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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.”

On Pete Buttigieg and Charter Schools

Originally published in VICE on December 10, 2019.

On Saturday, surging Democratic presidential candidate Pete Buttigieg released his plan for K-12 education, a wide-ranging 20-page document that offers just one paragraph on charter schools.

Up to this point, Buttigieg’s comments on charters, the publicly-funded, privately-managed schools that educate about 7 percent of public school students, have been minimal. He didn’t respond to the Washington Post’s candidate questionnaire on the topic, and he missed an NEA-sponsored public education forum that ten candidates participated in in July. In April, at a Northeastern University event in Boston, he reportedly dodged a charter school question, but then responded to a follow-up by saying they “have a place” as “a laboratory for techniques that can be replicated.” In May, he said on the trail that he supported Sen. Bernie Sanders’ call to ban for-profit charters.

The problem is that charter schools have become something of a flashpoint in the 2020 primary, as many candidates have criticized them for things like taking resources away from traditional public schools and privatizing education. In doing so, these candidates have been largely distancing themselves from the pro-charter school policies embraced by the Obama administration. The media has not pressed Buttigieg much on charters, or even on public education, perhaps because he was polling relatively low for much of the race.

But Buttigieg, who is now leading in some Iowa caucus surveys, has been holding private fundraisers with a number of prominent charter school supporters, according to invitations reviewed by VICE. While his education plan was enthusiastically endorsed by American Federation of Teachers president Randi Weingarten, who has praised all the leading candidates’ education platforms, Buttigieg’s financial ties with the charter school community raise questions about what policy positions he might adopt if ultimately elected president.

Buttigieg’s plan for charters itself is relatively uncontroversial, which is to say vague. For example, he calls for “equal accountability” between charter schools and traditional public schools, though a few lines later he softens this to a more non-specific standard of “comparable levels” of accountability. While the South Bend mayor says he would “take action” against authorizing entities that produce low-quality charter schools, and that he would work with states to ensure charter school innovations “can be subsequently shared to strengthen the traditional public school system,” he doesn’t provide details on how he would do either of those things.

Notably, his plan steers clear of the Charter Schools Program (CSP), an annual pot of federal money that finances the growth of new charters across the country. Elizabeth Warren has called for an end to funding that program under her administration, and Bernie Sanders said he would put a moratorium on federal funds for new charters until a national audit could assess the impact of charter growth in each state.

(A campaign spokesperson told Chalkbeat this weekend that Buttigieg would stop CSP dollars from going directly to for-profit schools, though a 2014 federal guidance already prohibits this. The spokesperson declined to tell Chalkbeat who advised Buttigieg on his education plan, and did not respond to VICE on that question either.)

While Buttigeig’s standing in the polls has recently improved, especially in the early states of Iowa and New Hampshire, his ability to win over black voters remains a daunting stumbling block between him and the Democratic nomination. Black voters favor charters at higher rates than white voters, though still only 47 percent of black Democrats support them, according to an annual education opinion survey.

There aren’t many charter schools currently in South Bend, though that might be changing soon. Enrollment in the city’s public schools dropped by almost 700 students in the last year, and the South Bend superintendent is considering the adoption of a so-called “innovation school” strategy—where the traditional school district would run charter schools but those teachers couldn’t join the citywide teacher union. Two other Indiana cities use this strategy: Indianapolis, where 28 percent of students attended charters in 2015-16 and Gary, where 43 percent did, according to a report by the State Department of Education. The National Alliance for Public Charter Schools, a prominent pro-charter advocacy group, has ranked Indiana as having the best state law for charter schools in the country for the last four years in a row.

Linda Lucy, who has served as the president of the South Bend teachers union since June 2018, told VICE she had never met with Pete Buttigieg, and had “nothing to add” about the union’s relationship with the mayor. “Politicians have hijacked the teaching profession in our public schools,” she said.

Buttigieg does appear to have made time for Heather Willey, one of Indiana’s top charter school lobbyists, who co-hosted a fundraiser for Buttigieg in Indianapolis on October 4, according to an invitation obtained by VICE.

Willey served on the board of the Institute for Quality Education, an Indiana school choice advocacy group, for years, and co-chairs her law firm’s “Charter School and School Innovation” group. In 2019, the Institute for Quality Education, Teach for America Indianapolis, and Charter Schools USA, Inc., a for-profit charter company, all listed Willey’s firm, Barnes & Thornburg LLP, as a hired lobbyist. According to her professional biography, Willey “has been intimately involved in the charter school and school reform movements since the inception of the laws in Indiana in 2001.” She did not return repeated requests for comment.

