A Case in the Supreme Court Could Upend Public Education

Originally published in The American Prospect on January 22, 2020.

The Supreme Court heard oral arguments on Wednesday in a consequential case concerning how and whether taxpayer money can flow to religious schools. Supporters of the plaintiffs hope a favorable outcome could pave the way for more government subsidies to private schools, while opponents say the future of public education hangs in the balance.

The case, Espinoza v. Montana Department of Revenue, centers around a tax-credit scholarship program the Montana legislature established in 2015. Under the program, individuals who donate to nonprofits that award private-school tuition grants could receive a modest tax credit up to $150. According to the advocacy group, EdChoice, similar tax-credit scholarships exist in 17 other states, serving over 270,000 students.

But after the program launched, Montana’s Department of Revenue decided religious schools, which make up the majority of private schools in the state, were ineligible to receive the scholarships, due to a provision in the Montana constitution barring any “direct or indirect appropriation” to churches or other religious entities.

Parents sued, calling the rule discriminatory, and in May 2017 a trial court ruled in their favor. But the Montana Supreme Court reversed that decision in late 2018, concluding that the tax-credit scholarship program did in fact violate the state’s constitution. As a result, the state’s high court struck down the tax-credit program altogether, for religious and secular private schools alike.

Now the parents are challenging the federal constitutionality of this “no aid” provision. Montana is one of 37 states to have such provisions in their constitutions barring state funding from going to religious entities.

The U.S. Supreme Court has long held it’s legal for states to include religious schools in their private-school voucher programs. But now the justices have to decide if it should be effectively mandatory to include religious schools in state voucher programs, and whether it would be unconstitutional to offer no subsidies to religious schools at all.

Justice Sonia Sotomayor voiced skepticism that the parents had standing to challenge the Montana program, rather than taxpayers or schools. “I’m sorry, is there any case we’ve ever had where we’ve recognized a party who wasn’t either the taxpayer or the direct recipient of the taxes?” she asked. “So here the parents aren’t just the taxpayer; they’re not the schools that receive the money. Neither are they guaranteed receipt of the money [because] we’re told that there’s less money [available] than applicants. So they’re like three levels removed.”

Representing the plaintiffs on Wednesday were Richard Komer, with the libertarian law firm Institute for Justice, and Jeffrey Wall, from the U.S. Department of Justice.

The plaintiffs’ case hinges on Trinity Lutheran v. Comer, a 2017 U.S. Supreme Court decision which found that Missouri had violated the Constitution by excluding a church from a state-funded program to make playgrounds safer. “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” wrote Chief Justice John Roberts in his majority opinion. In a significant footnote to that opinion, Roberts added that their decision “involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Nevertheless, the plaintiffs say the facts in that case and this one are broadly the same.

Komer stressed that the tax-credit scholarship program should be seen more as “a kind of a psychic benefit” to the donor and as a financial benefit to the receiving families. The discussion was reminiscent of a larger debate among school choice proponents over whether taxpayer money for education should be seen as an entitlement of individual parents, or funds dedicated to public schools.

Several justices also questioned on Wednesday the idea that Montana was discriminating against religious families, since the entire scholarship program was struck down. “The parents of both are affected in the exact same way,” Justice Elena Kagan said.

“These parents are treated no differently than parents of children who are going to secular private schools, so where is the harm?” asked Justice Ruth Bader Ginsburg.

“I mean, we don’t usually sort of grade every line of a [state court’s] opinion,” added Sotomayor. “Usually we look to an opinion, and … its consequence in the world. And the consequence of this decision is that there is no discrimination.”

Supporters of the plaintiffs have called this general argument “too clever by half” and say the fact that the program was eliminated so as to not discriminate against religious families still amounts to religious discrimination. Komer, in the courtroom, emphasized that the no-aid clause itself “requires discrimination.” Yet his ultimate position was fuzzy, because he also insisted states are not inherently required to fund religious schools.

The most sympathetic justice to the plaintiffs was Justice Samuel Alito, who seemed open to the idea that there was a reasonable relationship between Trinity Lutheran and Espinoza. He said the “crucial question” is not what Montana did when it applied its constitutional “no aid” clause, but why the state applied it at all. “If it did what it did for an unconstitutionally discriminatory reason, then there’s a problem under Village of Arlington Heights,” he said, referring to a 1977 case that dealt with a discriminatory zoning ordinance.

The plaintiffs and their conservative allies have insisted that Montana’s constitutional “no aid” clause is an expression of 19th-century anti-Catholic bigotry, but at the hearing on Wednesday Adam Unikowsky, a Jenner & Block attorney representing the state, stressed there is “no evidence whatsoever” that Montana’s “no aid” provision, ratified in 1972, was enacted for any reason other than to protect religious freedom and the state’s public-education system. Multiple faith-based leaders testified in support of the amendment back in 1972, Unikowsky added.

Ultimately, the case did little to resolve the major outstanding questions, and in some cases raised new ones. Komer and Wall offered at times conflicting statements about how broadly a ruling in their favor would extend beyond the particulars of this Montana scholarship program. Justice Stephen Breyer, for his part, asked multiple times if a favorable ruling for the plaintiffs would mean that a state like New York, which spends “many millions of dollars” on public education, would now need to fund private and religious schools, too. “If I decide for you, am I saying that they have to give money to the—same amounts proportionate to—to the parochial school?” he asked.

Breyer was not given a straight answer.

Montana argued in its brief that a ruling in favor of the plaintiffs would be a major blow to federalism. “Different states, with different legislatures and different constitutions, will arrive at different policies respecting scholarship programs specifically, and support for private education more generally,” it wrote in its Supreme Court brief. “That debate … is something to celebrate not quash.”

Unlike in 2017, the Court now has a more conservative majority with Justice Brett Kavanaugh on the bench. Historically, Kavanaugh has taken legal stances to break down barriers between church and state, and in 2000 he helped defend Florida’s private-school voucher program, which was ultimately deemed unconstitutional.

At the hearing, Kavanaugh seemed inclined to view Montana’s “no aid” provision as a so-called “Blaine Amendment,” just as the petitioners and their conservative allies insist. In 1875, largely in response to Irish and Roman Catholic immigration to the U.S., Representative James Blaine of Maine introduced a federal constitutional amendment to prohibit public money from going to religious schools. The amendment passed the House but failed to garner a supermajority in the Senate. Following that, depending on where you sit, Congress encouraged—or pressured—other states to adopt similar state constitutional provisions.

Petitioners have argued that Montana’s “no aid” clause is the result of the same well-documented anti-Catholic bigotry that motivated Blaine, but Montana says this is inaccurate. “Petitioners rely on contemporary statements by private citizens, which are an unreliable basis for discerning the government’s intent,” the state said in its brief. The plaintiffs also insist the constitution’s use of “sectarian” was a euphemism for “Catholic,” which Montana also disputes.

“It’s very clear from the records of those proceedings that the delegate’s intention was to protect public education,” said Jessica Levin, a senior attorney with the nonprofit legal-advocacy group the Education Law Center. “It was not to express animus or hostility to religion, but to recognize the supreme importance of public education and preserving the already limited funds available for that.” Levin co-authored a brief submitted to the Court laying out the evidence that the framers of both the 1889 and 1972 conventions backed the “no aid” provision primarily to protect public schools.

Depending on how the Court rules, the case could have massive implications. Advocates for public education see a positive ruling for the plaintiffs as deeply threatening to both the separation of church and state and the ability to financially maintain a robust public-education system.

“This case is not about improving education for schoolkids, it’s about expanding vouchers, privatization—the systematic effort to dismantle our neighborhood public schools,” said Lily Eskelsen García, president of the National Education Association, on a press call last week. “This represents just the latest stealth political attack on public education, and they’re using the Supreme Court to move their political agenda.”

Randi Weingarten, the president of the American Federation of Teachers, has called this case an “earthquake” and one that would “turn the First Amendment on its head.”

School choice advocates are hopeful that a positive ruling could make it easier to expand voucher programs to private and religious schools, and make it harder for the government to exclude religious schools from student-aid programs.

Right-wing organizations like the Mackinac Center for Public Policy in Michigan have said that a favorable Espinoza ruling “could remove the remaining major legal obstacle to universal educational choice in many states.”

Others say perhaps the changes will be less profound. As the education news site Chalkbeat noted yesterday, 18 states with “no aid” provisions already have voucher programs that allow for religious schools. Many states have gotten around their constitutional prohibitions by using tax-credit programs as a legal work-around for direct subsidies. Montana’s is the first tax-credit scholarship program to be successfully challenged in court.

A Campaign Finance Rule Makes Life Much Harder For Working-Class Challengers

Originally published in The Intercept on January 16, 2020.

The odds are long for any candidate seeking to take on an entrenched incumbent, but the path to being financially competitive in a primary is particularly tough for those who dare run without an already built-in network of wealthy family, friends, and co-workers. Though some new companies and organizations have entered the fray over the last few years to help working-class candidates more effectively compete — including a new political action committee launched this month by Rep. Alexandria Ocasio-Cortez — the path to victory can be even harder for those candidates who can’t afford to dedicate all of their time to campaigning.

Under federal campaign guidelines, candidates running in a general election are permitted to use some of their campaign contributions to pay themselves salaries. The rule, approved in 2002 by the Federal Election Commission, was intended specifically to make it easier for people who don’t come from vast wealth to quit their jobs and campaign.

“Candidates of modest means too often have been crowded out of running for office,” said Michael Toner, a Republican FEC commissioner who sponsored the measure. He argued the new rule “could help people like blue-collar workers, school teachers, and others who don’t make six-figure salaries to run for office.”

As the New York Times reported at the time, the idea of letting candidates pay themselves a salary was actually originally put forth by Republicans, who resented Democrats’ 40-year grip on the House of Representatives. The GOP saw a salary as a way to enable people to challenge incumbents, who were largely Democrats. It took years for the FEC to actually approve the measure though, as commissioners long worried that candidates would just game the system and run for office effectively to make a living. A compromise was reached 18 years ago by putting limits on how much candidates could ultimately take: Candidates can pay themselves at a per-diem rate equal to the salary of the job they had before jumping in the race, or the salary of the office they are seeking — whichever is less. (Today, members of Congress have starting salaries of $174,000.)

These changes have made it easier for working and middle-class candidates to run for office. Rep. Rashida Tlaib, a freshman congresswoman representing Michigan’s 13th District, paid herself $4,000 a month while campaigning in 2018 so that she could afford to work just seven hours a week as an attorney at her day job. Jess King, a former Lancaster, Pennsylvania, nonprofit director, likewise paid herself a salary of about $3,800 a month so she could run for Congress full-time; she was the only Pennsylvanian congressional candidate to do so.

Despite these rules, Congress has come nowhere near reflecting the socioeconomic diversity of the American public, a problem especially acute as affluent Americans hold far more fiscally conservative views than the average American. The average net worth of a member of Congress is over $500,000, or approximately five times the median U.S. household net worth. After Ocasio-Cortez was elected, the fact that she was working as a bartender for much of her campaign was treated as a huge novelty in Washington, and it is something conservatives frequently point to when lodging attacks.

ANOTHER FEC RESTRICTION on candidates who draw salaries makes campaigning particularly tough for primary challengers. Under the rules, a candidate running for office can only start taking a salary once the filing deadline for entering the primary has passed. These deadlines vary by state, but typically come just 2-4 months before the primary election. This type of rule made more sense before the surge of money in politics that has taken place over the last 15 years, which has led to campaign seasons starting earlier and earlier.

Mckayla Wilkes, a 29-year-old primary challenger taking on House Majority Leader Steny Hoyer in Maryland’s 5th District, is anxiously awaiting January 24, the date of Maryland’s primary ballot access deadline. Wilkes — a mother of two, a part-time student, and a full-time federal contractor — has been running for Congress since late March. But due to her inability to work without pay and the FEC rules, Wilkes has had to campaign all year while still working her 9-to-5 job.

