George Zornick | The Nation

George Zornick

George Zornick

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

Obama's Better Bargain and Our Perverse Politics

US President Barack Obama talks to employees after he tours the Amazon Fulfillment Center in Chattanooga, Tennessee, July 30, 2013. (REUTERS/Larry Downing)

President Obama introduced yet another plan to create jobs and pump the sagging economy yesterday, pitched as a “grand bargain” between Republicans and Democrats (or more accurately, Democrats and the business community). It’s perhaps not a terrible plan considering the current political atmosphere. But taking one step back, Obama’s offer is a deeply revealing snapshot of a dynamic that’s become deeply skewed and perhaps hopelessly corrupted.

Obama’s bargain is this: on the one hand, Congress should enact revenue-neutral corporate tax reform, in which the corporate tax rate is lowered from 35 percent to “no higher than” 28 percent, while broadening the corporate tax base by closing loopholes and exemptions. There would also be a repatriation holiday for overseas profits—meaning that corporations would pay an as-yet unspecified “levy”, and could then bring home the $1.3 trillion they have parked overseas without subjecting it to the normal corporate tax rate.

In exchange, the revenues from that repatriation levy, along with some initial, one-time revenue from changing the corporate tax code, would fund a variety of worthwhile initiatives aimed at job creation—from an infrastructure bank to funding for community colleges and creating ten “manufacturing institute hubs” nationwide.

One might look at look at this and see a lot of good: Obama is redefining “grand bargain” in a way that doesn’t include austerity measures and reduced social insurance programs. Meanwhile he’s trying to entice his opponents in Congress to do something, anything, to help the country’s severe unemployment crisis. (Brian Beutler sees this as an offer to an emerging bipartisan governing coalition in the Senate, and I’d add it is also designed as an enticement for the corporate community that predominantly funds GOP politicians: “look at all the goodies you can get if the ideologues get out of the way.”)

But is this what the country has come to? Consider the context, and it’s stunning.

Unemployment is still at crisis levels, and is recovering more slowly than during any previous recession. In fact, throughout the recovery more unemployed workers have been leaving the labor force than have found work. Eighty percent of US adults struggle with joblessness, near-poverty or reliance on welfare for at least part of their lives and half of the US population is currently considered poor or low-income.

Meanwhile, corporate profits are sky-rocketing to all-time highs, and the Wall Street stock indices are booming at pre-crash levels. The corporate tax burden, meanwhile, is already at historic lows, and the United States collects less corporate taxes as a share of GDP than all but one other OECD country. Corporate America has so much cash it can just stash over a trillion dollars overseas and just park it there until given a chance to bring it back.

Inequality—the gap between the have and have-nots—is widening to historic and alarming levels (the top 1 percent own 40 percent of the nation’s wealth, while the bottom 80 percent hold 7 percent of it). It’s actually accelerated faster during the economic recovery and Obama’s presidency, as corporate profits bounded back and most of the regained jobs have been at the lowest wage rung.

In this context, Obama’s proposal is, in a word, insane. Through the repatriation levy, he’s essentially resorted to bribing an already-engorged corporate sector and its shareholders with even more money (savings from not taxing massive overseas income), in exchange for taking a fraction of that gift and steering it towards some job creation efforts.

The last time there was a repatriation holiday, businesses used 92 percent of the money they had stored overseas simply to fatten shareholders and executives—despite industry claims it would create jobs—while continuing to lay off thousands more workers. The Obama proposal is essentially an acknowledgment that that will happen again, and so instead resorts to the as-yet unnamed levy to fund job creation efforts. It’s like to begging for a loaf of bread on Park Avenue after you clean someone’s penthouse.

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Meanwhile, the Obama plan is an assurance to corporate America that it will have to play no part in the ongoing deficit reduction talks. While deficit hysteria is overblown, it is still true that ultimately the government is not bringing in enough revenue. (See some charts from Citizens for Tax Justice here). By enacting “revenue-neutral” corporate tax reform, corporations are assured they won’t have to kick in anything towards fixing that problem. Whatever money is realized from closing loopholes is plowed right into lowering the corporate tax rate.  

Seniors and the disabled, on the other hand—well, they may still see benefits cut in the name of deficit reduction as the other grand bargain talks proceed. (In fact, if corporate tax reform ends up as many expect—where the rate is lowered but not enough loopholes are closed, or are restored over time—it means everyone else will have to pony up even more.)

Again, there is certainly an argument to be made that this plan is a political necessity. I don’t particularly agree, but that’s another post.

No matter one's feelings on that, however, one thing is clear from looking at Obama's plan: who holds the real political power in America, and who doesn’t. It’s as big as—and reinforces—the wealth gap.

According to Greg Kaufmann, it’s time for Congress to hear from people who are “in the trenches fighting poverty.”

Congressman Adam Schiff's Plan to Rein In Out-of-Control Secret FISC Courts

US Congressman Adam Schiff (D-CA) speaks at a town hall meeting on healthcare reform in Alhambra, California, August 11, 2009. Reuters/Danny Moloshok

Wednesday’s narrow vote on the Amash-Conyers measure to defund bulk NSA data collection reflects real momentum in Congress to rein in the government’s massive domestic spying operations. As we’ve noted, there is a fairly large number of bills that would increase transparency of the Foreign Intelligence Surveillance Court, the “secret court” that has not only been approving surveillance requests but apparently creating an entirely new body of law governing what is appropriate for the government to collect.

One of the more interesting ideas being discussed—including by a former FISC judge—is to have an advocate inside FISC to argue against the government when it comes to approving new surveillance programs.

Not having an adversary in court when the government seeks an individual surveillance request is normal in civilian courts—but not when new case law is being created, as is apparently happening at FISC.

Representative Adam Schiff, a Democrat from California and former assistant prosecutor in the US attorney’s office in Los Angeles, is drafting a bill that would do just that.

It has not been introduced yet, but Schiff spoke on the phone with The Nation on Wednesday afternoon shortly before the Amash-Conyers vote. (Schiff voted for the measure.) He shared some extensive details of what is being planned, and called congressional momentum towards modifying domestic surveillance procedures “inexorable.” (This interview has been edited slightly for length and brevity.)