In Silicon Valley, meanwhile, Buttigieg has also had fundraisers with several prominent charter school supporters.

Satya Patel, a venture capitalist who formerly worked as a vice president of product at Twitter, co-hosted an event for Buttigieg in the Bay Area in late August. Between 2007 and 2017, Patel served on the board of KIPP Bay Area Schools, part of the nation’s largest charter school network, which has received tens of millions of dollars in federal grants. He did not return requests for comment.

Reed Hastings, the CEO of Netflix and one of the nation’s most prominent charter school funders, co-hosted a Menlo Park fundraiser for Buttigieg in late July and maxxed out to his campaign in April.

In an email, Hastings told VICE that he had not spoken with Buttigieg about charter schools, saying, “[I] don’t know where he stands.” The federal role for charter schools and education generally, Hastings added, “is quite small.” In 2018, Hastings spent millions of dollars to unsuccessfully elect a pro-charter state superintendent in California, and this past year he donated $143,000 to 73 Republicans in Missouri to build more support for charter schools in that state.

Camilo Acosta, another San Francisco tech executive, held two fundraisers for Buttigieg—one on October 17, and another on July 24. According to his Crunchbase profile, when Acosta is not working at his start-up, he “does fundraising and advocacy work for education reform efforts, a cause” he “fervently support[s].” Another online bio for an appearance on the Bright Ideas podcast says he “hosts fundraisers for education reform organizations such as KIPP, and political candidates that support the cause.”

Acosta told VICE that he had talked to Buttigieg personally about charters at fundraisers, adding, “The reason I got involved with the campaign and started going to fundraisers and hosting them is because I’m a Latino immigrant and I wanted to be a voice for those inner-city kids and parents who can’t be in those rooms.” Acosta praised Buttigieg’s newly-released K12 plan, saying, “It’s what I had hoped to see, I think it took a very nuanced approach.”

In recent weeks Buttigieg faced criticism over his campaign’s lack of transparency around donors and fundraisers—before the campaign reversed course on Monday and indicated it would open high-dollar fundraisers to the press. (At least until that announcement, the Buttigieg campaign had stopped listing the names of hosts on its fundraiser invitations, making it more difficult to learn who was organizing those events.)

The Buttigieg campaign declined a request for an interview on his approach to charter-school policy. When asked if the campaign wanted to comment on the charter backers who have hosted fundraisers—and whether Buttigieg has spoken about charters at any of these fundraisers—spokesperson Sean Savett referred VICE to a June article published in NBC. That piece quoted Buttigieg saying, “I think the expansion of charter schools in general is something that we need to really draw back on until we’ve corrected what needs to be corrected in terms of underfunded public education.”

His rivals aren’t having as much success laying low on the issue. Warren, whose education plan calls for limiting charter school expansion and holding charters to the same transparency and accountability standards as traditional public schools, was protested by charter school activists at a November campaign event in Atlanta, as the New York Times reported. This past weekend in New Hampshire, Warren who has sworn off high-dollar fundraisers, called on Buttigieg to open his three upcoming fundraisers in New York to the press and said she was concerned about presidential candidates who “sell access to their time to the highest bidder.”

Buttigieg, Warren, and at least six other presidential candidates are expected to appear at a public education town hall hosted by MSNBC in Pittsburgh next weekend.

Will Nancy Pelosi Move The PRO Act?

Originally published in The Intercept published on December 2, 2019.
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HOUSE SPEAKER NANCY PELOSI has made no secret of her desire to pass the U.S.-Mexico-Canada Agreement by the end of the year, telling reporters recently that it would be her goal for the House to vote on it before Christmas. Centrist Democrats have been insisting privately that a quick passage for the trade deal is necessary for moderate members of Congress to win their competitive reelections in 2020, to show they can “do something.” Unions have made clear, though, that from their perspective, USMCA lacks real labor enforcement mechanisms, which could undermine the whole deal, further drag down wages, and eliminate more jobs.

Meanwhile, a top priority for labor has been sitting quietly on Pelosi’s desk and, unlike USMCA, already commands enough support to get it over the House finish line. The Protecting the Right to Organize Act would be 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. Introduced by Rep. Bobby Scott, D-Va., in May, it already has 215 co-sponsors in the House and 40 in the Senate.