A typical day for Wilkes looks like this: She shows up every morning to her job as an administrative assistant for the Department of Defense. She steps away from her desk during her lunch break to do campaign interviews, and takes more calls and interviews on her way to pick up her kids from school and day care. She drives her children home, cooks dinner, and does call time to raise money from 7 p.m. to 9:30 p.m. She’s not allowed to talk about her campaign with co-workers at the office and outside of her lunch break, she’s not allowed to leave her desk to deal with any campaign-related emergencies.

“It’s really tough; it’s basically like having two or three jobs, if you count me being a parent,” she said. “But I don’t have a choice but to work my regular job too, because I am a regular person running for Congress and so I have to provide for my family while also fighting for the future.”

To start drawing a salary on January 24, Wilkes will have to first prove her income from last year, which means filing her taxes months ahead of the April deadline. “I have been just hammering people trying to get my W-2s, my 1099s, which has been a hassle because most times employers don’t even send those out until the end of January,” she said.

Wilkes will quit her day job once she can start taking a salary. Once she has the ability to campaign full-time, she said, she’ll be able to run more effectively. “It will change things drastically for me,” she said. “It will also hopefully give me a little bit more of a work-life balance.”

She does not have much time: Maryland’s Democratic primary is on April 28. Her campaign has raised approximately $130,000 so far, though December was their biggest fundraising month yet where they pulled in about $25,000. Hoyer, who has been in Congress since 1981, has already raised over $2 million.

Other working-class candidates, also facing the financial squeeze of campaigning, are finding other ways to scrape by during the primary.

Jamaal Bowman, who’s endorsed by the progressive group Justice Democrats, is challenging House Foreign Affairs Chair Eliot Engel in the primary for New York’s 16th Congressional District. Bowman announced he was running in June, and for the first six months of his campaign, he also continued to work full-time at a Bronx-based middle school where he’s long served as principal.

During that time, Bowman would try to make both jobs work. He’d canvass at a train station from 6:30-7 in the morning, then go to work from 8 a.m. until 3:30 p.m. After school, he’d leave to do call time for a few hours until 6:30 or 7:30 p.m., and then go to a house party or a meet-and-greet at someone’s home until 9:30. On weekends, he would spend 6-12 hours doing campaign work, meaning he never really got a day off.

Bowman resigned from his principal position on January 1, but he does not plan to take a salary from his campaign coffers, saying he wants to keep the money he’s able to raise going toward staff and other campaign expenses. Even if he wanted to, he wouldn’t be able to draw a salary until April 2, which is New York’s candidate filing deadline. (The state’s congressional primary is on June 23.) To make it work, Bowman has opted instead to drain some of his retirement savings and to take out a personal loan.

“I have a son in college, a daughter in day care, I have a mortgage, and both my wife and I have student loans,” he told The Intercept. “So it is a huge, huge sacrifice to run. But when you work 20 years in public schools, and when you see the systematic oppression the kids you serve face on a daily basis, and when you yourself come from that oppression, it gets to the point where enough is enough.” Bowman said he hopes the few extra hours in the day he has now will give him more time to spend with his family, which “keeps me fulfilled, inspired, and going.”

Jessica Cisneros, the 26-year-old progressive challenger taking on Rep. Henry Cuellar in Texas’s 28th Congressional District, is also figuring out how to navigate these financial challenges.

When she was deciding whether to run, Cisneros was working as an attorney at a legal nonprofit. “I knew I’d have to quit my job if I ran because there was just no way I could do right by my clients and do right by the people supporting my campaign,” she told The Intercept. She said the first thing she worried about was her student loan payments, followed closely by the fact that quitting would mean losing her health insurance.

Cisneros lives at home with her parents, had a couple thousand dollars in savings, and decided this risk was one she was willing to take. “I didn’t save a ton, but it’s been enough for me to avoid having to take a stipend from the campaign,” she said. To this day, Cisneros has no health insurance.

Although she could be drawing a campaign salary at this point — Texas’s candidate filing deadline is December 9, and their primary is on March 3 — she’s made the decision to direct all her money to campaign expenses. Her campaign raised $513,000 in the last fundraising quarter, bringing her campaign’s total haul to nearly $1 million. Cuellar has not yet posted his latest fundraising figures, but had raised just over $1 million by the end of September.

Cisneros acknowledges that as tough as everything is, there are some advantages to being a single young woman with no dependents. “If it’s difficult for me as someone who just has to worry about her own expenses, I can only imagine how many amazing candidates there are out there with potential who just financially are not in a position to run.”

These and other candidates, who have all also sworn off corporate PAC money, say there’s a reason Congress has been so slow to enact campaign finance reform.

“The rich have built an economic system to maintain their wealth and power, and there’s a reason why 50 percent of Congress are millionaires,” said Bowman. “This system is rigged, and that’s what we’re fighting to change.”

Progressives Help Progressives—Across City Lines

Originally published in The American Prospect on January 13, 2019.

In the fall of 2017, a group of progressive city councilmembers across Texas decided to try a new strategy. Their Republican-controlled state legislature was a nightmare, preempting (and thereby repealing) every progressive ordinance that the cities enacted—but the legislature met only once every two years. What would happen if they worked together and collectively passed paid sick days while state politicians were out of session? “We knew if we passed a paid sick days law in any one Texas city we’d have very little chance of it surviving the legislative session and the courts,” explains Greg Casar, an Austin councilmember.

Austin went first, launching a paid sick leave campaign that Labor Day, and a few months later the Austin City Council voted for it 9-2, becoming the first city in the American South to require all businesses provide paid sick leave. State lawmakers were livid—but being out of session, there was little they could do.

Six months later, San Antonio local elected officials passed their own paid sick leave ordinance. The Dallas City Council followed suit in April 2019.

“At that point you had millions of Texans across three major cities with this baseline right and it made it much harder to just pick on one city’s law,” says Casar. Advocates managed to beat back opposition when the new legislature convened last spring, and while there are multiple ongoing lawsuits challenging the ordinances, the councilmembers feel good about their strategy.

More recently, nearly 200 local elected officials from across the country signed a letter calling for the abolition of U.S. Immigration and Customs Enforcement (ICE), and applauded Representative Mark Pocan’s federal legislation to transfer ICE’s legitimate functions to other agencies. “Above all else, we are responsible for the safety of people in our communities,” the local officials wrote. “The presence of ICE in our neighborhoods, schools, workplaces, places of worship, and homes, makes this impossible.”

Such collective actions from municipal officials across the United States have been spurred by a growing national network known as Local Progress, which claims more than 1,050 progressive local electeds across 46 states and Washington, D.C. The network’s goal is to help these officials be more informed, more effective, and just maybe more courageous than they otherwise would be by themselves. Most local electeds, especially outside the Northeast and West Coast, have no staff or technical support; many work unpaid, and take on full-time second jobs. Getting into office can be a challenging task, but far more difficult, many say, is knowing what the heck to do once you’re there.

“When you run for office there are a million and one programs and networks to help you, and they often talk all about the obstacles you’ll face in a campaign, like barriers for money, patriarchy, and racism,” says Helen Gym, a Philadelphia city councilmember and the vice chair of Local Progress. “But once you get elected there’s almost nothing in place to support you, and you enter into a very dysfunctional environment that you are supposed to overcome.”

Gym was a longtime community organizer in Philly before she was elected in 2015; she decided to enter politics because of what she’d seen happening to public education. “I very much apply the practice of organizing to my own governing strategy, but when you get elected, politics is a set of things you have to learn,” she says. “The actual work of getting something over the finish line, it’s a balance of bills, strategy, and communications that take you far beyond what you would have ever been prepared for with just learning how to run.”

Brad Lander, a New York City councilmember and the chair of Local Progress, was even more blunt. “We probably spend at least $100 on getting people elected for every dollar we spend on trying to help them succeed once they have,” he says. “And that’s being really generous. It might be $1,000 to $1.”

LOCAL PROGRESS came out of a phone call between Lander and Nick Licata, who was then serving on the Seattle City Council. Lander had taken office in 2010, and in the wake of the financial crisis was exploring what kinds of legislation might help fix up or at least limit the blighted properties that were plaguing New York City neighborhoods. An organizer he knew recommended that Lander connect with Licata, as Licata was looking at this problem in his own city.

After speaking, they grew motivated to see if they could forge more such cross-city connections. They rallied some other progressive leaders behind the idea, and approached the Progressive States Network, a liberal counterpart to ALEC, to ask if they would be interested in adding progressive cities to their state organizing project. The group, now known as the State Innovation Exchange, said it preferred to keep its focus unchanged.

In 2012, the Center for Popular Democracy, a national organization that sponsors and supports local activist groups, was just getting off the ground. This was a time when driving progressive change from Congress looked increasingly unrealistic. As Republicans also dominated most state legislatures, activists turned their attention to cities—where diversity reigned, where minorities and millennials were often potent progressive blocs, and leaders saw their best hope for turning groundbreaking ideas into law.

The Center for Popular Democracy agreed to take on Local Progress as an affiliate, and Ady Barkan, now one of the nation’s leading advocates for Medicare for All, became its first director. It was a “precious opportunity for progressive elected officials, who are often surrounded by colleagues more interested in self-aggrandizement, machine politics, or neoliberal policy than in pursuing social justice,” Barkan writes in his memoir, Eyes to the Wind.

Today, Local Progress has a full-time staff of nine and is funded by local and national foundations, including the Ford and Open Society Foundations, and labor unions like SEIU, the AFL-CIO, and CWA (which also has representation on the group’s board). Members make voluntary contributions, which are augmented by support from more than 150 individual donors.

Members say one of the most tangibly useful benefits of a network like Local Progress is that leaders help each other pass progressive legislation, and then help each other strengthen those bills from one city to the next. They don’t circulate so-called model bills like ALEC does, but they do share best practices for shepherding bills through, amplify each other’s victories, and partner with policy organizations to help advise on crafting legislation.

In 2014, when Seattle was considering becoming the first major U.S. city to raise its minimum wage to $15 an hour, Local Progress organized a convening there to unite electeds from other cities around the idea. “If they were going to go first, we wanted to show the public that other people outside Seattle agreed with them,” explains Lander. Many cities have since raised their minimum to $15.

Local Progress similarly built collective momentum in advancing “fair scheduling” bills, legislation which imposes rules on how employers can schedule and reschedule a worker’s time. San Francisco became the first city to pass such a bill in 2014, followed by Seattle, then New York City, then Philadelphia. Each bill was more progressive and far-reaching than the last. When Philadelphia took it up, Lander and Teresa Mosqueda, a Seattle councilmember, traveled to Philly to speak with the city council about their experiences drafting and passing their own versions of the law.

“That’s the kind of network you have access to and it’s really unbeatable,” says Gym.

“Overall policy support work was the bread and butter of Local Progress when I first started, and that’s an incredibly crucial and a huge component,” says Sarah Johnson, the director of the network. “That said, the biggest barriers elected officials face to turning their values into public policy is not always not knowing the policies, but needing the space to think through how to pass them, how to build the campaigns, how to cultivate allies outside of city council to create a shared strategy.”

Casar, the Austin councilmember, says when his city was thinking through reforms to its police department in 2018, he turned to his colleagues in Seattle who had overhauled their police accountability system one year earlier. In 2019, as he and his colleagues were dealing with a wave of anti-homeless violence, he turned to Robin Kniech on the Denver City Council, and Lander in New York, who had navigated similar situations. “The advice, and just feeling like you’re not alone is critical,” he says. “It’s being inspired by these people, and also being able to rely on them.”

ASIDE FROM building power locally and nationally, Local Progress has been moving to mobilize local electeds on a statewide level.

