George Zornick | The Nation

George Zornick

George Zornick

Action and dysfunction in the Beltway swamp. E-mail tips to george@thenation.com

The Blotch on Eric Holder’s Record: Wall Street Accountability

Eric Holder

(Reuters/Jonathan Ernst)

Attorney General Eric Holder will announce Thursday he is stepping down from the post he has held for nearly six years—making him one of the longest-serving attorneys general in American history.

Holder was the first African-American to hold the position and will surely be remembered as a trailblazer for civil rights. From sentencing reform to combating voter suppression to investigating some of the country’s most violent police forces, Holder made huge progressive strides. It’s no coincidence Holder called the civil rights icon Representative John Lewis on Tuesday before his resignation became public. White House officials are already pushing out narratives about Holder’s “historic legacy of civil rights enforcement and restoring fairness to the criminal justice system.”

But there is one area where Holder falls woefully short: prosecution of Wall Street firms and executives. He came into office just months after widespread fraud and malfeasance in the financial sector brought the American economy to its knees, and yet no executive has faced criminal prosecution. Beyond the crash, Holder established a disturbing pattern of allowing large financial institutions escape culpability.

“His record is really badly blemished by his nearly overwhelming failure to hold corporate criminals accountable,” said Robert Weissman, president of Public Citizen. “Five years later, we can say he did almost nothing to hold the perpetrators of the crisis accountable.”

Advocates for financial accountability often point to the Savings and Loan crisis as a counter-example: despite much smaller-scale fraud, 1,000 bankers were convicted in federal prosecutions and many went to prison.

Holder has tried to explain his lack of prosecutions relating to the 2008 collapse by claiming the cases were too hard to prove—but many experts disagree. The Sarbanes Oxley Act, for example, would provide a straightforward template: it makes it a crime for executives to sign inaccurate financial statements, and there is ample evidence that Wall Street CEOs were aware of the toxicity of the sub-prime mortgages sold by their firms.

Late last year, Judge Jed Rakoff of the Federal District Court of Manhattan wrote an essay in The New York Review of Books bluntly titled, “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?” He suggested a doctrine of “willful blindness” at Holder’s Justice Department and said “the department’s claim that proving intent in the financial crisis is particularly difficult may strike some as doubtful.” A federal judge will generally not proclaim people guilty outside the courtroom, but Rakoff came close with that statement. The fact he wrote the essay at all stunned many observers.

In recent years, the Justice Department has obtained some large-dollar settlements with Wall Street firms like JPMorgan Chase and Bank of America. But the headline-grabbing amounts end up being significantly less after factoring in tax accounting and credits for actions already being undertaken by the bank. There is also a lack of transparency around how these penalties are being paid to aggrieved consumers.

Holder himself suggested in Senate testimony last year that some firms really are too big to jail:

“I am concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy,” Holder said.

He later walked that back in subsequent testimony, saying “Let me be very, very, very clear. Banks are not too big to jail.” But the data suggest otherwise.

Under Holder, the Justice Department has greatly expanded the use of deferred prosecution agreements with large corporations, from financial firms to agricultural giants. These are arrangements that take the place of criminal prosecutions—instead, the offending corporation admits wrongdoing, pays a fine (that is usually a small fraction of yearly profits), and agrees to remedy internal problems that lead to the crime. In return, the government agrees not to prosecute.

Public Citizen did an analysis of these agreements at the Department of Justice and found that Holder made them a routine affair:

There isn’t much transparency over which bad actors are awarded deferred prosecution, and which are not, and advocates are alarmed by the precedent.

“[Holder] ensconced the de facto ‘too-big-to-fail’ doctrine by which large financial institutions were effectively immunized form criminal prosecution simply by virtue of being so big,” said Weissman.

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This was brought into sharp relief when Justice allowed HSBC to enter deferred prosecution for wide-ranging multibillion-dollar money laundering at the bank on behalf of large illegal drug operations and also terrorist groups.

“The facts are unbelievable. Epic-level money laundering on behalf of narco-traffickers, un-denied by the corporation,” Weissman said. “And no criminal prosecution, and no responsibility for the executives.”

It did seem that Justice became more responsive to these criticisms after Obama was re-elected, and Weissman hopes that continues after Holder. “With a clean slate, Obama should apply a litmus test: a new nominee has to clearly show their willingness to hold accountable the institutions and individuals on Wall Street who devastated Main Street,” he said. “And they have to be crystal clear that they are abandoning the too-big-to-jail doctrine.”

Read Next: Eric Holder’s voting rights legacy

How the Koch Network Exploited the Veterans Affairs Crisis

Pete Hegseth

Captain Pete Hegseth, right, and Captain Flagg Youngblood, testify on Capitol Hill in Washington, Thursday, July 1, 2010, before the Senate Judiciary Committee hearing for Supreme Court nominee Elena Kagan. (AP Photo/Pablo Martinez Monsivais)

As the scandal over waiting lists at Veterans Affairs hospitals exploded earlier this year, there was widespread outrage—and justifiably so, as the country learned that more than 100,000 veterans waited over ninety days for care or never received it.