Why do you think the Foreign Intelligence Surveillance Court needs an advocate?

I think the adversarial process generally improves the quality of the work product, so giving the judges the opportunity to hear contrary views, hear contrary case law, I think will strengthen the legal reasoning and the soundness of the opinions from the FISA court. As long as it can be done in a way that protects the classified information, then I don’t see why that should be a problem. There’s really no downside to having the court get the benefit of multiple viewpoints on very important constitutional questions.

Who would appoint this advocate? How would you ensure that he or she is not appointed by the same people who appoint the judges and the prosecutors here?

What we’re looking at, in terms of a bill draft, would give the [Privacy and Civil Liberties Oversight Board, an independent executive branch agency made up of legal experts] a very significant role, and that role might be identifying which issues before the FISA court it believes would benefit from having opposing counsel. They may also have a role in developing a pool of attorneys that could fulfill this function. Those attorneys could be appointed by the FISA court, or they could be appointed by the PCLOB itself. We haven’t figured out some of those logistical questions, but the PCLOB would be a good board to invest with the authority to identify those cases where the court would benefit from contrary views, and also the vetting of attorneys to play that role.

Would you like to see the advocate take part in cases that are about case law, this matter of the expanding body of secret law that’s used to govern surveillance requests, or would it be individual surveillance requests?

I don’t see it being utilized in the context of a garden-variety individual request for a warrant on a specific person, or following the contours of a previously approved program. But when you have new program requests that raise fundamental issues of constitutional law, that’s when I think you’d benefit from an adversarial process.

Say this advocate sees something that he or she believes was a violation of legal norms, is there any avenue to appeal or combat a decision that the advocate feels was wrongly decided?

That certainly could be a part of it, in the sense that there could be an appeal to the Court of Review (FISCR), potentially you could have an appeal to the Supreme Court, analogous to what the government is able to do if they’re turned down. We’re kind of working our way through just what the role of this adversarial counsel would be. But those are certainly some of the possibilities.

Can you tell me a little about where the process is behind the scenes. Do you have interest from colleagues on this issue?

I think there’s broad interest on both sides of the aisle on making reforms to the FISA court that would improve transparency to the degree that it’s possible without compromising sources and methods, that would appoint the judges in a different way—I have a bill that would provide for presidential nomination and Senate confirmation of the judges, which has bipartisan support. And I think there’s also interest in providing an adversarial quality to the court. My sense is that some of these reforms are going to go forward. They may be in precisely the form we’ve introduced them, or they may be in a different form, but I think that the movement is pretty inexorable.

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I know it’s all being worked out, but do you have a rough timeline for when you’d like to get this introduced?

It really is only a question of how quickly we can work out some of the logistical details in the bill. Ideally I’d like to introduce it before the August recess, but I’ll have to see if I can get it done by then.

How do you anticipate the White House will react?

In terms of the administration, I don’t know in the sense that they haven’t relayed to me their thoughts on it, but my guess is that they may be willing to entertain an adversarial process, but they would want the attorney to come from within the Department [of Justice]. But that’s just a hunch.

And how do you feel about that? It sounds like you would prefer that PCLOB—

I would prefer PCLOB. I feel like that would have more credibility with the public, that it’s a truly independent voice. I think that even a Department of Justice lawyer could be very effective, and for the same reason that the FISA court itself is not a rubber stamp. I think they do quite rigorously test the government’s arguments and often are very demanding of the government. Nonetheless, inherently they may not have the same detachment and independence as an attorney who’s not in the department, and I think PCLOB would be a better way to go.

John Nichols writes about what Congress is doing to reign in the secret surveillance program.

Historic Bipartisan Vote Narrowly Fails to Derail NSA Spying

Members of the US Senate sit down to a bipartisan caucus in the Old Senate Chamber at the US Capitol in Washington, January 4, 2007. (Reuters/Jonathan Ernst)

If Congress during the Obama era is marked by one thing, it’s partisan gridlock: a constant parade of crisis showdowns, filibusters, and partisan votes—like when every Republican in the House and all but three in the Senate voted against the stimulus package one month into Obama’s term.

So what happened Wednesday night in the House—and why it happened—is worth thinking about for a while before the news machine zooms past.

Representatives Justin Amash and John Conyers created an amendment to a big defense appropriations bill, which used targeted language to defund the bulk collection of data by the National Security Agency. This was the practice disclosed by Edward Snowden and The Guardian in early June. Amash managed to get the amendment to the House floor.

Politico suggests House leadership allowed a vote because they were sure it couldn’t pass—though that seems like a contestable assumption. The administration seemed quite worried that it would: NSA director Keith Alexander was immediately dispatched to the Hill to lobby members against the amendment.

The White House also released a veto threat on the same day, a somewhat unusual move for a single amendment that supposedly had no chance of passing. The White House declared, “This blunt approach is not the product of an informed, open, or deliberative process.”

The debate on the House floor late Wednesday, however, was remarkable for how open and deliberative it was: except a couple September 11 references and warnings of “Islamic jihad,” the debate was respectful, well-informed and broadcast on C-SPAN as much of official Washington watched, transfixed.

It was also remarkable for the unusual bipartisanship—hardcore Tea Partiers stood up with old-school urban liberals and railed against the NSA program, while high-ranking Democrats and people like Representative Michele Bachmann took the other side.

The final vote was just as amazing:

This was one of the most bipartisan votes on a matter of significance in the Obama era—on a day when only hours earlier, the president was in Illinois, railing against congressional gridlock. (It may be the most bipartisan vote since 2009 that didn’t have to do with a post office or other routine matter—I’m open to hearing counter-examples in the comments.)

Somewhat incredibly, this happened despite the urgent pleas of party leaders. A majority of Democrats—and not a narrow majority—voted against not only warnings from the Democratic White House but also House minority leader Nancy Pelosi and her leadership team, which was whipping against the vote.

