After an Army drill sergeant was accused of raping or assaulting a dozen female soldiers while deployed in Afghanistan and in a bathroom at Missouri’s Fort Leonard Wood, it seemed like the military justice system worked the way it was supposed to. The accused, Angel Sanchez, was tried at a court-martial. In September, he was convicted on multiple counts, sentenced to twenty years confinement and given a dishonorable discharge.
But testimony from two of Sanchez’s victims suggested that despite two decades of promises to enforce a “zero tolerance” policy toward sexual assault, the military is still hostile to service members who report sex crimes. One private testified that a high-ranking officer told her company that no one would graduate “if any more sexual assault cases” were reported. Another victim said a Lieutenant Colonel told her and other trainees “not to make any more allegations.” As a result, she said, “I have issues of trusting those who are in charge of me.”
The question of whether the military is doing enough to stamp out not only sex crimes but also retaliation against those who report them was raised again Thursday by the release of a 136-page report by the Department of Defense. The Pentagon estimates that 19,000 service members were assaulted this year, down from 26,000 in 2012. Only one in four of those crimes were reported, though more victims came forward to report assaults than in previous years. About two-thirds said that after reporting crimes against them, they were retaliated against by their superiors or peers.
The military and some members of Congress say the numbers indicate progress. “Increased reporting signals not only growing trust of command and confidence in the response system, but serves as the gateway to provide more victims with support and to hold a greater number of offenders appropriately accountable,” the report reads. Missouri Democrat Claire McCaskill said in a statement that “reporting of assaults being up and incidents of assault being down are exactly the combination we’re looking for.”
McCaskill championed a number of reforms that the Pentagon implemented over the last year, including removing commanders’ ability to overturn convictions, giving victims access to counselors to help them navigate the military justice system, and making it a crime to retaliate against victims. But she has also been one of the most vocal opponents of a proposal to give military prosecutors the authority to bring a case to trial. Under the current system, only commanding officers—who may have conflicts of interest or lack legal training—have what is called “convening authority,” or the power to decide whether charges warrant a trial.
The military is also fiercely opposed to that change and is under significant pressure to demonstrate that the more modest reforms were enough to fix the problem. “If I do not see the kind of progress I expect,” President Obama said last year, “then we will consider additional reforms that may be required to eliminate this crime from our military ranks.” When Senator Kirsten Gillibrand’s attempt to change the convening authority via the Military Justice Improvement Act (MJIA) failed by five votes last year, several of the senators who voted against it said they would reconsider the measure if other reforms weren’t sufficient. At a press conference on Thursday, Secretary of Defense Chuck Hagel said that the Pentagon’s “aggressive action over the past year and a half to stop sexual assault” was “beginning to have an impact.” Although he acknowledged that “crimes however are still heavily underreported” and that “we still have a long way to go,” it was clear that the military hopes the report will help it dodge further congressional intervention.
But critics with military experience and in Congress say the military won’t get where it says it wants to go while commanders control prosecutions. The former chief prosecutor for the Air Force, Colonel Don Christensen, retired this year because he felt that the military was still failing to punish predators while telling victims and supporters of reform within the ranks to stay quiet. “What has not changed is the culture,” he said when I met with him ahead of the report’s release at the Washington office of Protect Our Defenders, the advocacy group he now leads. “If anything, they’ve become more entrenched,” he continued, because of heightened media scrutiny and the threat of deeper reform. Accounts like those from the women at Fort Leonard Wood who say they were discouraged from reporting assaults bear this out.
According to Christensen, the numbers are only part of the story. “Whether the numbers are 13,000 or 26,000, they’re too high,” he said. The new estimate of 20,000 cases indicates that there are are still fifty-five incidences of unwanted sexual contact a day, on par with 2010. The numbers also only reflect crimes within the ranks; the experience of civilians who work on military bases or live in the surrounding communities, as well as spouses and children of service members, are not reflected in the data. “We have probably tens of thousands more in the civilian world who get victimized by military members,” Christensen said.
The Pentagon’s statistics do show a distinct lack of improvement on one important measure: retaliation. Nearly two-thirds of survivors reported that they experienced social or professional retaliation, the same number as the previous year—despite the fact that the military has since made retaliation a crime. “We have no evidence that the services have prosecuted or convicted anyone who has retaliated against victims,” Anu Bhagwati, executive director of the Service Women’s Action Network, said in a statement.
Led by Gillibrand, a bipartisan group of senators is now trying to resurrect the MJIA. With more Pentagon-friendly Republicans about to enter the Senate, this will probably be the last chance to pass the reform in the near future. While Obama could make some significant changes to the court-martial system on his own, the convening authority must be changed through legislation. (Still, if he were to come out in support of the policy change, that would weaken the opposition.) Gillibrand is trying to attach the provision to the National Defense Authorization Act, but Armed Services chairman Carl Levin has said amendments won’t be allowed. Gillibrand told reporters on Thursday that that if that’s the case, she’ll push for an up-or-down vote.
“We should not be making our military families accept such poor access to justice,” Gillibrand said. “The report from the DOD does not instill any confidence that they made any progress on the two biggest things: are people willing to put their names on reports so that justice is possible, and are they being retaliated against.”
Christensen has been meeting with senators regarding the MJIA, and one of the things he hopes to convey is although the military’s opposition to the proposal seems absolute, lawmakers aren’t getting an accurate picture of how people within the ranks feel about reform. “At some point, they’re going to realize that the DOD is basically feeding them a lie, through this entire time,” he said. “One of the things DOD has continually said is that their commanders are going to solve this…. But as they’re saying that, they fully know that there are scores of commanders out there who try to tilt the scales in favor of the accused.”
Meanwhile, reports of sex crimes continue to roll in. On Wednesday afternoon, the Navy Times reported that the Navy is investigating a male officer for filming female officers onboard a ballistic missile submarine while they showered and undressed. He recorded them for more than a year and passed the footage along to others. A “privacy violation,” the incident report called it.
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Shortly before 2 in the afternoon on Sunday, more than a dozen people walked onto an interstate near the Capitol in Washington and formed a human chain. Eight lanes of traffic came to halt. During rush hour the next morning, protesters closed down the Fourteenth Street bridge. And then the Twelfth Street tunnel. “Shut it down for Mike Brown,” they chanted.