The paid sick leave campaign in Texas wasn’t the only time Local Progress Texas leaders tried to think through how to work together against their state legislature. In May 2017, Texas lawmakers passed Senate Bill 4, a polarizing piece of legislation that effectively banned sanctuary cities statewide, and gave local police and sheriffs the authority to ask individuals about their immigration status if they are arrested or lawfully stopped in their car.

Following its passage, a network of unions and grassroots organizations across the state, including the Texas Organizing Project, United We Dream, the Workers Defense Project, and others, partnered with Local Progress officials to launch a campaign called the Summer of Resistance, to demonstrate opposition to the anti-immigrant law.

The campaign began by “organizing and bringing pressure to bear on local governments to sue the state of Texas to stop the unlawful implementation of SB 4,” says José Garza, the executive director of the Workers Defense Project, an advocacy organization for low-wage Texans. As a result of those efforts, almost every major city in Texas, including Dallas, Houston, El Paso, and San Antonio, sued the state, arguing the law violated the Constitution on free-speech and equal-protection grounds. In addition to the lawsuit, that year Austin and San Antonio responded to the wave of anti-immigrant sentiment by passing new publicly funded deportation defense funds. Dallas followed suit with its own in 2019.

While the courts sided with the state legislature on SB 4’s constitutionality, in 2018, the Austin City Council passed a new law requiring that if Austin police officers ask individuals about their immigration status, they also need to tell those individuals that they do not need to answer the question, and there will be no consequences if they don’t. “While the legislature might try to force us to ask our police officers to ask about immigration status, we can and will continue to resist and come up with creative solutions,” says Casar.

Local Progress members across North Carolina have also been thinking about how a well-networked coalition of local progressive governments could provide a counterweight against a right-wing state legislature. “One of the things we hope to be able to do by working together is provide a stronger challenge to the state than we could necessarily do working alone,” says Jillian Johnson, a Local Progress member on the Durham City Council.

Back in 2016, when the North Carolina legislature passed HB 2, a sweeping bill that restricted legal protections for LGBT individuals and limited which bathrooms transgender individuals could use, the backlash was swift and intense. Corporations, sports leagues, musicians, and others immediately boycotted the state, leading the legislature to respond with a so-called compromise bill. The replacement bill effectively reset state bathroom access back to what it was before HB 2, but it also banned cities from passing local nondiscrimination ordinances until December 1, 2020.

“Something that about 50 Local Progress members across North Carolina have been thinking about is coming up with a plan for what to do when that legislation sunsets” in December 2020, says Johnson. “If the state doesn’t pass a replacement bill, then we can all pass comprehensive nondiscrimination bills at the same time.” As in Texas, that would mean the state would have to take action against multiple cities if it wanted to thwart the nondiscrimination ordinances. (HB 2 was originally a state response to a Charlotte ordinance.) And since Republicans no longer have a supermajority in the state legislature, even if lawmakers do take similar action, the state’s Democratic governor, Roy Cooper, could veto it.

“Preemption is a huge challenge for us but I think we’ve also risen to that challenge,” says Sarah Johnson, Local Progress’s director.

LOCAL PROGRESS likes to emphasize its commitment to “collaborative governance”—or working in “deep partnership” with labor and grassroots organizations. However, this system of “mutual accountability” is often easier affirmed than actualized—or sustained.

“It can be a grind sometime; we’re not just one big happy family,” says Gym.

Lander says collaborative governance can mean coming up with ways to craft and implement progressive laws so that they actually strengthen grassroots organizations—for instance, by issuing government contracts to community-based groups to help enforce those laws.

Garza of the Workers Defense Project, which also works with elected officials who are not in Local Progress, says the difference he sees is that Local Progress members tend to bring a more serious commitment to institutionalizing their community partnerships.

“We don’t just meet with them on an issue-by-issue basis, or only when a campaign is getting off the ground,” he says. “We meet more consistently, and we do more long-term planning.”

Lander says mutual accountability is both about establishing a level of trust where political leaders can be honest with community groups about the challenges they face, and disagreements they may have, but also about creating the space for local groups to push electeds to take bigger risks.

He pointed to rent control, which New York lawmakers strengthened in 2019. “You can really get in the habit of thinking things aren’t passable because it’s hard to do politically, because economists say you can’t do it,” Lander says. “The movement for rent regulation, for stronger tenant protections, they really have pushed a set of people like me who have always cared about affordable housing to be much more aggressive than I think we would have collectively been otherwise.”

One concrete way Local Progress tries to help elected officials navigate these relationships and their jobs overall is by organizing educational trainings.

The idea first came out of Baltimore, at a time when there was significant turnover on the Baltimore City Council. Eight new members were elected in 2016 to its 14-person council, and the novice electeds were not only younger but also campaigned on being more progressive than their predecessors.

Local Progress partnered with Wellstone Action (now known as Re:Power) and the Maryland Working Families Party to lead an orientation program for these new members. “In most cities no one sits you down on your first day of elected office and walks you through the budget process, or gives you a concrete understanding of how legislation is drafted,” says Johnson. “We wanted to teach the technical aspects of governing, but also talk about how you build power with your colleagues in a system that can be insanely individualized, where districts are so often pitted against each other.”

Out of that pilot program came the Progressive Governance Academy, which officially launched in November 2018 and now offers trainings for newly elected local and state officials on a regional basis. It’s a partnership between Local Progress, Re:Power, and the State Innovation Exchange, which has 3,000 members across 50 states. Trainings have been held all over, from Pennsylvania and Florida to Michigan, Texas, Colorado, California, D.C., and New York.

“One thing I love about it is that it’s really catered specifically to elected officials who are progressive,” says Yterenickia Bell, a city councilmember from Clarkston, Georgia, and the project director for the trainings. The program has 19 trainers, Bell added, all of whom are elected officials themselves.

SO WHERE might Local Progress be headed in the coming years?

Leaders say they know they’re just scratching the surface in terms of organizing and leveraging the network’s potential. “We are always getting new requests and interesting ideas that we don’t yet have the capacity to act on, but one thing we hope to do is build more state power,” says Johnson. Already Local Progress has three full-time state coordinators, based in Texas, New York, and Florida.

The network has both a 501(c)(3) organization and a (c)(4), but it hasn’t done much to date with its more electorally oriented (c)(4) arm. While Local Progress doesn’t make formal political endorsements, doesn’t fundraise for members’ re-election campaigns, and doesn’t really do any direct electoral engagement, Johnson acknowledges that its members are “inherently political people” who would generally like to see more individuals with kindred politics run for office.

But the fact that most local elected jobs are low-paying and time-consuming stands as a real barrier to achieving that goal—and could be one area in which a network like Local Progress might be well positioned to take on the undoubtedly tricky issue of raising local electeds’ pay. Prioritizing the salaries of people in power when there’s a laundry list of other municipal needs can be an extremely difficult thing to do. As a result, elected officials have long disproportionately been lawyers or independently wealthy.

“There’s nothing harder than having to ask for a pay raise in public, but we’re in an interesting moment because we’re seeing people running for jobs that just frankly weren’t made for regular people,” says Johnson. “We want to see governments that deeply reflect the communities, that have lived experience that will drive better democratic outcomes.” In many ways, local government is not yet structured to support that, she says.

One key lesson Local Progress emphasizes is that to be effective in office, local electeds need to embrace playing different roles. There’s the “public representative” who is always being quoted in the news, the “bridge-builder,” who is trying to build consensus behind the scenes, the “fighter” or “truth-teller,” who is always outside on the picket lines or marching in the community, and the “wonk,” who is really gung ho on all things policy details.

“What we teach folks is that you don’t have to be all of these, and you don’t have to be one all the time,” Bell says. “We try to help people understand that even if they all came into office running as the truth-teller, you can’t all be the truth-teller once elected or else you’ll never come to a consensus and get anything done. And that can be hard for people who ran on certain issues and in a certain way, but it can also be really inspiring to see that ‘aha’ moment for them when they start to realize well, OK, this is bigger than just me.”

How Massive Donations from Howard G. Buffett Helped Block The Opening Of A Pot Dispensary In Illinois

Originally published in The Intercept on January 11, 2019.

ON JANUARY 1, Illinois became the 11th state in the U.S. to legalize recreational marijuana, raking in nearly $3.2 million in revenue on the first day of sales. The legislation, enacted by the state’s Democratic Gov. J.B. Pritzker, includes “social equity” provisions to give dispensary preference and extra funding to areas that disproportionately bore the impact of the war on drugs — those with higher-than-average rates of marijuana-related arrests, convictions, and prison sentences.

Decatur, the largest city in Macon County, Illinois, has a population that is 20 percent black and is eligible for these reparative measures. But in September, by a vote of 6-1, the Decatur City Council voted to prohibit an adult-use cannabis dispensary from opening in the city. The council also voted 4-3 against allowing cannabis-related businesses, like cultivation and processing centers, to set up shop in Decatur.

At the center of the city council’s position is the indirect influence of Howard G. Buffett, the eldest son of billionaire Warren Buffett, who has lived in the city since the early 1990s. Howard Buffett is remarkably close to local police (even serving a recent stint as interim sheriff) and has poured tens of millions of dollars into law enforcement programs and drug rehabilitation efforts.

Most elected city officials appeared to be set in their opposition to allowing a recreational dispensary in Decatur even before a scheduled public meeting on September 30 to deliberate the issue, according to internal city council communications obtained by DPL Watchdogs, a grassroots transparency group, and shared with The Intercept.

“The push to opt out is gaining some momentum. Stay tuned!” Decatur Mayor Julie Moore Wolfe, who was one of the six no votes, wrote in an email to a constituent on August 21.

“I am a firm opt out vote,” wrote Council Member Lisa Gregory in August, according to another one of the emails. A week before the September study session, Gregory emailed a constituent urging them to “Please apply pressure to [Council Member] David Horn as he intends to vote yes.”

The emails, which were obtained through a public records request, also show Wolfe and Council Member Patrick McDaniel planning how to avoid backlash for limiting public comment at the September study session. McDaniel suggested there be one half-hour segment for public comment “or we will never hear the end of it,” and that speakers “should only be allowed one minute to very briefly state their views.” Wolfe responded that she agreed. She pledged to “make sure we’re ok limiting time” and added that she’d “like a big clock on the monitors.”  Reached for comment, Wolfe told The Intercept that speakers at council meetings typically get three minutes, and that she remembers wanting a clock to help track that. She added that some residents spoke multiple times throughout the September meeting.

Buffett’s financial contributions to the city, as well as his foundation’s work on addiction treatment, influenced at least two city council members’ opposition to the opening of a dispensary in Decatur. At the September study session, Council Member Chuck Kuhle stated bluntly that his opposition was tied in part to his desire to respect Buffett.

“I personally can’t think of a more flat-out rejection of our former sheriff and his foundation than to approve the sale of recreational marijuana without a wait-and-see approach,” Kuhle said, referring to wanting to see how marijuana legalization plays out in other parts of the state before allowing a dispensary to open in Decatur.

More recently, Wolfe pointed to a drug rehabilitation center that opened last year thanks to a $60 million donation from the foundation as justification for her opposition to the sale of marijuana. “It’s kind of counterintuitive to say, OK, we have this wonderful facility to deal with drug addiction, on one hand, and on the other say, Oh, here, come buy your marijuana downtown.”

IN RECENT YEARS, Howard Buffett has cultivated a close relationship with local police and taken a particular interest in curbing the domestic and international drug trade. Buffett, his senior executive assistant, and a spokesperson for the Howard G. Buffett Foundation did not return requests for comment.