And all this happened in response to what is truly an unprecedented expansion of the surveillance state. Snowden’s disclosures about mass NSA spying did what virtually nothing else could since 2009: unite Republicans and Democrats in Congress.

This has serious implications for whether the rapidly expanding domestic surveillance apparatus can be checked. Recall that earlier this week Senator Ron Wyden warned that if action didn’t happen now, the country risked entrenching a surveillance state that “cannot be reversed.”

Wednesday’s vote augurs well for such a check. In a House Judiciary hearing last week, Representative James Sensenbrenner said plainly, “There are not the votes in the House of Representatives to renew Section 215,” which is the provision in the Patriot Act that allows a good deal of the bulk collection conducted by the NSA. That now seems like a reasonable prediction.

At the very least, one can assume there’s broad support for some of the more moderate measures to combat the secrecy surrounding domestic surveillance—bills have been introduced that would mandate disclosure of FISC opinions, add a civil liberties advocate to the secret court, change how those judges are appointed, and other steps.

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That is something everyone should pay attention to—you can bet the administration and national security officials sure are.

For more, Chris Hayes and David Sirota discussed this re-shuffling of the partisan deck on All In last night:

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Three Things Obama Can Do Today to Boost the Economy

A young boy rides his bicycle on a street in North Philadelphia. (AP Photo/Dan Loh)

Today President Obama will give a major economic address in Illinois, the first in a series of speeches designed to refocus the national conversation on job creation and the struggling economy.

This is a mandate Obama gave himself—much of his re-election campaign last year was focused on economic recovery and specifically growing the economy “from the middle out,” a theme he will revisit today. It’s been a crazy year, with some expected distractions from the jobs debate, like immigration reform, and some unexpected ones, like a massive gun control fight and the NSA surveillance saga—but Obama is rightly returning to arguably the nation’s biggest immediate problem, the 22 million Americans who cannot find work and the sagging economic recovery.

The reflexive response by many mainstream media outlets is that the speech is rather pointless, since Congress—specifically, the Republican-controlled House of Representatives—won’t act on anything Obama proposes. But it’s crucial for Obama to set the table for the big debate that will happen this fall over the federal budget and the debt ceiling. Republicans are ready to push for severe cuts to domestic programs and the disabling of the Affordable Care Act, and the White House believes it needs a forceful and convincing counter-argument. Obama will begin making it today.

So it’s not “just a speech.” That said, if the president is serious about helping struggling Americans and combating unemployment, there is a lot he could also do without Congress, simply by executive order or federal agency action.

These measures won’t solve the unemployment crisis nor single-handedly rescue the economy, but they could help millions and would show that Obama is dead serious about helping those who need it.

Here’s what he could do:

Order fair treatment for private contractors. A study by Demos released in May found that nearly 2 million private sector workers on contract with the federal government are paid less than $12 per hour, and many also suffer under inadequate labor and safety protections. Congressional action would be required to comprehensively address the problem, but Demos noted that Obama could do quite a bit by executive order—with the stroke of a pen, he could order federal agencies to take all possible steps to ensure companies comply with relevant labor and employment laws. The study said such an order “has the potential to dramatically improve the lives of the low-wage workers that federal agencies depend on to accomplish their goals.”

There’s certainly a precedent for such an order—most famously, in 1965, President Lyndon Johnson signed Executive Order 11246, which mandated equal opportunity and affirmative action hiring for all companies working with federal contractors. And this is something the White House has already promised to do—back in 2010, The New York Times reported that Obama was “planning to use the government’s enormous buying power to prod private companies to improve wages and benefits for millions of workers.” That never happened, but it should now.

Order Treasury to allow refinancing of private mortgages. A crucial drag on the economy is the 11 million Americans who have mortgages that are underwater—meaning they owe more than the home is worth, and are trapped with a negative asset.

Obama has been trying to convince Congress to pass a refinancing plan that would allow underwater homeowners to take advantage of the historically low interest rates, but it’s gone nowhere. He has already issued an executive order allowing people with mortgages backed by the government-sponsored enterprises Fannie Mae and Freddie Mac to refinance, and if Mel Watt is confirmed as director of the Federal Housing Finance Agency, it’s possible that those same homeowners could enjoy principal reduction.

But few people know that, via executive order, Obama can extend refinancing opportunities to underwater homeowners with privately held mortgages as well. The Treasury Department’s Michael Stegman hinted at this possibility during a speech at the American Securitization Forum in January:

[W]e will also consider non-legislative means at our disposal to help responsible non-GSE homeowners access these low rates.

To be the most effective, as well as address investor concerns, the legislative route would be preferable to using existing Making Home Affordable program authority.

Legislation would facilitate a refinance, whereas under our existing authority, Treasury could only modify the most deeply underwater loans and pay investors for some amount of forgone interest.

Surely legislation would be preferable—but it’s not going to happen while Republicans control the House. With only his signature, Obama could extend a lifeline to potentially millions of Americans with underwater mortgages.

Executive order that expands food stamp participation. There are many programs designed to help struggling Americans that are suffering under the brutal budget battles in Congress, not to mention budget sequestration. But the Supplemental Nutrition Assistance Program isn’t one of them.

SNAP is an entitlement program, as defined by federal law, and so Congress doesn’t have a say in how much is spent via SNAP—it just sets the formula for eligibility.

Only about 75 percent of the people currently eligible for food stamps under SNAP actually apply, according to the US Department of Agriculture. If Obama could boost the program to near-full participation, not only would it help a lot of people who need aid but aren’t receiving it, but it would also provide a huge economic boost—every dollar spent on food stamps produces $1.84 in economic benefit.

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How could Obama do this? Once again, by executive order—earlier this year, the Center for American Progress called on the White House to issue an order requiring every federal agency to help increase SNAP enrollment. This could come in the form of the IRS mailing SNAP applications to every household that’s eligible; having the Department of Health and Human Services promulgate outreach through the new health insurance exchanges; and the Department of Labor notifying people whose unemployment insurance is expiring that they are likely eligible for food stamps.

If full participation were achieved, SNAP could see a 33 percent increase in participation—a massive boost. Some people will naturally still decline to participate, due to perceived social stigma or other reasons, but surely there’s ground to be gained.