An ever-present force in this debate was a group called Concerned Veterans for America. Its leader, Peter Hegseth, frequently appeared on cable news segments about the scandal, and CVA was often mentioned on the floor of the Senate.

Though the group doesn’t disclose its donors, it has for a long while been clear the group is funded in part, or perhaps even in full, by the Koch brothers. Any remaining doubt can now be erased thanks to audio from the secretive Koch donor retreat this summer, obtained by The Undercurrent and reported here.

Hegseth addressed the crowd and not only confirmed that the Koch network “literally created” CVA but explained giddily “the central role that Concerned Veterans for America played in exposing and driving this crisis from the very beginning.”

Most notably, during his roughly ten-minute speech, Hegseth outlined how the group was turning legitimate grievances over Veterans Affairs care into a political weapon to attack both the Obama administration and the idea of government-provided healthcare.

When Kevin Gentry, vice president of the Charles G. Koch charitable foundation, introduced Hegseth to the assembled donors, he noted that “you all helped build a group called Concerned Veterans for America.”

At various points, Hegseth took pains to express his gratitude to the people funding his operation. “Concerned Veterans for America is an organization this network literally created to empower veterans and military families to fight for the freedom and prosperity here at home that we fought for in uniform on the battlefield,” he noted.

“We utilized the competitive advantage that only this network provides: the long-term vision to invest and the resources to back it up,” he continued.

Hegseth also created a distinct impression for the audience that CVA was responsible for bringing the VA crisis to the forefront:

Now, unless you’ve been living under a rock for the last couple of months, you know about the crisis at the Department of Veterans Affairs. What you probably don’t know is the central role that Concerned Veterans for America played in exposing and driving this crisis from the very beginning.

After years of effort behind the scenes privately and publicly, the scandal eventually made national headlines when initially in Phoenix it was exposed that veterans were waiting on secret lists that were meant to hide the real wait times veterans had at VA facilities of months and months and months.

Indeed, CVA played a key role in bringing the scandal to the national consciousness. In early April of this year, a doctor from the now-infamous Veterans Affairs hospital in Phoenix retired and went to The Arizona Republic with allegations of falsified data about long wait times for patients.

But despite the story, it remained a local issue. One of the things that helped drive it into the national news was a rally organized by CVA in Phoenix with Republican Representative Dave Schweikert. Not long after, CNN reporter Drew Griffin ran a long investigative piece that sent the story viral.

The scandal surely deserves attention. But Hegseth’s speech is striking for the naked political motivations behind CVA’s advocacy, and what he deems most important:

Perhaps most importantly to this effort, we have created a new line of defense against the march towards socialized medicine, educating veterans and Americans in the process. Veterans have had government-run healthcare for decades. We’ve had the preview of Obamacare, and the scandal has exposed the inevitable result of central planning for all Americans: massive wait times, impenetrable bureaucracy, de facto rationing, wasted tax dollars. It goes on and on.

Throughout this effort, Concerned Veterans for America, along with our network partners, have intentionally broadened the debate to include big government dysfunction generally, further fortifying a new skepticism that AFP and others have brought to what government-run healthcare does.

Even before this year’s scandal, CVA was using problems with Veteran’s Affairs healthcare as a political cudgel against both the Affordable Care Act and vulnerable Democrats. This ad taken against Representative Alan Grayson is a good example, in which a veteran explains his troubles getting care and then says “If you want to know what Obamacare’s going to be like, just look at the VA system.”

CVA operates in the expanding world of 501(c)(4) social welfare organizations that, in reality, are pure political operations. The group’s finances are hard to parse, but it appears much of their spending is on ads targeting Democrats in swing states—late this summer, for example, CVA began a $1.6 million advertising campaign against Democratic Senator Kay Hagan in North Carolina. (Notably, the air time was already reserved by the Koch-affiliated Freedom Partners, but they canceled their buy and turned it over to CVA.)

Finally in his speech, Hegseth claims that Republican senators were working hand-in-glove with CVA to pass the Sanders-McCain legislation this summer on veteran’s healthcare, and that the Koch network alone is responsible for the “market-based” reforms included in the bill:

Ten days ago, the Senate struck a historic deal, a deal that Concerned Veterans for America was central to in every aspect literally ensuring that the language stay focused on real market-based reform, and we pushed the ball across the Now usually deals in the Senate include only one thing: billions and billions of dollars in more spending. Not this one.

This deal, as with the legislation in the House, was instead built on two market-based reforms that were injected by Concerned Veterans for America and advanced the entire point, the entire way.

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He names the accountability measures that allow quick termination of under-performing VA managers, which was initially advanced by Senator Marco Rubio.

Hegseth then says the “crown jewel” of the bill is the ability for veterans to obtain private healthcare if they are waiting too long in the VA system. “The latter reform, which seems like a no-brainer to everyone in this audience, is a huge development, rocking the core of big government status quo in Washington,” he claims.

Here, Hegseth is engaging in some undue bravado. The option for privatized care is for veterans is significant, though only available to veterans who have to wait thirty days or more for care or live more than forty miles from a VA facility. Hegseth doesn’t mention the provision has a sunset of three years or until funding runs out, whichever comes first.

And speaking of funding, the legislation increases the deficit by $10 billion. That would seem to go against much of the fiscal conservatism trumpeted elsewhere in the donor conference.

