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With New EPA Water Rule, Obama Again Takes Executive Action On Environment

2015 May 26
by chief

From National Memo. Written by William Yardley, Los Angeles Times.

File photo: Ducks come in for a landing in the flow-regulating wetlands at the Tres Rios Ecosystem Restoration Project, construction of which was managed by the U.S. Army Corps of Engineers LA District’s Arizona/Nevada Area Office, in Phoenix’s West Valley. February 14, 2013. Via U.S. Army Corps of Architects/Flickr

File photo: Ducks come in for a landing in the flow-regulating wetlands at the Tres Rios Ecosystem Restoration Project, construction of which was managed by the U.S. Army Corps of Engineers LA District’s Arizona/Nevada Area Office, in Phoenix’s West Valley. February 14, 2013. Via U.S. Army Corps of Architects/Flickr

In April 1989, a Michigan developer named John Rapanos dumped fill on 54 acres of wetlands he owned to make way for a shopping center. He did not have a permit, and when the state told him to stop, he refused. Courts found him in violation of the federal Clean Water Act. Prosecutors wanted to send him to prison.

Rapanos took his case all the way to the U.S. Supreme Court, which found that the wetlands on his property, about 20 miles from a river that drained into Lake Huron, did not fall under the Clean Water Act’s jurisdiction over discharges into “navigable waters.”

Rapanos became something of a celebrity among property rights advocates, but the ruling raised as many questions as it answered. Although the court upheld federal protections for wetlands and streams when they connected with navigable waters, it left unclear what constituted a connection.

Now, nearly a decade later, the Obama administration is seeking to clarify those ambiguities, and the effort is causing controversy of its own. This week, the Environmental Protection Agency is expected to release a new rule to protect a significantly larger percentage of streams and wetlands that provide habitat for wildlife and sources of drinking water.

The move is another example of President Barack Obama taking executive action on environmental and climate issues regardless of whether he has the support of Congress. The administration has already protected millions of acres from oil and gas development and is expected to set aside more, even as it has allowed the expansion of oil and gas drilling elsewhere. It plans to issue new rules this summer to reduce carbon emissions from power plants.

EPA officials say up to 60 percent of the nation’s streams and millions of acres of wetlands lack clear protection from pollution under existing regulations. The new clean water rule would for the first time clearly define which tributaries and wetlands are protected under federal law.

“There is nothing complicated about the idea that we should protect the tributary system that flows into our nation’s rivers,” said David Uhlmann, a law professor at the University of Michigan who previously led the prosecution of environmental crimes at the Justice Department. “What is more difficult is deciding when to protect wetlands, which perform essential ecological functions but often make it difficult or impossible for landowners to develop their property.”

The new rule, drafted by both the EPA and the U.S. Army Corps of Engineers, has been under attack since it was proposed in draft form last year, with lawmakers, farmers, business groups, and some local governments often coordinating the efforts.

The American Farm Bureau has led the opposition.

“The proposed rule provides none of the clarity and certainty it promises,” the bureau wrote in a letter to Congress. “Instead, it creates confusion and risk by providing the agencies with almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects.” That could include farm ditches, agricultural ponds, and isolated wetlands, it said.

The farm bureau started a social media campaign, using the Twitter hashtag #Ditchtherule. The EPA created its own, telling supporters to #Ditchthemyth. In a blog post in April, EPA Administrator Gina McCarthy said the agency may need to look at “better defining how protected waters are significant.”

“A key part of the (new) Clean Water Rule is protecting water bodies, like streams and wetlands, which have strong impacts downstream,” she wrote.

At issue is the Supreme Court’s ruling that only water bodies with a “significant nexus” to navigable waterways fall under the Clean Water Act’s regulatory authority. But what that means has left room for debate for years.

McCarthy conceded that the agency’s initial definition of tributaries was “confusing and ambiguous” and could “pick up erosion in a farmer’s field, when that’s not our aim.” The agency was also revisiting how it addressed ditches, she wrote, “limiting protection to ditches that function like tributaries and can carry pollution downstream.” She also sought to assure local governments that the agency “did not intend to change” how stormwater systems are treated.

Several bills aimed at stopping the rule from taking effect have been introduced in Congress, including one sponsored by Senators Jeff Flake and John McCain, both Republicans from Arizona. In a letter to McCarthy this month, the senators wrote that Arizona’s “vast majority of ‘waters’ are desert washes that are part of ephemeral systems and often found at substantial distances from traditional navigable or interstate waters.”

Under the proposed rule, they said, “every small ephemeral system of limited function, remote from traditional navigable or interstate waters, and with no practical ability to influence the physical, chemical, or biological integrity of those downstream waters, would be regulated.”

Arizona is “literally crisscrossed with man-made canals that are essential for critical water delivery,” they wrote, and under the new rule, “it is possible that every mile of these canals” will now fall under the Clean Water Act.

In another arid state next door, Sanders Moore, director of Environment New Mexico, said waterways there had been put at risk under narrow interpretations of the existing rule that did not protect streams that are often dry until snowmelt or stormwater runs through them.

“When they run, they pick up all of those pollutants and take them into larger rivers,” she said.

Ken Kopocis, deputy assistant administrator for the EPA’s office of water, said the agency had heard concerns similar to those expressed by the Arizona senators, and that the final rule would clarify that washes and other ephemeral streams would not fall under regulation unless they had “bed and banks” and “ordinary high water marks” that indicated an active connection to waters that do fall under regulation.

“We understood and heard a lot from people in the Southwest that we need to be more clear, and the final rule will be more clear on this,” he said.

He also said the agency was not revising its policies on the vast network of canals and waterways that provide irrigation and drinking water in much of the arid West.