Greg Kaufmann explains what Congress and the media are missing in the food stamp debate.

Congress Moves Toward Meaningful Reform of Domestic Surveillance

NSA Director US Army General Keith Alexander at the House Permanent Select Committee on Intelligence hearing on recently disclosed NSA surveillance programs. (Reuters/Jonathan Ernst)

Senator Ron Wyden’s speech at the Center for American Progress on Tuesday morning was a pivotal moment in the emerging debate over domestic surveillance—the senator, who was one of the first to warn the public that the government was interpreting the Patriot Act in a “shocking” fashion, issued yet another important warning.

Without immediate action to address an ever-expanding surveillance state, the country risks entrenching an apparatus that “cannot be reversed,” he said.

The Patriot Act and the subsequent expansion of its authority by both Congress and the secret Foreign Intelligence Surveillance Court has led to “the creation of an always-expanding, omnipresent surveillance state that, hour by hour, chips needlessly away at the liberties and freedoms our founders established for us, without the benefit of actually making us any safer,” he said.

“So, today I’m going to deliver another warning: If we do not seize this unique moment in our constitutional history to reform our surveillance laws and practices, we will all live to regret it,” Wyden continued. “The combination of increasingly advanced technology with a breakdown in the checks and balances that limit government action could lead us to a surveillance state that cannot be reversed.”

Wyden wants the administration to disclose the FISC opinions that have created a secret body of law governing domestic surveillance by the NSA. He has co-sponsored a Senate bill to that effect, and repeatedly hammered at the problem of secret laws in his speech.

“When the American people are in the dark, they can’t make fully informed decisions about who should represent them, or protest policies that they disagree with. These are fundamentals. It’s Civics 101,” Wyden said. “And secret law violates those basic principles. It has no place in America.”

The speech offered an elevated platform for that demand, but also came at a pivotal time in Washington, as real signs of action towards curbing domestic surveillance are beginning to materialize.

Before Wyden took the stage, John Podesta—a former chief of staff to Bill Clinton and a well-respected figure in the Democratic apparatus in DC—called for a presidential-level commission to evaluate laws around domestic surveillance and data-gathering, both by the government and private companies.

And across town on Tuesday, Congress was also preparing for the first real legislative challenge to the NSA’s surveillance power as we understand it now, post–Edward Snowden.

Representative Justin Amash created an amendment to a defense appropriations bill that would strip funding for the NSA (which is part of the Pentagon) to conduct broad, dragnet surveillance of American citizens. It would leave in place funding for surveillance of specific communications and records of a non-US person that is under investigation, which is how most people originally understood the government’s authority under the Patriot Act.

The House Rules Committee said Amash’s amendment is in order, which means it will get a full debate on the floor of the House of Representatives this week, likely starting Wednesday evening.

The amendment is already gaining bipartisan support, notably from Representative John Conyers, the ranking member and former chair of the House Judiciary Committee. The NSA is apparently concerned enough about passage that it immediately dispatched NSA Director Keith Alexander to Capitol Hill to hold a closed-door, top-secret briefing with lawmakers.

Also, pro-surveillance members of the House employed a classic legislative subterfuge to try to slow down Amash’s amendment: Representative Richard Nugent introduced what appears to be a similar, alternative amendment defunding NSA’s bulk collection. But as Mike Masnick of TechDirt explains, the amendment’s language is constructed in a way that only reinforces existing authority, and provides only the superficial appearance of an “alternative” to Amash’s bill.

Wyden lauded the debate in the House in a question-and-answer session after his speech. “The fact that this has made it to the floor of the House of Representatives is unquestionably good. It is another step…in the march to a real debate,” Wyden said, and added that Snowden’s disclosures made it possible. “We wouldn’t have had that seven, eight weeks ago.”

This fact was acknowledged—albeit begrudgingly—by other House members last week during an unusually contentious House Judiciary Committee hearing with officials from the Department of Justice and the NSA. “Snowden, I don’t like him at all, but we would’ve never known what happened if he hadn’t told us,” said Representative Ted Poe.

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Earlier in the hearing, Representative James Sensenbrenner told the officials point-blank they might lose much of their authority to conduct surveillance under the Patriot Act—a statement that didn’t draw a ton of attention, but foreshadows a serious congressional check on the administration’s authority if Sensenbrenner is right.

“Let me tell you, as one who has fought Patriot Act fights, usually it gets the people over on the other side of the aisle. Section 215 expires at the end of 2015. And unless you realize you’ve got a problem, that is not going to be renewed,” he said. “There are not the votes in the House of Representatives to renew Section 215.”

On top of all this, there are many other bills in Congress that have been introduced since last month’s revelations in The Guardian. Here’s a brief look at them all:

  • Senators Jeff Merkley and Mike Lee co-sponsored a bill on June 11 to declassify FISA court documents, which Wyden co-sponsored.

  • Senator Rand Paul (R-KY) introduced S.1121 “Fourth Amendment Restoration Act,” “A bill to stop the National Security Agency from spying on citizens of the United States and for other purposes,” introduced on June 7. It would require authorities possess a warrant based on probable cause in order to conduct surveillance.

  • Representative Adam Schiff proposed legislation that would require FISC judges to be nominated by the president and confirmed by the Senate, while maintaining the seven-year term limit for FISC appointments.

  • Representatives Rick Larsen and Justin Amash introduced HR 2736, the “Government Surveillance Transparency Act of 2013,” on July 18, which create ninety-day reporting requirements for surveillance under the Foreign Intelligence Surveillance Act.

  • Representative Stephen Lynch introduced HR 2684, the “Telephone Surveillance Accountability Act,” on July 11, “to require the Director of the Federal Bureau of Investigation to report and obtain court approval for broad telephony metadata collection searches, and for other purposes.”

  • Representative Steve Cohen introduced HR 2586, the “FISA Court Accountability Act, on June 28 “to strengthen privacy protections, accountability, and oversight related to domestic surveillance conducted pursuant to the USA PATRIOT Act and the Foreign Intelligence Surveillance Act of 1978.” A chief provision of this bill would give Congress the authority to appoint FISC judges. Supreme Court Chief Justice John Roberts currently has that sole responsibility.