Nevertheless, the Hegseth speech is an interesting window into how the Koch network operates: funding an ostensible advocacy group that is, in fact, a relentless political operation—and one that can, with the right situation to exploit, do everything from take out political attack ads to help craft legislation.

Read Next: How the Koch brothers and other family capitalists are ruining America

Obama Is Open to Ground Troops in Iraq, a Top General Says

Hagel and Dempsey

Anti-war activists interrupt a Senate hearing with Defense Secretary Chuck Hagel and Army General Martin Dempsey on Tuesday, September 16, 2014. (AP Photo/J. Scott Applewhite)

President Obama has repeatedly declared there will be no combat troops on the ground in Iraq to fight the Islamic State of Iraq and the Levant. But a Senate hearing Tuesday with top US military officials revealed that pronouncement is on very shaky ground—there is now no question ground troops are under active consideration at the highest levels of government.

General Martin Dempsey, chairman of the Joint Chiefs of Staff, said in his opening remarks he isn’t ruling out asking Obama for ground troops. “To be clear, if we reach the point where I believe our advisers should accompany Iraqi troops on attacks against specific ISIL targets, I will recommend that to the president.”

Dempsey also testified that the president asked him “to come back to him on a case-by-case basis” on the subject of ground troops.

There are currently about 1,600 US troops on the ground in Iraq serving in “advisory” roles. Dempsey reiterated several times he could imagine scenarios in which he would want them to switch into more active roles, though his potential rationale for doing so changed in striking ways throughout the hearing.

Dempsey first said, in a response to a question from Senator Carl Levin, the chairman of the Senate Armed Services Committee, “If there are threats to the United States, then of course I would go back to the president and make a recommendation that may include the use of US military ground forces.”

But moments later, in a response to a question from Senator Jack Reed, he outlined an entirely different scenario that would involve US troops heading into battle without a clear threat to the United States.

“If the Iraqi security forces and the pesh [peshmerga, Kurdish fighting forces] were at some point ready to retake Mosul, a mission that I would find to be extraordinarily complex, it could very well be part of that particular mission to provide close combat advising or accompanying for that mission,” Dempsey said. “But for the day-to-day activities that I anticipate will evolve over time, I don’t see it to be necessary right now.”

“Close combat advising” and “accompanying” don’t literally mean fighting, but clearly US troops would be present in a gritty urban combat operation.

It is not known if there are any plans by those forces to force ISIL out of Mosul, but also on Tuesday morning, the BBC reported that the peshmerga “are preparing to start a push to retake the plain of Mosul,” also known as the Nineveh plains, which are outside the city.

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Moreover, accomplishing the goals in Iraq already set forth by Obama and other top US officials would seem to necessitate the surrender of Mosul by the Islamic State.

Dempsey clarified in the hearing that military goals are to “destroy ISIL in Iraq, restore the Iraqi-Syrian border, and disrupt ISIL in Syria,” and if the Islamic State retains control of Iraq’s second-largest city, it would be hard to say that mission was accomplished.

Secretary of State John Kerry already opened the door to ground troops last week, when he said they would not be used “unless, obviously, something very, very dramatic changes.”

The Senate hearing was frequently interrupted by anti-war protesters from the group Code Pink.


Read Next: Obama reneges on his foreign-policy promises.

For Many Politicians, Ferguson Isn’t Happening

Hillary Clinton

Former US Secretary of State Hillary Clinton (Reuters/Lucy Nicholson)

Representative Paul Ryan’s response to the shooting death of Michael Brown by Ferguson, Missouri, police was fairly straightforward: say nothing, do nothing. “We should take a deep breath, let’s have some sympathy for the family and the community, and let’s not prejudge anything, and let’s let the investigation take its course and hope that justice is served appropriately,” he told Fox News on Tuesday. “But what I don’t want to do as a political leader is try to graft my policy initiatives or my preferences onto this tragedy.”

It was not a great moment in the Republican Party’s alleged outreach to minority communities, which Ryan has been championing, but this silence is a bipartisan affair. Many politicians on both sides of the aisle, with a few valuable exceptions, have by and large avoided what’s happening in Missouri entirely.

Most of the candidates likely to contend for the presidency in 2016 have been silent. Hillary Clinton, who has been eager in recent weeks to opine extensively on national issues as she embarked on a book tour, has acted as if the situation isn’t happening.

On Friday, as the nation was gripped by a series of rapid-fire events in Ferguson—the disclosure of Officer Darren Wilson’s name and the inflammatory convenience store footage, along with increased civil unrest—Clinton’s team released a hammy House of Cards spoof.

As Politico notes, the rest of the possible Democratic field avoided the events as well, save for Senator Elizabeth Warren (who, of course, insists she will not run). She told Politico the shooting of Brown was “a terrible thing…and then the Ferguson police badly overreacted.” She then sent this message from her Twitter account on Wednesday:

On the Republican side, Senator Rand Paul wrote a strongly worded op-ed in Time calling for the demilitarization of police and a reexamination of racial disparities in law enforcement. That represents the strongest, most detailed response of any 2016 contender to date.

