DISPATCHES

IT’S LOOKING GRIM FOR ORGANIZED LABOR AT THE SUPREMES.

The Supreme Court heard the case of Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2/26). At issue legally was the question of whether or not a public employee has a free speech right to withhold union dues that are deducted from his or her paycheck while still receiving the benefits for which that union has bargained. This is the third time the question has come before the Court, Charles Pierce noted at Esquire.com.

“The first time was in 1977, when the Court ruled in Abood v. Detroit Board of Education that such deductions were constitutional on the grounds that they prevented the obvious ‘free rider’ problem presented by employees who refused to pay what were called ‘agency fees’ but yet still profited from the bargaining that those fees made possible. The anti-organized labor forces in the country have had this decision in their sights ever since. The second time the question came before it, the Court ducked rather than review Abood. The third time, Antonin Scalia died mid-deliberation so the Court deadlocked at 4-4. That brings us to Monday’s oral arguments in Janus, about which Amy Howe of the invaluable SCOTUSBlog wrote the single most terrifying sentence that yet has been written about this case”:

“This means that the outcome in Janus’ case could hinge on the vote of the court’s newest justice, Neil Gorsuch.”

The case hinges on the opinion of the guy who once argued that a company was within its rights to fire a dude who chose to survive rather than freeze to death in his broken-down big rig. I’m certainly optimistic.”

Reports from inside the Court are not promising, Pierce noted. Ian Millhiser of ThinkProgress tweeted out that swing Justice Anthony (Weathervane) Kennedy “sounded like a Fox News host” in his questioning, which is certainly ominous. The report from Nina Totenberg of National Public Radio sounds like Millhiser was not far off.

“When a decision is reached, expected in June, all eyes will be on Trump-appointed justice, Neil Gorsuch, who was uncharacteristically quiet in Monday’s proceedings. He asked no questions and will likely be the deciding vote, given that the other justices split 4-to-4 in a similar case last year. The case last year was decided just after the death of the late Justice Antonin Scalia, and the balance didn’t seem to change Monday. ‘You’re basically arguing, do away with unions,’ Justice Sonia Sotomayor argued at one point in questioning the attorney for the National Right to Work Legal Foundation, William Messenger. On the other side, conservatives sympathized with Janus’ argument that the unions are political, and someone shouldn’t have to join a union they disagree with on politics. Justice Anthony Kennedy asked David Frederick, the attorney for the American Federation of State, County and Municipal Employees, or AFSCME’s Illinois affiliate. Frederick agreed that it would. ‘Isn’t that the end of this case?’ Kennedy asked.”

“Kennedy, you may recall, was the swing vote in deciding that money was indeed speech in Citizens United, so we have a pretty good idea which way things are going,” Pierce noted. “Also, why would Gorsuch say anything? I’d say he probably decided what he thought about this case when he was a sophomore in college.”

The New York Times reported, “The case illustrates the cohesiveness with which conservative philanthropists have taken on unions in recent decades.” Conservative donors and they groups they finance have not just brought labor to the brink of crisis but threatened the Democratic Party as well. Amid changes in the campaign finance landscape and the decline of private-sector unions, the party and its candidates have increasingly relied on major public unions for funding, including hundreds of millions of dollars in direct and indirect spending during the 2016 presidential cycle. Those unions include AFSCME, whose Council 31 is the defendant in the Janus case.

Pierce also noted that some of the major victories for the corporate class were won out in the states long before this case ever got to Washington.

In 2011, Wisconsin rolled back the right of most public unions to bargain over anything other than wages and eliminated the requirement that nonmembers pay fees. The portion of unionized public-sector workers in the state plummeted from half to just over one-quarter within five years. In seeking to produce similar results nationally, conservative donors have created a symbiosis between groups aiming to overturn Supreme Court precedent favorable to unions and groups that take advantage of those rulings to drain unions of members. The Lynde and Harry Bradley Foundation of Wisconsin, which had over $800 million in assets in 2016, has funded both kinds of organizations. In a 2014 case brought by a group that had received more than $1 million in contributions from the Bradley Foundation, the Supreme Court ruled that home-care aides and other “partial-public employees” paid through Medicaid could not be forced to pay fair-share fees if they left their unions. Unions say these fees, typically about 80% of standard dues, are necessary to compensate them for representing nonmembers in bargaining and grievance proceedings.