In the week since a grand jury declined to indict Darren Wilson, the police officer who killed Michael Brown in August, demonstrations have occurred in more than 150 cities across the United States. In Missouri, protesters are marching 127 miles from Ferguson to Jefferson City, the state capital. Shopping malls and public-transit stations and major roadways have been shut down in several cities. On Monday at 12:01 pm—the time Brown was shot—workers and students across the country walked out of their offices and schools.
Cold rain in Washington on Tuesday night didn’t keep people away from a town-hall meeting at Busboys and Poets, where the room reserved for the event was so full that latecomers watched on a projection screen hung in the main dining room. Over more than two hours, a panel and the audience talked about harnessing the energy and anger unleashed by the non-indictment.
“This is not a protest—it is an uprising,” said Kymone Freeman, an artist and activist who’d recently visited Ferguson, by which he meant: people thousands of miles from Ferguson aren’t shutting down streets only because Darren Wilson killed Michael Brown with impunity, because cops turned a town into a battlefield, and because local officials were either incompetent or malicious; but also because similar expressions of racism surface everywhere. “Ferguson is Anyhood, USA,” said Eugene Puryear, another activist on the panel, who ran for a seat on the DC City Council in November.
In DC, the Metropolitan Police Department has long been criticized for racial discrimination; at an October city council hearing, residents told a number of illustrative stories, including one about police asking a teenager if his bike was stolen because it looked expensive, and another about officers storming a barbeque and shooting a dog after a report of marijuana use. “From day one, we’ve made it about local issues here, and the ability to take the energy of a mass movement and bring it home to make somebody here in Southeast DC want to be a part of it,” DC Ferguson organizer Salim Adofo said at the meeting. One of the reforms that the group is calling for in DC is an end to “jump-outs,” where officers in unmarked cars suddenly stop and detain people in the street.
An agenda put forward by the activist group Black Youth Project 100 includes a number of other reforms that could be implemented at the local level, such as establishing or strengthening community police-review boards (elected bodies with independent authority to investigate police misconduct); ending police presence and zero-tolerance policies in schools; and decriminalizing marijuana. Adam Inyang, who works with BYP100’s DC chapter, told me at a demonstration last week that the group would be pressuring city officials to move on those changes in the coming months, particularly for the creation of a review board. “A lot of people are concerned that this whole thing is gonna taper off, is gonna end, is gonna die out like many of the other situations. But we’re stepping up to continue to organize and to continue to drive these points forward,” Inyang said. “That’s what we can strive to now.”
DeRay McKesson, an activist who’s been in Ferguson and spoke at the meeting via webstream, explained that shutting down roads and other disruptive actions were an end in themselves. “There’s this thing about disruption, right: our lives have been fundamentally disrupted by the killing of our brothers and sisters and our kids and our mothers and fathers. We work hard to put that disruption back in the life of the city,” he said.
Still, the town-hall meeting raised unanswered questions about the broader goals of the demonstrations, and about “reform vs. revolution,” as moderator Nefta Freeman put it. Puryear noted that the gap between protest and long-term organizing still has to be bridged. “Right now, just to be honest, we have tactics—we do not have strategy. We are doing a lot of interesting things and a lot of important things…but ultimately, where is it going? What are we doing? What are we really asking for?” he asked. “We’re ready to get arrested, and I love that. I’m ready. But are we ready to build institutions?”
Small-scale reforms—requiring police to wear body cameras, for example—have attracted most of the attention from politicians and the media, but Puryear was talking about mobilizing for more fundamental change. “If we recognize the system doesn’t work for us, we need a new system,” he said. “If you want to get rid of that system, then you’re talking about getting rid of capitalism. I know people are afraid to say that, but it’s true.”
What was clear from the meeting at Busboys was that activists in DC are ready to escalate, not to back down. “We’re going to shut stuff down, I promise you that,” said Erika Totten, who described herself as a soccer mom from Alexandria, Virginia, and said she was trying to protect her children.
Several speakers expressed frustration with President Obama’s tepid response, particularly the claim he made after the grand jury announcement that he’s “never seen a civil-rights law or a healthcare bill or an immigration bill result because a car got burned.” Maryland Democrat and Congressional Black Caucus member Elijah Cummings attended the meeting, and he and other members of his caucus came under fire for not supporting an effort in the House to end the transfer of military equipment to local police forces through the Pentagon’s 1033 program.
“Guess what, President Obama? It was over 100 days of peaceful protest, but we didn’t get a meeting with you then. But now, when Ferguson burns, when protests are happening all over the country, now all of a sudden we can get your attention,” said activist and hip-hop artist Jasiri X. “Now when it burns down you want to have a conversation about putting cameras on police. Well, guess what—it was a video camera that showed Eric Garner being choked by NYPD.” (On Wednesday, a grand jury in Staten Island declined to indict the officer in the case, despite video evidence showing unarmed Garner saying he couldn’t breathe.)
Ronald Hampton, former executive director of National Black Police Association, noted that “the civil rights struggle wasn’t a quiet struggle, it wasn’t, ‘Can you give this to me?’ ” He went on, “I’m not condoning violence, but I’m telling you I’m tired of doing this. I’m tired of doing this. So it’s time for us to be serious about what it’s going to take. And it’s going to take us being up in the street.”
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If Burger King has its way, the company will soon leave its Miami headquarters for Canada and enter the coffee-and-donut business. When the fast-food giant announced its intention to buy the Canadian company Tim Hortons in August, it stressed the coffee-and-donuts part of the deal—or, rather, the opportunities for “growth” and “expansion.” But the chance to move to a country with lower corporate tax rates was undoubtedly part of the appeal. Since 2003, more than thirty-five American companies have dodged taxes through similar deals, which are known as “corporate inversions.”
Now the Burger King move is implicated in a fight brewing between some Senate Democrats and President Obama, a clash that throws into relief the split between the party’s Wall Street wing and its progressives. One of the people involved in the deal was Antonio Weiss, a major Democratic fundraiser, the publisher of The Paris Review, and the global head of investment banking at Lazard Ltd, a firm that has put together several major inversion deals. As of November 12, he’s also President Obama’s pick to oversee the domestic financial system—including the implementation of the Dodd-Frank financial-reform act, and consumer protection—at the Treasury.