  • Representative Dennis Ross introduced HR 2603, the “Relevancy Act,” on June 28, “To amend the Foreign Intelligence Surveillance Act of 1978 to allow access to certain business records only if an investigation relates to a specific individual or specific group of individuals.”

  • Senator Patrick Leahy introduced S 1215, the “FISA Accountability and Privacy Protection Act of 2013,” on June 24 “to strengthen privacy protections, accountability, and oversight related to domestic surveillance conducted pursuant to the USA PATRIOT Act and the Foreign Intelligence Surveillance Act of 1978.” It would chiefly heighten the evidence requirements needed for surveillance under FISA. It is co-sponsored by Senators Mike Lee, Mark Udall, Ron Wyden, Richard Blumenthal and Jon Tester.

  • Representative Sheila Jackson Lee (D-TX) introduced HR 2440, “FISA Court in the Sunshine Act,” on June 19. “To require the Attorney General to disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court that includes significant legal interpretation of section 501 or 702 of the Foreign Intelligence Surveillance Act of 1978 unless such disclosure is not in the national security interest of the United States and for other purposes.” This is essentially the same as the Merkley-Lee bill in the Senate.

  • Representatives Adam Schiff and Todd Rokita (R-IN) introduced legislation June 20 much like Jackson-Lee’s amendment, and the Merkley-Udall effort in the Senate, and would require disclosure of relevant FISC opinions.

  • Senator Mark Udall sponsored S 1182, “A bill to modify the FISA Act of 1978 to require specific evidence for access to business records and other tangible things, and provide appropriate transition procedures, and for other purposes,” on June 18 limiting the federal government’s ability to collect data from Americans.

  • Representative John Conyers introduced HR 2399, the “LIBERT-E Act,” on June 17, “To prevent the mass collection of records of innocent Americans under section 501 of the Foreign Intelligence Surveillance Act of 1978, as amended by section 215 of the USA PATRIOT Act, and to provide for greater accountability and transparency in the implementation of the USA PATRIOT Act and the Foreign Intelligence Surveillance Act of 1978.”

  • Senator Bernie Sanders introduced S 1168, the “Restore Our Privacy Act” on June 13. “A bill to amend the Foreign Intelligence Surveillance Act of 1978 to limit overbroad surveillance requests and expand reporting requirements and for other purposes.”

Nation DC intern Samantha Lachman provided research assistance for this article.

Take Action: Help End the 'Secret Law' Behind Government Surveillance

Huge Victory on Filibuster Will Be Tested Soon

Mel Watt. (AP Photo/ J. Scott Applewhite)

Senate Majority Leader Harry Reid had a simple demand for his Republican colleagues: give all seven stalled nominees to the executive branch an up-or-down vote, or Democrats will change the Senate rules so all executive branch nominees are immune from a filibuster.

Tuesday morning, Reid announced that Republicans caved almost entirely. According to a Senate aide, the deal is as follows: all seven positions will receive an up-or-down vote, but the two nominees to the National Labor Relations Board must be switched out for two alternate people whom the White House is free to pick. Nothing in the agreement precludes Democrats from changing the rules in the future if Republican obstruction continues.

Right away, the Senate agreed to move forward with the nomination of Richard Cordray to head the Consumer Financial Protection Bureau, and with Republican help that motion got seventy-one votes.

One might raise two quibbles with this deal: the first is that the two NLRB nominees are replaced. However, I am told that not only will Republicans have no say in their replacement, but organized labor will have a very strong voice in this process, and that the nominees must be fast-tracked and approved by August 27. While that is certainly unfortunate for the two individual nominees in question, the final outcome could be an even more labor-friendly NLRB.

Nothing is official until it’s official, so this bears watching. But based on what we know today, the nominee rotation here was simply a face-saving measure for Republicans.

Another concern is that the GOP has still reserved the right to filibuster future Obama nominations—and that is certainly a valid worry, given past history.

From a political perspective, Reid couldn’t really pull the “nuclear” trigger after Republicans gave him everything he asked for. So the paramount concern for progressives here is that Reid must keep this threat alive if Republicans block another executive branch nomination.

Reid has the fifty-one votes to change the rules and prevent filibusters on executive nominations—or, at the very least, Republicans certainly believe that he does—and if Reid stays strong and operates with this leverage, then effectively he has already performed the nuclear option.

An excellent test of this resolve will come shortly. On Thursday, the Senate Banking Committee will vote on the nomination of Mel Watt to head the Federal Housing Finance Agency. The full Senate will then consider the nomination. Republicans have not raised a single valid concern with Watt’s credentials, but nevertheless most oppose him and Wall Street analysts think that there’s only a 25 percent chance of confirmation.

At stake is potential relief for millions of distressed homeowners, which will come if Watt is confirmed and enacts principal reduction on underwater mortgages held by Fannie Mae and Freddie Mac.

Republicans oppose that policy, and thus oppose Watt, which gets to the heart of the debate over executive branch nominations. Many people might tune out this debate as too procedural or inside baseball, but what’s really going on is that Senate Republicans are using fundamentally undemocratic procedures to block things that Americans have already voted on and approved.

Corday is a good example, and one that Reid brought up at the Center for American Progress on Monday. He noted that Wall Street “ruined” places like Las Vegas, Nevada in 2008 with the housing bubble and subsequent crash—and the small-d democratic response was the Dodd-Frank financial reform bill, which created the Consumer Financial Protection Bureau.

That bill survived the ugly legislative process, and became law—except, for 730 days, Republicans kept Cordray from being installed as the director. They raised “not one” quibble with Cordray himself, as Reid noted, but rather demanded a wholesale change in the way the CFPB operates that would neuter what it was created to do.

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That’s a complete short-circuiting of the democratic process. The same is true with the other nominees the GOP has been holding up—Gina McCarthy to head the Environmental Protection Agency, Thomas Perez to lead the Department of Labor, and the NLRB nominees. The US Chamber of Commerce, big finance and big oil were all heavily invested in blocking these appointments, and are no doubt upset today—but their real opportunity to stop them was in 2012.