Pierce noted, “This is about crippling the Democratic Party as much as it is about eliminating effective collective bargaining in the one area where such bargaining still exists, and it all depends on a guy who thinks corporations have free speech rights and another guy who believes that die-or-be-fired is a legitimate form of management-labor relationships. They know what might be coming in the midterms. They’re grabbing all they can.”

DREAMERS WIN A STAY AS SUPREME COURT TELLS TRUMP TO GET IN LINE WITH APPEAL. The Supreme Court handed President Trump a defeat (2/26), turning down the administration’s plea for a quick ruling on the president’s power to end special protections for so-called Dreamers. The Trump administration asked the Supreme Court to bypass the court of appeals and hear an appeal directly from a trial court decision reinstating Deferred Adjudication for Childhood Arrivals. The court’s decision not to immediately hear the administration’s appeal could keep in place a legal shield for nearly 700,000 young immigrants for the rest of this year, and perhaps longer, but Ian Millhiser of ThinkProgress said the legal challenge is unlikely to end well for the immigrants who benefit from the program.

A federal judge in California (1/9) ordered much of the DACA program reinstated. Though Judge William Alsup conceded that “a new administration is entitled to replace old policies with new policies so long as they comply with the law,” he explained that when a federal agency alters existing policy, the “agency’s action must be upheld, if at all, on the basis articulated by the agency itself.” Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn issued a similar ruling in February.

The Trump administration claims it wants to end DACA because it believes that the DACA program is illegal. Judge Alsup disagreed — he thinks, correctly, that DACA is legal — and that disagreement formed the basis of his decision, Millhiser noted.

The case tees up the underlying question of whether a president who supports DACA is allowed to create such a program or not — and immigrants are likely to receive very bad news when the question comes before the Supreme Court, Millhiser noted. In 2016, when the Court had only eight members, the justices split 4-4 on the legality of a similar program created by the Obama administration. With the ninth seat now occupied by Neil Gorsuch, a conservative hardliner, there are now likely five votes to hold that DACA is illegal. Such a decision will tie the hands of future presidents.

A legal effort to preserve DACA could ultimately have the unintended consequence of preventing future presidents from undoing one of Trump’ anti-immigrant policies. Though the Court will not hear the case out of turn, it is likely to hear it after the case makes its way through the court of appeal, especially if the appeals court agrees with Judge Alsup’s decision.”

HOPES TO SAVE NAFTA DWINDLE. Talks to renegotiate the North American Free Trade Agreement (NAFTA) between Canada, the US and Mexico are dragging, with few solutions in sight, D. Parvaz noted at ThinkProgress.

The seventh round of the talks started (2/25) in Mexico City and were aimed at fixing what President Donald Trump has referred to as “the worst deal ever made” (as he often describes most deals and policies crafted by his predecessors). Whether Trump has the authority to pull out of the deal via executive decision in the first place is unclear, given that the deal passed with Congressional approval in 1993.

Still, the president can get the ball rolling by issuing a six-month notice to leave NAFTA, a deal currently stalling on a number of grievances, including dispute resolution mechanism and currency manipulation.

But leaving the deal will be messy. Canada is the largest market for US exports and Mexico is the second, with a massive market for US agricultural goods.

Experts told ThinkProgress in August, when the first round of NAFTA renegotiations kicked off, that ditching the deal would destabilize global markets and ultimately harm US automotive, electronic and agricultural sectors. In fact, Reuters reported (2/22) that Mexico imported 10 times more corn from Brazil in 2017 amid concern that NAFTA renegotiation could disrupt their US supplies.

The Lone Star State will be one of the biggest losers in the event that the US walks away from NAFTA. According to Business Roundtable (BRT), a conservative business group, Texas exported $125 billion worth of goods to Canada and Mexico in 2015, and supported nearly 1 million jobs in the state.

In fact, in a January study done by BRT showed that the US would be worse off without the “worst deal ever”:

Termination would re-impose tariffs on US exports and imports, which would reduce the competitiveness of US businesses both domestically and abroad. Foreign purchasers would shift away from US goods and services in favor of lower-cost goods and services made in other international markets, particularly those made in Asia. The BRT estimates that 1.8 million jobs would be lost in the US in the first year alone.

Lori Wallach, director of Public Citizen’s Global Trade Watch, commented, “A NAFTA replacement deal that would enjoy bipartisan congressional support is entirely possible because US negotiators have stood up to the interests trying to thwart real change and have resolutely pushed proposals to cut NAFTA’s job outsourcing incentives and the ISDS [Investor-State Dispute Settlement] tribunals where corporations can attack our laws and to add stronger rules of origin and an accountability-injecting sunset clause.