Although Rapanos won at the Supreme Court, he faced other penalties for his actions. He and other defendants in the case eventually settled with the government, agreeing to pay a $150,000 penalty. Rapanos was also required to construct 100 acres of wetlands and buffer areas to offset the 54 acres he filled.


Posted by Gypsy Chief

Coal Faces Three Hurdles and Steady Decline, Projections Show

2015 May 24
by chief

Coal’s future as a major energy source is being undermined by market forces, government regulations and moral arguments.

By John H. Cushman Jr., InsideClimate News.

The coal industry has many forces working against it as the world moves toward cleaner energy. Credit: Wikipedia

The coal industry has many forces working against it as the world moves toward cleaner energy. Credit: Wikipedia

Editor’s note: This is the first in a series of stories by InsideClimate News reporters exploring the future of the coal industry, Coal’s Long Goodbye: Dispatches From the War on Carbon. It begins with this look at energy source projections in the U.S.

If coal were a medical patient, its prognosis would be creeping toward the critical list.

Despite the major forces trying to align to save it, coal’s future as a major energy source is being attacked by a variety of pathogens: government regulations, market forces and moral arguments. As a result, government charts plotting coal’s life expectancy look like the flat vital signs of a very sick patient.

Those charts don’t even take into account President Obama’s regulation to crack down on carbon emissions from the nation’s nearly 600 coal-fired power plants, which will no doubt send the vital signs plunging.

The Energy Department’s statistical arm, the Energy Information Administration, forecasts in its its latest annual energy outlook that U.S. coal production “remains below its 2008 level through 2040.” And that is without weaving in the impact of the Clean Power Plan, because it hasn’t yet taken effect.

For the next 15 years or so production might creep up, it said, but only by a fraction of a percent each year. Considering that production has dropped 16 percent between 2008 and 2013, that’s hardly a robust recovery.

And then the tepid growth evaporates away. From 2030 on, the report said, demand for coal from its main users, electric power companies, would be essentially flat.


In this series of InsideClimate News stories, Coal’s Long Goodbye, we explore the reasons for coal’s bleak future, the forces aligning against it and what energy sources will likely replace it.

Coal’s dwindling prospects reflect several main factors: the increasing weight of other environmental regulations, including new standards limiting mercury emissions and other toxic pollutants; the availability of cheap, relatively clean natural gas; steadily increasing energy efficiency, and the surging installations of renewable energy plants, especially wind and solar.

Agency officials have promised to produce another forecast later this month that will show how much coal production might vanish once the Environmental Protection Agency finalizes its proposed carbon regulation, the center pole in the tent of the Obama administration’s climate action plan.

The Clean Power Plan aims to cut carbon dioxide emissions from power plants, the biggest source of the nation’s greenhouse gas emissions, by 30 percent by 2030 from 2005. There’s no chance of meeting that target—or the nation’s international carbon pledge—without reducing coal consumption.

So the rule, EIA noted drily in its outlook, would have “a material impact on projected level of coal-fired generation.”

Explaining the Coal Turmoil

The same glum message for coal comes through in all the EIA’s forecasts—whether for the short term or the long term.

This year, natural gas is expected to supply 30 percent of the nation’s electricity, up from 27 percent last year. At any time now, electricity produced from gas may surpass coal power—they are running neck and neck this year.

“EIA expects natural gas generation in April and May will almost reach the level of coal generation,” the agency said on May 12, “resulting in the closest convergence in generation shares between the two fuels since April 2012.”

U.S. coal production, as a result, is expected to fall by 7.1 percent in 2015. The amount of coal burned by electric plants will drop 6 percent. Already, unburned coal started to pile up at power plants this winter.

It’s not just natural gas that threatens coal, however, according to a recent breakdown of new generating capacity.

The amount of renewable energy capacity coming on-line almost equals the amount of coal capacity going off-line. New gas capacity has helped compensate by providing the same steady reliable power that coal provided while the wind and sunshine come and go.

About 13 gigawatts of coal-fired generating capacity, more than 4 percent of the nation’s 300 or so gigawatts of coal, is expected to retire this year. New wind plants will add 10 gigawatts. Solar will add 2 gigawatts more. Gas will provide another 6 gigawatts. (A gigawatt of electricity can power at least half a million homes.)


If electricity demand picks up next year, so will the use of coal—but not by as much as might be expected.

The coal plants that are shutting down are relatively small, old and inefficient. The plants that would ramp up to meet any new demand for power would be bigger, more modern and more efficient—and they would need less coal to make the same amount of electricity.

The retirements of coal plants that are currently washing over the industry were brought on by a rule that sets new mercury and air toxic standards—the MATS rule, which has just taken effect. (It has been challenged in the Supreme Court, which will rule shortly.)

The combination of the MATS rule and the competition from gas and renewables will lead utilities to shut down 31 gigawatts of coal fired boilers between 2014 and 2016, EIA has projected. Another 4 gigawatts would shift from coal to natural gas.

The Government Accountability Office, in a separate estimate last year, said that between 2012 and 2025 total retirements would amount to 42 gigawatts—that’s 13 percent of total electric capacity nationwide. The plants that are shutting down, it said, are concentrated in four states: Ohio, Pennsylvania, Kentucky and West Virginia.

Downgraded to Negative

To the extent that new power plant capacity is coming on line—and that is not expected to happen as fast as it used to—new coal plants are not in the picture.

Plainly, this means that a lot of the money that consumers spend on electric bills will ultimately go to gas producers, not coal producers.

In 2040, 55 percent of the money utilities spend on fuel will go to natural gas companies, and only 35 percent to coal companies. In recent years, the two have been running neck and neck.

