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.
“This is the Women’s Center. We need an ambulance ASAP,” a woman’s voice says on the thirty-second television ad. Emergency lights flash across the screen. “You’re listening to an actual 911 call,” says the narrator. “Tennessee has compromised the health and safety of certain women. Some Tennessee abortion facilities are not regulated like other surgical centers. This has to change.”
One of the year’s most heated battles over abortion access is playing out in Tennessee, where voters are considering a constitutional amendment that would open the door to a flood of anti-abortion legislation. With early voting underway and the election a week off, supporters of the ballot measure—known as Amendment 1—are amping up a campaign built around misinformation and fear. Voters have reported meddling by poll workers. And some abortion opponents are trying to use procedural trickery to lower the threshold of “yes” votes needed to pass the measure.
The fight over Amendment 1 has been more than a decade in the making. In a 2000 ruling striking down a slate of abortion restrictions, the Tennessee Supreme Court declared that the state’s constitution contained a fundamental right to privacy, which covered a women’s decision to terminate a pregnancy. As a result, Tennessee lawmakers have not been able to impose the kind of anti-abortion laws, disguised as safety measures, that other southern states have in recent years, such as mandatory waiting periods.
Ever since that constitutional right was declared, conservatives in the Tennessee legislation have been trying to gut it. They failed, repeatedly, until the 2010 elections brought a Republican supermajority to power in the state legislature, which passed the amendment in 2011. “Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion,” it asserts. While technically the measure by itself wouldn’t change any regulations, supporters are clear about where it leads. “After [Amendment 1] passes, I have several ideas,” state senator Stacey Campfield told the Family Action Council of Tennessee. “I doubt there are any ideas I would oppose that would restrict abortion in Tennessee.”
“If this amendment passes, the floodgates will open,” warned Hedy Weinberg, the executive director of the ACLU of Tennessee. “In January 2015 when the Tennessee legislature convenes, we will see a lot of egregious and irrelevant legislation introduced.”
As of last week, groups had spent $2.4 million on more than 3,000 television ads related to ballot measures in Tennessee, with most of the focused on Amendment 1. Nearly $1 million was spent by both sides ads in the week when early voting started. Planned Parenthood, the ACLU, other reproductive-justice groups and even some members of the clergy are leading the fight against the amendment.
What they’re up against is an increasingly misleading, and even shady, “yes” campaign, led by Tennessee Right to Life. Based on the rhetoric of the amendment’s supporters, you’d think there was some sort of abortion free-for-all happening in the state. Advocates for the amendment warn that the state has become “an abortion destination” and that clinics are unregulated and unsafe. At a recent press conference outside a Nashville clinic on Monday, a physician named Brent Boles warned that “a lack of licensing and inspections allows these places to be totally unprepared for the horrible things that can go wrong.”
That’s the message of the ad featuring the 911 call from the Women’s Center (a clinic in Bristol, Tennessee), which implies that the call for an ambulance was due to complications from an abortion procedure that took place at a facility that was “not regulated.” However, according to a lawyer for the center, the emergency wasn’t directly related to the woman’s abortion. (How she feels about her medical history becoming the subject of a political ad is an open question.)
And Tennessee’s clinics are regulated—nothing in the 2000 Supreme Court ruling bars the state from overseeing health and safety standards. All of the state’s seven clinics are treated like any other doctor’s office. Four are licensed as ambulatory surgical centers, which among other things requires them to meet standards for room sizes and door widths. The Tennessee Department of Health inspects these clinics yearly. And the court ruling hasn’t prevented Tennessee lawmakers from implementing even stricter standards, such as a 2012 law that requires all abortion providers to have admitting privileges as hospitals—a requirement that forced two clinics to close.
Misleading ads may be par for the course, but early voters have been given more troubling forms of misinformation directly. Voters reported to the ACLU of Tennessee that poll workers in at least four precincts in Monroe County handed out a “misleading” voting guide that had been created by a state representative. The guide claims, among other things, that voting “no” on Amendment 1 indicates “that abortion clinics to not need to be licensed or inspected” and “you believe late term (partial birth) abortions need fewer restrictions.” As the ACLU’s Weinberg wrote in a letter to election officials, distributing “material designed to mislead and confuse voters is tantamount to influencing that person’s vote.” In response, the state’s election coordinator said he sent a letter to all ninety-five counties to reiterate the prohibition on explanatory language.