The PRO Act passed the House Committee on Education and Labor on September 25 on a party-line vote. But two months later, Pelosi has still not moved to bring the bill to the House floor, nor has she given any indication of when she would. Her office did not return requests for comment.

“I don’t know exactly what the holdup is — it is taking longer than it should given the number of co-sponsors that we have,” said Rep. Pramila Jayapal, co-chair of the House Progressive Caucus. “Many other bills have come to the floor with fewer co-sponsors than this one.”

Jayapal told The Intercept that she believes that House leadership remains committed to the bill and that she and the Progressive Caucus have been pressuring them to bring it to the floor. “I think it is really critical for us as Democrats,” she said. “And anyone on the Democratic side who is wary of expanding collective bargaining I think should be thinking really clearly about why that would be.”

Rep. Mark Pocan, the other Progressive Caucus co-chair, said they’re working hard to make sure the bill gets calendared, but acknowledged that “there’s probably somewhat limited bandwidth” for the PRO Act given the intense focus on hashing out labor provisions in the trade deal, and the House’s desire to finish passing the drug-pricing bill.

“Because of that, we’re probably having a more difficult time getting an exact date. There’s a lot of work happening right now,” he said.

Dan Mauer, director of government affairs for the Communications Workers of America, told The Intercept that the delay to bring the vote to the floor has been “very frustrating” and that his union has made it clear to House leadership that members would be “very unhappy” if the House does not prioritize the bill by the end of the year.

“We get it’s hard, there’s a lot of stuff on people’s plates, and at the same time, this bill already has a lot of demonstrated support,” he said.

Randi Weingarten, president of the American Federation of Teachers, told The Intercept over email that her union is also urging Congress to pass the PRO Act before the end of the year. “Currently, employers have carte blanche to abuse their power and dissuade workers from joining a union, but consider the flipside — in cities and states with a strong union presence, wages, benefits, and job security are better across the board,” she said. “Congress can do something concrete to rebalance the ledger, and the time to act is now.”

A repeal of right-to-work would mean that states could no longer impose bans on unions charging private-sector workers mandatory fees for collective bargaining, even if they are not dues-paying union members. In 2018, the Supreme Court effectively nationalized right-to-work in the public sector when it ruled in Janus v. AFSCME that no fee or payment may be deducted from a public-sector worker unless the employee “affirmatively consents” to pay.

While Pelosi has voiced concern that the impeachment against President Donald Trump might distract from advancing the Democrats’ legislative agenda, she is not moving the PRO Act, which is in a strong position for passage. The legislation builds on the House Democrats’ 2017 “Better Deal” agenda, which included many labor commitments also laid out in the PRO Act. “We want to put this out to the public,” Pelosi said at the time. “Public sentiment is everything.”

Aside from having co-sponsors, public sentiment for unions is also at one of its highest points in the last 50 years, according to Gallup’s annual polling. Sixty-four percent of Americans approve of unions, up 16 points since 2009.

While the House did vote to raise the federal minimum wage to $15 an hour this summer, union advocates also felt that House leadership dragged its feet on bringing that bill to a full vote. It passed the House labor committee in March but didn’t come to the floor until July.

Meanwhile, the U.S. Chamber of Commerce, a powerful business lobbying group, is spending thousands of dollars ginning up opposition to the PRO Act, running ads on Facebook and Twitter. The chamber is also spending heavily on ads in support of USMCA, urging viewers to tell Congress to pass the trade deal.

“I do worry that by delaying [on the PRO Act], we just give the chamber and others the opportunity to prevent passing this legislation,” Jayapal said.

The last time Congress was in a position to pass a major rewrite to labor law was in 2009, when Democrats unsuccessfully pushed the Employee Free Choice Act. Labor leaders disagree over why EFCA ultimately failed. Some blamed moderate Democrats, others blamed then-President Barack Obama, and still others chalked it up to a weak ground game from labor and progressives in holding Congress accountable in the face of intense corporate opposition. The death of Sen. Ted Kennedy, D-Mass, who was chair of the Senate labor committee and then succeeded by a Republican, surely didn’t help. Neither did aggressive lobbying by the chamber. “This will be Armageddon,” the vice president for labor policy at the Chamber of Commerce complained at the time.

Some unions appear more resigned to the idea that it’s already too late for the bill to pass this year.