In 2012, he received his “auxiliary sheriff” certification from the Macon County Sheriff’s Department, a volunteer police position and by 2014, was given the title of “civilian undersheriff” for which he continued to log thousands of hours as a volunteer, patrolling the streets and undergoing training. In 2016, Buffett’s foundation donated $15 million to build a new law enforcement training center in the county, and $2.2 million to support K-9 units across the state. In the spring of 2017, his foundation donated $350,000 so the Macon County Sheriff’s Office could purchase new patrol vehicles. Four months after that, the elected county sheriff, Thomas Schneider, unexpectedly announced that he’d be retiring early from his job. To the surprise of many, Schneider, a Democrat, named Buffett, a Republican, as his interim successor. The Democrat-majority Macon County board approved Buffett’s appointment, and within six months, Schneider was working a top job at the new Buffet-funded law enforcement training center.

Buffett served as sheriff until December 2018, and during that time, he also published a book arguing for stronger border security to weaken the power of drug cartels. Last year, he announced that he would be investing up to $200 million in Colombia over the next seven years to help the country transition from its drug-based economy.

His fixation on the drug trade has also led to more than $20 million in investments in the Cochise County Sheriff’s Office in Arizona, near the U.S.-Mexico border, where he is also part of a private volunteer group that assists in policing. As the Phoenix New Times described it, Buffett has “purchased the loyalty of — and influence over — the Cochise County Sheriff’s Office … through a steady stream of gifts and grants totaling tens of millions of dollars, used to buy guns, vehicles, surveillance equipment, helicopters, and other toys.” The Howard G. Buffett Foundation purchased more than 2,000 acres of ranch land in Cochise County, including a property that is 300 yards from the U.S.-Mexico border fence.

Buffett has even enlisted the help of his law enforcement allies from Illinois. In 2016, he was photographed with Macon County Sheriff’s Office Deputy T.W. Houk and Decatur Police Department Detective Chad Larner posing with firearms in the dark of the Arizona desert.

Their joint excursion to the southern border had been several months in the making, according to the Phoenix New Times investigation. In October 2015, Buffett emailed four Illinois law enforcement colleagues about potential smugglers crossing his ranch property in Arizona, according to correspondence the Phoenix New Times obtained from the Decatur Police Department. “You need a rag tag group of macon county sheriff vigilantes to show up and kick some ass,” wrote one Macon County Sheriff Deputy in response. “Bring Chad, need his enthusiasm!” Buffett replied.

Buffett has also taken to criticizing marijuana legalization efforts. His foundation’s 2016 annual report describes legalized pot as “only rais[ing] the stakes” of the U.S.’s drug trade problems and cites that as a reason why Mexican drug cartels have shifted production to drugs like heroin and fentanyl. “Legal sales of marijuana have reduced marijuana seizures crossing the Mexican border; however, Mexican cartels have stepped up their presence and operations in states like Colorado, where marijuana is legal, and have shifted their drug smuggling and production operations to more dangerous and addictive drugs,” the report states.

As Illinois lawmakers were discussing marijuana legalization in 2018, Buffett told a local news outlet that doing so would mean law enforcement agencies would need to replace all their K-9 dogs. “It’s a giant step forward for drug dealers,” he told The Pantagraph, “and a giant step backwards for law enforcement.”

JACOB JENKINS, a community activist who testified in support of allowing a dispensary at the council’s study session described the elected officials as sounding like characters from “Reefer Madness,” a notorious film from the 1930s featuring high schoolers who suffer a range of tragedies after trying marijuana.

“Not only did [the council] turn down a dispensary but also any transporting of marijuana, any processing plants which could have really helped minority businesses in the area,” Jenkins told The Intercept. “Right now, outside of a couple food places, there aren’t many black-owned businesses in town, but with there being state social equity funding and waivers for applications, it would have been possible to actually undo some of the hardships minorities have faced by giving them an opportunity to operate legally with various cannabis businesses.”

Lisa Kendall, co-chair of the Central Illinois Democratic Socialists of America chapter, argued that the council’s vote — and the fact that two voting members cited the Buffett Foundation’s donations to the city — was not sitting well with local residents. “People are waking up to this stuff, and it’s pissing them off,” she said.

David Horn, who was the sole member of the city council to vote for allowing a dispensary in Decatur, told The Intercept that he did so because he heard from more residents who supported it than opposed it. He said he felt the city could use the additional revenue and that whatever negative impacts there are from cannabis, “there is no evidence it will be worse with a regulated dispensary.” He also said he didn’t like the idea that medical marijuana users would have to drive outside the city to get their drugs, even though a recreational dispensary could have administered medical pot and that recreational users in the city would be effectively stigmatized for using a legal product.

“I will say there has been no issue that I have received more contact from citizens over the 2.5 years I’ve been on the council than this one,” Horn said.

Following the September vote, Kendall, Jenkins, and other local activists formed the Decatur Dispensary Project, to campaign against the council’s decision.

“DSA believes in cannabis justice and reform, and so when the issue came to Decatur, our chapter got very vocal about it and showed up to the study session with signs,” Kendall told The Intercept. Justin Weaver, the chapter’s other co-chair, said the group also strongly supports allowing a dispensary from a revenue standpoint, pointing to Decatur’s dwindling population and industries that have relocated out of the city.

“We’re a shrinking city, we’re having budget issues, and over the past seven years, my property tax has gone up by a third, and our utility taxes have gone up,” he said. “This is an undue burden.”

Activists are working to get two nonbinding resolutions on the ballot to demonstrate their displeasure. The first referendum, which has already been approved for the March 17 state primary, will be for all residents of Decatur Township, which covers about 70 percent of Decatur city. The question will read: “Should the city of Decatur allow the sale of recreational cannabis and cannabis-infused products to adults 21 and over?” The second referendum, which activists are still collecting signatures for and poses a similar question, would be for all Decatur residents in November.

But on January 3, Wolfe, the city’s mayor, said even a vote decidedly in support of allowing a dispensary in Decatur would not change her mind, and she’d still prefer to wait and see how legalization plays out in other parts of Illinois. Chicago, the state’s largest city, has opted in, and even two smaller towns in Macon County voted to allow recreational dispensaries.

As Decatur has been mired in debate over marijuana legalization, the city council also voted in December to approve the creation of a new position for a law enforcement officer who would dedicate “100 percent of his time to DUI enforcement,” according to a city council report on the agreement. The position would be primarily paid for by a four-year grant from the Howard G. Buffett Foundation.

Under the terms of the agreement, which went into effect on January 1, the Buffett Foundation will pay $500,000 to fund this officer’s salary and benefits over four years. The city will be contributing an additional $148,000 to cover the remaining cost and is required to submit annual reports to the Buffett Foundation summarizing what happened with each arrest, as well as what the underlying violation was.

Decatur Police Chief James Getz Jr. and Deputy Chief Shane Brandel did not return requests for comment.

John Phillips Jr., a community activist who has supported cannabis legalization for the last several decades, said while he backs general DUI enforcement, the idea that an officer should spend all his time dedicated to it raises serious questions and concerns, particularly given Decatur’s history of racially disparate policing. A 2018 study by the Illinois Department of Transportation found that although African Americans comprise 21 percent of Decatur’s population, they were subject to 46 percent of all police traffic stops, and 58 percent of all car searches.

“At the end of the day,” said Phillips, “prohibition doesn’t work, Marijuana has proven to be less dangerous than alcohol, and you cannot legislate morality.”


Under Pressure from Democratic Caucus, House Leadership Promises To Bring Pro-Labor Bill to Floor

Originally published in The Intercept on January 9, 2019.

IN AN UNUSUAL show of frustration, 76 Democratic members of the House, led by freshmen serving in swing districts, sent a letter on Thursday to Speaker Nancy Pelosi, Majority Leader Steny Hoyer, and Majority Whip James Clyburn urging them to bring a popular and comprehensive labor reform bill to the floor for a vote. The Protecting the Right to Organize Act — or the PRO Act, as it’s commonly referred to — passed the House labor committee on September 25, but progressives and union leaders were frustrated that it wasn’t brought to the floor for a full vote before the holiday break.

The letter suggests that rank-and-file Democrats were worried that little progress had been made in that direction. In response to a request for comment on the letter, Mariel Saez, a spokesperson for Hoyer, said that the majority leader wold bring the measure to the floor sometime an upcoming February recess. “Mr. Hoyer strongly supports the bill and looks forward to bringing it on the Floor before the President’s Day district work period,” Saez said, in what represents a win for advocates of the bill. Henry Connelly, a Pelosi spokesperson, concurred: “Protecting the right to organize is a cornerstone of securing bigger paychecks and better benefits for America’s workers. We hope to have the PRO Act on the floor before Presidents’ Day.”

The lead signatories on the letter are freshman Democratic Reps. Jared Golden of Maine and Max Rose of New York, both of whom flipped their congressional districts from red to blue in 2018. Other signatories include Rep. Cheri Bustos, chair of the Democratic Congressional Campaign Committee; Conor Lamb of Pennsylvania; and Alexandria Ocasio-Cortez of New York, signaling that support for the pro-labor measure spans the ideological spectrum within the party.

The letter praises House Labor Committee Chair Bobby Scott, D-Va., for getting the bill through his committee in the fall. “It is unfortunate that since then, no date for floor consideration has been announced,” the letter reads. “We believe the PRO Act should be brought to the House floor swiftly. It has 219 sponsors and cosponsors, including several Republicans, indicating that it would pass the House with bipartisan support. We can and should pass it now.”

The lack of movement on the PRO Act was feeding frustrations among Democrats that even with a robust majority, in a situation where passage is merely symbolic — Senate Majority Leader Mitch McConnell would never allow the bill to pass — House leadership had come up short. The caution is reminiscent of the modest approach to drug-pricing legislation that frustrated the Congressional Progressive Caucus, and is visible in the reluctance to vote on Rep. John Larson’s bill to expand Social Security benefits, which has 208 co-sponsors.

The PRO Act would represent the most comprehensive rewrite of U.S. labor law in decades. It would eliminate right-to-work laws, impose new penalties on employers who retaliate against union organizing, crack down on worker misclassification, and establish new rules so that employers cannot delay negotiating collective bargaining contracts.

In December, despite pleas from the Congressional Progressive Caucus and multiple labor unions to bring the PRO Act to a vote, House leadership focused its energies on passing Donald Trump’s new United States–Mexico–Canada trade agreement, passing a bill to lower prescription drug prices, and voting on impeachment. Rep. Mark Pocan, co-chair of the Progressive Caucus, acknowledged then that efforts to hash out labor compromises in the trade agreement meant “there’s probably some limited bandwidth” for the PRO Act. Now that the House passed the USMCA, as the trade agreement is known, in December, Democrats, including vulnerable representatives in red-leaning districts, are evidently facing even more pressure to move the legislation through.

Labor unions praised the letter Thursday afternoon.

“The PRO Act is a critical legislation that will empower America’s working people by allowing us to join a union without fear or intimidation and collectively bargain for a fair return on our work,” said AFL-CIO President Richard Trumka in a statement. “At a time when working people are on the rise and fighting for justice and equality, it is vital that this bill is brought to the House floor and passed without any further delay.”

Tom Conway, the international president of the United Steelworkers union, said in a statement: “Rep. Golden and other advocates of the bill should be commended for their continuing effort to ensure all workers have a stronger voice in the workplace.”

A Small Chicago Firm Has Quietly Funded Nearly Two Dozen Anti-Union Lawsuits

Originally published in The Intercept on December 23, 2019.

A lawyer who filed 21 class-action lawsuits against unions over the last two years has previously said that his lawsuits were not part of any concerted effort to target public-sector unions and that “the idea to bring these lawsuits was entirely my own.” It turns out, however, that his lawsuits are backed by a small finance litigation firm in Chicago, according to a court filing that has not been previously reported. The firm, Juris Capital, is in the business of bankrolling litigation upfront, making bets that it will enjoy an ample cut of a plaintiff’s proceeds.

Attorney Jonathan Mitchell filed his lawsuits in New York, New Jersey, Pennsylvania, Minnesota, Maryland, California, and Washington state in the weeks and months before the Supreme Court issued its decision in Janus v. AFCSME, a case that significantly weakened public-sector unions.