This is the same situation with Watt. Running up to the presidential election last year, the Obama administration made it clear that it backed principal reduction at Fannie and Freddie. Americans voted, and re-elected Obama, and also elected a bunch of Democrats to the Senate. Obama then nominated Watt to head FHFA, and a majority of the Senate will approve that nomination.

Republicans have not raised one issue with Watt’s experience or credentials, so how can they block this nomination? If they do, the Democrats’ resolve on the filibuster will be tested very quickly. Watt deserves an up-or-down vote.

What is at stake if Mel Watt fails to get confirmed?

Ugly Opposition to Immigration Reform Comes Back to Capitol Hill

People opposed to immigration legislation currently in Congress gather at a rally on Capitol Hill in Washington, Monday, July 15, 2013.(AP Photo/J. Scott Applewhite)

If there’s one media failing in the immigration debate, it is that many mainstream reporters hedge around the fact that at least some conservative opposition to the bill is based in cultural and even racial animus towards Hispanics.

It’s not the only reason people oppose immigration reform. There are many good reasons, and many bad reasons that have nothing to do with race. But a non-trivial portion of conservative opposition reform is couched in those terms, particularly among the activist crowd organizing against the bill.

It’s ugly, but it happens to be true. One could forgive mainstream reporters for largely dancing around this fact—if these activists didn’t regularly plan large rallies in the shadow of the Capitol building, and then say a bunch of plainly racist and nativist things into a microphone.

Such was the case Monday, where several hundred people gathered in Upper Senate Park to denounce immigration reform as a job-killer. As ThinkProgress noted, a white nationalist named John Tanton organized the rally; he is famous for works such as “The Case for Passive Case Eugenics” and saying that black Americans are a “retrograde species of humanity.”

So, the rally went about as one would expect. Ken Crow, who used to be president of Tea Party of America until he bungled logistics of a Sarah Palin speech and is now affiliated with Tea Party Community, got up and started talking about “well-bred Americans.”

Here is some video of what followed, in which he made a straightforward case for racial purity. (Apologies for the quality; I didn’t anticipate something that crazy to about be said and so I wasn’t well-positioned. But the audio should be clear.)

The transcript:

From those incredible blood lines of Thomas Jefferson and George Washington and John Smith. And all these great Americans, Martin Luther King. These great Americans who built this country. You came from them. And the unique thing about being from that part of the world, when you learn about breeding, you learn that you cannot breed Secretariat to a donkey and expect to win the Kentucky Derby. You guys have incredible DNA and don’t forget it.

At minimum, Crow was making a crude nativist argument that people from other cultures have the heritage of a donkey, compared to our race-horse DNA. And, although he worked in a Martin Luther King reference, the “breeding” talk made it pretty tempting to see this in racial terms as well. (Ironically, this rally was held in conjunction with the Black Leadership Alliance, a black pseudo-advocacy group created by Tanton. The crowd was roughly one-third black, and was pretty quiet during all the breeding talk.)

Not only was this said in the presence of hundreds of people on Capitol Hill, but many important Republican politicians were present. Senator Jeff Sessions, who helped lead the opposition to the immigration bill in the Senate, was directly behind me, glad-handing attendees, as I shot this video. Congressman Steve King, who is taking up Session’s mantle in the House, was also there. Both men spoke (Sessions is the keynote), and Senator Ted Cruz is also on the roster. The rally was promoted by major conservative media figures like Laura Ingraham.

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In other words, the rally and its place on the political landscape is impossible to ignore. Last month, another hard-right rally featured Representative Michele Bachmann holding up a white baby and talking about the “future of America”—not quite as explicit, but mainly a difference in degree.

There’s no reason for reporters not to clearly explain what these speakers were saying, and be honest about why they oppose immigration reform.

This is what happens when you infiltrate an immigration detention center.

James Comey's Troubling Answers on Surveillance and Transparency

James Comey. (AP Photo)

If James Comey is confirmed to be the next director of the Federal Bureau of Investigation, he will naturally find himself at the center of the rapidly evolving debate over government surveillance.

The FBI is often the organization making applications to the Foreign Intelligence Surveillance Court, which, as we’ve learned thanks to Glenn Greenwald at The Guardian, is authorizing all sorts of broad, and deeply troubling, surveillance. For instance, it was the FBI who made the now-infamous application to FISC mandating that Verizon turn over all of its telephonic metadata to the National Security Agency.

This means members of the Senate Judiciary Committee had a serious obligation to press Comey on this issue—not least because, despite his bold stance against the very worst excesses of the Bush administration’s surveillance techniques, he still approved several other problematic surveillance programs.

To their credit, some senators did so. Comey’s responses, taken in total, were quite troubling—and signified that the administration isn’t ready for the “debate” that President Obama claimed he wanted about the government’s surveillance programs.

Several senators focused on the opaque nature of the FISC. Comey was asked repeatedly if FISC was a “rubber stamp” for government surveillance requests, and not a meaningful check on executive authority.

First, Comey pushed back against the idea that FISC is not, functionally, a check on government surveillance demands:

COMEY: Sometimes folks also don’t understand what the FISA Court is. They hear “secret court,” sometimes they hear “rubber stamp.” In my experience, which is long, the FISA court—folks don’t realize that it’s a group of independent federal judges who sit and operate under a statutory regime to review requests by the government to use certain authorities to gather information. And it is anything but a rubber stamp. Anyone who knows federal judges, and who appears before federal judges, knows that calling them a rubber stamp shows you don’t have experience before them.

But only about ten minutes later, in a dialogue with Senator Chuck Schumer, Comey said this:

I hear folks say that quite often, that the government is undefeated in front of the FISA court, so how can it be a real court? I know from criminal cases that—I don’t know of a case where a wiretap application in a criminal case has been rejected by a federal judge, certainly none that I was involved with. And the reason is, we [law enforcement] don’t ever want that to happen. So we work like crazy to make sure we have our ducks in a row, we have probable cause easily cleared, because if we lose that credibility with the court, we worry that we’ll have lost something that we can’t ever get back. So I know that in FISA applications and criminal applications for court-order wiretaps, the government is extremely conservative in putting together what it presents to the court.

