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Category: General

Rand Paul Has Extremely Reactionary Positions on Social as Well As Economic Issues

[ 97 ] March 26, 2014 |

The fraudulent presentation of America’s Greatest Champion of Civil Liberties is remarkable.  On “social” issues as well as reactionary ones, Rand Paul is an absolutely standard issue conservative Republican, steadfastly opposed to civil rights and equality for women, African-Americans, and gays and lesbians.

At least when it comes to same-sex marriage, the basis for this bad faith evasion seems to be some boilerplate language about “leaving the issue to the states.”  I mean, really, this is the same con that the right has been running for years on abortion — not only is it not any kind of progressive position, since nobody actually cares about federalism virtually everyone who allegedly wants abortion “left to the states” supports every piece of federal abortion regulation to ever come down the pike.  Can we stop pretending that this language means anything, please?


NLRB Rules in Favor of Northwestern Football Players

[ 160 ] March 26, 2014 |

This is a very big day for college athletes seeking the right to unionize:

The director of the National Labor Relations Board’s Chicago district ruled today that Northwestern football players do qualify as employees, and as such are entitled to form a union. This is as big as it sounds, but there is a ways to go before amateurism as we know it is ended.

Led by QB Kain Colter, the College Athletes Players Association won a surprisingly quick decision from the NLRB regional office—they filed less than two months ago, and were vociferously opposed by Northwestern and the NCAA. The group seeks fully guaranteed scholarships, better medical protections for injured players, and a fund that will allow athletes to continue their educations after they stop playing.

In the money quote from the decision, the regional director wrote, “I find that players receiving scholarships from the Employer are ‘employees.’”

You can read the opinion here (PDF). Now, this is far from the end of the road. Northwestern is going to appeal and the NCAA is going to back them up all the way. After all, the free labor they take from athletes is at stake. So who knows what is going to happen. But a couple of quick key takeaways. First is the speed of the decision. Usually, these cases are a long, drawn-out process (often a problem of the NLRB, making it an increasingly ineffective agency for workers operating in real time with house payments and such). This case began only 2 months ago. This means that for the regional director, it was an obvious and easy decision. He declared these athletes workers because they received compensation, even if did not receive a paycheck Second, this continues to chip away at the NCAA. Every time players sue or argue for rights, the NCAA cartel weakens. Every time they win or even gain a partial victory, NCAA power declines even more.

And while I absolutely do not believe this is going to happen, were such a decision lead to the decline of college athletics and the replacement of it in major sports with actual minor league football and basketball, well, good! And I say this as a fan. There’s almost no good argument to be for the current scenario unless you are a booster and donor who doesn’t actually want to give money to the university.

Of course, support for paying the largely non-white college athletic workforce falls largely along race lines, with white people loving to watch unpaid (although compensated) black labor and black people being significantly less comfortable with that. I’m sure there’s no history behind this or anything.

Dave Jamieson with more.

…..Allen West is very sad.

….This is an excellent Q&A at ESPN that answers many questions about the impact of this case. Looks good for the players.

The Pro-Coal Waste Party

[ 72 ] March 26, 2014 |

Republicans may hate national parks, but they love dumping coal waste into streams.

The U.S. House of Representatives on Tuesday passed a bill that would allow coal mining companies to return to an old practice of dumping mining waste into streams.

House Speaker John Boehner, a Republican from Ohio, called it part of an effort to stop what Republicans call the “war on coal” and a “pro-growth jobs bill.” Triangle Republican members of Congress Renee Ellmers, Howard Coble and George Holding voted for it, as did Rep. Mike McIntyre, a Democrat. And Democratic Reps. David Price and G.K. Butterfield voted against it. The vote was 229-192.

Well, I suppose it does create some jobs to dump coal waste into streams. Of course, it would also create jobs to clean up streams. But the hippies would like that idea. So, no, let’s dump coal waste into the streams instead.

How To Read RFRA

[ 113 ] March 26, 2014 |

Given that the religious freedom claim being advanced by Hobby Lobby seems to be a combination of scientific ignorance and political opportunism, it’s tempting to conclude that their claim should be dismissed as not being based on a sincere religious belief at all. Tempting, but I think wrong. The courts have been reluctant to question the sincerity of religious beliefs (and opposed to making determinations about the centrality of religious belief) when addressing free exercise claims for good reason. Granting that Hobby Lobby is close to the line, this deference is correct.

The better question is whether, assuming arguendo that there is a religious conflict, whether the burden placed on these beliefs is sufficient to trigger heightened scrutiny. The free exercise framework established by RFRA has two parts. The first states that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” This establishes a threshold test; litigants must show that their exercise of religion has been “substantially burdened.” If this threshold is passed, the burden switches to the government to show that the law is in “furtherance of a compelling government interest” and “is the least restrictive means of furthering that compelling governmental interest.” Many of you will recognize this as analogous to the strict scrutiny test the federal courts use to evaluate racial classifications under the Fifth and Fourteenth Amendments.  Applied properly, this is an enormously difficult test to pass.