In its landmark Janus ruling, the Supreme Court said in June 2018 that public-sector unions cannot collect fees from workers who do not wish to be union members. The court deemed unconstitutional a longstanding practice of unions charging so-called agency fees to workers who did not opt to join a union but benefited from its bargaining nonetheless.

Mitchell’s litigation seeks hundreds of millions of dollars in retroactive payments from public-sector unions, refunds on behalf of workers ideologically opposed to ever having paid any union agency fees. Most states have two- to three-year statutes of limitations on these kinds of suits, while Minnesota’s goes back six years. In the immediate aftermath of the Janus decision, conservative legal foundations — including the Pacific Legal Foundation, the Buckeye Institute, and the National Right to Work Legal Defense Foundation — also filed similar lawsuits.

At the time of his initial court filings, Mitchell also had a pending nomination by President Donald Trump to serve as chair of the Administrative Conference of the United States, a federal agency dedicated to improving government administration. Tapping Mitchell, a former visiting professor at Stanford Law School and before that the Texas solicitor general, to lead the nonpartisan agency rankled some, as he had a long conservative legal record. (Mitchell’s nomination, which was not approved by the full Senate, was returned to the White House at the end of the last Congress, and he was not renominated this year.)

Mitchell’s law firm that brought the anti-union lawsuits, Mitchell Law PLLC, was registered in June 2018 — the same month as the Janus ruling. A month later, Noam Scheiber of the New York Times looked at Mitchell’s involvement in the lawsuits, writing that it suggested “a well-coordinated effort.” Mitchell declined Scheiber’s request to discuss the matter, citing his pending nomination “and my desire not to draw attention to the lawsuits.” Nobody knew who funded the work of Mitchell Law.

Not for lack of trying. Also in July 2018, Sen. Sheldon Whitehouse, D-R.I., who sits on the Senate Judiciary Committee, sent a letter to Mitchell, expressing his concern that the lawyer might be part of the same “coordinated, covert, and well-funded” effort to crush public-sector unions that led to the Janus ruling. Whitehouse requested, among other things, a list of all “persons or entities that have provided funding for or have a financial interest, including contingency interests” in the outcome of his post-Janus lawsuits, as well as details on how he identified plaintiffs for his suits.

In his response letter, Mitchell wrote that he “can assure you that I am not part of any ‘campaign’ or coordinated effort to litigate against public employee unions.” He claimed that the idea to “bring these lawsuits was entirely my own, and it was not made in conjunction or coordination with the Janus litigants or any of the entities that you mention in your letter.” He declined to share who was funding the litigation, citing attorney-client and “attorney-work product” privilege, but insisted that there was nothing covert about his efforts.

Thirteen months later, Mitchell had to file a rare disclosure form, providing information about his lawsuits that he’d never before had to share publicly. This was thanks to a rule in the U.S. District Court for the Northern District of California that requires mandatory disclosure of third-party funding agreements for class-action lawsuits.

In a filing dated August 13, 2019, Mitchell disclosed that “Juris Capital LLC has provided a non-recourse loan” to his law firm and that the “loan is to be repaid with the proceeds that Michell Law PLLC receives from any of the approximately 20 class-action lawsuits that the firm has brought against public-sector unions in the wake of Janus, including this case.” In sum, he concluded, “Juris Capital LLC therefore has a ‘financial interest in the subject matter in controversy.’”

Reached by phone, Mitchell declined to comment.

JURIS CAPITAL IS a decade-old privately held litigation finance firm incorporated in Chicago. Headed by David Desser, a self-described “pioneer in the commercial litigation finance industry,” Juris is one of just a few litigation finance firms in the U.S that provide upfront funding for pending litigation and take a cut of the plaintiff’s settlement or jury award. Desser once told the New York Times that overall, “our returns are well in excess of 20 percent per year” and that “we’re certainly beating the market.” While Juris is not required to identify its funders, media reports have previously described it as “backed by two hedge funds” and “a group of dedicated investors.”

Randi Weingarten, president of the American Federation of Teachers, blasted Juris for hiding its donors.

“While labor unions are forced to publicly disclose nearly every financial transaction they make, those plotting our demise hide behind front groups to plow dark money into bad-faith lawsuits that tie up union resources and hurt working people,” she told The Intercept. “It’s well past time that Juris is exposed for what it is: a dark-money vehicle trying to deny workers a voice at work and in our democracy.”

The AFT lost 84,500 agency-fee payers immediately after the Janus ruling, though it added another 88,000 members between November 2017 and November 2018. Many conservative groups have been running campaigns since June 2018 encouraging public-sector union members to disaffiliate altogether.

In many ways, the cases being filed against public-sector unions appear quite unusual compared to the kinds of cases Juris and other finance litigation firms typically invest in. Generally finance litigation firms look for low-profile cases, in which the chances of winning or settling are high, so as to prioritize quick, reliable returns.

In 2010, Desser described his firm’s approach like this: “We are cherry-picking the absolute best cases with a fact pattern that we can deconstruct. We’re not interested in winning 1 out of 10 like in the venture capital world, where you look for that home run. … We want to win 7 out of 10, with doubles or triples on our money.” Desser did not return The Intercept’s requests for comment.

So far, the wave of post-Janus lawsuits, both those led by Mitchell and those led by conservative legal foundations, have not yet proved successful, as trial courts across the country have unanimously accepted unions’ arguments in roughly 25 cases that they were acting in good faith prior to Janus and therefore, should not be held responsible for funding the agency fees charged prior to last year’s Supreme Court decision. In some cases though, unions have settled rather than take all the legal challenges through court. A spokesperson for the National Right to Work Foundation told Bloomberg Law in late November that the organization has settled 10 cases and recovered tens of thousands of dollars in agency fees.

While unions have so far had success in the lower courts, the post-Janus litigation is now moving onto the appellate level, where their fortunes could change. In November, the U.S. Court of Appeals for the 7th Circuit became the first federal appeals court to endorse this “good-faith” argument in favor of unions, but six more appellate courts are set to decide on the issue soon. As Robert Iafolla noted recently in Bloomberg Law, “A single circuit ruling that rejects [this argument] would create a split that may pave the way for the issue to reach the Supreme Court.”

“I think in most cases, a finance litigation firm’s hope would be to not go to the Supreme Court, as that means it would be a case that is getting dragged on for years and years,” said Charles Agee, founder and CEO of Westfleet Advisors, a finance litigation consulting firm. “I think most litigation funders hope their cases settle before going to trial.”

Another possibility — though this, too, would be unusual — is that the lawsuits are being waged primarily to drain union coffers in defense. “Juris and others know that if you entangle unions in endless litigation, you can begin to starve our resources,” Weingarten of the AFT said. From this perspective, it’s a win-win for the plaintiffs — either they win and the investors take home profits, or they lose but the unions are still on the hook for hundreds of thousands of dollars in legal defense fees. One example lawyers point to of this sort of strategy is billionaire investor Peter Thiel backing a series of lawsuits against Gawker Media, including a case brought by Hulk Hogan, which ultimately bankrupted the company. Thiel described his investments as “one of my greater philanthropic things that I’ve done.”

Gary Chodes, who has worked in the litigation finance world for the last 15 years, told The Intercept that it would be really difficult to find out who was funding the post-Janus cases, though he has indeed seen some “politically oriented” lawsuits over the years. For example, he said, conservative-leaning think tanks supported Texas ranchers in lawsuits in which local governments used eminent domain to take away cattle ranchers’ water rights.

“Are those cases that will generate a lot of interest from the legal funding industry? No, they’re probably not economical winners,” he said. “But they’re important philosophical battles.”

Will Baude, a libertarian law professor who defended union agency fees as constitutional, told the New York Times that he would expect the Supreme Court to be less sympathetic to “good-faith” defenses than lower courts. “If I were the unions, I’d be really nervous,” he said.

Some of the post-Janus cases are also challenging the legal principle of exclusive representation, in which a union represents all workers in a unit if a majority of the unit endorses it. The majority rule principle is written into the National Labor Relations Act, and Catherine Fisk, an expert on labor law at the University of California, Berkeley told The Intercept that it would be “an extraordinary feat of judicial activism” if the Supreme Court struck that down.

Scott Barton, a spokesperson for Pacific Legal Foundation, told The Intercept that the law firm filed one post-Janus case in California this past summer but “have had no involvement with Jonathan Mitchell or his cases.” Lisa Gates, a spokesperson for the Buckeye Institute, told The Intercept that the think tank is involved in four cases (two in Ohio, one in Minnesota, and one in Maine) and “are not working with Jonathan Mitchell on any cases.” A spokesperson from the National Right to Work Legal Defense Foundation did not return requests for comment, though Mitchell told Whitehouse in 2018 that he was not working with them.

Asked about Juris Capital and whether he believes that Mitchell was sufficiently forthright during his nomination process, Whitehouse told The Intercept, “Jonathan Mitchell has a thriving anti-union law practice that appears to be an arm of the corporate donor campaign that gave us Janus v. AFSCME. The corporate interests behind that anti-worker campaign don’t want the public to see what they’re up to, but nominees for important federal posts need to tell the truth to Congress.”

Why Environmental Groups Are Urging Congress to Vote Against Trump’s North American Trade Deal

Originally published in In These Times on December 16, 2019.

While Congressional Democrats made clear that they would not bring the United States-Mexico-Canada Agreement (USMCA) to a vote until it had the backing of the AFL-CIO, support they finally secured last week, Democrats appear comfortable voting on the replacement trade deal that has virtually no support from leading environmental groups.

A House vote could come in the next few days and on Friday December 13, ten environmental organizations, representing 12 million members, sent a letter urging Congressional representatives to vote against the proposed deal, which will replace the 25-year-old North American Free Trade Agreement (NAFTA).

“This final deal poses very real threats to our climate and communities and ignores nearly all of the fundamental environmental fixes consistently outlined by the environmental community,” the letter stated. The groups—which include the Sierra Club, Greenpeace and 350.org—noted that “the deal does not even mention climate change, fails to adequately address toxic pollution, includes weak environmental standards and an even weaker enforcement mechanism, supports fossil fuels, and allows oil and gas corporations to challenge climate and environmental protections.” The groups link to a two-page analysis produced by the Sierra Club that goes into greater detail about what the group sees as the deal’s environmental shortcomings.

House Democrats, meanwhile, have been touting the environmental provisions negotiated in USMCA, insisting they’re both strong and the best they could have feasibly achieved.

According to the environmental news organization E&E News, at a Politico event last week, House Speaker Nancy Pelosi described the USMCA as “substantially better” than NAFTA and said “we are very pleased with the environment [provisions].” While she conceded “we want more,” she stressed, “but we don’t have to do it all in that bill” and praised it for “talk[ing] about the environment in a very strong way.”

Rep. Suzanne Bonamici (D-Ore.), who co-led the House working group focused on environmental trade issues, told reporters at a press conference last week that “this is going to be the best trade agreement for the environment” and cheered its monitoring and enforcement provisions. Rep. Bonamici did not return In These Times’s request for comment.

Back in May, every Democrat on the House Ways and Means Committee, chaired by Rep. Richard Neal (D-Mass.), sent a letter to President Trump criticizing the draft agreement for its language around the environment, including its lack of “any apparent provisions directed at mitigating the effects of climate change.” Now the Committee is championing its work to shape the final text, saying the “revised version will serve as a model for future U.S. trade agreements.”

Having so many members of Congress support this agreement is especially frustrating for climate advocates because, in September, more than 110 House Democrats, including 18 full committee chairs, sent a letter to the president urging the new trade deal to “meaningfully address climate change” and to “include binding climate standards and be paired with a decision for the United States to remain in the Paris Climate Agreement.”

“While Democrats claim this deal improves on some environmental provisions, they have yet to explain how it meaningfully addresses climate change,” said Jake Schmidt, the managing director for the International Program at the Natural Resources Defense Council.