But a growing number of senators are objecting to Obama’s latest Wall Street nominee. Unsurprisingly, Massachusetts’s Elizabeth Warren is at the front of the insurrection. “Enough is enough,” she proclaimed in the Huffington Post last week. “It’s time for the Obama administration to loosen the hold that Wall Street banks have over economic policy making.”
Warren has a number of problems with Weiss. The first is the fact that his career has been focused on international transactions. “Neither his background nor his professional experience makes him qualified to oversee consumer protection and domestic regulatory functions at the Treasury,” she wrote. The second is that he’s tied up in the corporate-inversion trend, which, as she notes, the Obama administration has criticized and tried to stop. She issued a sharp retort to White House claims that Weiss did not have a hand in the tax portion of the Burger King deal and that he opposes inversions personally:
This was a tax deal, plain and simple. It was designed to reduce Burger King’s tax burden, and Weiss was an important and highly-paid part of the team…Did he work under protest, forced to assist this deal against his will? Did he speak out against tax inversions? Did he call out his company for profiting so handsomely from its tax loophole work? The claim of personal distaste is convenient, but irrelevant.
The third piece of Warren’s opposition to Weiss isn’t specifically about him but about the fox guarding the henhouse. She ticked off a long list of people with close ties to the financial industry who now serve in high-level economic-policy positions in the Obama administration, including Treasury Secretary Jack Lew and US Trade Representative Michael Froman. Letting former Wall Streeters roost in top government perches “tells people that one—and only one—point of view will dominate economic policymaking. It tells people that whatever goes wrong in this economy, the Wall Street banks will be protected first,” she wrote.
Warren isn’t the only one who has concerns about Weiss’s nomination. Dick Durbin, the Senate’s second-ranking Democrat, opposes Weiss’s nomination, too. Independent Senator Bernie Sanders announced on Sunday that he also will vote no. “We need an economic team at the White House which will hold Wall Street accountable and fight for the needs of working families, not more Wall Street executives,” Sanders said in a statement. Although other Democrats on the finance committee have not taken a position on Weiss, a Democratic aide told Bloomberg Businessweek that a number of other senators are privately unsupportive of the nominee. At least a few members of the Party of No will probably boost progressive opposition to Weiss; Iowa Republican Chuck Grassley, who sponsored an anti-inversion bill in 2004, has already taken the nomination as an opportunity to bash Obama’s “hypocrisy.”
A group representing community banks has also joined the campaign against Weiss. “While Mr. Weiss has impressive credentials as a top Wall Street executive specializing in international mergers and acquisitions, Wall Street is already well represented at Treasury, and the narrow focus of Mr. Weiss’s professional experience is a serious concern for ICBA and community banks nationwide,” wrote Independent Community Bankers Association of America president Camden Fine in a letter sent last week to members of the Senate Finance and Banking Committee.
Weiss is not nearly as notorious as the last Wall Street nominee to face a challenge from progressives—former Treasury Secretary Larry Summers, who withdrew his name from consideration for the top post at the Federal Reserve last year after a backlash made his confirmation unlikely. Nor is the position in question as prominent. Still, the fight over Summers’ nomination showed that populist Democrats can mount a real challenge to the assumed dominance of Big Bankers if they try. The question of whether the party sides with Wall Street or Main Street is still very much in play.
Greisa Martinez is too nervous to call her mother. She’s waiting until she knows whether the executive action President Obama will announce Thursday in a primetime address will give her mother a reprieve from the fear that at any time she could be arrested, separated from her family and deported.
“I couldn’t get myself to call just yet, until it’s a reality,” Martinez explained. “It would be hard for me to have words to say to her without knowing something concrete.”
Rumors of who will be included in Obama’s orders and who will be left out spread through the media this week. Some are contradictory, heightening the tension as millions of undocumented residents and their families await the announcement. The New York Times, for example, reported in its Thursday edition that farm workers would not receive special protection. But the president of the United Farmworker Union said that he’d been told at a White House meeting on Wednesday that Obama planned to include at least a quarter of a million agricultural laborers.
Martinez’s mother, Elia, will probably hear good news tonight. Two of Elia’s four daughters are US citizens, and it’s widely reported that Obama’s plan will cover parents like her. Elia, who lives in Dallas, Texas, has been a single mother since her husband was deported in 2009, a task made even more difficult by the fact that she lacked a driver’s license and a work permit. She got her daughters to college, but Martinez said that even the commute to work caused her mother great anxiety. She hopes that Obama’s announcement will turn ordinary activities like shopping for her sister’s wedding dress from a hazard to ordinary fun. “She’ll have peace of mind to enjoy those moments,” Martinez speculated. “She can finally feel a little bit safe.”
Obama is also expected to eliminate the age limit for the Deferred Action for Childhood Arrivals (DACA) program, which Martinez is protected by. (She’s also an organizer with United We Dream, a youth-led immigrant-rights organization.) But the fate of parents whose children are eligible for DACA but are not citizens is unclear. The Times and other outlets reported Thursday that these immigrants would not be given the chance to remain in the United States and work legally.
“It’s a huge bummer for my parents,” said another DACA recipient whom I’ll call Ajay. (He asked that I not use his name out of concern for his family’s privacy.) “Deferred action has been amazing. It’s opened up doors for me,” Ajay said, adding that it’s allowed him to apply to graduate school and be more open about his immigration states. But for his parents, who moved to the United States with Ajay and his younger brother in 1999, Obama’s announcement likely “means nothing. It means more of the same, living in the shadows and not knowing what to expect tomorrow.”
Ajay spoke to his mother yesterday about the rumors that she’d be excluded from Obama’s order. “Mom’s reaction was, ‘I guess we keep going, keep waiting for the next step.’ It’s just disappointing more for my brother and myself to know that we have some sense of security and our parent’s don’t, especially as they get older.”