“The Teamsters would love the PRO Act to be considered by the full House as soon as possible, although time is running short for that to happen in 2019,” a spokesperson told The Intercept over email.

AFSCME President Lee Saunders also praised the House for its efforts so far to support workers, but avoided saying that his union expects to see the PRO Act wrapped up by the holidays. “We expect progress to continue” on bills like the PRO Act, and the Public Service Freedom to Negotiate Act, which would bring labor reform to the public-sector workforce, he told The Intercept. “With this political and grassroots landscape, we have every expectation that our elected officials will give working people the freedom to shrink the widening wealth gap and the voice they need to strengthen their communities.”

Mauer of CWA was more direct in raising the potential consequences for not moving swiftly, pointing to the need to galvanize union members before the next election.

“If you want real strong worker excitement that will get union activists excited for 2020, this is what we need to get it; the PRO Act is really it,” he said. “We absolutely think this is a key thing, not just legislatively but politically.”

As Longest-Serving Senate President in US History Steps Aside, Maryland Set For A Political Shakeup

Originally published in The Intercept on November 15, 2019.
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For as long as anybody in Maryland can remember, any effort to pass progressive legislation in this deeply blue state began with one vexing question: What do we do about Mike?

Thomas “Mike” Miller, the longest serving state Senate president in U.S. history, has been a formidable barrier to progressive action for decades. A member of the Maryland Senate since 1975, the conservative Democrat has been the chamber’s top leader for the last 32 years, wielding unparalleled and deft power over politics, careers, and how or whether bills move forward in Annapolis. Allied with the state’s top lobbyists, he is who progressives have blamed over the years for stalling, thwarting, and watering down top legislative priorities like raising the minimum wage, guaranteeing paid sick leave, and reforming marijuana laws. “Why does Maryland punch below its weight class in terms of progressive legislation? It’s because of leadership,” said Kim Propeack, the political and communications director for CASA de Maryland, an immigrant rights group. “People want to honor Mike Miller’s legacy, and I think that’s appropriate, but there’s a whole lot of stuff that we have the most conservative versions of, and that’s in large part because of him.”

In theory, Maryland could be passing model legislation in the same way New York, Massachusetts, California, and Washington state have been doing. Registered Democrats outnumber Republicans 2 to 1, the state has not cast its votes for a Republican president since 1988, and even with Republican governors sometimes at the helm, Democrats have retained a decadeslong veto-proof majority in the state Senate.

Progressives tried to take down Miller in 2018, mounting a primary challenge under the banner of “Take a hike, Mike.” While Miller ultimately won his reelection, unions, the Maryland Working Families Party, and other statewide left-wing organizations did manage to unseat a handful of other powerful incumbents tied to Miller. Among those ousted included the Senate Finance Committee chair, who many thought would eventually succeed Miller as president; the Senate Health and Environmental Affairs Committee chair; and the president pro tempore, the Senate’s second most powerful Democrat. Despite those wins, progressives’ ability to influence change in Annapolis remained limited, as Miller still controlled committee assignments and how legislation moves forward.

Maryland’s political landscape, however, drastically changed late last month, when Miller announced his resignation as Senate president due to complications from his cancer treatment. Come next year, he will continue to be a rank-and-file senator, but the state Senate will instead be led by Bill Ferguson, a 36-year-old progressive lawmaker from Baltimore, and one of the most vocal advocates for public education funding in Annapolis.

“It’s revolutionary, honestly,” said Propeack.

Larry Stafford, the executive director of Progressive Maryland, celebrated.“Now there’s more hope for finally having a more just and fair system of taxation in Maryland,” he said, “something that Mike Miller has not been supportive of in terms of the wealthy paying their fair share.”

FERGUSON’S ASCENSION TO the Senate presidency was something of a coup for progressives in Annapolis. Even with several of Miller’s closest allies having lost their seats in 2018, the expectation was that a more senior-level, establishment-friendly Democrat would take the reins.

Four prominent senators had been gunning for the role in a behind-the-scenes battle last month, but none were proving they could win the 17 votes necessary to win the nomination. Then, as the Baltimore Sun reported, the influential Senate Finance Committee chair, 83-year-old Delores Kelley, approached Ferguson and asked him to consider jumping into the fray. She liked his budgetary expertise, said his age shouldn’t deter him, and thought he could help break the succession impasse.