One of Paul’s potential rivals, Senator Ted Cruz, called the situation “tragic” but didn’t weigh in on any fundamental issues raised in Ferguson, except to criticize the arrest of journalists. Senator Marco Rubio issued a statement saying “Michael Brown’s family is in my prayers during this terrible time in their lives. I’m very concerned by recent events in Ferguson, including the violence that has gripped that community and the inexplicable jailing of two reporters. As the FBI looks into allegations regarding the police department there, I hope Americans all over the country will voice their opinions through peaceful means and not resort to violence.”*

As for the rest? Nothing. Jeb Bush, Rick Perry and Scott Walker haven’t said a word. New Jersey Governor Chris Christie declined to comment, though did signal some faint support for the police. “I’m not going to get into this business of generalizing against law enforcement officers. It’s not right,” he told New Jersey Public Radio.

Congressional leaders have at least issued short statements mourning the passing of Brown and calling for varying degrees of investigation. Most of them, anyway—Senator Mitch McConnell was alone among House and Senate leaders in not sending out a statement on Ferguson last week, and he has not commented publicly on the matter.

The Missouri delegation cannot avoid it—Senator Claire McCaskill and Representative Emanuel Cleaver have been active on the ground there, meeting with residents and talking with the media. Senator Roy Blunt, a Republican, has spoken with Obama about what’s happening and met with Attorney General Eric Holder when he visited Wednesday.

Beyond that, the rank-and-file have largely followed their leaders’ model of saying as little as possible about what’s unfolding in Ferguson—though there are some promising stirrings.

Members of Congress could be useful in pushing the Department of Justice to fully investigate not only Brown’s killing, but larger policing issues in St. Louis County. That has certainly been a focus of the Congressional Black Caucus, which has urged the Justice Department not only to investigate Brown’s killing, but patterns of misconduct by the Ferguson police. House minority leader Nancy Pelosi, in her statement on the issue, also called for the Justice Department to “examine the long standing issues between the citizens of Ferguson and their elected officials and local law enforcement.” (Blunt, for his part, is warning the Justice Department not to get too involved.)

The CBC is also urging the Republican chair of the House Judiciary Committee to hold hearings on what’s happening in Ferguson and the broader issues it raises.

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On the Senate side, Judiciary Committee chair Patrick Leahy issued a statement on Friday about Brown’s shooting and the corresponding police actions, but did not signal any hearings would be forthcoming.

Congress could also act to reduce the militarization of local police forces by reigning in the Pentagon program that provides most of the weaponry. Representative Hank Johnson is plotting a bill that would do just that; Senator Carl Levin, the chair of the Senate Armed Services Committee, said he is willing to re-examine the program. Reid, however, said he doesn’t support ending the flow of weapons but would rather simply increase local police training.

Beyond that, Senator Bernie Sanders is hoping to add to the conversation with a jobs bill for black youth, which he is framing in terms of what’s happened in Ferguson. “If we are going to address the issue of crime in low-income areas and in African-American communities, it might be a good idea that instead of putting military style equipment into police departments in those areas, we start investing in jobs for the young people there who desperately need them,” he said in a statement. Sanders has been one of the few in the Senate, so far, to speak out about events on the ground there.

For much of Congress, it has been relatively easy to avoid talking about Ferguson—the body is in the middle of a five-week recess, meaning members aren’t being buttonholed by reporters every day in the halls of the Capitol. But soon enough, that will end. It’s also inevitable that Clinton and others are eventually forced to comment. The question then will shift to what they say, and what they want to do.

*A prior version of this story incorrectly said Rubio did not issue a statement on the events in Ferguson.

Read Next: An ex-marine explains the weapons of war being used by police in Ferguson.

This Week, Look At Real Sharks: Payday Lenders

Payday Loan Protesters

Activists rally Tuesday outside an Advance America outlet in Columbia, Missouri. The company is the largest payday lender in the US. (Photo by Ryan Betz of GRO Missouri)

As much of America turns its attention to the Discovery Channel’s Shark Week, activists are bringing attention to a different kind of predator—payday lenders. In Illinois, Iowa and Missouri this week, targeted actions outside payday loan outlets aim to highlight the debt traps that so often plague their clients.

At one event Tuesday morning in Columbia, Missouri, activists rallied outside an Advance America “cash advance center,” which offers residents short-term, high-interest loans for relatively small amounts of money. Advance America is the largest payday lender in the United States.

Activists held signs reading “the poor can not afford to pay more” and some dressed as sharks, according to photos reviewed by The Nation, while a Navy airman described being trapped by a payday loan. Further actions are planned this week in Des Moines, Iowa and Springfield, Illinois.

Payday lenders tend to target people of color in high-poverty areas. According to a study by National People’s Action, which is organizing these “Shark Week” protests, such neighborhoods can have as many as three times the payday lenders as in relatively white, affluent areas.

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The basic scheme is to offer these high-interest, short term loans—loans generally cost borrowers about one-third of their income, according to Pew Charitable Trusts—and then entrap customers to coming back and taking out another loan in order to cover the first one. The industry likes to boast that 94 percent of its loans are paid on time, but what it doesn’t mention is that 94 percent of borrowers also become repeat borrowers within thirty days. A study by the Consumer Financial Protection bureau last year found that two-thirds of payday loan borrowers take out seven or more loans in a year.