“With time running short, the question is whether some of these US proposals to restructure NAFTA can be agreed upon in Mexico City and progress made on adding strong labor and environmental standards with swift and certain enforcement to stop companies from moving US jobs to Mexico to pay workers poverty wages and dump toxins and then import those products back for sale here.”

The end-of-March deadline set for completing a deal is fast approaching, as is the July 1 Mexican presidential election, Wallach noted.

AUTHOR: 1994 ASSAULT WEAPONS BAN CUT MASSACRES. In the debate over the need for a ban on military-style assault weapons in civilian hands, the NRA has insisted that a ban on assault weapons would have little impact because rifles are used in only 1% of all crimes, possibly because criminals prefer easily concealable pistols, but Louis Klarevas, who collected data on every gun massacre — which he defines as six or more people shot and killed — for the previous 50 years for his 2016 book Rampage Nation, said there was a “staggering” reduction of massacres during the 10 years of the assault weapons ban. Compared with the 10-year period before the ban, the number of gun massacres during the ban period fell by 37%, and the number of people dying from gun massacres fell by 43%. But after the ban lapsed in 2004, the numbers shot up again — an 183% increase in massacres and a 239% increase in massacre deaths, Christopher Ingraham wrote in the Washington Post (2/15).

Klarevas, who teaches at the University of Massachusetts at Boston, said the key provision of the assault weapons bill was a ban on high-capacity magazines capable of holding more than 10 rounds. “We have found that when large capacity mags are regulated, you get drastic drops in both the incidence of gun massacres and the fatality rate of gun massacres,” he said, although a “grandfather clause” in the 1994 bill allowed high-capacity clips manufactured before the ban to continue to be sold.

In 2004, the Brady Center to Prevent Gun Violence found the assault weapons ban had reduced the number of assault weapons used in crimes. It found that, of 1.4 million guns involved in crime in the five years before enactment of the Federal Assault Weapons Act (1990–1994), assault weapons named in the Act constituted 4.82% of the crime gun traces ATF conducted nationwide. After the law’s enactment, however, these assault weapons made up only 1.61% of the guns ATF traced to crime.

ESTIMATE: GOP HEALTH CARE SABOTAGE WILL INCREASE PREMIUMS 18.2%. Individual health insurance premiums will rise an average of 18.2% next year due to GOP-backed changes to the Affordable Care Act, according to a study from the left-leaning Urban Institute, The Hill reported (2/26).

The study finds that the combination of repealing the ACA’s individual mandate and expanding access to cheaper, skimpier health insurance policies known as short-term plans will lead to the premium increase.

Both of those actions have the effect of leaving fewer healthy people in “ObamaCare” plans, which d`rives up premiums for the remaining group of sicker enrollees.

The study finds 4.2 million people will enroll in the new short-term plans, with 1.7 million of those being otherwise uninsured.

But this new coverage is primarily attractive to healthy people because it does not need to follow ACA rules, can deny coverage to those with pre-existing conditions and can leave out coverage of certain services.

The study also finds 6.4 million more people will be uninsured next year due to the repeal of the mandate to have health insurance or pay a fine, in addition to other smaller changes like cutting federal investments in outreach.

The total number of uninsured next year, the institute estimates, will be 32.6 million, which is 12.5% of the non-elderly population. That compares with 10.2% under Obamacare. Federal spending will increase by 9.3% next year alone, they estimate, because Obamacare wasn’t repealed, the tax subsidies that a large percentage of customers get still exist, and those subsidies go up along with premium hikes.

DEM REBUTTAL TEARS NUNES MEMO APART. House Democrats surprised the country on Saturday (2/24) by releasing their rebuttal to the so-called Nunes memo — the document, prepared by Rep. Devin Nunes (R-CA), that has become a key part of the conservative argument that the FBI is biased against President Donald Trump. The Democrats’ rebuttal memo, written by Rep. Adam Schiff (D-CA), argues that the Nunes memo is full of “distortions and misrepresentations” that don’t stand up to scrutiny based on the underlying classified evidence.

“Having now read both memos, I can say with confidence: Schiff makes his case,” Zack Beauchamp wrote at vox.com (2/24). Schiff quotes key FBI documents that explicitly contradict the Nunes memo’s core arguments, he noted. “Any fair-minded observer who reads these two documents side-by-side can only conclude one thing: Nunes is either deeply misinformed or straight-up lying.”

“This is a pretty thorough demolition,” Julian Sanchez, an expert on surveillance at the libertarian Cato Institute, wrote on Twitter after reading Schiff’s memo.