Coal’s financiers are taking note.

In March, the Moody’s debt rating service downgraded the outlook for North American coal to negative, predicting that earnings would “drop 6 percent to 8 percent over the next year or so.”

Peabody Energy, by far the biggest U.S. producer, said in its latest quarterly earnings statement that after watching power companies’ consumption wither in the first quarter, it had cut its own forecasts for U.S. demand, which it now sees dropping by up to 100 million tons this year. The fall-off in production would continue in the second half of this year, it said.

This month, Bank of America said it would be cutting back on lending to the industry. Its stance was aimed at confronting climate change and recognized the risks of lending to an industry whose assets might be stranded.

The decline in coal’s fortunes has been welcomed by environmentalist campaigners, although they say it’s not happening fast enough to keep the world within its carbon budget. At current rates of fossil fuel-burning, the world will exceed within a few decades the emissions limit that might keep the planet within the 2 degrees Celsius safe threshold this century. To hit that target, emissions of carbon dioxide from the energy sector have to decline rapidly, and eventually reach zero.

As negotiations continue toward a possible climate treaty in Paris later this year, the U.S. has said it will cut emissions 26-28 percent below 2005 levels by 2025. That would require doubling its average recent pace of reductions, from 1.2 percent per year on average during the 2005-2020 period to 2.3-2.8 percent per year on average between 2020 and 2025.

Because it omits the influence of the EPA’s Clean Power Plan from its forecasts, the EIA projections don’t show any drop in U.S. greenhouse gas emissions.

Instead, its business-as-usual outlook shows that emissions—which had been on a downward path since 2005, and then rose a bit—will go up gently in the next couple of years, then drift along a long, steady horizontal path.


Posted by Gypsy Chief

The real reason for the GOP’s all-out war on Obamacare

2015 May 24
by chief

Affordable Care Act End of Life Counselling

Death Panel Member

From Daily Kos.

During his press conference on Friday, [August 9, 2013] President Obama pondered why the GOP’s “number one priority, the one unifying principle in the Republican Party at the moment is making sure that 30 million people don’t have health care.” But in attributing the 40 Affordable Care Act repeal votes, the threats to shut down the government over Obamacare funding, the tens of millions of dollars in misleading ads and another summer of town hall rage to the GOP’s “ideological fixation,” the President was only partly right.

At its core, the Republicans’ scorched-earth opposition to Obamacare has never been so much about “freedom” or “limited government” or any other right-wing ideological buzzword as it has been about political power, pure and simple. Now as for the past 20 years, Republicans have feared not that health care reform would fail the American people, but that it would succeed. Along with Social Security and Medicare, successful health care reform would provide the third and final pillar of Americans’ social safety net, all brought you by the Democratic Party. To put it another way, the GOP was never really concerned about a “government takeover of health care”, “rationing”, “the doctor-patient relationship” or mythical “death panels,” but that an American public grateful for access to health care could provide Democrats with an enduring majority for years to come

But what Utah Senator Orrin Hatch called a “holy war” to block health care reform didn’t start when Barack Obama took the oath of office in January 2009, but instead when Bill Clinton was inaugurated in 1993. It was then that former Quayle chief of staff and Republican strategist William Kristol warned his GOP allies that a Clinton victory on health care could guarantee Democratic majorities for the foreseeable future. “The Clinton proposal is also a serious political threat to the Republican Party,” Kristol wrote in his infamous December 3, 1993 memo titled “Defeating President Clinton’s Health Care Proposal,” adding:

“Its passage in the short run will do nothing to hurt (and everything to help) Democratic electoral prospects in 1996. But the long-term political effects of a successful Clinton health care bill will be even worse–much worse. It will relegitimize middle-class dependence for ‘security’ on government spending and regulation. It will revive the reputation of the party that spends and regulates, the Democrats, as the generous protector of middle-class interests. And it will at the same time strike a punishing blow against Republican claims to defend the middle class by restraining government.”

read more…

Meet The Duggars: Reality TV Stars And Moral Hypocrites

2015 May 23
by chief

From National Memo. Written by Briget Hughes.


The Duggar family, of TLC’s popular reality series 19 Kids and Counting, has admitted their oldest son had a undisclosed history of molesting his own sisters. Josh Duggar, now 27 years old and father to three young children, has since made statements regretting his “inexcusable” actions.

The Duggars are known for their unusually G-rated show, in which they espouse a conservative, Christian lifestyle. Birth control is discouraged (obviously), women wear modest clothing, and contact between the sexes is strictly monitored.

Despite their moralizing, Josh, the oldest in the long line of children, has been revealed to have a history of fondling multiple unnamed minors. According to InTouch magazine, which originally broke the story, a female member of the Duggar brood informed her father in early 2002 that Josh had been fondling her while she slept.

Several months later, another daughter also confessed that Josh had been sexually abusing her. Other minors complained of ongoing abuse, finally prompting Jim Bob, the Duggar family patriarch, to go to the authorities.

Unfortunately, those “authorities” were, in fact, the church elders — and in their wisdom, they chose not to involve the police. Instead, Josh Duggar was sent to a “Christian program” consisting of “hard physical work and counseling” from March to July 2003.

Michelle Duggar, the family’s mother, later admitted the so-called program was actually just a temporary stay at a family friend’s house. The friend, a contractor, had no counseling experience.

Finally, in 2006, Jim Bob reported the abuse to the police. No other official action was taken and the family says that the victims “forgave” Josh, who had “sought after God and turned back to God.”

Since the molestation came to light, Josh Duggar has resigned his position at the Washington, DC-based Family Research Council, a conservative, religious non-governmental organization considered a hate group by the Southern Poverty Law Center.