Another question is what will happen to people who do meet the criteria the White House sets for relief but are already entangled in the deportation machinery—people like Sandra Jacinto. She lives in New Jersey and cleans houses to support her family. Jacinto immigrated to the United States from Guatemala in 2005, leaving two children behind. They were separated for nine years until she was able to pay someone to help them travel through Mexico and across the US border. Jacinto’s youngest daughter is a US citizen, meaning Jacinto might be eligible for relief. But two months ago, immigration agents showed up at her house and informed her of an order of deportation. That mark on her record might end up being the only thing that matters.
“I feel a little bit scared because the truth is that I don’t want to go back to my country. I want very much to be together with my children, and now that I am, I don’t know if I’m going to be deported,” Jacinto said through an interpreter. She said that she was afraid of what would happen to her family if they had to go back to Guatemala, which is torn by violence. “If he gives deferred action, he should give it to everyone because we are all human beings and we deserve equality.”
On Wednesday, immigrants in New Orleans who were put into deportation proceedings after being swept up in the “stop and frisk” style raids conducted by the region’s ICE field office delivered requests for immediate relief to a US Citizenship & Immigration Service office. “Even though President Obama says he’ll soon be making an announcement, ICE has told us that we must leave the country by the end of the year,” Gustavo Bonilla, a carpenter who has lived in New Orleans since 2000, said in a statement. He has two sons who are US citizens, but like Sandra Jacinto, he is not sure whether Obama’s action will stop his pending deportation.
“We obviously would hope that being a victim of policies the president has said need to be made more humane isn’t a reason for exclusion,” said B. Loewe, communications director for the National Day Laborers Organizing Network.
There are 11 million people waiting for relief from a broken immigration system. Until the White House lays out its plan, the vastness of that hope is the only certainty.
For a few hours on Tuesday, the Islamic State looked like the best thing that ever happened to the National Security Agency. The USA Freedom Act, a modest bill seen as the best chance for reforming one of the NSA’s dragnet surveillance programs, failed to clear a procedural hurdle in the Senate by two votes after Republicans insisted that it would precipitate a terrorist attack.
“This is the worst possible time to be tying our hands behind our back,” Mitch McConnell said. “We live in a dangerous world, and the threat by ISIL only makes it more so.” Marco Rubio chimed in with his own warning: “God forbid that tomorrow we wake up to the news that a member of ISIL is in the United States,” he said. Former CIA director Michael Hayden penned a Wall Street Journal op-ed under the headline, “NSA Reform That Only ISIS Could Love.”
Really, the USA Freedom Act was NSA reform that no one really loved, except maybe the Obama administration. The bill had “strong support” from the White House and the intelligence agencies, from most of the reform-minded lawmakers and from the tech companies and many civil-liberties groups. And it did contain several provisions lauded by privacy advocates, such as placing special advocates on the secret court that authorizes surveillance requests to argue against the government, and forbidding the government itself from holding phone records.
But groups like the American Civil Liberties Union and the Electronic Frontier Foundation, which deemed the legislation an “important step forward,” were also clear that it addressed only a very small part of the government’s dragnet surveillance activities. Others thought the bill was so imprecise that it might have sanctioned, rather than ended, certain surveillance practices. Libertarian NSA critic Rand Paul objected because it didn’t go far enough—though before giving him too much credit for his principled stand note that he could have voted to move the bill forward and then offered amendments to address his concerns before a final vote. Ultimately, as Glenn Greenwald wrote at The Intercept, “There is a real question about whether the defeat of this bill is good, bad, or irrelevant.”
In any case, that particular doorway to reform is closed for now. So what’s next? The next opportunity for lawmakers to curb the intelligence agencies will come in mid-2015, when the section of the Patriot Act that the government leans on for legal justification of the phone records program is set to expire. NSA critics and supporters alike have warned that failing to pass the USA Freedom Act would mean that the administration “will end up getting nothing” in the reauthorization fight, as Patriot Act author James Sensenbrenner warned earlier this year. Even some supporters of the USA Freedom Act like Dianne Feinstein will fight tooth and nail to keep the provision from expiring completely, and the threat of expiration means privacy advocates will have at least some leverage to limit its authority. Some parts of the USA Freedom Act, like installing special advocates on the Foreign Intelligence Surveillance Court, cannot be addressed in the reauthorization process however. Nor can other authorities that the government uses to spy, like Section 702 of the Foreign Intelligence Surveillance Amendments Act and Executive Order 12333.
The Senate’s failure to bring even a narrow, watered-down reform to a final vote underscores that Congress is for the most part disinterested and/or incapable in exercising its constitutional duty to oversee the intelligence community. (There are individual exceptions, of course; for example Colorado Senator Mark Udall could front an immediate challenge to the CIA over its use of torture, as John Nichols explains.) Things aren’t going to get any better next year: the Republicans likely to chair the House and Senate intelligence committees, Devin Nunes and Richard Burr, are both hostile to reform. Nevertheless, privacy advocates vowed to continue to press for changes, and not only to the phone-records program.
Off the Hill, the government’s surveillance tactics are being confronted in a number of ways. Fearful for their bottom line, tech companies are taking a serious interest in encryption, and foreign governments are searching for ways to circumvent the United States when it comes to the Internet. Multiple challenges to the telephone-records dragnet are pending in federal courts. One judge, who called the NSA’s activities “almost Orwellian,” has already ruled that bulk collection likely violates the Fourth Amendment. But whether the pending cases will lead to meaningful constraints on the NSA isn’t clear. Greenwald, for one, has as little faith in the judiciary as he has in Congress, writing that it’s the institution “most consistently subservient to the National Security State” in the post-9/11 era. But absent the emergence of a spine in Congress with regards to the incessant fearmongering that serves as a shield for government spying, a patchwork of court rulings and the power of consumer choice looks increasingly like the only viable defense.
In a cockeyed attempt to save one of their own, Senate Democrats are poised to do something truly stupid. Louisiana’s Mary Landrieu, after failing to win enough votes to avoid a runoff in her Senate race, is centering her prolonged bid for re-election on a bill to fast-track the Keystone XL pipeline. Democrats have long blocked such legislation in the Senate, but all of a sudden they’ve decided to bring it up for a vote, likely before Thanksgiving.