Here Comey is acknowledging that FISC approves virtually every government request before it, but only because, he contends, law enforcement is almost always operating with due cause—as is demonstrated by the near-total approval rate for surveillance applications in federal in state courts.

Comey is right about that part: each year, the administrative office of the United States Courts releases a breakdown of wiretap requests in federal and state courts. In 2012, authorities made 3,397 intercept requests, and judges issued 3,395 approvals. (That’s a 99.9 percent approval rate.)

That may reflect some deeper philosophical and legal problems with the American justice system, unless you believe Comey that law enforcement is always judicious with its surveillance requests.

But put that aside for a moment—there is a huge problem with drawing parallels between FISC and surveillance courts. The aforementioned wiretap report details what types of crimes were being pursued for each requests; what the arrest rate was, and how the requests are increasing year to year. The analogous FISC disclosure of government requests and subsequent approvals contains almost no information.

Also, in civilian courts, we can often find out the nature of surveillance requests after the fact, right down to the affidavits that were submitted. (To use a newsy example, here is what authorities told a judge when they wanted permission to use surveillance to nab former New York Governor Eliot Spitzer for soliciting prostitutes.) But FISC requests are never declassified.

More importantly, FISC never discloses legal rationales that expand the legal basis for approving surveillance requests.

When a federal or state judge considers a government surveillance request, the underlying legislation and case law is well-settled and public, and when courts revise the standards, we can read the opinions.

We know the laws that allow NSA surveillance, but recent disclosures show that FISC appears to be dramatically expanding that legal authority. Senator Jeff Merkley, called on the White House to release summaries of “secret court opinions that include significant findings about the legal scope of the NSA surveillance programs.” Senator Dianne Feinstein—a strong defender of NSA surveillance—also wants those opinions released, as does the NSA director.

But does Comey? Senator Charles Schumer asked him, and Comey dodged the question:

SCHUMER: In order to make sure that we strike the right balance as a society, we need to know more about what the FISA Court is approving in these programs as they’ve been reported. My questions to you are as follows. First, would you be willing to support declassifying or releasing declassified summaries of FISA court opinions that have been issued regarding these programs, as Senator Merkley proposes to do in a bill that I am a supporter of, obviously with limitations on any security breaches?

COMEY: Senator, I agree with you that transparency is a critical value, especially when weighing trade-offs between security and liberty. I am also aware that the Director of National Intelligence is looking at that very question. Because I don’t know what’s in the opinions, and I also I don’t know what’s on the other side in terms of concerns about classified information, It’s hard for me to say at this point. I think it is a worthy exercise to look closely at it though.

Comey could have continued his analogy with civilian courts and backed disclosure, but he didn’t. More importantly, his testimony was no doubt closely coordinated with the White House, which chose not to have their new FBI director embrace the debate Obama claims he wants. It’s certainly should be enough to cause concern among Senators when considering Comey’s nomination.

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Why should you care about Comey? Read this.

How the Sequester Savages the Long-Term Unemployed

The sequester isn’t so scary—that’s what The Washington Post proclaimed this week. It’s an attitude many people in Washington seem to have adopted, as momentum to solve the slashing automatic cuts has almost entirely vanished.

But for Sharon MacGregor, a graphic designer and medical education worker in Paterson, New Jersey, the sequester is terrifying indeed. MacGregor was laid off last July when her company went belly-up, and she is still looking for work. She is one of the 4.3 million* Americans who are “long-term unemployed,” which is defined by the Bureau of Labor Statistics as being unable to find work for more than twenty-seven weeks.

Once you become long-term unemployed, you start drawing from the federal Emergency Unemployment Compensation fund, which was signed into law by George W. Bush in 2008 as the economy cratered. The idea was to throw a lifeline to people who exhausted the standard twenty-six weeks of state unemployment benefits, in a recession that, even today amidst a so-called recovery, has an average unemployment length of almost thirty-seven weeks.

But the EUC, like most federal programs, is subject to the automatic sequester cuts, and will lose $2.4 billion this fiscal year. (That represents 8 percent of the $30 billion in domestic non-Medicare budget sequester cuts.) It’s a big chunk of money—and it’s being taken away from the people who have already suffered the most during the downturn. The average resulting benefit reduction is $43 per week, out of an average EUC benefit of $289.

States have some flexibility about when to implement the cuts, and New Jersey chose June 30—meaning that very soon, MacGregor will get her first check where her benefits have been sequestered by the US Treasury. Because she collects close to the maximum EUC benefit, MacGregor expects to lose $225 every two weeks.

“I support myself. That’s $500 less I’ll have a month,” she told The Nation. “Unemployment was already a significant cut—like 50 percent of my old salary. So now I’m going down even more, to about 40 percent of my old salary.”

MacGregor said she was already on a bare-bones budget, buying only what she needs, and receiving a rent reduction in exchange for caring for an infirm neighbor. She said the sequester cut will force her to extend her credit purchases and borrow from her parents—after having a career of her own for over twenty years now. “This is gonna… it’s not enough,” she said. “I don’t have enough to make ends meet right now.”

She added that she is allowed to work part-time in addition to her unemployment benefits, but can’t earn more than 20 percent of her unemployment check, or else she’ll lose the benefits. But since the check is smaller, so too is the 20 percent threshold. “So it’s not like I can even make up the income anywhere else—I can’t,” she said.

MacGregor’s story is unfortunately typical for the millions of Americans who will see their long-term unemployment benefits cut, or already have.

“It’s pretty hard to overstate the significance. These are folks who can least afford to absorb these kinds of cuts,” said Maurice Emsellem, policy co-director at the National Employment Law Project. “They’re tapped out financially. They are surviving week by week on these benefits, for the most part, so a significant cut to their benefits—it just makes is really hard to pay your bills, put food on the table.”