TLC has canceled all shows featuring the Duggars that were set to air, and the program’s chances of renewal remain questionable.

The family has spoken out in defense of their son, stating, “That dark and difficult time caused us to seek God like never before. Even though we would never choose to go through something so terrible, each one of our family members drew closer to God.”

Josh’s wife, Anna, has also spoken out in support of her husband. She was evidently informed of Josh’s so-called “mistakes” two years before their engagement, and believes he is simply “someone who had gone down a wrong path and had humbled himself before God and those whom he had offended.”

The man at the center of the storm has also issued a statement, released to People magazine, saying, “I sought forgiveness from those I had wronged and asked Christ to forgive me and come into my life. In my life today, I am so very thankful for God’s grace, mercy and redemption.”

As far as Josh Duggar is concerned, God’s grace may let a confessed child molester off the hook, but it does not extend to gays and lesbians, whose sexual orientation Duggar has, not incidentally, frequently linked to pedophilia.

But if God has forgiven Josh and his family, He is not alone. Republican presidential candidate Mike Huckabee has already declared his support, so at least he’s guaranteed 10 votes from the Duggar household.

Screenshot: Josh Duggar speaking at the Rally for Religious Freedom, 2014. Via Family Research Council/YouTube

Posted by Gypsy Chief


Flashback: Duggars Call LGBT People A Threat To Child Safety: Duggar Resigns From FRC

2015 May 23
by chief

From Right Wing Watch.

The entertainment magazine In Touch reported this week on police records that they say reveal that Josh Duggar, the eldest son of reality TV’s Duggar family and executive director of the anti-gay Family Research Council’s political wing, as a minor was turned in to the police by his father for “fondling” girls, likely his sisters, while they were asleep.

According to reports, Jim Bob Duggar waited nearly a year to report his son’s actions to the authorities, while Michelle Duggar said that Josh did not receive counseling for the incidents, as they told their church’s leadership, but instead was instead was sent to live with a family friend. It appears that the only consequence was that he had to apologize and received a “very stern talk” from a state trooper.

Duggar’s group, the Family Research Council, regularly paints the LGBT community as a precarious threat to children, and he and his family have participated in that rhetoric.

Last December, Duggar led a successful campaign to defeat a LGBT nondiscrimination measure in Fayetteville, Arkansas, which he said jeopardized the safety of children during an interview on the FRC radio program  Washington Watch:

Duggar also said that opposing the nondiscrimination ordinance as a sign of “love” to the gay community, which he accused of trying to “silence” its critics.

Michelle Duggar also ran a robocall pushing for the repeal of the city’s nondiscrimination ordinance, which she warned would empower “child predators” to threaten “the safety and innocence of a child.”

Josh Duggar released a statement to People magazine saying that God has forgiven him but that he has resigned from the FRC:

Twelve years ago, as a young teenager, I acted inexcusably for which I am extremely sorry and deeply regret. I hurt others, including my family and close friends," Josh, 27, tells PEOPLE in a statement. "I confessed this to my parents who took several steps to help me address the situation. We spoke with the authorities where I confessed my wrongdoing, and my parents arranged for me and those affected by my actions to receive counseling. I understood that if I continued down this wrong road that I would end up ruining my life."

Josh has resigned from his position at the Family Research Council as a result of the accusations becoming public, but his family has stood behind him.

"Back 12 years ago our family went through one of the most difficult times of our lives," Jim Bob, 49, and Michelle, 48, said in a joint statement. "When Josh was a young teenager, he made some very bad mistakes, and we were shocked. We had tried to teach him right from wrong. That dark and difficult time caused us to seek God like never before."

Their statement continues, "Even though we would never choose to go through something so terrible, each one of our family members drew closer to God. We pray that as people watch our lives they see that we are not a perfect family. We have challenges and struggles everyday. It is one of the reasons we treasure our faith so much because God's kindness and goodness and forgiveness are extended to us – even though we are so undeserving. We hope somehow the story of our journey – the good times and the difficult times – cause you to see the kindness of God and learn that He can bring you through anything."

"I would do anything to go back to those teen years and take different actions," says Josh. "I sought forgiveness from those I had wronged and asked Christ to forgive me and come into my life. In my life today, I am so very thankful for God's grace, mercy and redemption."


Posted by Gypsy Chief

Is Your Judge for Sale? | Mother Jones

2015 May 22
by chief

Thanks to Karl Rove and Citizens United, judicial elections have been overtaken by secretive interest groups, nasty ads, and the constant hustle for campaign cash.


The 30-second TV spot is stark and brutal. First it shows the bespectacled face of candidate Louis Butler, then a grainy mug shot of an ex-con. "Louis Butler worked to put criminals on the street," the narrator warns, "like Reuben Lee Mitchell, who raped an 11-year-old girl with learning disabilities." After Mitchell’s release from prison, the narrator continues, he raped again. "Can Wisconsin families feel safe with Louis Butler?"

This attack ad wasn’t from a bitterly fought congressional race. It was from a 2008 campaign for state Supreme Court justice—a position that until recently was considered above the fray of partisan politics. Butler, the first African American Supreme Court justice in Wisconsin history, was defending his seat against a trial court judge whose campaign tactic recalled the GOP’s infamous Willie Horton hit job on Michael Dukakis during the 1988 presidential campaign. Long before ascending to his state’s highest court, Butler had been assigned as Reuben Lee Mitchell’s public defender—he wasn’t the judge in the case, as the nasty ad implied.

Butler’s opponent, Michael Gableman, had been showered with campaign donations from business leaders, who were keenly aware of Butler’s role in two decisions. One was a 4-3 ruling to strike down a $350,000 limit on so-called pain-and-suffering damages in malpractice suits. The other held that if an individual harmed by lead paint exposure couldn’t identify the producer, then multiple paint companies could be held liable under a legal theory known as "risk contribution."