The decision is both hypocritical and irrational. Landrieu’s victory or loss will not alter the balance of the Senate. More importantly, there is no evidence to suggest that passing a pro-KXL bill will improve Landrieu’s chances in the runoff, where she faces Representative Bill Cassidy, a Republican who is just as pro-Keystone as she is. (He sponsored the House version of Landrieu’s bill, and the lower chamber is scheduled to vote Friday.) Landrieu’s entire re-election campaign centered on her being big oil’s best friend; voters know that already, and it wasn’t enough.
Landrieu finished ahead of Cassidy by less than a percentage point, and both were far below the 50-percent threshold needed to win outright thanks to Tea Party candidate Rob Maness, who captured a startling 13.8 percent of the vote. Maness is now stumping for Cassidy; just three days after the election, the two men and their wives went on a double date. Even if the pipeline were the only issue motivating Maness’s supporters in the runoff, it’s not clear why holding a KXL vote in the Senate would convince them to support Landrieu, because again: the vote will do nothing to distinguish her from Cassidy.
It’s far-fetched, even downright loony, to think that voters will forget about their hatred of Obamacare and alienation from the Democratic Party just because the Senate held a vote in November that would have been held next year anyway. Those voters were never Landrieu’s ticket to victory, although she pandered to them throughout her campaign by running to the right on everything from immigration to the environment. She captured less than 20 percent of the white vote. Now, Landrieu’s only realistic path to re-election depends on turning out virtually all of what remains of Louisiana’s shrunken Democratic base. Is KXL—which really has nothing to do with Louisiana—really what’s going to get them to the polls?
What makes the least sense of any of this is the timing. If Harry Reid really, truly believes that the pipeline is a magic bullet for Landrieu, why in the world didn’t he bring her legislation up for a vote months ago—when the entire Senate hung in the balance? Polls consistently indicated that Landrieu would have her best chance to beat Cassidy in the general election, not in a runoff, so there was no reason to save the bullet.
If Democrats want to help Landrieu now, they could fund her campaign. Instead, the Democratic Senatorial Campaign Committee canceled more than $1.6 million in advertising space it had reserved in Louisiana media markets. The result? Ninety-six percent of the TV spots concerning the runoff in the past week are pro-Cassidy.
Politics aside, what Senate Democrats are considering is a terrible bill. Fast-tracking the pipeline before its route is even finalized means that the project would be exempt from requirements in the National Environmental Policy Act, the Clean Water Act, the Endangered Species Act and other environmental protections. And taxpayers would bear the cost of cleaning up leaks and spills since companies who transport oil from tar sands are exempt from paying taxes to the Oil Spill Liability Trust Fund.
“If you were 100 percent for the Keystone pipeline, you would have to have a problem with the legislation on the floor, because it exempts the TransCanada pipeline initiative from the Oil Spill Liability Trust Fund,” House Minority Leader Nancy Pelosi said at a press briefing on Thursday at the Capitol. “God willing there would never be a leak. But if there is, [TransCanada] would be totally off the hook.”
It’s not certain that Landrieu’s bill will actually pass the Senate. A Democratic aide told Businessweek that at least thirteen Democrats would vote for it. That leaves supporters just shy of the fifteen needed from the left side of the aisle, assuming unanimous support from the GOP.
If it does pass, Obama could veto it, which his press secretary hinted he would do. “The administration, as you know, has taken a dim view of these kinds of legislative proposals in the past,” Josh Earnest told reporters in Myanmar, where Obama is traveling. “We have indicated that the president’s senior advisers at the White House would recommend that he veto legislation like that.”
But veto or no, a pro-Keystone vote in the Senate abetted by Democrats would be a new low point for the party in an election year where so many Democrats ran against their own party, failed to present a coherent policy vision, and lost decisively. The only winner will be the GOP. Republicans won’t even have been forced to concede anything in return.
Landrieu could lay down the pipeline with her bare hands in front of a hundred cameras and it probably still wouldn’t save her. It would, however, generate $100 billion for the Koch brothers—who, incidentally, have more than $2 million reserved to defeat her.
Tuesday was a no good, very bad day for many reasons, but especially for the environment. Leadership on environmental policy in the Senate will almost certainly be handed over to James Inhofe, the Oklahoma Republican who thinks that “increases in global temperatures may have a beneficial effect on how we live our lives,” and that regardless, God will take care of things. Even deeper Republican gains in the House mean that it’ll be a long, long time before Democrats could regain full legislative control, so any legislation to put a tax on carbon or otherwise slow emissions is out of the question barring a reversal in the GOP’s position on climate science. And then there’s the Keystone XL pipeline, which Republicans have identified as a priority, and the media are now treating like a sure thing.
Anti-Keystone groups have a different take. “Nothing’s changed,” said Jane Kleeb, director of Bold Nebraska—except, she said, for the fact that staunch KXL proponent and climate denier Lee Terry lost his Nebraska congressional seat to a Democratic challenger. “Republicans both in the House and the Senate have always played this game—they have for the last four years—that they’re going to approve Keystone XL without the president.”
It’s true that pressure to approve the pipeline will become more focused and immediate if the House and Senate pass a bill to override the president’s authority over cross-border projects. Now that Republicans have enough pro-Keystone votes in the Senate to overcome a filibuster, it’s almost certain such legislation will wind up on Obama’s desk.
The question is whether he’ll sign it. On Thursday, press secretary Josh Earnest said Obama will consider whatever legislation Congress sends his way. That the White House declined to threaten a veto outright—as it has in the past—generated headlines and added to speculation that the White House could use the approval of Keystone as a bargaining chip.
So things sound pretty bad for Keystone opponents. However, there are a number of problems with the keystone-is-inevitable story. First, while the GOP will certainly leverage its majority in Congress to up the ante on KXL, political pressure from the president’s own party could swing more clearly in the opposite direction now that many of the pro-Keystone Democrats have lost their seats.
Second, it’s not clear that KXL would be all that valuable as a bargaining chip. The pipeline’s chief value to the Republicans depends on it not getting built, so they can continue to use it as a political bludgeon against Democrats. (Although that’s not to say that fulfilling their campaign promise to get it approved wouldn’t be counted as a victory.)