In essence, Nunes alleges that the FBI used opposition research put together by a Democratic political operative to go after the Trump campaign without disclosing that clear conflict of interest to the court. This was, according to Nunes, “a troubling breakdown of legal processes established to protect the American people from abuses related to the FISA process.”

The Schiff memo argues that this isn’t true. And, Beauchamp notes, “it has the receipts to prove it.”

Schiff quotes a lengthy passage from the actual application the FBI sent to the FISA court asking for permission to snoop on Carter Page. In the key line, the application explicitly notes that “the FBI speculates” that Steele had been hired to find “information that could be used to discredit Candidate #1’s [Trump’s] campaign.”

“That’s it. That’s the ballgame,” Beauchamp wrote. “The FBI clearly states right there in the FISA application that they believe Steele was hired to find dirt on Trump. Since the core contention of the Nunes memo is that the FBI didn’t do that, Nunes’s entire argument falls apart.”

Quinta Jurecic and Benjamin Wittes wrote at Lawfare: “While the ‘Demo,’ as we’ll call it for short, certainly contains its share of political rhetoric, the facts it alleges are worth serious consideration. If they are true even in substantial measure, let alone in all of their particulars, they rather lay waste to the original Nunes document. This despite a number of redactions in the Demo that apparently were the condition of its declassification and that make it hard to parse in some places.

“The document is devastating because the core claim of ranking Democrat Adam Schiff and his colleagues is that the House intelligence committee majority left out key facts from its analysis in such fashion as to effectively lie about the FBI’s FISA application against former Trump adviser Carter Page in the fall of 2016. The supposedly left-out facts constitute the body of the Demo. And if the Democrats are being even generally accurate as to the material that the majority omitted from the original memo, then there is little left of the original document.”

At this point, it’s unclear whether the FBI did in fact know who specifically was funding Steele’s work, or that it was the Democratic National Committee and the Hillary Clinton campaign, Beauchamp wrote. But regardless, the FBI clearly told the judge that some of the information it was using to justify the FISA warrant request came from a partisan source. And the judge — who presumably read the footnotes — decided it was compelling enough to approve the application anyway. Case closed.

STATES JOIN FORCES TO BUILD BACKGROUND CHECK SYSTEM. Massachusetts and Puerto Rico are joining four northeastern states in the “States for Gun Safety” coalition, which expands on the federal background check system by creating a multi-state gun database, Connecticut Gov. Dan Malloy (D) told ThinkProgress (2/25). Delaware is interested in joining, but hasn’t yet officially. The governor has also reached out to governors in Maryland, Virginia, and Pennsylvania.

Four Democratic governors from New York, Connecticut, New Jersey and Rhode Island signed a memorandum in which they agreed to work together to combat gun violence. Their joint effort was forged in response to the federal government’s inaction after a horrific school shooting (2/14) by a teen gunman in Parkland, Fla., left 17 people dead.

Governors from the four original signatory states promoted their coalition during the National Governors Association gathering in Washington D.C.

Malloy announced that Massachusetts Gov. Charlie Baker (R) and Puerto Rico Gov. Ricardo Rossello (D) have joined the initiative, which will allow their respective governments to share information on illegal firearms, in a bid to trace and intercept out-of-state guns.

The agreement would also allow local law enforcement to share mental health registry information, which is not currently included in the National Instant Criminal Background Check System. The coalition also creates a regional gun violence research consortium.

“Quite frankly if the president is going to continue to defund it, we may have to build our own system at some point,” said Malloy of the federal background check system. The president’s budget proposal cuts funds to the background check system.

TRUMP APPROVAL DROPS TO RECORD LOWS. Donald Trump’s approval rating has slumped again to match the lowest of his presidency, according to two new polls. The surveys were conducted amid mounting activism for gun control and security clearance problems in the White House. Support for stricter gun laws has spiked to the highest level since 1993 and Americans aren’t happy with Trump’s position on the issue, CNN has found.

Despite Trump’s bullish take on his performance, the president’s approval rating fell five points over last month to 35%, according to a CNN survey, conducted by polling firm SSRS. That number matches the lowest rating of his presidency in December.

A separate poll by USA Today and Suffolk University’s Political Research Center found similar results, with the president’s approval rating also slipping to match the lowest point that survey has found at 38%, with 60% disapproving of the job he’s doing.