Read our graphical explainer on how dark money is taking over judicial elections.


While Butler’s and Gableman’s campaigns spent a combined total of $1.2 million on the race, outside groups aligned with the US Chamber of Commerce and the state’s labor unions spent $3.6 million, funding 89 percent of all the TV ads. Butler was the first sitting justice to get booted from the court in 40 years.

By 2011, with Wisconsin reeling from political battles over Gov. Scott Walker’s union-busting agenda, the next Supreme Court race was equally ugly. This time it was conservative Justice David Prosser defending his seat; a misleading ad from a partisan group backing his opponent claimed that Prosser, as a district attorney in 1978, had helped cover up sexual abuse of two young boys at the hands of a Catholic priest. (The abuse had only emerged years later; the victims called the ad "offensive, inaccurate, and out of context.")

Although Prosser successfully defended his seat, he says that the election—which saw nearly $5 million in total campaign spending—poisoned relationships on the court. The tension boiled over weeks later, when Prosser and Ann Walsh Bradley, a liberal justice, engaged in an argument that got physical as four of their fellow justices looked on. Bradley claimed Prosser choked her, while Prosser said he raised his hands in self-defense as Bradley charged at him. In police interviews, two conservative justices sided with Prosser, and two liberal justices with Bradley. Investigations by the county sheriff, the local DA, and a special independent prosecutor all cleared Prosser of any wrongdoing, but the controversy still festers. When I spoke with Prosser in September, written in chalk on the sidewalk outside the state Capitol was an invitation to visit him for "free chokes."

"They wanted to make sure we were punished for our decision and that other judges witnessed that," says former Iowa Supreme Court Justice Marsha Ternus.

Bitter, costly judicial elections are by no means unique to Wisconsin. These days, as more candidates for the bench face rough contests—buffeted increasingly by outside money, thanks to the US Supreme Court’s 2010 decision in Citizens United—state judges around the country often raise six- and seven-figure sums, mount statewide campaigns, and fend off attack ads from groups that don’t disclose their donors. This trend has escalated over the last decade and a half as partisan groups realize that donating to judges can get them more influence, for less money, than bankrolling legislative campaigns. After all, the donors often end up with business before the very judges they are helping elect.

These are also the judges that most citizens who interact with the system have to face. Can Americans still trust in getting their fair day in court?

Court cases that make big news are usually in the federal system, where most judges are appointed by the president and confirmed by the Senate. Yet the vast majority of justice is done at the state level, where more than 100 million cases are filed annually (versus about 400,000 in federal courts). The nation’s approximately 30,000 state court judges vastly outnumber their federal counterparts, and 85 percent of them will stand in at least one election during their career.

No two states pick their judges exactly the same way. Some hold partisan judicial elections, others have nonpartisan elections, and still others use merit selection—that’s when legal experts select a short list of qualified candidates, the governor appoints one to the bench, and that judge later stands in a retention election.

The system has its roots in the Panic of 1837, a mini-depression fueled by rampant cronyism and massive overspending by corrupt governors and legislatures. Partisan elections replaced the tradition of elected officials appointing their friends to the bench, but for decades connections and loyalty still mattered most, with party bosses determining who won. Eventually states embraced nonpartisan elections and merit selection, and for most of the 20th century, judicial elections were a little-noticed corner of American politics.

Still, on occasion a contentious race attracted national attention. In 1977, Rose Bird became the first woman appointed to the California Supreme Court and its first female chief justice. An avowed foe of capital punishment, she voted to vacate all 61 death penalty verdicts that came before her, prompting Republican Gov. George Deukmejian to label her a "soft-on-crime liberal." With Bird up for retention in 1986, oil and agribusiness companies, which generally saw Bird’s liberal views as a threat to their interests, poured more than $5.6 million into a campaign that would unseat her. It was an early glimpse of a reliable strategy for big business: Using the soft-on-crime theme to oust judges considered unfriendly to corporations.

Around that time, a political consultant by the name of Karl Rove was plotting his own assault on the Texas Supreme Court. Rove had helped launch the "tort wars" in response to what some Republicans saw as a court system too cozy with trial lawyers and too eager to slam corporations with hefty judgments that Rove had dubbed "junk lawsuits."

Running on the slogan "Clean Slate ’88," conservative candidates backed by Rove’s operation won five of the six open seats on the Texas Supreme Court. Not long after, Rove teamed up with the Business Council of Alabama to engineer a similar Republican takeover in that state.

Direct spending on supreme court races, 2000-14

Direct spending on supreme court races, 2000-14

Two years later, the US Chamber of Commerce, under the leadership of an aggressive new president named Tom Donohue, picked up on Rove’s strategy. Pledging to "play hardball" against "frivolous" lawsuits, the Chamber spent $10 million on judicial races in 2000 alone. It pumped $4.4 million into Ohio’s Supreme Court election—the largest expenditure from a single source on a court race in US history. In the following years, the Chamber injected tens of millions into races in Illinois, Michigan, Mississippi, and Wisconsin. Corporate America had grasped the potential to install friendly judges who could crack down on costly class actions and neutralize the efforts of consumer advocates. "We’re clearly engaged in hand-to-hand combat," as Donohue put it, "and we’ve got to step it up if we’re going to survive."

Unions spent millions on these races as well—particularly across the Upper Midwest, as labor leaders recognized they could get a great return on investment by backing justices sympathetic to workers’ rights. As an official with the Ohio AFL-CIO once said: "We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators."