This is the explicit intent of the industry—at a conference in 2007, Cash America CEO Dan Feehan explained that “the theory in the business is you’ve got to get that customer in, work to turn him into a repetitive customer, long-term customer, because that’s really where the profitability is.”

But the idea of deliberately creating poverty traps for the already desperate has increasingly drawn the interest of local and federal regulators, including the Department of Justice and the Consumer Financial Protection bureau. On Tuesday, prosecutors in New York charged local payday lenders with running an actual “usury scheme.”

You can follow further actions from National People’s Action’s blog here.

Read Next: North Carolina becomes the latest casualty of voting Rights Act decision

Federal Contractors Strike to Demand Higher Wages

Minimum wage rally

Strike to raise minimum wage at Union Station in Washington, DC. Photo by George Zornick

Low-wage federal workers walked off the job Tuesday morning across Washington, DC, to demand an executive order for higher wages—building on a successful push earlier this year to raise the wage of federal contract workers to $10.10.

President Obama announced during this year’s State of the Union address that he would indeed raise the wage of federal contract workers, after a lengthy pressure campaign—but Good Jobs Nation, a group leading the earlier strikes, now believes $10.10 isn’t high enough. Over 200 workers planned to walk off the job on Tuesday at a variety of workplaces that contract with the federal government, and they want Obama to go even higher.

At Union Station, Washington’s central train hub and a federally owned building with many restaurants and retail outlets, striking workers were joined by several members of the Congressional Progressive Caucus, as well as some faith leaders.

“I don’t believe that any federal contractor who doesn’t want to pay people a livable wage should have a federal contract,” Representative Keith Ellison, a co-chair of the CPC, told the crowd. “There’s enough federal contractors who want to be fair and do good by their workers. We don’t have to keep with the crooked ones.”

“If we’re paying companies with taxpayer dollars, they should take care of their workers,” said Representative Barbara Lee. Lee and Ellison were joined by Representatives Sheila Jackson-Lee and Eleanor Holmes Norton, the non-voting member who represents DC.

Erica Gayles, who works at a Dunkin’ Donuts inside the Pentagon, has helped lead the strike and spoke with The Nation on Monday afternoon. She described how she attended the University of the District of Columbia for three years, before her mother fell ill. Gayles was forced to drop out and find work immediately.

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“Yes it wasn’t the best job, but little pay is better than no pay at all. And I’m kind of stuck because I’m tired of working this tiring job for a little bit of money,” she said. “I’d also like to go back to school and obtain my degree in criminal justice.”

In the meantime, she wants Obama to step up again for low-wage workers. “I’m involved with this movement because a lot of workers are afraid to speak up for what’s right, but I’m here because I want to be the voice of those who are afraid because there shouldn’t be fear,” she said. “You should have no fear in speaking up for what’s right. It’s not like you’re doing anything illegal. We need this to survive, everybody else is surviving and getting benefits, getting paid good, and we work hard.”

According to the National Employment Law Project, when they interviewed 500 federal workers last year in service industry jobs, they found that 70 percent made less than $10 per hour. Most federal contracts have yet to be affected by the earlier executive order, which for legal reasons can only apply to newly signed contracts.


Read Next: Paul Ryan’s faux populism isn’t going to end poverty or reduce inequality

A Bill to Get the Labor Movement Back on Offense

Workers Protest

Public sector workers rallying in solidarity with Wisconsin workers outside Los Angeles City Hall (AP Photo/Jason Redmond)

For years, the American labor movement has been on the defensive as it has become harder and harder for workers to join or maintain a union. But some House Democrats are planning a dramatic counter-offensive: a bill that would make union organizing a civil right.

Representatives Keith Ellison and John Lewis plan to introduce a bill Wednesday that would make labor organizing a basic freedom no different than freedom from racial discrimination. That sounds like a nice talking point—but this isn’t just another messaging bill.

The Ellison-Lewis legislation would amend the National Labor Relations Act to include protections found under Title VII of the Civil Rights Act to include labor organizing as a fundamental right. That would give workers a broader range of legal options if they feel discriminated against for trying to form a union.

Currently, their only redress is through a grievance with the National Labor Relations Board—an important process, but one that workers and labor analysts frequently criticize as both too slow and often too lenient on offending employers.

If the NLRA were amended, however, after 180 days a worker could take his or her labor complaint from the NLRB to a federal court. This is how the law works now for civil rights complaints, which gives workers the option, after 180 days, to step outside the Equal Employment Opportunity Commission process.

Then, workers would have sole discretion on whether to push a complaint, as opposed to relying on a decision by the NLRB on whether to forge ahead. Workers could also move the process along much faster than the NLRB handles complaints, which can often take years.

Ellison told The Nation that the legislation would also help workers recover more money—the NLRB will award back pay to a grieved worker minus whatever they earned while awaiting a decision, which can often amount to basically nothing. “[The NLRB] remedy, though useful and very important, and nothing in our legislation changes that, that remedy is considered slow and somewhat inadequate. For some of these union-busting law firms, [they] will say ‘so do it and we’ll just pay.’”