Climate advocates point to the growing problem of “outsourced” pollution—where wealthier countries like the United States and Japan take credit for improving their own domestic environmental standards, while then importing more goods from heavy-polluting countries. Critics say the current draft of USMCA does nothing meaningful to address this problem.

The trade agreement is being hailed for rolling back the Investor-State Dispute Settlement, controversial private tribunals that have enabled corporations to extract huge payments for government policies that may infringe on their profits. But Ben Beachy, a trade expert with the Sierra Club, says the agreement includes a major loophole for Mexico, where oil and gas companies will still be able to sue in those private tribunals.

“The approach the NAFTA 2.0 deal takes is recognizing there’s a problem but then allowing some of the worst offenders to perpetuate it,” he told In These Times. “It’s an unabashed handout to Exxon and Chevron: It’s like saying we’ll protect the hen house by keeping all animals out, except for foxes.”

Beachy says the deal overall “dramatically undercuts” the ability of the U.S. to tackle the climate crisis. “By failing to even mention climate change, it’ll help more corporations move to Mexico, and this is not a hypothetical concern,” he said. “We cannot simultaneously claim to fight climate change on one hand and enact climate-denying trade deals on the other. Do we really want to lock ourselves into a trade deal for another 25 years that encourages corporations to shift their pollution from one country to another?”

Karen Hansen-Kuhn, the program director at the Institute for Agriculture and Trade Policy, told In These Times the final agreement represents an even worse situation for farmers than under NAFTA. “On food and farm issues it’s definitely several steps back,” she said, pointing as an example to how USMCA will make it easier for companies to limit the information they provide to consumers about health and nutrition.

Emily Samsel, a spokesperson with the League of Conservation Voters (LCV), told In These Times that her organization informed members of Congress “that [they] are strongly considering scoring their USMCA vote when it comes to the House floor on LCV’s Congressional scorecard.” LCV was one of the ten environmental groups to sign the letter opposing the trade deal last week.

USMCA does include language requiring parties to adopt and implement seven multilateral environmental agreements, but the 2015 Paris Agreement is not among them. Getting the president to agree to putting anything about climate change or the Paris Agreement was always going to be a tough sell, considering Trump has promised to withdraw from the landmark climate pact. Still, environmental advocates insist House Democrats have real leverage that they should use more aggressively, particularly since getting the trade deal through Congress is Trump’s top legislative priority for 2019.

Democratic supporters of USMCA say the existing language is good enough for now, and that it will position the government well for when Trump is out of office. A spokesperson for Nancy Pelosi told The Washington Post that “the changes Democrats secured in USMCA put us on a firm footing for action when we have a President who brings us back into the Paris accord.” Earlier this year 228 House Democrats voted for a bill to keep the U.S. in the Paris Agreement.

U.S. labor groups have thus far remained mostly silent on the concerns raised by environmental organizations.

The International Association of Machinists and Aerospace Workers, which opposes the deal on labor grounds, did not return request for comment on the USMCA’s environmental provisions. The Communications Workers of America released a statement on Friday saying the deal includes some “modest improvements” for workers over NAFTA, but a spokesperson for the union told In These Times, “We don’t have any comment on the environmental provisions.” The BlueGreen Alliance, a national coalition which includes eight large labor unions and six influential environmental groups, has issued no statement on the trade deal, and did not return request for comment.

And the AFL-CIO issued a statement last week praising the deal, though noted “it alone is not a solution for outsourcing, inequality or climate change.” A spokesperson for the labor federation did not return request for comment.

Baltimore Leads a City-Based Movement for Water Justice

Originally published in The American Prospect on December 4, 2019.

Baltimore, Maryland, is on the verge of passing a landmark water bill, which would set a new water affordability standard in the United States. The Water Accountability and Equity Act, as it is known, would cap water bills for low-income residents at 3 percent of household income, provide a more reliable pathway out of water debt, and establish a new office to help resolve customer billing disputes.

The bill was introduced last December by City Council President Jack Young. Young is now serving as mayor, after Baltimore’s previous mayor Catherine Pugh resigned in the wake of a corruption scandal, and he’s said he’s eager to sign the popular legislation into law.

Philadelphia passed similar legislation in 2015. Philadelphia residents earning up to 150 percent of the poverty line are eligible for the city’s billing discount, while Baltimore’s legislation applies to those earning up to 200 percent. Chicago Mayor Lori Lightfoot recently expressed support for an income-based water billing program in her city, and Detroit lawmakers may also follow suit.

When politicians discuss upgrading the nation’s crumbling infrastructure, attention is generally paid to roads, bridges, and tunnels. Water systems, despite their often deteriorating condition, tend to remain out of sight, out of mind. But the costs to repair them are formidable, not to mention the unprecedented strain that climate change has wrought on the nation’s sewage and water infrastructure. And as federal water regulations have grown stronger—without commensurate federal investment—that too comes with additional expense.

In Baltimore, as in many older cities, water rates have grown much faster than household income. The higher rates are intended to help finance needed infrastructure improvements to the city’s aging water and sewage systems. Advocates point to a standard set by the United Nations, which stipulates that water bills should not exceed 3 percent of a household’s income if they are to be considered affordable. With an average monthly water bill of $79.26 in 2018, many Baltimore residents paid well over 3 percent.

“Communities of color often have higher water burdens, which is driven both because their water bills are higher or high, and because their incomes are lower,” says Mary Grant, the Public Water for All Campaign Director at Food & Water Watch.

In May, the NAACP Legal Defense and Educational Fund published a study reporting that from 2010 to 2018, the cost of water in Baltimore increased by 127 percent. From 2014 to 2018 alone, annual Baltimore bills for water and wastewater service jumped 37 percent, from an average of $517.26 annually to $787.58. And the increases aren’t over yet. At the beginning of 2019, Baltimore approved yet another 30 percent increase over the next three years.

As rates have gone up, so has debt owed by water customers. According to a study published by an independent utility consultant in 2017, the number of neighborhoods in Baltimore where water bills are considered unaffordable has dramatically spiked across the city. Low-income households in more than half the city were projected to pay more than 10 percent of their income on water and sewer bills by 2020.

“Water has been a huge problem in the city for years, it is the thing that elected officials hear from constituents about the most,” says Molly Amster, the director of Baltimore Jews United for Justice, which supported the legislation. “It’s been so bad, so terribly mismanaged.”

In 2018, Baltimore became the first major city to pass legislation banning the privatization of the city’s water system. More than 77 percent of voters approved a charter amendment that declared Baltimore’s water system to be a permanent, inalienable asset of the city. Corporations had long sought to take control of the city’s water, and one company named Suez had recently been lobbying for a 50-year lease. City leaders can be tempted into selling off water systems and other public infrastructure by the prospect of a cash infusion that can paper over other funding needs.

Selling off all or some of Baltimore’s system would only exacerbate the water affordability crisis, advocates argued. A 2016 survey conducted by Food & Water Watch found that privately owned water systems charged 59 percent more than large publicly owned ones.

The idea for a new office to address consumer disputes as part of the Water Accountability and Equity Act was conceived of because customers have been subject to so many water billing mistakes, which sometimes amount to hundreds and thousands of dollars in erroneous charges. In 2018, for example, hundreds of Baltimoreans received bills of over $50,000. In 2012, the city had to refund nearly $9 million it overcharged residents and companies for water bills. Getting those mistakes corrected has proven to be a byzantine nightmare for many residents.

While advocates for the bill wanted the new Office of Water Customer Advocacy and Appeals to be completely independent from the city’s Department of Public Works, in the end local lawmakers decided that the new office would be housed within the existing public works agency. The goal is for the new office to take responsibility for handling water billing problems; prevent them from happening in the first place; and offer guidance on water rules, regulations, and policies.

The main opposition advocates faced was from the Department of Public Works, which initially resisted the legislation entirely and then unsuccessfully tried to water it down with last-minute amendments.

“Our only opposition to the bill was the Department of Public Works, which to put it bluntly didn’t see it as their responsibility to address this crisis and didn’t want to be legislated,” says Grant of Food & Water Watch. “We tried to meet with them for over two years, to try and bring them along and find common ground, but every time we tried reaching out we were met with resistance.” A spokesperson for the agency told The Baltimore Sun in late October it would no longer oppose the water billing reforms.

Though water costs for residents and local governments have gone up, federal support has gone down. An analysis from the Value of Water Campaign found combined federal investment in drinking water and wastewater infrastructure declined from 63 percent of total capital spending in 1977 to 9 percent today. One study published in 2017 estimated that the cost of water could rise by 41 percent over the next five years, with the percentage of U.S. households with unaffordable water bills potentially tripling.

To address the crisis on the federal level, advocates are organizing around a bill, the Water Affordability, Transparency, Equity, and Reliability Act of 2019. This legislation would dedicate $35 billion for water infrastructure improvements across the country, and was introduced by U.S Senator Bernie Sanders in the Senate, and Representatives Brenda Lawrence and Ro Khanna in the House. It would be paid for by rolling back some of the Trump administration’s tax cuts.

While local bills like Baltimore’s can help provide much-needed immediate relief to struggling residents, advocates know they will not really be able to tackle the crisis without federal action.

Environmental Activists Target Exxon’s Lead Attorney In Climate Liability Case, A Prominent Democratic Donor

Originally published in The Intercept on December 12, 2019.

The lawyer who defended Exxon Mobil against a lawsuit brought by New York’s attorney general accusing the oil giant of misleading investors on climate change is a prominent Democratic donor who has given more than half a million dollars to Democrats over the last 30 years.

Ted Wells Jr., a partner and co-chair of the litigation department at the New York firm Paul, Weiss, was Exxon’s lead attorney in the case that concluded on Tuesday, when a New York State Supreme Court judge ruled that the attorney general failed to show that the oil company broke the law.

The high-profile Exxon lawsuit is one of more than a dozen cases brought by state and local governments against fossil fuel companies, with plaintiffs seeking to hold corporations financially liable for their role in perpetuating the climate crisis — and just the second of these cases to go to trial. Over the last few months, students at Harvard Law School have been mobilizing around Wells’s involvement in the Exxon lawsuit, as he is one of the 13 members of the Harvard Corporation, which consults with the university president to decide whether to pursue fossil fuel divestment. A university spokesperson told the Harvard Crimson that Wells recused himself from discussions or votes on divestment once he began representing the oil company. Wells did not return requests for comment.

“By sitting on this board, Ted Wells can provide cover, and does provide cover, for the fossil fuel industry,” said Isa Flores-Jones, a recent Harvard graduate who is now active with the Sunrise Movement.

Attorneys like Wells and their law firms that represent fossil fuel interests while also contributing to Democrats and other liberal causes have been drawing increasing scrutiny from environmental activists who are calling on the Democratic Party to distance itself from the fossil fuel industry, either by swearing off donations from executives and lobbyists or by divesting from these companies.

The No Fossil Fuel Money Pledge, which launched in July 2017, is a cornerstone of that strategy. By taking the pledge, a politician and their campaign promises to not knowingly accept any contribution over $200 from the political action committees, lobbyists, or Securities and Exchange Commission-named executives of fossil fuel companies.

“We are targeting the very top people at a company, the top donors,” said Collin Rees, a senior campaigner at the climate advocacy group Oil Change International. “We firmly believe that the symbolic act of taking the pledge and publicly saying no is one of the real pieces we need. It changes your policy view and starts to change the political calculus to make [fossil fuels] less socially acceptable.” Lawyers who represent fossil fuel companies are not currently included in the pledge.

Beyond Wells, students have been thinking about how to pressure liberal firms that entangle themselves in the climate crisis. “We’re putting a plan together to organize around when these firms come to campus to recruit early next year,” said Aaron Regunberg, a Harvard law school student.