The voting guide, reviewed by The Nation, was created by Republican Representative Kelly Keisling. It’s not clear how it made it’s way to poll workers. Keisling was not available for comment, but one of his staffers said she was not aware of reports that it had been shared by poll workers. “It sounds like it needs to be investigated,” she said.
Early voters in another county reported that touch-screen voting machines turned their “no” votes to “yesses” on amendment one. “Sometime between when I cast my vote and when I got to the review page, the machine had changed my vote to a ‘yes,’ one man told local news. Although the ACLU has asked state officials to monitor the situation, Weinberg said that the problem is not ‘rampant’ and is probably only technical.
The most bizarre tactic employed by supporters of the amendment is an attempt to leverage a provision in the state constitution to lower the threshold for the number of “yes” votes needed to pass the amendment. Passing an amendment in Tennessee requires more than half the number of people who vote in the gubernatorial election—regardless of how many people vote on the amendment itself. Because Republican Governor Bill Haslam is sure to win, advocates for the amendment are urging other supporters not to vote at all in the governor’s race. “The less people who vote in the governor’s race means it takes less votes to pass the amendment,” explains a video on a new website, truthon1.org. “In other words, if you vote yes on 1, but don’t vote in the governor’s race you’ll double your vote.” Tennessee Right to Life and other groups pushing behind the amendment say they don’t know who started the website.
“Discouraging individuals from voting in any race undermines the heart of our democracy. It’s certainly unfortunate that that message is being promoted by the proponents of the amendment,” said Weinberg.
Green groups are giving Democrats a real boost in their bid to keep the Senate this year—which is kind of ironic, since many high-profile Democratic candidates aren’t that great on environmental issues. In Kentucky, Alison Lundergan Grimes has gone to great lengths to out-coal Mitch McConnell. Louisiana’s Mary Landrieu has built her campaign around her reputation as Big Oil’s best friend. Kay Hagan, Mark Begich, Mark Pryor and pretty much everyone else have touted their support for the Keystone XL pipeline. Colorado’s Mark Udall is a notable exception, but the polls are increasingly grim.
The bright spot for environmentalists is, improbably, in deep-red South Dakota. Though his party gave up on the race early in the year, Democratic nominee Rick Weiland quietly took his brand of prairie populism to every town in the state. With the Republican candidate mired in a corruption scandal, the race is suddenly competitive. The top candidates—Weiland, Republican Mike Rounds and independent Larry Pressler— will debate on Thursday evening. It’s possible that Weiland could be the candidate that saves the Senate for the left.
When it comes to the environment, Weiland is running in the opposite direction from most other Democratic candidates. He doesn’t just oppose Keystone XL: he is loud about it. “There was no way, after I took a good hard look at it, I could do anything other than come out in strong opposition to Keystone, to the pipeline. I have made no bones about it,” Weiland said in an interview on Wednesday. “And, you know, it might have been easier for me to run and hide or duck and cover, but when you know the truth, I think you just have an obligation to stand up and be counted, and that’s what I’ve done.”
The way Weiland sees it, Democrats have allowed the GOP to turn support for the pipeline into a litmus test by failing to challenge the claims made by its supporters. “We haven’t had anybody in opposition with a loud enough megaphone to be able to stand up and say, ‘it’s not jobs. It’s not about energy security,’ ” Weiland explained. Surprisingly, he said he doesn’t hear that much support for the pipeline from South Dakotans.
But when Keystone does come up, Weiland simply explains how misleading the talking points in favor of the pipeline are. He understands why people have an open ear to the argument that Keystone will create jobs, but he’s quick to point out that such claims have been wildly inflated. Only thirty-five people would find permanent jobs because of the pipeline, according to government estimates. “And no one’s been able to tell me if even one of those will be in South Dakota,” he grumbled. As for the temporary jobs created by constructions, Weiland says they are “nothing more than Macy’s hiring people for the holidays. They come and go very quickly.”