Third, it’s hard to imagine that Obama would sign legislation that explicitly limits his executive authority, even in the name of “cooperation.” The implications of doing so would be larger than Keystone. From national security to immigration to climate action, the White House has consistently argued for broader, not narrower, powers. Indeed, Obama and Earnest reiterated the president’s ability and intention to use that authority after the midterms in a variety of contexts.
Fourth, while the absence of a direct veto threat captured the headlines, there was plenty in Obama’s remarks on KXL for its opponents to be happy about. He reiterated his commitment to the process playing out in the State Department, which depends in part on the outcome of a legal challenge to the pipeline route being considered by a Nebraska judge. Obama also seemed to be building something of a defense of rejection, by arguing that the pipeline just isn’t all that important to US energy production. “Keep in mind this is Canadian oil, this isn’t U.S. oil,” he said. “We’ve seen some of the biggest increases in American oil production and American natural-gas production in our history. We are closer to energy independence than we’ve ever been before.” Keystone, he said, is just “one small aspect of a broader trend that’s really positive for the American people.”
Now, Obama’s enthusiasm for extracting as much fossil fuel as possible from American soil could ultimately be even more damning for the climate than approving Keystone. But the point is that if anything, Obama seemed to be building a case against the pipeline.
Finally, while there is a filibuster-proof pro-KXL majority in the Senate, there are probably not enough votes to override a presidential veto. In other words, the bottom line hasn’t changed: it’s still up to Obama. At this point it seems that the most likely worst-case scenario is the administration approves the pipeline on its own to avoid having to deal with legislation that would tie the president’s hands.
Environmental groups have been frank about their losses in the election, but they aren’t panicking about Keystone. A staffer at one of the organizations leading the anti-KXL fight, who would only discuss strategy on background, identified the Nebraska judge’s ruling as the moment things will heat up. For now, he said, “we’re inclined to support the process” playing out in the State Department, rather than launch any big actions. If Obama really does make a decision based on the parameters he reiterated on Wednesday (“Is it going to actually create jobs? Is it actually going to reduce gas prices that have been coming down? And is it going to be, on net, something that doesn’t increase climate change that we’re going to have to grapple with?”), the pipeline’s opponent’s feel like they’re on pretty good footing.
Jane Kleeb said that what happens next depends at least in part on whether Democrats push back against the assmption that Keystone is inevitable. “They have got to starting talking about the facts around Keystone XL. They just can’t keep on avoiding the topic,” she said. “The only people who are talking about it are the people who support Keystone XL, and that is shaping, then, public opinion about the project.”
Conventional wisdom has always seen Keystone’s approval as imminent. But the only thing that’s not speculation at this point is that it hasn’t happened yet.
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When President Obama announced that he would delay executive action to protect some undocumented immigrants from deportation until after the midterms, it was widely recognized as a political move intended to shield Democrats from backlash. The logic never made much sense—certainly not from a moral perspective, but neither from a political one. It wasn’t clear how delaying could actually improve already grim circumstances for vulnerable incumbents. Meanwhile, it was obvious that letting mass deportations continue on a purely political whim would alienate many Latino voters.
Well, that’s exactly how it played out. There’s no way to know if things would have been even uglier for the left had Obama issued the orders. But what the midterms did suggest is that the Democratic lock on the Latino vote has slipped. Not only the White House’s delay but also reluctance to embrace a pro-immigrant platform cost Democrats votes in key states.
Nowhere were Latino voters more important than in Colorado, where Mark Udall lost to Cory Gardner. Gardner knew it, and he ran as an ally to the immigrant community, even though he opposed the Dream Act and comprehensive immigration reform. Udall, despite his strong record of support for immigrant rights, never drew a stark distinction between himself and Gardner on the issue.
The result, according to figures released Wednesday by the polling group Latino Decisions, was that voters were confused about where the candidates stood on the issue—which more than two-thirds of Colorado’s Latinos identified as a priority at the polls. Forty-seven percent said they weren’t sure whether Udall supported immigration reform; 6 percent thought he opposed it. Gardner, meanwhile, got away with his bait-and-switch: only 38 percent knew he opposed reform.
Udall still won the Latino vote handily, 71 percent to 23 percent. However, that gap doesn’t look so great compared to other recent elections. Barack Obama pulled in 87 percent of Colorado’s Latino voters in 2012, and Democratic Senator Michael Bennet won with 80 percent of the vote in 2010. Turnout wasn’t bad in Colorado; it just wasn’t as deeply blue.
In fact, there was a dramatic decline in Latinos’ support for Democratic candidates in Senate, House and gubernatorial races all over the country. Kay Hagan, who lost her Senate seat in North Carolina to Tom Tillis, captured only 63 percent of the Latino vote, nine points below the support Obama had in 2012. Hagan ran to right on immigration; she opposed the Dream Act and executive action on deportation. It’s not clear whether her hardline stance won her any votes—certainly not enough to make a difference. What it did do was focus negative attention on her from the immigrant-rights community. After the White House delayed executive action, Hagan (along with several other Democratic candidates who’d asked for it) came under fire from groups like Presente, which ran ads in North Carolina that attacked her for siding “with the most anti-immigrant senators in Congress in support of the continued deportations of our community.”
Source: Latino Decisions
One of the most shocking shifts occurred in Nevada, where Republican Governor Brian Sandoval swept to victory with 47 percent of the Latino vote. In 2010, 84 percent of Nevada’s Latino voters picked the Democratic candidate. Sandoval’s improvement is likely due to the fact that he’s taken real steps to pass policies important to the Latino community, including expanding the state’s Medicaid program, signing a law permitting undocumented immigrants to obtain drivers licenses, and increasing financial support for students learning English in school.
The lesson is that Democrats can’t take Latinos for granted, said Gary Segura, co-founder of Latino Decisions. “Latinos remain a swing electorate,” he said at the National Press Club in Washington on Wednesday. “Republicans can have access to Latino votes. They just need to try, by producing policies that are of interest to Latino families and communities.” He said that Latino voters “clearly feel ignored by the Democrats,” even if they also feel like they are under direct attack from the GOP.