Miller was simultaneously applying pressure on the candidates to come to a nominating consensus, to avoid an acrimonious succession squabble. Some of the chamber’s more progressive senators began feeling nervous that the leading contender for the Senate presidency appeared to be Sen. Douglas J. J. Peters of Prince George’s County, an anti-abortion Democrat who also voted against same-sex marriage. “We played a role in backing up the message that someone who is anti-choice shouldn’t be the next senate president in Maryland in the year 2020,” said Stafford. After several weeks of campaigning around the state, Ferguson won out as the unanimous choice. Kelley played a key role shoring up votes for him too.

As Maryland Matters politics reporter Josh Kurtz noted, “While it’s not going to happen overnight, the culture in the Senate is going to change dramatically — more so, most likely, than if any of the other contenders to succeed Miller had prevailed.” Miller leaving his post is also expected to be a blow to the top lobbyists in Maryland, many of whom either served as Miller’s own political aides at one point or worked previously in the state Senate alongside him. Ferguson also accepts lobbyist and corporate donations, but Gerard Evans, a lobbyist who served as Miller’s top legislative assistant in the early 1980s, told the Washington Post he expects Ferguson to be more “participatory” in his legislative style and less reliant on a “key core” of people.

Ferguson’s new role will also help shift the balance of power in Annapolis from the D.C. suburbs — where Miller lived — to Ferguson’s home in Baltimore, which is much more heavily dependent on state assistance for basic municipal needs. Since May, the Maryland House of Delegates has also been led by someone from the Baltimore area: Adrienne Jones, a Democrat from Baltimore County, was elected speaker of the House in May to replace the previous speaker, who was from Anne Arundel County and had led the chamber for 17 years until his death in April.

Ferguson did not return requests for comment, and he’s been careful in recent weeks to give thanks and credit to Miller for his years of public service. “I have been humbled to learn such a great deal about leadership from Mike Miller in the last 9 years,” he wrote in an October 26 email to supporters. “As I transition into this new role, we will continue to work side by side as the Senate reaches new progress for all Marylanders.”

Stafford, of Progressive Maryland, says that immediate priorities for progressives next year will be campaign finance reform and passing a more equitable public education school funding formula.

“I’m most excited about the prospect for a small-dollar fund matching program and getting the influence of money out of politics in state-level elections,” he told The Intercept. “We’ve been able to win campaigns to pass public financing in Howard County, Prince George’s County, Montgomery County, and Baltimore City, and we believe this shift with Miller will enable us to have more success in pushing that type of policy forward, which could further change the makeup of the state’s political landscape.” A study released this past September by the Maryland Public Interest Research Group found that candidates who participated in Montgomery County’s new public financing program attracted far more donors in the 2018 election than those who didn’t.

Maryland activists are also hoping to advance paid family leave and to remove the exemptions from their watered-down minimum wage law. They are also bracing for intense fights next session over public education. Lawmakers plan to convene next year over new school funding recommendations issued this past September by a 26-member state commission.

The Kirwan Commission, as it’s known, was established in 2016 by the state legislature (and named after William Kirwan, the former chancellor of the University of Maryland) to rewrite the state’s long-standing school funding formula. After several years of deliberations, the Kirwan Commission recommended a $3.8 billion increase in school spending over a decade, with about half of that money coming from county and city governments, and the other half from the state. The commission also included recommendations for how the new money should be spent, like raising teacher salaries, expanding pre-K, and investing more in schools with high concentrations of poverty. Activists are calling next year a “once-in-a-generation” opportunity to fix the state’s inequitable education system.

According to a recent poll by Goucher College, about 70 percent of Maryland adults think the state spends too little on public schools, and nearly three-fourths said they would be willing to spend more on improving education. But Republican Gov. Larry Hogan has already made clear he plans to fight hard against the Kirwan Commission’s recommendations, vowing to oppose any major tax increases that would be necessary to implement the plan.

While Miller has said he would fight to move public education forward, his friendly relationship with the governor, and his own centrist track record, had progressives feeling wary about getting a strong school funding formula through the grinder next year. Ferguson, by contrast, was actually on the Kirwan Commission himself, previously taught in Baltimore with Teach for America, and now works a day job at the Johns Hopkins School of Education.

“He has a history in education, is very knowledgeable on the state budget, and we believe he will be more willing to go toe-to-toe with the governor over this,” said Stafford. “We’re ready to go.”