Weiland is also unusual in his willingness to defend the Environmental Protection Agency. (Rounds proposes to get rid of the agency entirely.) He notes that the EPA’s proposal to regulate carbon emissions from power plants has been “controversial” in South Dakota, but faults his opponents for making “wild allegations” about the impact of those rules while ignoring the threat of climate change.
“If you want to stick your head in the sand, I guess that’s your prerogative,” Weiland said. “We’re all old enough to remember what it was like before the EPA. You could light some of the rivers and lakes on fire in this country. Do we really want to go back to that? Do we really want to trust these big corporations to do the right thing? No. We need checks and balances. We need an honest referee.”
That critique of corporate power is what links Weiland’s environmental platform to the rest of his campaign. He focuses less on the climate implications of Keystone than the fact that it’s “a big money con.” He orients critiques of the fossil-fuel industry in similar fashion, in the context of his larger message about the corrosive influence of money in politics. If that framing of environmental issues is successful in South Dakota, it should be significant to strategists trying to make climate an electoral issue throughout the country.
If Republicans take the Senate, they will undoubtedly push through a bill approving the pipeline. “That could happen as early as January,” Mike Rounds boasted in September. Many Democratic candidates have, via their loud calls for KXL’s approval, only affirmed that would be a good thing. Weiland, on the other hand, thinks that that the very real possibility that tar sands oil could soon be flowing across South Dakota will work in against the GOP in the state. (Former GOP Senator Larry Pressler, now running as an independent, also opposes KXL, which make Weiland’s effort to leverage the issue more difficult.)
Weiland’s stance on Keystone has helped him make allies in South Dakota’s Native American communities, which are strongly opposed to the pipeline crossing their lands. Last week he visited a spirit camp near Ideal, South Dakota, to show support for the members of the Rosebud Sioux tribe who have been protesting KXL there for months. All of the state’s tribes have endorsed him. If he makes it to the Senate, Weiland hopes to serve on the Indian Affairs Committee. “I’m very committed to trying to use my time in the United States Senate to improve the situation [on reservations],” he said.
Weiland also thinks he’s making inroads with people who normally vote for the GOP, particularly people whose land may be taken for Keystone via imminent domain. A bid by a Canadian corporation to mine for uranium in South Dakota’s southern hills has incited similar concern, and Weiland says he’s been talking with voters about that, too. “I think for a lot of those conservative ranchers out there that care more about their livelihood than their political party, I’m going to get a lot of votes,” he said.
“I think we win at the end of the day because we haven’t been so desperate to make what is often too much the story of accommodation to special interests instead of standing with the people,” Weiland said, when I asked if he thought reluctance to run as environmentalists was actually hurting Democrats.
“If I lose because of this issue, so be it,” he said of Keystone. “I will not lose my soul trying to get to the US Senate.”
Read Next: Can Rick Weiland win in South Dakota?
Cole County, Missouri, seems an unlikely place for a national Republican group to spend hundreds of thousands of dollars. It’s a small county of 75,000, and its leadership is solidly red, with few exceptions. One of those exceptions is Pat Joyce, a Democrat who’s held her seat on the country circuit court for two decades. Until a few weeks ago, with $17,000 on hand and her opponent nearly $13,000 in debt, her chances of serving another term seemed good.
That financial advantage vanished abruptly in mid-October when the Republican State Leadership Committee stepped in with $200,000 to save Republican Brian Stumpe. Half of that money went directly to his campaign. The rest went to the RSLC’s local political action committee, which ran a tie-dye hued ad that accused Joyce of being a “groovy” ally of “radical environmentalists.”
Joyce holds a powerful seat, as far as local courts go. Cole County includes the Missouri state capitol, and so the court has jurisdiction over lawsuits against the state, such as legal challenges to ballot measures. But the RSLC’s involvement in the race isn’t necessarily about Joyce—it’s part of a broader campaign to make courts across the country more conservative.
Since 2010, the RSLC has run an aggressive—and successful—strategy to turn states red and keep them that way. This year, the group expanded from legislative and gubernatorial races, putting $5 million into a “Judicial Fairness Initiative” with the aim to elect judges who are “supportive of restraining government.” So far, the RSLC has funded judicial campaigns in Missouri, Montana, Tennessee and North Carolina. The group is still monitoring races in Ohio, Texas and Michigan.