Click to enlarge

NELP released a study this week showing how the EUC cuts would be felt in all fifty states, which faced difficult choices about how to implement the benefit cuts. Some initiated the cuts quickly, which meant the benefit reductions were spread out over more time and thus smaller—about half of the states initiated the cuts in May and June.

The states with the highest percentage reductions for all weekly EUC benefits are Maryland (22.2 percent), New Jersey (22.2 percent), Montana (19.6 percent), Connecticut (19.2 percent), Arizona (16.8 percent) and Illinois (16.8 percent).

New Jersey, like several of those states, has among the highest unemployment rates in the nation. The delay in implementation meant an average cut of $85 per week in the state, or a 22 percent reduction.

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MacGregor said she’s reached out to all of her Congressional representatives, pleading for a fix—but hasn’t gotten anywhere. “You get the standard BS back. The BS form letters you get back. You never get anybody to call you, or get back to you personally,” she said.

“I just think it’s wrong. Congress can pull the salaries that they can pull, and get the benefits that they get, and yet they expect us to bear this burden. They don’t even care. The unemployed are like a joke to them,” MacGregor continued. “I just think this country is just… what happened to taking care of our own? We don’t do it anymore.”

*This number has been updated.

Inside the new—exploitative—temporary economy.

Will Mel Watt Back Principal Reduction?

A home under threat of foreclosure in San Antonio, Monday, February 23, 2009. (AP Photo/Eric Gay)

The crucial context to President Obama’s nomination of Representative Mel Watt to head the Federal Housing Finance Agency is principal reduction for distressed homeowners: in other words, a policy to reduce what some people with underwater mortgages owe.

FHFA controls Fannie Mae and Freddie Mac, which in turn holds 60 percent of the mortgages in the United States. The Congressional Budget Office estimated last month that if the FHFA director ordered even a modest write-down of the underwater mortgages held by Fannie and Freddie, 1.2 million borrowers could benefit—and, the government would save $2.8 billion and avoid 43,000 defaults.

FHFA’s current director, Edward DeMarco, has refused to enact this policy—leading to a progressive “Dump DeMarco” campaign. The administration presumably had this in mind when it nominated Watt—who has backed principal reduction strongly in the past—to take DeMarco’s job. (Obama’s Treasury Department agrees that write-downs should happen.)

So, naturally this all came up in Thursday’s Senate Banking Committee confirmation hearing for Watt and four other financial regulatory nominees. Senator Pat Toomey pressed Watt to pre-emptively declare he would not engage in any write-downs.

Watt, to his credit, did not agree—but he also didn’t endorse the policy, and said some potentially troubling things about its supposed necessity.

It’s worth reproducing the exchange nearly in full, as it was the only time principal reduction came up.

TOOMEY: Are you prepared to commit, now, that you will not implement principal reductions on mortgages?

WATT: …I suspect I will be asked to look at that again because some people will still think it’s a relevant question, despite the fact that housing prices have gone up and there are fewer and fewer people underwater at this point than there have been.

But I would start, as I would with any issue that has been decided already by FHFA, I would start by studying carefully how that decision was reached, what it was based on, and then I would build on that new information—the information on which that decision was made is a year and a half old now—and make a responsible decision.

So Watt is pledging to revisit the issue and won’t agree to rule out principal reduction—that’s good. But his suggestion that it may no longer be “relevant” is slightly troubling—there millions of Americans still underwater, including over a million with mortgages at Fannie and Freddie that are either already delinquent or headed that way.

Toomey jumped back in here, and tried to pin Watt down by noting he signed a letter in December demanding DeMarco enact principal reduction.

TOOMEY: The concern is that the information was quite recent, but available, when you signed a letter in December, urging exactly this principal reduction despite the fact that FHFA analysis [said] that this was not a good idea—was not a good idea for the enterprises, wasn’t a good idea for the taxpayers, and I don’t think it’s a good idea for mortgage credit availability generally. And so the concern is that based on the data then, and the analysis then, that suggested this was a bad idea, you nevertheless recommended it. So that’s why I’m wondering how we should view this now.

Note that Toomey is wrong here—the FHFA analysis didn’t quite say that, or at least the parts it didn’t release publicly didn’t say that. Also, there’s that recent CBO report saying the opposite, along with a raft of similar outside studies.

Watt immediately noted that—but then went on to almost disclaim the letter demanding principal reduction.

WATT: First of all, there was conflicting data out there. Obviously FHFA had made a decision that reached one conclusion, but there was conflicting data.

Second of all, you’ve got to understand that I was a member of Congress representing my constituents, many of whom were underwater and advocating for relief for them. You should have no doubt that I will be a strong and aggressive advocate for the taxpayers in this role, because I view them as my constituents in this role, not the constituents that I represented before.

What’s potentially troubling here is that “I’m looking out for the taxpayers, not homeowners” was DeMarco’s mantra when he declined to enact principal reduction.

That said, Watt is correct—if not inspiring—in describing his new constituency as potential FHFA head. And of course one must remember the context here: a tough confirmation process. Republican Senators Bob Corker and Mike Crapo both appeared to be opposed to Watt’s nomination during the hearing. (At one point, Senator Elizabeth Warren said “If I could, I’d vote for Congressman Watt twice.” Watt deadpanned: “You might need to do that.”)

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So should reformers be concerned about Watt’s answers?

“That’s what we expected,” said Tracy Van Slyke, director of New Bottom Line, about Watt’s careful comments around principal reduction. “He’s not the head of FHFA yet. He needs to get in there…. We understand this is a confirmation hearing.” She added that his past support of principal reduction “set the tone that he’s going into FHFA with a much more open mind.”

Van Slyke added that her group would continue to pressure Watt if he’s concerned to make sure principal reduction is done, and done “the right way.”

But she did acknowledge his answer that seemed to downplay its necessity was a little worrisome. “I think that’s some education that still needs to happen,” she said. “We know that right now the housing recovery, the so-called housing recovery, is actually benefiting the corporations and banks that profited off the first housing bubble.”

George Zornick laments the long road towards justice for homeowners.

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