information as he could from state websites on expiring utility moratoriums and what the impact might be.

“There were a lot of stories about the states where moratoriums were expiring but most lacked context of how many people would be at risk,” he said. His first report, published in August, found 34.5 million households would lose shut-off protections in the next month, leaving 9.5 million unemployed people at risk by October 1. In October he published a second report, finding that four states did let their moratoriums expire in September, affecting 16 million households, with 2.3 million of those households below the poverty line before the pandemic started. Another 2 million people in those states are unemployed.

Thomas said finding the data was “a complete mess because it’s so archaic in how it’s all stored and presented” on public utility commission websites. Civil rights groups like the NAACP have long called for actual federal guidelines on clearly reporting utility data, but for the most part, the information remains chaotic and hard to access. And while Thomas’s research helped illuminate who in a state is energy-burdened, the actual number of people who have had their utilities shut off is unknown as most companies don’t have to report it.

For now advocates are continuing to organize, hoping more governors flex their executive power to help struggling residents. “We estimate that by the election there will only be five states that have a comprehensive water moratorium,” said Grant of Food & Water Watch, referring to California, New York, Vermont, Washington and New Jersey. “We’re already seeing thousands of shut-offs happen across the country, particularly in the South and Midwest.”

Family Care: Good Policy, Good Politics

Originally published in The American Prospect on October 22, 2020.
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In late July, then-presumptive Democratic presidential nominee Joe Biden gave a speech announcing the third and final plank of his economic recovery plan: a ten-year, $775 billion investment in care work.

If elected, Biden promised, he would bail out struggling child care centers, invest in building more facilities, and raise the pay and benefits of all caregivers, including those who care for seniors. Biden also pledged to expand universal preschool, and give low- and middle-income families tax credits for child care.

“We are trapped in a caregiving crisis within an economic crisis within a health care crisis,” Biden said at the July campaign event in New Castle, Delaware. Emphasizing his experience raising his son as a single father, Biden touted his proposed investments in care work as “a fresh, bold way to build up a critical part of our labor force and help us recover faster and stronger.”

Aspects of Biden’s care work plan overlap with child care legislation backed by Democrats in Congress, as well as parts of the child care proposal Sen. Elizabeth Warren (D-MA) ran on during her presidential campaign. In 2016, Hillary Clinton championed new investments in child care in her run for the White House.

Biden’s proposals don’t go as far as Bernie Sanders’s plan to make child care free and universal. Marie Newman, who is likely headed to Congress in January after ousting Rep. Dan Lipinski (D-IL) in a primary in March, also made universal child care a key plank of her campaign. Mondaire Jones, who won an open seat in New York’s Westchester County, foregrounded universal child care as well.

Biden’s ideas also don’t amount to so-called universal family care—the policy idea unveiled in 2019 by Caring Across Generations, which would provide child care, paid leave, assistance for people with disabilities, and elder care, all through a new social-insurance program. But his rhetoric has gotten a lot closer to that idea. That Biden has decided to make caregiving a key facet of his run against Donald Trump reflects the growing recognition among mainstream politicians that these caregiving issues are not just crucial economic issues, but also winning political ones.

Jess Morales Rocketto, the executive director of Care in Action, which leads political advocacy for the country’s 2.5 million domestic workers, described Biden’s care work plan as a win for activists, despite falling short of universal family care, which is their ultimate goal.

“It’s a very significant step and reflects what we’ve been saying, which is that care is the future of how we keep people safe,” she said. “This is a real opportunity for us to help show people that universal family care is more than just a message frame or rhetoric, but a real and serious policy plan.”

THE NEED FOR affordable child care and elder care isn’t new, so many may wonder why it’s taken so long for politicians to get to this point.

Vicki Shabo, a senior fellow at the think tank New America, points to three reasons the U.S. has moved at such a sluggish pace when it comes to care work.

The first, she says, is a perception problem. Unlike the rest of the developed world, which has robust public investments in care infrastructure, the U.S. has left care work as something to figure out privately outside of government. As a result, child care and elder care have been dismissed within public policy as “individual issues that people need to navigate on their own,” Shabo says.

The next hurdle involves the anti-regulatory stance of businesses and the Republicans who cater to them. Powerful corporations and conservatives have foregrounded the idea that workers and employers should be sorting out these types of family issues individually, free from rules dictated by government.

The last reason, Shabo says, is that for a very long time politicians in the U.S. treated care work as a “woman’s issue,” as somehow less important than other economic policies legislators prioritize.

That last point is starting to change. While child care and elder care still are largely women-led issues in Congress, some male politicians are stepping up. “I’m excited to see people like Sherrod Brown, Ron Wyden, and Cory Booker take these issues on in the Senate,” said Shabo, adding that there is also energy coming from younger and more diverse members of Congress like Rep. Jimmy Gomez (D-CA).