A major showdown came in 2004, in West Virginia’s Supreme Court election. Don Blankenship, the former CEO of Massey Energy, donated $3 million to Republican candidate Brent Benjamin. Meanwhile, a nonprofit funded primarily by Massey Energy ran TV ads accusing incumbent Justice Warren McGraw of getting a child rapist out of prison and into a job at a high school. After Benjamin won, the investment paid off big time: He later cast the deciding vote to overturn a lower court’s $50 million verdict against Massey Energy. Two years later, the US Supreme Court ruled that Benjamin should have recused himself. It overturned the decision and sent the case back to West Virginia. (Massey Energy ultimately prevailed in state court.)


Corporate interests also reaped a huge return on investment in the 2004 Supreme Court election in Illinois. Five years earlier, a jury had handed down a $1.19 billion penalty to the insurance company State Farm for requiring millions of claimants to accept subpar replacement auto parts. State Farm and its employees—working through the US Chamber, the Illinois Republican Party, and an Illinois-based tort reform group—steered $4 million to elect a sympathetic judge named Lloyd Karmeier to the Supreme Court, which was considering State Farm’s appeal of the auto parts verdict. Karmeier, his opponent, and various outside groups spent a record $9.3 million on the race. Karmeier, who would later acknowledge that the sum was "obscene," won easily. And the millions State Farm spent were a pittance compared with what it gained: The next year, Karmeier cast the deciding vote to overturn the more than $1 billion verdict against State Farm.

Up to this point, the big spenders were mostly targeting contested judicial elections—ones in which a candidate challenged a sitting justice. Then came the Iowa Supreme Court’s 2009 decision in Varnum v. Brien, in which the seven justices unanimously ruled that the state’s ban on same-sex marriage violated the state constitution. Social-conservative groups leapt into action, targeting three of the seven justices who were up for retention election—ones where voters only check "yes" or "no." The National Organization for Marriage and its allies spent nearly $1 million and defeated all three. "They wanted to make sure we were punished for our decision and that other judges witnessed that so they wouldn’t do it either," former Justice Marsha Ternus told me.

The strategy of turning sleepy retention elections into political showdowns has been spreading. In Florida’s 2012 retention elections, the Koch-backed Americans for Prosperity and the Republican Party of Florida spent hundreds of thousands of dollars to unseat three sitting justices. A group called Defend Justice From Politics spent $3.1 million on the justices’ behalf, helping them prevail. In Michigan in 2012, two anonymously funded nonprofits, the Judicial Crisis Network and Americans for Job Security, poured $2.1 million into attack ads against five judges on Michigan’s 6th Circuit Court, though the judges won out. And earlier this year, Tennessee’s lieutenant governor, Ron Ramsey, took it upon himself to spearhead an effort to unseat three sitting state Supreme Court justices—and, along with them, the attorney general, who is appointed by the court. Ramsey’s PAC pumped $425,000 into a group running negative ads that blasted the three justices as "liberal on crime" and for "helping advance Obamacare." Funds were also contributed by Americans for Prosperity and the GOP’s State Government Leadership Foundation, which said it planned to spend an additional $5 million in 2014 on judicial races in North Carolina, Tennessee, and elsewhere.

Though the three Tennessee justices prevailed in the end, one of them, Connie Clark, told me she’s concerned about the precedent set by the fight. "As long as there are no limits on outside money," she says, "then this will become the new normal."

The transformation of judicial campaigns has alarmed another veteran of the court system. "Judicial elections pose a serious threat," former US Supreme Court Justice Sandra Day O’Connor told Mother Jones. "If judicial decisions are in fact not fair and impartial—or even if they are perceived as being biased—the basis of support for our courts crumbles."

Initially, the 2011-12 election season—the first full cycle since Citizens United—saw a modest dip in overall reported spending on state judicial races, compared to four years earlier. But that is likely because much of the new spending does not have to be disclosed or tracked. This year, for example, Americans for Prosperity-Tennessee announced a "major new effort" to educate the public about the "liberal records" of the three justices—and not a penny of that spending was reported to the state. The outside spending on judicial races that we do know about rose to a record-high $24.9 million—a nearly sevenfold increase since 2000, and now accounting for 40 percent of the total spending on these campaigns.

Direct vs. outside judicial spending (in 2014 dollars)

Direct vs. outside judicial spending (in 2014 dollars)

Recent research suggests this flood of political money could be influencing judges’ decisions. Emory University analyzed 2,345 state supreme court decisions from all 50 states between 2010 and 2012 and concluded that the more campaign money justices received from business interests, the more likely they were to vote in favor of businesses appearing before them. (Interestingly, the study found a stronger tie between business donations and Democratic justices’ decisions. Republican justices, it speculated, were already more favorably inclined toward business interests, so the campaign money didn’t make as much of a difference.) Another analysis, by the left-leaning think tank Center for American Progress, suggested that as more money was spent on soft-on-crime attack ads in campaigns, justices were increasingly siding with the prosecution.

The public may be starting to catch on: A 2013 poll by Justice at Stake, a nonprofit group focused on reforming the system, found that 87 percent of Americans believe that campaign donations could influence court rulings. "You can’t expect judges to act like Huey Long on the campaign trail and expect them to be Solomon in the courtroom," says Bert Brandenburg, the group’s executive director.

A case pending before the US Supreme Court could inject even more politics into judicial races. In Lanell Williams-Yulee v. the Florida Bar, a county-level judge wants the nation’s high court to strike down laws in 30 states blocking judges from personally asking donors for campaign cash. In those states, treasurers and fundraising consultants typically make the ask on behalf of a judicial candidate. Only nine states currently allow judges to solicit donations directly for their campaigns, but in those states, "the road to victory begins with the solicitation of money," Wallace Jefferson, the former chief justice of the Texas Supreme Court, has written. "The ‘ask’ is undignified, and the ‘give’ is fairly compelled." For those fighting to insulate judges from electoral politics, the elimination of the fundraising ban would be yet another step in the wrong direction.