Kurt Walters, another Harvard law school student involved with these organizing efforts, said it was a surprise for him when he arrived on campus to see how taboo it was to criticize people for who they take on as legal clients.

“It’s been pretty shocking to me the way it’s all been so dominated by respectability politics, where criticizing people for doing bad things is seen as inappropriate,” he said. “Part of it is people who want to believe that going to a firm where you can make $190,000 in a year can still be somehow acceptable.”

Environmental activists’ push to get politicians to refuse money from the fossil fuel industry is rooted in recent political science research that found that the more congressional staff met with oil and gas groups, the more likely they were to underestimate public support for climate action. And the more financial contributions politicians received from the fossil fuel lobby, the less those politicians believed that the public really wanted to see bold change.

In the 2020 campaign, all Democratic presidential candidates have signed on to the No Fossil Fuel Money Pledge with the exception of the recent entrants, Deval Patrick and Michael Bloomberg.

Despite this traction, the Democratic National Committee has continued to resist pressure from activists over banning corporate donations from oil and gas. In June 2018, the national party committee passed a resolution pledging to reject campaign contributions from the fossil fuel industry, yet two months later, it effectively reversed course, passing a new resolution inviting contributions from not just fossil fuel workers, but also “their unions’ or employers’ political action committees.” While the second resolution was cast as a labor-friendly measure, activists noted that energy workers and their unions had been free to donate to Democrats under the first proposal.

Beyond organizing resistance to fossil fuel industry leaders, activists have begun paying closer attention to individuals and institutions with ties to the fossil fuel industry, even if they don’t work directly within the industry itself. These advocates have been urging leaders to be similarly suspicious of how corporate and financial connections to fossil fuels may distort or influence political decision-making.

For example, in September on the campaign trail, a 24-year-old activist with the Sunrise Movement asked Joe Biden in Iowa about his climate adviser, Heather Zichal, who earned $1 million from serving on the board of liquified natural gas company, Cheniere Energy. (Biden patted the Sunrise activist’s hand, ignored her question, and said, “Thank you for being … for admiring me so much.”)

And then there are the attorneys like Wells, who donated $100,000 to Priorities USA Action, the top Democratic Super PAC in 2012, and has given more than $135,000 to the DNC over the last three decades. His law firm, Paul, Weiss, similarly donated $1.9 million to Democratic candidates in the 2018 cycle and has already donated over $740,000 this cycle.

During a nearly three-week civil trial in November, Wells defended Exxon against New York’s claims that the company had misled shareholders by hiding pertinent information about how it was managing the risk of climate change and environmental regulations. In the 55-page opinion issued Thursday, New York State Supreme Court Justice Barry Ostrager accepted Wells and co-counsel’s arguments that Exxon had sufficiently developed a method for dealing with future climate change costs and that its statements to shareholders about those future costs were not deceptive. The judge called the attorney general’s securities fraud complaint against Exxon “hyperbolic” and said that while nothing in his judgment is meant to absolve Exxon of responsibility for contributing to climate change, the AG failed to prove that the oil company “made any material representations [to shareholders] that would have been viewed by a reasonable investor as having significantly altered the ‘total mix’ of information available.”

The lead attorney for Chevron in another spate of recent climate liability lawsuits, Theodore J. Boutrous Jr., is also a prominent Democratic donor. A partner in the Los Angeles office of Gibson, Dunn & Crutcher, Boutrous also regularly represents media organizations and reporters in First Amendment cases and has recently been representing Deferred Action for Childhood Arrivals recipients on a pro bono legal team.

In an interview with The Intercept, Boutrous defended his Chevron representation. “It’s very easy for me to fight these lawsuits tooth and nail because I think they’re counterproductive and just make no sense from a policy standpoint and legal perspective,” he said, adding that it’s not “a proper use of lawsuits to bring cases that are completely baseless as a platform to debate public issues; that’s not really what we should be using the courts for.”

Boutrous has given tens of thousands of dollars to Democratic candidates and causes, but argued that political contributions have exaggerated influence on policymaking. Echoing a position shared by many prominent Democratic leaders, he said that taking a hard line against fossil fuel companies could interfere with making progress on tackling the climate crisis. “The fallacy at the root of the lawsuit is that somehow punishing and singling out oil and gas companies is needed, when we need to cope with the fact that we still need this energy. And while we can look for alternative sources of energy [and] technological solutions, one of the best sources for this would be these very companies,” he said, adding that Chevron both “accepts” the Intergovernmental Panel on Climate Change’s findings and supports U.S. participation in the Paris Agreement. Advocates of partnering with energy companies point to the rapid growth of wind and solar, which has proliferated largely because it’s become profitable enough to do so.

Boutrous, who also successfully represented auto companies when California sued auto manufacturers to demand that they pay for the environmental damage caused by the emissions of their vehicles, argued at length that corporations could be held to account for being socially responsible without, as he put it, being demonized by the Democratic Party. He emphasized his commitment to tackling climate change, but raised particular criticism with Sen. Bernie Sanders, who in September said he’d consider criminally prosecuting fossil fuel executives. Boutrous called Sanders’s position “so wrongheaded.”

Despite evidence to the contrary, Boutrous also insisted that the fear of money’s corrupting influence on politics is exaggerated.

“I think it’s really overrated the influence that corporations and money have over politicians,” he said. “If you look at all the people who have the right to vote and don’t vote, and sometimes the votes are suppressed, but if you look at all those people, that is an enormous political force. So before we say it’s just money in politics that’s causing the problem, we all need to take responsibility for making sure our voices are heard. The people of the United States need to take responsibility for our country, our climate, and we need to stop blaming everything on too much money.”

The debate over how fossil fuel money influences climate policy has been playing out on college campuses like Harvard, where students have been mobilizing since 2012 to get their university to divest from companies that support fossil fuels. Increasingly, students there have been drawing attention to the fact that four members on the Harvard Corporation have ties to the fossil fuel industry. Their goal is to get the entire corporation to commit to divestment by Earth Day 2020.

Ilana Cohen, a Harvard undergraduate and leader with her campus’s divestment movement, said her group launched a semesterlong effort at the beginning of the school year to teach students about the ties of these board members. They’ve been publishing information on their website, launching social media campaigns, and hanging up posters around campus. “We’ve worked really concretely to amplify the absurdity of having the attorney for Exxon on that board,” she said.

Flores-Jones, the recent Harvard graduate, compared it to how fossil fuel companies fund various types of university research and donate large sums of money for new fancy campus buildings, sometimes even named after them.

In 2007, Harvard’s Dean of the Kennedy School of Government announced the acceptance of a five-year, $3.75 million donation from Shell to “enhance and expand University research efforts on critical issues of energy policy.” This year MIT announced that it would be renaming a building where students study climate science the “Shell Auditorium,” after the oil company donated $3 million.

“Like politicians who are cast as ‘pragmatic’ for saying we need a carbon-neutral transition by 2050, Harvard is similarly being played for a fool by these companies,” Flores-Jones said. “It’s these swinging doors of having the credibility to be able to sit on the Harvard Corporation, and be associated with Harvard, while then defending the reputations of these companies.”

Walters, the law school student, said his goal is to continue in his field what began during the fight over Brett Kavanaugh’s confirmation to the Supreme Court last year.

“Some people in the legal industry were playing by the old rules, even Democrats and people who believe sexual assault is bad,” he said. “You had them saying, ‘But this Kavanaugh guy, he’s so smart, let’s just approve him.’ Meanwhile, there were huge walkouts with hundreds of students. And so what we’re trying to do is continue to blow up that norm that says it’s more important to be friendly, than to call out people who do bad things.”

School Insecurity

Originally published in Democracy Journal on December 11, 2019.

In September, in a small school district located in the Missouri Ozarks, computer printers started mysteriously shooting out ransom letters. The pages instructed their recipients to send an email in exchange for a code, which would then show that hackers had taken control of their files. The district would have to pay up, the hackers said, to get the data back.

That same month, a small school district located in the Pocono Mountains of Northeastern Pennsylvania was hit by a different ransomware attack, forcing schools to close and the district’s 3,000 computers to shut down.

The damage from these attacks turned out to be relatively limited, but it came on the heels of bigger cybersecurity breaches this past summer, like when computers in the Syracuse City School District—one of the largest in New York—were also crippled from a ransomware attack. The school district was locked out of its own computer system, and ended up paying the hackers a $50,000 insurance premium to get back in. The same month, Louisiana’s Democratic Governor John Bel Edwards declared a state of emergency after a malware virus attacked several schools, knocking out their computers. This declaration enabled the state to pool experts and resources from the Louisiana National Guard and the Louisiana State Police, among others.

Cybersecurity attacks on schools are new, coming with increasing aggression and frequency, and schools’ ability to withstand them varies dramatically across the country. Sometimes it’s criminals looking to make easy cash or simply inspire fear—capitalizing on schools’ lack of sophisticated defenses. Sometimes it’s members of a school community carrying or causing the data breaches themselves.

The risks presented are not just mild inconveniences. Recognizing schools’ dependence on computers and Internet access, administrators have grown acutely aware that their institutions are now extremely vulnerable to lengthy closures, crippled operations, and costly litigation. According to the K12 Cybersecurity Resource Center, U.S. schools reported 122 cybersecurity incidents in 2018, resulting in the theft of millions of taxpayer dollars, stolen identities, tax fraud, and altered school records. Experts believe this figure significantly understates the real number of attacks, as many incidents are not even reported publicly.

“Is it as bad as it sounds?” said Lee McKnight, a cybersecurity expert and professor in the School of Information Studies at Syracuse University. “It’s worse. It’s a complete mess, and anyone in IT who hasn’t been hit is not sleeping well because they know there’s a target on their backs.”

While the available data is not great, experts know the problems have grown even more severe in the last twelve months. Doug Levin, president of EdTech Strategies, and author of the K12 Cybersecurity Resource Center report, told me when I spoke to him in September that he’s already tracked more than twice as many incidents this year as compared to 2018, with a particular increase in third-party vendor breaches and a spike in ransomware attacks.

When it comes to the risk of a mass shooting in school, politicians and the media have been known to greatly exaggerate the chances of future attacks. Despite the wall-to-wall panicked coverage, particularly following the horrific Parkland, Florida massacre in 2018, a study released this year from the U.S. Centers for Disease Control and Prevention found multiple-victim school shootings are still extremely rare events, accounting for less than 2 percent of all youth homicides in the country.

But that’s not the case with school cybersecurity attacks.

Amelia Vance, director of the Education Privacy Project at the Future of Privacy Forum, a D.C.-based think tank, agrees the “risk is definitely not exaggerated.”

Vance started working on student privacy issues about six years ago, and says she observed a real shift in the school cybersecurity conversation around fall 2017, when rural school districts in Iowa, Montana, Texas, and Alabama were all attacked by an international cyberhacking organization called The Dark Overlord. A few months earlier The Dark Overlord earned national attention for releasing forthcoming episodes of “Orange Is The New Black,” a popular Netflix show, after Netflix refused to pay their ransom demand. The Dark Overlord took to Twitter after this incident to suggest other television networks would face similar fates. “Oh, what fun we’re all going to have,” it wrote.

By autumn, the international cybercriminals had moved on to public schools. Parents in the Johnston Community School District in Iowa suddenly began receiving threatening text messages, sent by the hackers who had stolen student data. Examples of texts included “I’m going to kill some kids at your son’s high school” and “Your child is still so innocent. Don’t have anyone look outside.” Other texts sent to the parents went further, citing their children by name and school.

Nobody knew who was behind this harassment at first, and the Johnston school district shut down the following day. One day after that The Dark Overlord claimed responsibility for the attack on Twitter, and dumped student names, addresses, and telephone numbers online so as to make it easy for “any child predator to easily acquire new targets,” they claimed. The data had been compromised by a third-party vendor that worked with the school district.