Advocates say they feel encouraged, too, by the fact that Republicans have seemed more open to family care proposals, even if the bills fall far short of what’s needed. Sen. Marco Rubio (R-FL) teamed up with Ivanka Trump in 2018 on a paid family leave bill funded by clawing back future Social Security benefits, leaving families in a retirement hole. But compared to the nonexistent conservative proposals for family care in years past, it was at least a start. Sen. Bill Cassidy (R-LA) has been working on a bipartisan version of a paid family leave policy.

The pandemic has unquestionably helped shift the politics around child care, forcing long-standing problems around care work into the public eye, and helping millions of Americans grasp the health and economic implications of not having robust systems in place.

The shifting politics are evident in the way the ongoing coronavirus stimulus debates have played out. In the Senate, Republicans included $15 billion in “back to work” child care grants in their COVID-19 stimulus package released in July. And in a coronavirus package passed in mid-March, lawmakers included ten paid sick days for employees of certain businesses suffering from COVID-19, and up to 12 weeks for parents caring for a new child, though only ten are paid.

“That was the first-ever federal paid leave mandate,” said Shabo. “It’s flawed, and up to 106 million workers could be denied, but it matters that it was included.”

Activists hope to capitalize on the political momentum and help steer the public conversation more to their “North Star”: universal family care. In some ways, that shouldn’t be too heavy a lift, given how many people could benefit from such a policy. According to government statistics, roughly eight million families pay for someone to watch their kids while they’re at work. Sixty-three percent of married couples with children have two working parents, and single parents are even more likely to need help balancing work and child care. The costs for these services have skyrocketed, and even before the pandemic access was a huge problem.

Increasingly, adults are balancing not just child care but caring for their aging parents at the same time. This kind of dual-caretaking situation falls disproportionately on Hispanic Americans, but is increasingly common for all families, especially as millennials rely longer on their parents for support than children in earlier generations did.

Long-term care is an expensive proposition and the costs are not generally covered under Medicare. For roughly half of Americans 65 years and older who will have long-term care needs, the average cost is more than $266,000, and more than half of that is paid out of pocket. The AARP estimates that relatives spend 20 percent of their own money on these caregiving costs.

The idea of some sort of publicly funded long-term care program has real political support. A 2018 Associated Press-NORC Center for Public Affairs Research poll found that approximately two-thirds of adults support a long-term care program like Medicare, including 76 percent of Democrats and 56 percent of Republicans.

While most politicians have tended to think of care work legislation as coming in discrete buckets—like one bill for paid family leave and one bill for child care—advocates for universal family care think conceptually combining all these elements into one program will be easier for voters to grasp. It also expands the constituency to everyone who needs care, for a child or parent or even themselves, in the case of sick leave.

“Everyone has a care story,” said Morales Rocketto. “For the average family, all these costs come out of the same bank account, and we’re all just looking at the bottom line. So what we want is the government to just say, we’re going to make a program that ensures you have enough to afford your care obligations.”

Universal family care wouldn’t come cheap, but this is a government-sized problem, she adds, so “we need a government-sized solution.”

New polling conducted by Data for Progress over the summer provides some quantitative support for the idea. Likely voters were asked if they’d support a payroll tax of 2.5 percent of their income to create a social-insurance fund for universal access to child care, elder care, long-term care, and paid family leave. A little more than half of all likely voters expressed support in the poll, including 49 percent of women. Among people of color, the support was even higher: 61 percent of Black respondents supported the proposal, as did 53 percent of Hispanic respondents. Forty percent of independents backed it, and 20 percent of respondents said they didn’t know one way or another.

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Polling conducted in 2019 by the People’s Policy Project found similar enthusiasm for federal grants to school districts for free public child care. Fifty-seven percent of registered voters backed this idea, including more than half of independents.

One advantage care advocates have in the political arena is that this need for people to take care of themselves and their families is universally understood. “From a narrative perspective, we’re starting from a position of strength,” Shabo said.

To push the issue politically, advocates are hoping to link the fight for universal family care to the fight for racial and economic justice. When Seattle passed paid sick days in 2015, the UFCW was a critical partner to getting that through, as was SEIU when Massachusetts passed statewide paid family leave in 2018. Shabo says enlisting business allies early on has also been critical, since “the organized business lobby is almost always opposed” to new care policies.

Sen. Kirsten Gillibrand (D-NY), who has sponsored individual bills for national paid family leave and child care, says she thinks splitting the proposals up separately still makes more sense, but she agreed one could structure a universal home care policy that includes all care policies together.

Gillibrand pointed to her work on paid family leave, which began in 2013. “We worked so hard to make sure it was debated in the last two presidential cycles, and we know from state examples, like in California, that the business community has actually welcomed it once it’s in place,” she said. “All of these things would have made such difference during the pandemic if we had nationwide.”

She is optimistic about the political prospects for care work legislation. “I do think the country is open to these ideas, and Congress tends to be ten years behind the country on a good day,” she joked. “I think the pressure will grow because people need these solutions. We’re in a crisis and the landscape is ripe for change.”