Campaign finance reformers hail the SCOTUS decision in Lanell-Williams-Yulee vs. the Florida Bar as a small victory. The court decided that rules blocking judges from asking for money do not violate free speech rights. Supreme Court Endorses Ban On Judges Seeking Campaign Cash.

Some researchers dispute the notion that rough-and-tumble judicial elections are a problem. One recent Michigan State University study of supreme court races concluded that attack ads did not hurt incumbents in partisan elections. Other studies found that nonpartisan elections are less likely to draw a challenger, are less competitive even when there is a challenger, and attract fewer voters than partisan elections do.

The debate boils down to a fundamental notion: whether the judicial branch of government is unique from the other two and should be insulated from politics. With court integrity hanging in the balance, should judges be chosen the same way we pick presidents and members of Congress?

Randy Shepard, who served as the chief justice of the Indiana Supreme Court for 25 years, retired from the court in 2012 as the longest-serving state chief justice in American history. A lifelong Republican in a red state, Shepard has gone through the merit selection process and run in multiple elections. "What’s at stake in these big-money elections is the promise of due process and an impartial court," he told me. "Do I as a citizen walk into that courtroom standing on a relatively level playing field?"

He offered up a hypothetical from a law review article he wrote that, he proudly noted, was cited by Justices Ruth Bader Ginsburg and Anthony Kennedy in the Massey Energy case—the one where the high court ruled that a judge who’d received massive campaign contributions connected to a company had to recuse himself from a case involving that company. "Say you’re going before a trial judge making a decision about the custody of your grandchildren, and your evil son-in-law or daughter-in-law had made a very large contribution to the judge. How would you feel about that? You wouldn’t feel very optimistic, would you?"

Posted by Gypsy Chief

South Carolina ‘creationist’ science quiz is real | Daily Kos Classics

2015 May 21
by chief

Marci Hamilton has written a good reference work for non-attorneys. The book, published in 2005, is “God vs. The Gavel: Religion and the Rule of Law”. She documents various ways religion is harmful to certain people. Among examples: parents who decline to vaccinate children for religious reasons, parents who decline medical treatment for their children. She discusses parents who homeschool their children. These children are supposed to be educated in accordance with required state standards but it is impossible to enforce this. Children become mayrtrs to their parents’ religious beliefs. They are destined to a life of low achievement. This Daily Kos article is in the same vein.


This has been floating around for a while, but it looks like Snopes has now confirmed it. It’s real. The above is an actual science quiz given to 4th graders at Blue Ridge Christian Academy in South Carolina. Here’s page two:
This particular Christian Academy is a tiny school, it’s private, it’s got Christian right there in the name so you know where they’re coming from, and like a good portion of America’s much-heralded private schools it apparently exists to give children the shittiest possible education that your limited money can buy, the sort of education that will get them laughed at for the rest of their life. Or something. No, there’s nothing in American law that says you can’t give your children the silliest possible education—if you want, you can teach them that the sun is a 50-year-old man from Orlando who just got fed up one day, tied balloons to his belt and lit himself on fire. It’s not nice, but you’re allowed.

The origin of the quiz is interesting. According to Snopes, it’s the result of a lesson based on an “educational” video from the (truly loony) Answers in Genesis, the proprietors behind the Creation Museum, a truly glorious Kentucky-based shrine to, well, all that crap you see up there. Adam and Eve rode dinosaurs, the earth is 6,000 years old, radiocarbon dating is an abomination unto the Lord, etc.—oh, and they’re building an ark, too. A Kentucky-based, dinosaur-having ark theme park, and that has the potential to be the most awesome display of technology used to rebut technology that you can possibly imagine, if they don’t cheap out on us.

As their actual, let’s call it educational efforts, Answers in Genesis provides study guides, videos and other materials teaching and/or explaining how to teach all of the aforementioned silly things—the “Were you there?” rebuttal to all of human history before their personal birth is one of their hallmarks, for example, and can be seen on page two of the quiz. So yes, there’s really, truly a certain population of the country that teaches it to their children in lieu of actual science. Then those children grow up and are elected to Congress, so you can’t say there’s not a career path there.


Posted by Gypsy Chief

Scandal? Pundits Know Zero About Clinton Foundation

2015 May 20


From National Memo. Written by Joe Conason.

A very strange thing has happened to the Bill, Hillary and Chelsea Clinton Foundation.

Suddenly, journalists who never paid the least attention to the foundation’s work over the past decade or so — and seemed content to let the Clintons and their associates try to do some good in the world — proclaim their concern about its finances, transparency and efficiency. Commentators with very little knowledge of any of the foundation’s programs, who are indeed unable to distinguish the Clinton Global Initiative from the Clinton Health Access Initiative, confidently denounce the entire operation as suspect.

What provoked this frenzy of ignorance and indignation, of course, is the candidacy of Hillary Rodham Clinton for President of the United States. Partisan adversaries of the former Secretary of State have been working overtime, subsidized by millions of dollars in Republican “dark money,” to construct a conspiratorial narrative that transforms her husband’s good works into dirty deals. (Transparency is evidently required of the Clintons, but not of their critics.)

The main product of that effort, delivered by media mogul Rupert Murdoch amid a din of promotion in mainstream and right-wing media, is of course Clinton Cash, authored by a former Bush speechwriter named Peter Schweizer.