“It’s a conscious campaign to shift the ideological direction of the courts,” said Alicia Bannon, counsel at the Brennan Center for Justice, which tracks spending in judicial elections. Thirty-nine states elect at least some of their high-court justices. Many began doing so out of concern that executive appointments lacked transparency, but with campaign finance rules increasingly lax, it’s no longer clear that elections are a better mechanism. “We’re seeing money and special-interest influence playing a larger role in these races,” Bannon said. “It’s raising real concerns about whether judicial elections are fulfilling that role of ensuring meaningful accountability and independence for our courts.”
Special interest groups spent a record $15.4 million on ads and other activities in judicial races during the 2011-12 election cycle, according to the Brennan Center. Political action committees are beginning to outspend candidates themselves, said Bert Brandenburg, executive director for Justice at Stake, which advocates for impartial courts.
Brandenburg traces the trend back to the 1990s—and to conservative operative Karl Rove, who built his reputation on capturing high courts in Texas and Alabama. A 2012 report from the Center for American Progress noted that at the beginning of that decade, candidates for state supreme courts raised about $3 million. Within a few years, that figure had quintupled.
“We’re pressuring judges to act like Huey Long on the campaign trail and then turning around and telling them they have to be Solomon in the court room,” said Bradenberg. “A lot of people are getting very afraid that justice is for sale.”
The RSLC is far from the only group pumping money into judicial elections. Just this week, for example, a brand-new group called Campaign for 2016 dropped more than half a million dollars in a bid to unseat a Supreme Court justice in Illinois. But the RSLC appears to be the first national group to focus on those races in a systematic fashion. Americans for Prosperity, the Super PAC backed by the Koch brothers, recently waded into a judicial campaign in Tennessee. But in general, Brandenburg said, the new class of politically minded billionaires have not discovered judicial elections. “But they could at any moment.” If they do, the results could be disastrous for the justice system; big money goes a lot further in a state Supreme Court race than in a campaign for the Senate, and the impact of the winner’s decisions can be enormous.
With ideological groups increasingly eager to buy seats on state-level benches, judges are forced to act more like politicians, turning to lawyers and other parties who may later appear before them in court to raise campaign cash. A few states have clear recusal guidelines—California, for example, requires a judge to step aside if they’ve received more than $1500 from an attorney or party in a case within the last six years, in a previous election or for a future campaign—but many do not. “The recusal rules have not kept up with the surge of money we’re seeing in these elections,” said Bannon.
Judges have begun to speak out about the constant pressure to raise money. “I’ve basically got two full-time jobs: A job running a campaign. And full-time job on the court,” North Carolina Supreme Court Justice Robin Hudson told National Journal. “It’s awful.”
During her primary, Hudson was the target of attacks funded by the RSLC, which gave $900,000 to a conservative Super PAC called Justice for All NC in late April. Around that time, Justice for All NC began airing ads accusing incumbent Hudson of not being “tough on child molesters.” It’s not that hard to find criminal cases in a judge’s record where they could have ruled more harshly against a defendant, and so “soft on crime” is a common refrain in ads against incumbents. But most of the money for the attacks is coming from groups whose priorities are not public safety but business. The RSLC has received big donations from North Carolina corporations like tobacco giants Reynolds American and Lorillard Tobacco Company, for example. Regardless of motivation, that spending has perverse effects on justice. The American Constitution Society has found that contributions from business interests make justices more likely to rule in their favor, and that attack ads correspond with an increase in rulings against criminal defendants.
The attacks on Hudson were only the opening salvo in a battle for the North Carolina courts. As of early October, judicial candidates in the state had booked more than $1 million in television airtime, not counting what was spent during the primaries. Two things have made North Carolina one of the most brutal battlegrounds for judicial candidates, one being the sheer number of contested positions. Four of seven seats on the state Supreme Court and three on the Court of Appeals are in play, meaning that the elections could shift the high courts’ ideological balance. Though candidates are technically nonpartisan, many are running along clearly defined party lines. The state Republican and Democratic parties have both endorsed candidates.