It was turnout, not a party shift, that most people worried about ahead of the midterms, and indeed Latino participation was two points lower nationally than in 2010. Latino Decisions found some evidence that this was related to the delay in executive action. In a sample of Latinos who were registered to vote but chose not to, 60 percent said it made them less enthusiastic about supporting the Democratic Party. “We have, for the first time, some evidence to suggest that for some of these voters who didn’t vote, in fact, they were mentioning [the delay] as a reason for the fact that they were less enthusiastic about Tuesday, November 4th,” said Latino Decision’s other co-founder, Matt Berreto.
“I believe this election was a lost opportunity for Democrats,” said Janet Murguía, president and CEO of the National Council of La Raza, one of the sponsors of the poll. “Instead of embracing their record and our community, too many Senate Democrats either ignored or ran away from us.” She called the Democrats voter outreach and mobilization in Hispanic communities “anemic.”
The gap between Udall and Gardner was large enough that even a stronger show of support from the Latino community might not have allowed Udall to fully close it. Similarly, Democrats might not have been able to overcome the host of challenges the midterm map presented even with higher levels of enthusiasm among Latinos. But it’s clear that walking away from immigration made a tough night worse for Democrats—and that allowing Republicans to define the conversation around immigration (or the Keystone pipeline, or Ebola, etc.) in contested states is not a winning position.
On Wednesday, Obama reiterated his promise to use his executive authority to protect some immigrants from deportation. Advocates are already urging him to go big, and warning about the consequences for Democrats if he doesn’t. “This problem that you see, politically, is nothing in comparison to the civil war that will be created politically in the Democratic party should the president not be broad and generous in his use of prosecutorial discretion,” Illinois Representative Luis Gutiérrez said in an interview with The Guardian ahead of the midterms. “Because Latinos will not be deciding whether or not they vote, but whether or not they are in the Democratic Party.”
Republicans will freak out no matter the scope of Obama’s actions, so he might as well do something that really protects families and eliminates heavy-handed enforcement tactics like the dragnet-style raids in Louisiana that I’ve reported on. Unfortunately, the president has often expressed unfounded optimism that limiting his hand will provoke a similarly measured response from the right. (Over at Vox, Matt Yglesias explains why he thinks the Republican takeover dims the chances for a substantive directive from the White House on deportation.) The question now is whether commitment to the optics of cooperation—which blurs sometimes with appeasement—will trump the human calls for relief.
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Another midterm election, another shellacking for Democrats. But even while Democratic candidates lost badly, many liberal issues won—and won big, even in red states. Here are several reasons not to despair, which I’ll add to as results come in.
1. Voters Raise the Wage Floor
Two years of protest by low-wage workers are paying off: even conservatives understand that you can’t get by on $7.25. Four states plus San Francisco and Oakland voted to raise the wage on Tuesday. The most resounding victory for workers came in Alaska, where 69 percent of voters approved a measure that would set the minimum at $9.75 an hour by 2016. South Dakota’s minimum wage will rise to $8.50 in 2015, and like Alaska’s, it’ll be pegged to inflation after that. In Arkansas, voters supported a minimum-wage increase to $8.50 by a resounding 65-to-35-percent margin. Though $8.50 may not seem high compared to the $15-an-hour increase that was on the ballot in San Franciso, it’s actually more progressive than it seems. Nebraska voters, meanwhile, approved a ballot initiative to raise their state’s minimum to $9 an hour by 2016. Again, the measure passed easily, 62 to 38.
Voters in the Bay Area voted overwhelmingly to raise the wage floor: to $15 an hour in San Francisco and $12.25 in Oakland.
2. Personhood Fails, Again
Voters in Colorado and North Dakota rejected measures that would have given rights to fertilized eggs and potentially opened the door not only for the criminalization of abortion but also to prosecution of women who have miscarriages or use certain forms of birth control. This is the third time Coloradans have said no to fetal personhood—maybe now the religious right will finally give it up?
3. Weed Legalized in the Capital and in Two More States
Washington, DC, voters easily approved Measure 71, which legalizes marijuana for recreational use and possession of up to two ounces and six plants. “The people of DC have voted in favor of ending racially biased marijuana prohibition,” said Dr. Malik Burnett of the Drug Policy Alliance in a statement. Nine of ten people arrested for drug offenses in the District between 2009 and 2011 were black, though they make up only half of the city’s population and are no more likely to use drugs than whites. Unfortunately, because Congress has authority over the district’s legislation and budget, Republicans could kill the measure before it’s implemented. There’s precedent for overriding voters on the issue: Republicans spent eleven years blocking DC from opening medical marijuana dispensaries after they were approved in 1998.
In Oregon, voters passed Measure 91, which will allow adults to have up to eight ounces and grow as many as four plants of marijuana. Alaska also voted to legalize the drug, bringing the number of states that allow recreational use to four.
4. Workers Win Paid Sick Days
Massachusetts becomes the third state in the nation to guarantee paid sick days to workers after voters approved a ballot measure by a wide margin: 60 percent to 40 percent. Starting in January, workers will receive one hour of paid sick time for every thirty they work. Voters also approved the right to paid sick leave in Trenton, New Jersey’s capital, as well as the township of Montclair.
5. There Will Be at least 100 Women in the US House
Democrat Alma Adams’s victory in North Carolina’s 12th District means that for the first time in US history, there will be 100 women in the House of Representatives. “My friends, we did it,” Adams announced on stage, surrounded by her grandchildren. “And ain’t no stopping us now.”
6. Scott Brown, Feminist Hero
In New Hampshire, Republican Senate candidate/carpetbagger Scott Brown became the first Republican to lose twice to a woman: first to Massachusetts Senator Elizabeth Warren and on Tuesday to incumbent Jeanne Shaheen. Brown’s loss may be most significant to the immigrant community, however. Some of his most pointed attacks on Shaheen centered on her support for immigration reform legislation in the Senate, and he ran hard on border security. “I think it’s naïve to think that people aren’t going to be walking through here who have those types of diseases and/or other types of intent, criminal or terrorist,” he said, referring to Ebola.
7. A Win for Gun Safety
Washington State now has one of the toughest background-check laws in the country. The initiative that voters approved Tuesday closes a loophole that allows gun buyers to avoid the checks when they make their purchases from private sellers—for example, online or a gun shows—rather than licensed retailers.