Compressing lengthy timelines, blurring important distinctions, and sometimes simply inventing false “facts,” Schweizer has attempted to transform the Clinton Foundation from an innovative, successful humanitarian organization into a sham institution that sells public favors for private gain.

While many of Schweizer’s most glaring accusations have been thoroughly debunked already — notably concerning the uranium-mining firm once partly owned by a major foundation donor — amplified echoes of his “corruption” meme are damaging nevertheless. Various media figures who have long hated the Clintons, from Rush Limbaugh to David Frum, feel liberated to utter any outrageous accusation, however distorted or dishonest.

But as so often has proved true when such individuals start screaming “scandal” and “Clinton” in the same breath, the sane response is to take a deep breath, suspend judgment and examine relevant facts.

Appearing on a recent National Public Radio broadcast with me, Frum asserted that the foundation spends far too much on air travel and other expenses. The same philanthropic impact could have been achieved, said Frum, if Bill Clinton had merely “joined the International Red Cross” after leaving the White House.

While Frum doesn’t know what he’s talking about, that won’t stop him chattering for a second. Among the significant achievements of the Clinton Foundation was to build a system that has drastically reduced the cost of providing treatment for AIDS and other diseases across Africa, the Caribbean and in other less-developed countries, saving and improving millions of lives. Bringing together major donors, including wealthy nations like Norway, the Netherlands, the United Kingdom and the United States, with the leaders of poor nations to create these programs, he helped turn back a disease that once threatened to infect 100 million people globally. That effort required many hours of air travel by him and his aides — and many visits to extremely uncomfortable, and sometimes dangerous, places in which Frum will never set an expensively shod foot.

Like Limbaugh, Frum has claimed that the Clinton Foundation wastes enormous resources while concealing its donors and expenditures from a gullible public. The truth, attested by expert authorities on nonprofit and charitable organizations, is that the foundation spends (and raises) its funds with commendable efficiency — and it has posted far more detailed information, including the names of 300,000-plus donors, than federal tax law requires.

Did the foundation’s staff commit errors during the past 15 years or so? Undoubtedly. Could its operations be more efficient, more effective, more transparent? Of course — but its record is outstanding and its activities have done more good for more people than Frum, Limbaugh, Schweizer, the Koch brothers and Rupert Murdoch would achieve in 10,000 lifetimes.

Why don’t these furious critics care about basic facts? It may be unfair to assume that in pursuit of their political agenda, they are indifferent to millions of Africans dying of HIV or malaria. Yet they do seem perfectly willing to hinder an important and useful effort against human suffering.

When you hear loud braying about the Clinton Foundation, pause to remember that two decades ago, these same pundits (and newspapers) insisted that Whitewater was a huge and terrible scandal. Indeed, Limbaugh even insinuated on the radio that Hillary Clinton had murdered Vince Foster, a friend and White House staffer who tragically committed suicide. Politicians and prosecutors spent more than $70 million on official investigations of that ill-fated real estate investment, loudly proclaiming the Clintons guilty of something, before we finally discovered there was no scandal at all. Talk about waste!

So perhaps this time, with all due respect for the vital work of the Clinton Foundation, we should assume innocence until someone produces credible evidence of wrongdoing.


Posted by Gypsy Chief

Klingenschmitt: Gays Need Conversion Therapy To ‘Get The Devil Out’

2015 May 19

From our friends at Right Wing Watch.

The Supreme Court recently rejected legal challenges to California and New Jersey laws banning the use of "ex-gay" conversion therapy on minors and Gordon Klingenschmitt is not pleased because now gay people will be unable to free themselves from the demons that control them.

As he explained on his "Pray In Jesus Name" program recently, "there is a demonic spirit … inside of the addict that is controlling the voluntary choices, or at least has contracted with them and is manifesting through them in this sinful addiction. And what is the only way to treat that? It's to get the Devil out and to get the Holy Spirit in."

In rejecting efforts to overturn bans on conversion therapy, Klingenschmitt said, judges are "cooperating with the demonic spirit inside of the homosexual addict and those judges are now reinforcing the sin and saying you cannot be delivered, you cannot cured, you cannot be healed":

Posted by Gypsy Chief

Oklahoma Oil Billionaire Demanded University Fire Scientists Studying Dangers of Fracking

2015 May 18
by chief

From Alternet.


A billionaire oil tycoon, who is a major donor to the University of Oklahoma, approached a dean at the school demanding that the university fire scientists who were studying the link between fracking and the increase of earthquakes in the oil-rich state.

According to Bloomberg Business, Continental Resources CEO Harold Hamm met with Larry Grillot, dean of the university’s Mewbourne College of Earth and Energy, in 2014 and expressed his dismay with work being done on the school’s Oklahoma Geological Survey.

“Mr. Hamm is very upset at some of the earthquake reporting to the point that he would like to see select OGS staff dismissed,” Grillot wrote to Dammy Hilliard, University Vice President for External Relations and Planning.

In the email, Grillot noted that Hamm had made a veiled threat to the university, telling the dean, “he would be visiting with Governor [Mary] Fallin on the topic of moving the OGS out of the University of Oklahoma.”

In a later email to Grillot, Hamm expressed an interest in volunteering to serve on the search committee seeking new members of the OGS, saying the committee should include a member from the oil and gas industry.

Asked about the series of emails by Energy wire, Hamm dismissed the notion he was putting pressure on the university, saying, “I’m very approachable, and don’t think I’m intimidating. I don’t try to push anybody around.”

Hamm’s meeting with Grillot resulted in no apparent changes with the OGS, with the dean stating that the university politely declined his offer of help in overseeing the scientists working on the survey.

In 2012 Hamm served as an adviser on energy policy on Mitt Romney’s presidential campaign.


Posted by Gypsy Chief