Around the same time in Montana, more than 30 schools in the Columbia Falls School District closed after data was stolen, with parents again receiving graphic threats on their phones. The hackers demanded $150,000 in bitcoin in a seven-page ransom letter, and told a local reporter that they attacked the school district to rouse fear and make the government look bad. “The quaint, small, backwoods region of the US like yours is prime hunting grounds,” The Dark Overlord said. “This incident is the last thing you will expect to happen here.”

Their motivation for this particular attack appeared, in part, to be an effort to punish the FBI. “We’re escalating the intensity of our strategy in response to the FBI’s persistence in persuading clients away from us,” a Dark Overlord hacker told the Daily Beast at the time.

Like in physical kidnappings, the FBI discourages schools and other institutions from paying ransom in response to cyberattacks, noting it’s no guarantee an organization will even get its data back, and it can embolden other criminals to target more places. But sometimes school districts feel they have no choice but to pay up in order to resume operations.

Levin of EdTech Strategies has worked in education technology for upwards of the last 25 years, doing jobs like helping connect schools to the Internet, developing digital textbooks and tests, and serving as executive director of the State Educational Technology Directors Association, which represents technologists working in state education agencies. “Cybersecurity never came up,” says Levin. “in the 1990s and 2000s, not at all.”

“I used to talk to superintendents and they’d say, ‘All we have is student names and email addresses, and how children scored on this quiz, nobody cares about that information,’” added Vance.

“They’d think because they didn’t have credit card numbers, or Social Security numbers, nobody would try and steal it. That attitude has changed dramatically.”

Keith Krueger, the CEO of the Consortium for School Networking, a national nonprofit that represents technology leaders working in U.S. public schools, agrees. “We’ve administered a national survey to district technology leaders for the last seven years and cybersecurity was never on the list of top priorities,” he tells me. “About three years ago it became a number 3 priority, last year it became number 2 priority, and this year it was the number one stated priority.” For people in charge of technology in schools, Krueger stressed, “Cybersecurity has become front and center, and is no longer seen as something we should maybe do, but something we have to address.”

Levin started noticing more local news stories about school cyberattacks near the end of 2016—stories like hackers posing as superintendents and sending phishing emails to business office staff. The fake superintendents would claim there had been an emergency and that they needed to be sent a PDF of all the school employees’ W-2s as fast as possible.

Levin grew more curious, and soon he realized there was no comprehensive data available on how common these attacks actually were. He started to compile the incidents he could find in the news and other public sources, and today he manages an interactive map of nearly 700 reported cybersecurity-related incidents dating back to January 2016.

While international cybercriminals tend to generate headlines, unknown actors cyberhacking for malicious purposes actually comprised just about a quarter of all the data breaches Levin tracked. By contrast, in 2018, he found that just over half of all digital data breach incidents in public schools were directly carried out or caused by members of staff or students in the affected schools.

“Mostly when staff are involved it’s because they made a mistake, but occasionally it’s because they have an axe to grind, like sometimes you have disgruntled employees who were fired so they release or take data they shouldn’t,” he says. “Sometimes you have more sophisticated hacking from students, who break in to access, review or change student records.”

Levin thinks what he has tracked is much lower than the actual number. Local news coverage has declined dramatically, and even if school districts report an incident to a state agency, that doesn’t mean that incident is ever reported publicly. In North Carolina, for example, Levin noticed that the state’s Department of Justice had released a report on 2017 data breaches and its figure was ten times greater than what he had counted in the news. But when Levin’s colleague filed a Freedom of Information Request to learn about the other incidents, they were largely stonewalled.

In the last two years, Illinois, Texas, and Missouri have passed laws requiring states to notify parents if there has been a school data breach, but most states don’t have such disclosure mandates.

Despite a growing recognition that cybersecurity is a real issue, addressing cybersecurity concerns is not so easy—particularly for strapped, small school districts.

“If you look at this issue over time, hospitals were getting hit by ransomware several years ago,” said McKnight of Syracuse University. “You don’t hear about that so much anymore. You know who has money to improve their security systems and has the funds to hire and train staff? Hospitals.”

Schools, by contrast, are typically much more constrained in how they can afford to respond. This basic reality is also what makes schools such easy targets for hackers looking to make a quick buck, even if schools may be less likely to have the kind of credit card information that cybercriminals typically go for. “School districts are often a city’s largest employer, and many times they lack technical expertise while managing a lot of staff and data,” said Krueger. “In a lot of ways schools are just low-hanging fruit,” adds Vance.

The challenges are particularly acute for smaller districts, most of which lack the funds to hire an individual or a team of experts dedicated to cybersecurity. Nearly two-thirds of U.S. school districts serve fewer than 2,500 students.

Another challenge is simply getting tiny, rural districts to accept that they, too, could be attacked. “Why this little school in Akron, Ohio?” asked Kelly Kendrick, the technology director for the Coventry Local School District, after its schools closed in May due to a malware virus. “It has really opened my eyes to how data of any kind is marketable, sellable.”

This realization Kendrick describes is key, Vance agrees. Yes, a criminal might not be able to run off with your bank account information if they hack a school district server, but “a lot of information is private because we don’t want our neighbors to know it,” she said. “Like maybe I don’t want my friends to know that I have trouble reading, or back in the second grade I slapped someone.”

Could part of the problem be that schools just have too much data? Is our data-driven policy culture leaving schools overly and unduly exposed?

It’s certainly true that schools, under real pressure to be innovative and forward-thinking, often adopt new education technology tools that some families fear are too invasive, or too vulnerable to hacking. For example, some schools use e-Hallpass, which digitally tracks student visits to the bathroom, the nurse’s office, and elsewhere. The company emphasizes that it is a more sanitary and efficient way to administer hall passes, that it is committed to student privacy and does not use GPS or other locating tracking services. But those assurances haven’t put everyone at ease.

Some parents have been organizing across the country to stop states from sharing personal student data with for-profit data-mining vendors. The Parent Coalition for Student Privacy was founded in 2014 by two parents in New York and Colorado, and advocates have since written letters to Congress to strengthen federal student privacy rights, disseminated resources to parents, and developed student privacy principles for schools, education agencies, and third-party vendors.

Yet while student privacy concerns around ed tech tools add more complexity to the cybersecurity situation, experts say they are overlapping but distinct issues. Even with strong student privacy laws and enforcement, and even if schools cut down or eliminated the use of apps that store chat logs and other student data, school districts would still have serious cybersecurity concerns to deal with.

“I don’t think it’s an issue of collecting too much information,” says Eva Vincze, a faculty member in the cybersecurity and police and security studies programs at George Washington University. “It really just goes back to that issue of people thinking we’re not big enough for anyone to care about us, because we’re small.”

That’s not to say there aren’t safer measures schools can take with the data they collect. Cybersecurity experts like McKnight say there should be basic “cyber hygiene” such as data backups and storing information on cloud servers.

“Data collection is important, but schools should only be collecting the information that they need to answer particular questions, and some of that is mandated by federal law,” says Vance. “Basically schools should figure out what data is so sensitive that they shouldn’t have it at all, figure out at what point data should be deleted, and figure out who in a district should have access to what information.”

Another challenge is figuring out how to get the right advice. It’s not easy for districts to attract and retain skilled cybersecurity experts, since those professionals can usually earn much more money out in the private sector. “It’s not unusual for technology leaders to cut their teeth in education and then go get a better paying job elsewhere,” said Levin.

And even if all districts did somehow find the funds to hire cybersecurity experts at top dollar, there aren’t actually enough trained people in the country to take those jobs on. “We’ll never have a Chief Technology Officer for every school district, the private sector can’t even do it,” said Levin. “It will have to be some sort of coordinated response, sort of like what Louisiana did this summer but not as an emergency.”

“Not every district needs a cybersecurity expert,” Vance agrees. “What is needed is useful resources and templates and almost like plug-and-play supports that outside organizations and the government can provide.”

Lan Jenson, CEO of Adaptable Security, a nonprofit, is trying to be part of that plug-and-play vision. She founded her organization in 2017 with the goal of helping governments, schools, and small businesses navigate cyber-threats without breaking the bank. Unlike the school IT specialist who then goes to work for the private sector, Jenson started her career handling cybersecurity for a well-heeled financial institution.

“But financial companies have major resources, and governments and small businesses and schools are left behind,” she explained. So Jenson and a group of similarly motivated experts started Adaptable Security with the hope of providing assistance to more vulnerable institutions. “A lot of these leaders have some money, but they don’t have so much money, and they are trying to figure out what it would look like if we pool our resources,” she said. “They are willing to do something bigger, something shareable, and even though they may have that vision, everyone is so busy and wears multiple hats, so they don’t have anyone to be the coordinator. We’re trying to be that.”

So far Adaptable Security is working with 12 counties and a few core cities in the Bay Area, and Jenson hopes to scale the public-private model up nationally if it proves effective. In early October, her group sponsored the second annual Cybersecurity Symposium for Smart Cities, a free-to-attend, volunteer-led conference hosted in San Jose for school districts, small businesses, nonprofits, and local governments. Last year 250 people turned out, and this year more than 500 did—reflecting the growing awareness and concern.

McKnight of Syracuse University thinks public-private partnerships are the best way to move forward, especially since federal agencies like the Department of Homeland Security are not the most popular with all communities across the country.

“We need more federal investment, but in partnership with nonprofits,” he said. “This is a democracy issue, a civil society issue. Things have to change because there’s no way every little school district will be able to do it on their own, and there’s no way to channel help from the federal level directly down everywhere—you need some new pluralistic entities to come in the middle.”

And there has been recent movement on the federal level. In the fall of 2018, Senate Minority Leader Charles Schumer called on the Department of Homeland Security to investigate the more than 50 New York school districts that were hit that year with a type of cyberattack known as Distributed Denial of Service (DDOS). These attacks caused Internet outages within schools by overloading the systems with traffic, though no information was actually released.

In June, House lawmakers passed a bill—the Department of Homeland Security Cyber Incident Response Teams Act—to establish a permanent team of security specialists that agencies could call on when their technology gets hacked. A Senate version was approved in late September. Senator Schumer, who backed the bill, also recently called on the FBI to help school districts and local governments better respond to attacks. “It’s time to hit ‘control-alt-delete’ on ransomware and take a megabyte out of hackers,” he said in a particularly corny statement.

Also in September, the Consortium for School Networking submitted public comments to the Federal Communications Commission (FCC), requesting a change to the Schools and Libraries Program, more commonly known as E-Rate. At nearly $4 billion annually, E-Rate is the biggest federal subsidy program to help public schools and libraries manage the cost of connecting to the Internet. But cybersecurity is not among the list of eligible E-Rate discounted services, and the Consortium for School Networking argues that the requirements and limitations of E-Rate heavily influence how schools then deploy basic cybersecurity tools.

The organization told the FCC that while the federal government should not be expected to cover all aspects of cybersecurity, “several simple changes to the E-Rate program would have a very profound impact on the ability of school systems to protect and defend their networks and systems from cyberattacks.” For example, the Consortium for School Networking requested an expansion in the range of firewall services that can be reimbursed through E-Rate. Right now schools can reimburse for “basic firewall” services, but that category excludes a number of features typically found under the banner of “standard firewall” services—like anti-virus and malware protection, and data loss prevention.

As school districts move forward, leaders will have to be on guard for security grifters who are looking to sell expensive, ineffective products that capitalize on communities’ growing fears.

“There will always be markets for that, and there are always security services out there to scare you or just to convince you to buy things,” says Vincze of George Washington University.

“My fear is that without real leadership support, without IT staff with capacity, these security tools will probably not be put to their best use, and will be expensive,” says Levin.

While cybersecurity experts have been stressing that the problems are serious and demand action to mitigate risk and damage—at the end of the day, they say, no school should expect to be completely risk-free.

“Bad things happen,” says Vance. “We need to be humble. If Target and Wal-mart and big credit card companies can be hacked, so can a school district.”