Ellison said he believes the labor movement needs to get back on the offensive. “With the Supreme Court in here, and what they just did in Harris v. Quinn and all the things they wrote about Abood, it’s insane to hope for the best,” he said, referring to the recent decision involving non-union public workers and their fee arrangements with unions. “I mean this Supreme Court is openly hostile to racial justice and worker justice simultaneously. So we better be moving out on both fronts.”

Ellison told MSNBC, which first reported the bill, that he got the idea from a book by Century Foundation fellows Richard Kahlenberg and Moshe Marvit, titled Why Union Organizing Should Be a Civil Right. They argue that the First Amendment’s right to free association should clearly include one of the most crucial forms of association—banding together to push back against unfair treatment from employers.

Marvit told The Nation he thinks treating labor organizing as a civil right is not only constitutionally appropriate but also much more appealing to the general public. “Civil rights is something that Americans really understand, and has a legitimacy that is sort of beyond reproach,” he said. “So when you put it in civil rights terms, it’s something that really speaks to people.” (In the interest of full disclosure, Marvit has written for The Nation in the past.)

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“Frankly, I think Republicans have been saying it on the other side. That’s been the message of the National Right to Work Committee for sixty years, that workers have a civil right not to join a union,” Marvit continued. “And I think that’s been a successful argument for them. It taps into this notion of your freedom to choose.”

The Nation has learned that when Ellison and Lewis introduce the bill on Wednesday morning, they will boast eleven other original co-sponsors: Representatives Jerrold Nadler, John Conyers, Marcia Fudge, Barbara Lee, Mark Takano, Rush Holt, Eleanor Holmes Norton, Karen Bass, Danny Davis, Albio Sires and Janice Hahn. All of the co-sponsors are Democrats.

Major unions will also be on board. Both the AFL-CIO and the Change to Win coalition will back the bill, along with The United Food and Commercial Workers and the American Federation of State, County and Municipal Employees.

Joseph Geevarghese, deputy director of Change to Win, told The Nation that his union was joining the push “because union organizing has been maligned. Unions have been maligned in our society. There is a value in re-defining what all of these tens of thousands of brave workers are doing as, “We have a fundamental right to stand up and speak out about injustice in this country.’”


Read Next: Why are postal workers boycotting Staples?

Appeals Court Advances Mortal Threat to Obamacare

Obamacare supporters

Obamacare protest (Reuters/Lucy Nicholson)

A divided three-judge panel in the nation’s capital ruled Tuesday morning that the federal government cannot provide Affordable Care Act subsidies through exchanges run by the federal government—a decision that, if it stands, would functionally end Obamacare as it exists today.

Halbig v. Sebelius is based on an idea first advanced by a conservative scholar deeply opposed to the healthcare law. It involves a drafting error in the Affordable Care Act—a “glorified typo,” in the words of the Center for American Progress’s Ian Millhiser.

The law creates exchanges for buying individual health insurance plans in each state, and says states can either create their own or have the federal government step in and do it for them. Twenty-seven states, usually controlled by conservative governors or legislatures, declined to create exchanges and have federal ones.

But in the section governing subsidies, a literal reading of the law appears to limit federal subsidies to people who are buying in “an Exchange established by the State.” The conservative activists behind this lawsuit—and the two judges who agreed with them Tuesday—say this means that people who aren’t in exchanges “established by the state,” that is the people in twenty-seven states with federal subsidies, are ineligible for subsidies.

The language is indeed a little unclear, and that line should have made it explicit that subsidies would be available in all exchanges, state or federal. But the Supreme Court has long held that ambiguous language in isolation does not vitiate the otherwise discernible intent of a law—and here it’s extremely easy to figure out what the Democrats who passed the ACA intended, not least because they filed a brief with the court explaining that, of course, the subsidies were supposed to go to any person in an exchange.

To believe otherwise, as the two judges in this case claim to do, would be to assume that Democrats intended to pass a law that would fail within a few years of enactment.

That’s just what would happen if this decision holds. A recent Urban Institute study found that 7.3 million people—close to two-thirds of all Americans enrolled in exchanges—would lose $36.1 billion in subsidies. People would start dropping out of the exchanges and declining to buy insurance because they couldn’t afford it; in turn, health insurance companies would have to jack up premiums for existing customers to make up for the lost revenue. The individual insurance market would essentially collapse in twenty-seven states.

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As a political matter, that could be a bit tricky for the conservative politicians celebrating the decision, like South Carolina Senator Lindsey Graham. The 183,000 South Carolinians projected to receive subsidies on the federal exchange there would lose their subsidies, which cover about 80 percent of the premium costs should Tuesday’s decision in Halbig be affirmed by the Supreme Court. Most of those people are probably middle or lower-middle class, since they are eligible for subsidies.

That’s a tough thing to champion, even for conservative politicians. They should also be wary of an ultimate victory for the plaintiffs in Halbig because, conservative governors would feel immense pressure to enact a state exchange to avoid the massive loss of subsidies and skyrocketing premiums.