The second reason big money is being spent in North Carolina’s court contests this cycle is that last year the Republican-led legislature repealed the state’s public-financing law, which provided campaign funds if candidates agreed to limitations on fundraising and spending. Now, candidates have to spend more time cozying up to donors in order to compete. Justice Cheri Beasley, an incumbent who relied on the public-financing program for her 2008 campaign, told a reporter that this year she’s driven 40,000 miles in order to attend fundraisers and other campaign events.
The more expensive the races become, the more difficult it is for candidates who haven’t built relationships with wealthy clients or business partners to compete—for example, people who’ve spent their careers as public defenders. On the other hand, someone with a rolodex full of corporate connections will have an easier time raising money. The danger is not only that judges will face conflicts of interest in future cases, but that benches on high courts will be less diverse to begin with.
For now, even judges opposed to the politicization of their profession have little choice but to fundraise. Public financing for campaigns would help, but as North Carolina illustrates, political winds are shifting in the opposite direction. Thirty states still forbid judges from soliciting campaign contributions directly, but even those restrictions are vulnerable; the Supreme Court, which has ruled decisively against campaign-finance laws in recent years, recently agreed to hear a challenge to Florida’s law. “There are growing concerns about whether or not there is going to be a viable way of choosing judges going forward,” said Bannon.
The minimum wage is causing a bit of campaign drama, notably in Wisconsin, as John Nichols reports. Republican Governor Scott Walker, running neck and neck against Democrat Mary Burke, inflamed the debate this week when he rejected complaints that the state’s $7.25 an hour wage floor was too low. “I don’t think it serves a purpose,” Walker said of the labor standard.
One of the most bizarre points in the Walker administration’s argument for why $7.25 is a living wage (it’s not) is that some low-wage workers supplement their earnings with public assistance. It’s true that even many full-time employees in Wisconsin and elsewhere rely on government aid—because their wages are too low. Walker, meanwhile, is no supporter of social programs. If he had his way, there would be an even smaller safety net for workers to fall back on.
Walker isn’t the only candidate digging in his heels against efforts to raise the minimum wage while simultaneously bashing public aid. This isn’t just callous—it’s also dumb policy. There are lots of reasons to raise the minimum wage, like the fact that it will boost the economy and that 80 percent of Americans support it. But one reason in particular should get conservatives’ attention: it will help people get off government aid programs and save the government money.
How many people? About 1.7 million, according to a brief released Thursday by the Economic Policy Institute, which examined the implications for public-assistance enrollment of raising the federal wage floor to $10.10 an hour.
Nearly half of all recipients of government aid work full time, but because lawmakers have let the minimum wage stay low while the cost of living rises, many workers can’t get by on their earnings. The result is that roughly half of all workers making hourly wages below $10.10 rely on public assistance directly or via a member of their family, according to EPI. And about half of all the funds for the six main types of government support—food stamps; the Earned Income Tax Credit; the Low Income Home Energy Assistance Program; Supplemental Nutrition for Women, Infants, and Children; the Section 8 Housing Choice voucher program; and Temporary Assistance for Needy Families—go to people working for less than $10.10 an hour.
Those programs were designed to provide temporary support to people who were down on their luck, noted David Cooper, an economic analyst at EPI and the brief’s author, on a call with reporters. “They were not intended to act as long-term subsidies to employers so businesses could get away with paying poverty-level wages,” he said. As it stands now, the government is essentially giving a $45 billion handout every year to companies that pay less than $10.10 in order to patch the gap between what they pay their employees and what those workers need to survive.
It’s important to note that raising the wage floor wouldn’t justify cuts to the safety net. Even $10.10 is below a living wage in many cities, and there are still an awful lot of people without full-time work. “Given the extraordinarily high rates of poverty and child poverty that persist in the wake of the Great Recession, there is every reason to think that current levels of spending on these programs are woefully inadequate to truly combat poverty and lift living standards for program participants,” Cooper wrote.
But raising wages would free up money that could be used to benefit those who aren’t directly affected by the increase. Cooper estimates that lifting the wage floor to $10.10 would save the government at least $7.6 billion annually—money that could be used to strengthen and expand safety net programs like the Earned Income Tax Credit or be invested in infrastructure projects that create jobs.