8. A Blow to Mass Incarceration
California approved a ballot measure to reduce minor drug crimes and theft from felonies to misdemeanors. Misdemeanors carry a maximum sentence of one year in prison, compared with the previous three-year maximum. The provision allows anyone already serving prison time for one of the crimes that’s been reclassified to petition for a new sentence.
9. Fracking challenged in California
San Benito County became the first in California to ban high-intensity oil and gas extraction, despite the more than $7 million that energy companies spent trying to defeat the measure and a similar one in Santa Barbara county.
10. Corbett Out in Pennsylvania
Republican Governor Tom Corbett’s loss to Democrat Tom Wolf is a particularly sweet victory for public education advocates, who worked hard to defeat him. Corbett presided over crippling cuts to school funding and, just weeks ago, supported a full-frontal assault on Philadelphia’s teachers. “This election was a clear and resounding rebuke of Governor Corbett and those politicians intent on stripping our schools of funding; ignoring the needs of children, parents and communities; and blaming educators to score political points,” Randi Weingarten, president of the American Federation of Teachers, said in a statement.
11. Anti-Food-Stamp Crusader Out in Florida
“This is what I’m about,” Florida’s Steve Southerland said about cutting food stamps when he abandoned his work as a mortician to run for the House. He was good to his word; few lawmakers have been so obsessed with taking food from the hungry as Southerland. Last year, he proposed slicing $39 million out of the program, describing “the explosion of food stamps” as “the defining moral issue of our time.”
During his campaign, Southerland matched callousness with misogyny. After encouraging attendants at an all-male fundraiser to “tell the Misses [sic] not to wait up,” Southerland dismissed complaints from his Democratic opponent (and ultimate winner) Gwen Graham by asking, “Has Gwen Graham ever been to a lingerie shower? Ask her. And how many men were there?”
This is the year of the mega-donor: just forty-two people are responsible for nearly a third of Super PAC spending in the 2014 election cycle. Super PACs, meanwhile, are outspending the national parties. The list of would-be kingmakers includes Tom Steyer, the former hedge-fund manager who’s poured out $73 million to elect environmentally friendly Democrats; Michael Bloomberg, who’s distributed upwards of $20 million on behalf of both sides; and Paul Singer, the “vulture-fund billionaire” and powerful Republican fundraiser.
Take a look at the list of top donors. They might have distinctly different political agendas, but they have one thing irrefutably in common: they’re almost exclusively old white guys. Only seven women made it into the forty-two, and not a single person of color.
One of the things highlighted in the aftermath of Michael Brown’s death in Ferguson, Missouri, is how poorly America’s political leadership, from city councils to the US Senate, reflects the diversity of the country. According to data compiled by the Reflective Democracy Campaign, white men make up 65 percent of elected officials—more than twice their proportion in the general population. Only 4 percent of our political leaders are women of color. As Jelani Cobb writes in The New Yorker, the midterm elections won’t right this imbalance between demographics and political representation, no matter which party wins the Senate.
In fact, the midterms suggest that white men are gaining clout, at least behind the veil. As campaign-finance laws erode, political power is increasingly concentrated among the billionaires playing the strings of the electoral marionette—a pool that looks less diverse even than Congress. (Given the prominence of dark-money groups, it’s likely that some of the biggest individual players in the midterms are anonymous. But there’s no indication that secret donors are any more diverse than others.)
It’s shrinking, too. Between 1990 and 2010, the number of individual donors increased each election cycle. This year, the pool contracted from 817,464 individual contributors in 2010 to 666,773 as of late October, according to a new analysis from CRP. “Despite only a slight increase in the cost of the election, outside groups, which are overwhelmingly fueled by large donors, are picking up more of the tab, candidates are cutting back on their spending, and there are fewer large (over $200) individual donors contributing overall to candidates and parties,” reads the report.
Politicians should be accountable to the electorate, which is growing more diverse. But the fact that candidates are growing more dependent on a narrow group of contributors means that they may be responsive to a limited set of concerns. There are many factors blunting the political impact of demographic changes, but certainly laws that amplify a less diverse group of people’s voices over others’ in an election is one of them.
The unfettering of big money also makes it harder to elect minority candidates. “Why is it that the Congress we have right now doesn’t look anything like the rest of the country? A lot of it has to do with our campaign-finance laws and the fact that there’s so much money in the system and you need so much money to run for office,” said Lawrence Norden, deputy director of the Democracy Program and the Brennan Center for Justice. “There’s no question that it makes it more difficult for people who aren’t connected to these very wealthy donors to run for office.”
Candidates raise money from people they know, Norden explained, and American social circles are deeply segregated. Three-quarters of white Americans, for example, don’t have any non-white friends. Neighborhoods remain segregated by race and class. “If you don’t have a lot of money to begin with, you’re not interacting with the people who can provide that money,” said Norden.
A number of structural changes have been proposed to right lopsided representation, many of them focused on increasing turnout among minority voters. Those suggestions are particularly salient in response to the GOP’s campaign to pass laws that make it more difficult for low-income people and people of color to vote. But turnout won’t affect the diversity of elected officials if the pool of candidates isn’t diverse to begin with. As long as the financial bar for running a viable campaign keeps rising, it’s going to be more difficult for people of color, women and low-income people to appeal for votes at all.
There’s some evidence that public campaign financing increases proportional representation. Connecticut implemented a voluntary public-financing system in 2008, which provides a fixed amount of funding to candidates who rely on small donors. A study by Demos found that the program led to a more diverse state legislature and increased Latino and female representation. Another study found that the percentage of women elected in five states with public financing was significantly higher than the national average. Unfortunately, in several states recently politicians have set to dismantling, not strengthening, public financing.
“It’s really clear that that’s a major barrier to women and people of color, in particular, that can happen on all levels, even the local level,” said Brenda Carter, director of the Reflective Democracy Campaign, about the growing power of outside money. Still, she noted that there’s been little research into the specific ways in which the influence of money in politics has a disproportionate effect on minority candidates. “Adding a race and gender lens to the money-in-politics conversation is a really important thing,” she said.