But we’re a long way from that. The Obama administration—which has already said subsidies will continue to flow as Halbig is litigated—quickly asked for an “en banc” ruling from the entire DC Circuit Court of Appeals, which has a majority of Democratic nominees. It would likely not rule in favor of the plaintiffs, and were the Supreme Court to consider that decision, most legal experts just don’t see enough existing case law for the conservative majority to affirm the plaintiff’s view. If it does, however, Obamacare will spin badly off its axis.


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This Bill Could End State Abortion Restrictions

Pro-Choice Protest

(AP Photo/David Goldman)

For years the pro-choice movement has had to battle a wide array of restrictions passed on the state level, from onerous regulations on abortion clinics to “fetal pain” bills that deliberately give women bad information about abortion procedures. In fact, from 2011 through 2013, more than 200 state laws were passed that make it harder for women to access abortion services.

But the Senate Judiciary Committee held an important hearing Tuesday on a bill that could, in one swoop, clear out most of those laws. The Women’s Health Protection Act, introduced last year by Senators Richard Blumenthal and Tammy Baldwin, enumerates many of these laws that would be expressly prohibited and keeps abortion providers from being singled out by legislation that doesn’t apply broadly to most other medical services in the state.

Republican Senators and witnesses at the hearing, as one would expect, objected strenuously to the legislation. They relentlessly brought up the case of Dr. Kermit Gosnell, a Philadelphia-area abortion doctor who repeatedly broke the law and carried out gruesome, illegal abortions. Their message was that these state laws just aim to make abortion safer and avoid more cases like Gosnell’s.

In reality, Gosnell was already operating well outside the bounds of the law and is actually a better example of what would happen were abortion to be outlawed entirely. As Nancy Northrup, president of the Center for Reproductive Rights, testified at the hearing, that is the real and often stated goal of these laws:

[O]pponents of women’s reproductive rights, seeking to make an end run around public opinion and the Constitution itself, have shifted their strategy. They have resorted to obfuscating their true agenda by pushing laws that pretend to be about one thing but are actually about another. They claim these laws are about defending women’s health and well-being, and improving the safety of abortion care—but they most assuredly are not. They are wolves in sheep’s clothing. They are advanced by politicians, not by doctors, often based on model legislation written by explicitly anti-abortion groups.

When Mississippi enacted such a law in 2012, a state senator put it quite plainly: “There’s only one abortion clinic in Mississippi. I hope this measure shuts that down.” Others showed their hands as well. Lt. Governor Tate Reeves stated that the measure “should effectively close the only abortion clinic in Mississippi” and “end abortion in Mississippi” when the bill passed the state Senate. Governor Phil Bryant, in vowing to sign the bill, said that he would “continue to work to make Mississippi abortion-free.” When he actually signed it, he said, “If it closes that clinic, then so be it.” Right now, Mississippi’s sole clinic is holding on by virtue of a temporary court order.

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The legislation has essentially no chance of passing this Congress, but for pro-choice advocates, presents a chance to at least go on the offensive. It also may be needed in coming months as a backstop to a potential Supreme Court decision that could severely restrict abortion access.

Many federal courts have blocked this sort of state legislation as de facto abortion bans, as Northrup noted. But legal experts are increasingly convinced the Court may take up one of these cases in the next term—and that five conservative justices could move to affirm these abortion-restricting laws and effectively hollow out Roe v. Wade. The Women’s Health Protection Act would be a simple way to neutralize that decision, should it come.


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The 12 Scariest Findings in the New Report on the Bundy Ranch Standoff

Bundy Ranch Protestor

An armed protester patrols a bridge near Cliven Bundy's ranch outside Bunkerville, Nevada. April 12, 2014. (Reuters/Jim Urquhart)

The standoff at the Bundy Ranch in Clark County, Nevada, has faded from the headlines, but a startling report released today by Southern Poverty Law Center warns that the incident may have some long-lasting, and potentially bloody, consequences.

Many of the militia members that flocked to the ranch were part of the anti-government Patriot Movement, an extremist movement with a long history but that gained serious steam during the Obama presidency. In 2008 there were about 150 Patriot groups nationwide—and there are over 1,000 today.

The SPLC report finds that this reawakened movement has drawn a very dangerous lesson from the standoff, which ended with the Bureau of Land Management backing off and leaving the ranch: a lesson that the federal government can be scared off by heavily armed militias.

That’s not to say the Bureau of Land Management should have engaged in a firefight, but the report makes clear the Patriot Movement has been energized by the “victory.” Already, a couple that was at the ranch undertook a headline-grabbing shooting spree in Las Vegas after getting amped for conflict weeks earlier in Clark County. The report highlights several other low-level incidents that haven’t gotten much media attention.

It also details, through interviews with militia members who were at the ranch—goaded on, also, by support from conservative politicians and media outlets—just how eager many participants were for battle. Here are the twelve scariest findings from the report:

1. “Almost overnight, thanks largely to the Bundy’s video going viral on antigovernment websites, the family’s fight with the federal government became a touchstone for various Tea Party Republicans, libertarians, antigovernment Oath Keepers and militia members, many of whom saw in the footage the beginnings of a war.”