The CNN poll was conducted Feb. 20 to 23 amid outrage over guns in the wake of the Parkland school shooting that killed 17 people. Only a third of those polled approve of how Trump is handling gun control policy, with 54% disapproving, the CNN poll found. Just over 12% of those surveyed said they have yet to make up their mind on the issue.

CNN’s poll on the gun issue found that 70% of those surveyed now back stricter gun laws. That’s up significantly from 52% who took that position in an October survey shortly after the mass shooting in Las Vegas killed 58 people. Just 27% of those polled oppose more stringent laws, CNN found in its latest poll. (HuffingtonPost.)

DEMS WON’T ENDORSE LIPINSKI. The Democratic Congressional Campaign Committee has decided to take a pass on endorsing conservative Democratic US Rep. Dan Lipinski’s reelection bid in Illinois’ 3rd District. The party is clearly thinking twice about investing resources in a candidate who has declined to pay party dues and continually parted ways with views held dear by large swaths of the progressive base. Politico writes:

“Dan Lipinski is the kind of candidate Democrats need more of for the party to win the House in November. But the national Democratic Party is refusing to endorse him.”

But Kerry Eleveld noted at DailyKos (2/26) that Hillary Clinton won IL-03 by 15 points—55-40 percent—and Lipinski has a viable Democratic challenger, Marie Newman, who actually espouses progressive values more in line with both the district and the party.

The seven-term congressman from Chicago, who opposes abortion and voted against Obamacare, marriage equality and immigration reform, is one of the most conservative members of the House Democratic Caucus.

Lipinski is exactly the kind of lawmaker who could weigh down the Democratic caucus if Democrats manage to regain control of the House this November, Eleveld notes. 

“Districts do exist that require a candidate with more conservative positioning in order for Democrats to even have a chance of being competitive. IL-03 isn’t necessarily one of them. The DCCC is doing exactly what it too often has not done in the past—wait out the primary so Democratic voters can decide who they want to represent them in the general election. The default position of the DCCC is usually to back the incumbent no matter what, but let’s hope the Democratic leadership continues to stay out of this race until the primary runs it course.”

ERIC HOLDER, DEMS SUE WIS. GOV. OVER LACK OF SPECIAL ELECTIONS. Wisconsin Governor Scott Walker’s refusal to hold special elections to fill vacant state-legislative seats will be challenged in the courts by former US attorney general Eric Holder and the National Democratic Redistricting Committee (NDRC), John Nichols reported at TheNation.com (2/26).

“Governor Scott Walker’s refusal to hold special elections is an affront to representative democracy,” declared Holder, who announced Monday that the National Redistricting Foundation, an affiliate of the NDRC group he heads, will file suit in the circuit court of Wisconsin’s Dane County on behalf of voters in the two disenfranchised districts. “Forcing citizens to go more than a year without representation in the [legislature] is a plain violation of their rights and we’re hopeful the court will act quickly to order the governor to hold elections.”

Marc Elias, one of the nation’s most prominent legal experts on elections, is a member of the foundation’s legal team.

Walker is one of a number of Republican governors who this year have refused to call special elections for legislative seats Republicans might lose.

Walker was stung in January by a special-election result that saw a historically Republican State Senate seat won by a Democrat, after he appointed Republican State Sen. Frank Lasee and Republican State Rep. Keith Ripp to posts in his administration last December. Since then, he has stubbornly refused to call special elections to fill the seats—arguing that voters should not be given a say until the regularly scheduled election in November.

Wisconsin statutes say that vacant legislative seats “shall be filled as promptly as possible by special election.” While Walker’s aides and allies had tried to claim he had leeway because of statute language regarding the close of the regular floor period of the legislature and special sessions, those arguments crumbled as the legislature has continued to meet and act on major welfare-reform and criminal-justice-reform issues.

The governor’s antidemocratic stance, which has been criticized as an attempt by Walker to prevent Republican special-election losses that might embarrass his party and undermine his own 2018 reelection run, threatens to leave almost 230,000 Wisconsinites unrepresented for the better part of a year. It was the subject of an investigation by The Nation into the refusal of Republican governors to call special elections for legislative seats in the swing states of Wisconsin, Michigan, and Florida, and for a US house seat in Michigan, that was published in the 3/19-26/18 issue of The Nation.

Wisconsin Senate minority leader Jennifer Shilling (D–La Crosse) has complained that “Governor Walker is running scared and is playing politics with people’s right to be represented in the State Capitol.”

Now, however, Walker has another reason to be running scared. His attempt to play politics with representative democracy could well be upset by the courts.

From The Progressive Populist, March 15, 2018

Populist.com