2. “After watching the video from his home in Anaconda, Montana, 650 miles away, Ryan Payne, 30, an electrician and former soldier who had deployed twice to the Iraq war, became enraged […]

“Payne left that day with another member of his militia, Jim Lardy, and drove through the night, a few sleeping bags in tow, burning up cell phones hoping to bring every militia member they could. On April 9 he sent out an urgent call for the militias to mobilize. ‘At this time we have approximately 150 responding, but that number is growing by the hour,’ he wrote, offering directions to the Bundy ranch. ‘May God grant each and every one of you safety, wisdom and foresight, and courage to accomplish the mission we have strived for so long to bring to fruition. All men are mortal, most pass simply because it is their time, a few however are blessed with the opportunity to choose their time in performance of duty.’”

3. “In a low-lying wash where gates held the Bundy herd, an angry, heavily armed crowd grew, defying orders and engaging in a tense game of chicken with BLM rangers in riot gear demanding through loudspeakers that they disperse. They shouted profanities and gripped their weapons.

“Militia snipers lined the hilltops and overpasses with scopes trained on federal agents. What happened was not unplanned. As Payne later told the SPLC, he had ordered certain gunment ‘to put in counter sniper positions’ and others to hang behind at the rance. ‘[M]e and Mel Bundy put together the plan for the cohesion between the the Bundys and the militia…. Sending half of the guys up to support the protestors…and keep overwatch and make sure that if the BLM wanted to get froggy, that it wouldn’t be good for them.’”

4. “Writing on his blog hours after the standoff, Mike Vanderboegh, an aging government-hating propagandist from Alabama who heads the III Percent Patriots, characterized the standoff in grandiose terms. ‘It is impossible to overstate the importance of the victory won in the desert today,’ he gushed. “The feds were routed—routed. There is no word that applies. Courage is contagious, defiance is contagious, victory is contagious. Yet the war is not over.’”

5. “Ignoring the fact that Bundy and his followers were the ones who drew their weapons, U.S. Rep. Jason Chaffetz (R-Utah) told The Los Angeles Times, ‘You can’t just show up with guns blazing and expect to win the hearts and minds of the public.’ Chaffetz, a firm advocate of those protesting the BLM, concluded, ‘The federals need a little more Andy Griffith and a lot less Rambo.’”

6. “A month after the standoff, San Juan County, Utah, Commissioner Phil Lyman led a protest against a ban on the use of motorized vehicles in Recapture Canyon that was meant to protect archaeological sites from damage.”

“Waving Gadsden flags just like those draped over the slain officer in Las Vegas and decrying the actions of the BLM, Lyman and several dozen ATV riders—including members of Bundy’s family—rode into the canyon to defy BLM authority. Lyman told the SPLC that the ride was meant to be a peaceful protest, but he did little to conceal his rage over what he characterized as federal tyranny.”

“‘If things don’t change, it’s not long before shots will be fired,’ Lyman said, joining other conservative lawmakers such as Chaffetz in warning of violence if the federal government didn’t rein in the BLM. ‘We can avoid it. But it’s not going to be by the people changing their attitudes and accepting more intrusion into their lives. It’s going to be by the federal government acknowledging people’s freedom.’”

7. “This May in Texas, militias and their allies came to protest a BLM survey of more than 90,000 acres along the Red River, fearing the federal government was planning a land grab.”

8. “A month earlier in Utah, two men pointed a handgun at a BLM worker in a marked federal vehicle while holding up a sign that said, ‘You need to die.’”

9. “In New Mexico’s Otero County, a brewing confrontation between state and federal officials ended after BLM officials opened gates cutting off water for grazing cattle to protect the jumping mouse. Again, there were conspiracy theories demonizing BLM efforts to protect the environment.”

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10. “[I]n mid-June, more violence erupted, as a BLM ranger and a California Highway Patrol officer were shot and wounded, allegedly by a self-declared sovereign citizen, Brent Douglas Cole, who was camping outside of Nevada City, Calif.”

11. “None of this has tamped down the rhetoric. The Bundy standoff has actually brought the spotlight to the antigovernment movement, and its leaders are soaking up the attention. Polarizing figures such as former Arizona sheriff Richard Mack and Stewart Rhodes of the Oath Keepers have been eager to take advantage of the moment. Mack, a longtime militia darling who has led a push for county sheriffs to stand against federal law enforcement agencies, told one crowd, ‘We don’t believe that bureaucratic policies and regulations supersede the Constitution. I came here because I don’t believe the BLM has any authority whatsoever. Grazing fees do not supersede life, liberty and the pursuit of property.’”

12. “Among [Bundy’s current supporters] are politicians belonging to the Independent American Party (IAP)— the same party whose banner rabidly anti-immigrant former U.S. Rep. Tom Tancredo ran under during his bid for to become governor of Colorado. In late May, at an IAP event to honor Bundy for ‘his courage in standing up for state sovereignty,’ Bundy and his wife, Carol, signed paperwork to join the Nevada chapter. ‘Cliven Bundy is my hero,’ Janine Hansen, an IAP candidate running for Nevada’s 2nd congressional district, told a gathering of supporters. ‘We cannot allow this incredible opportunity that Cliven has given us to die.…  It’s time that we are no longer serfs on the land in the State of Nevada. It is time that we become sovereign in our own state, our own sovereign state. It is long past time. We are not the servants of the BLM.’”


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