As you can see from Paul Clement at the oral argument, the strategy of the litigants has been to for all practical purposes read the threshold test out of RFRA. Under Clement’s theory, almost any bare assertion of any degree of conflict with religious practice is sufficiently “substantial” to trigger strict scrutiny. For reasons I’ve discussed already, this would be a bad and unworkable way to read the statute.

As Justice Kagan noted:

But, again, Mr. Clement as Justice Ginsburg said, this was a very uncontroversial law. Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

This is correct. RFRA passed with almost no opposition from either house of Congress, both of which were controlled by Democrats. The idea that not only did Congress mean to say “trivial” when they enacted “substantial” but that they expected the entire U.S. Code and Code of Federal Regulations to be subject to strict scrutiny based solely on a nearly irrefutable bare assertion of any religious conflict is implausible in the extreme. The alternative proposed by the Solicitor General is a much more sensible and workable reading of the statute:

And so we think the substantial burden analysis has got to be more strenuous than that. It’s got to incorporate principles of attenuation and proximate cause, and that when you think about this case where the requirement is to purchase insurance which enables actions by others, that you’re really closer to the tax situation than to imposing a direct obligation to act.

And, of course, Clement wants an exceptionally undemanding “substantial burden” standard because the burden in this case is so attenuated Hobby Lobby’s claim would have no chance otherwise. A provision that doesn’t force employers to do anything and places the burden for not complying with the law on third parties should not meet the RFRA threshold. The fact that the Hobby Lobby didn’t believe that it was complicit in providing contraception through its insurance until 2012 just draws a line under how insubstantial this burden is. The Court should read RFRA to mean what it says, and if it does so would reject the claim against the contraceptive coverage provision easily.

“I’m not dead yet,” insist denizens of the future

[ 63 ] March 26, 2014 |

There are so many science fiction related jokes/dreams-fulfilled related to this story that I don’t even know where to start.

So I’ll leave it up to you.

Hobby Lobby: The Derp Never Stops

[ 205 ] March 26, 2014 |

Darleen Click, I’m sure your brief post on the challenge to the ACA’s employer contraception non-mandate will be all too representative!

Seven words to the Left Feminist Fascists

I think we can all agree that if there was anything central to fascism, it was that the insurance that women pay for or receive in lieu of wages actually cover things that are important to the health of women. If you don’t understand this, you probably haven’t spent much time at the Evil Sluts and Their Minimum Coverage Requirements Museum in D.C..

their “bosses” won’t pay for their birth control

It’s the insurance that employees earn as compensation, not their employers per se, that will pay for birth control when companies provide insurance that meets the minimum requirements. But I’m having trouble focusing on this particular terrible argument because I’m fascinated by the scare quotes around “bosses.” Clearly, when Hobby Lobby employees think that the Greens set policy for their chain, they’re just imagining things! You’re the boss, if you want it. I don’t know if this is a thing on the right, but either way I’ve rarely seen anything that captures the particular mix of servility and authoritarianism that characterizes contemporary Republican ideology this well.

– including abortifacients –

The idea that any form of contraception is an “abortifacient” doesn’t even rise to the level of junk science. But you knew that, so read this about the origins of this particular bit of lunacy from Jamelle Bouie.

it constitutes denial of access &

Again, nobody thinks that carving out exemptions to minimum coverage requirements will represent a total denial of access to contraception, although it would certainly make contraception less accessible for some less affluent women.

“rights” to free stuff

Again with the scare quotes. First, the insurance your employers gets tax benefits for compensating you with instead of wages isn’t “free”; the employee earns it. Second, the minimum coverage is an actual statutory right, not a “right.” What’s amazing about this particular line of argument — that statutory rights aren’t “real” rights — is that the Hobby Lobby’s challenge is based on a statutory right. If the rights created by Congress are just meaningless fake “rights,” then we can all go home because RFRA is just symbolic legislation that confers no legal rights, and so nobody has standing to bring a suit. (There is also a constitutional right to the free exercise of religion, but based on current 1st Amendment law a challenge to the contraception coverage requirement would be frivolous, and properly so.)

And now, the punchline:

Pay for your own damn coat hanger.

Hahaha, remember when women who didn’t have the wealth or connections to get abortions on the grey market used to get maimed and killed when they got abortions? Hiiiii-larious, I tell you! I laughed like I was watching the Half-Hour News Hour! In the meantime, make sure to let Click know how she should spend her salary, since according to her she didn’t earn it…

Air Pollution Deaths and the Globalized, Outsourced Economy

[ 29 ] March 26, 2014 |

The World Health Organization released a report yesterday showing that 7 million people died in 2012 from air pollution. This was 1 out of every 8 global deaths and twice previous estimates. These deaths are highly concentrated in Asia and result from two sources. First, women are dying from indoor cooking stoves in nations like India. This killed 3.3 million people in southeast Asia alone. Second, air pollution in Chinese cities is killing people left and right. That led to 2.6 million deaths in southeast Asia. The first problem is certainly very real and there are a lot of experts and NGOs working on cooking stove issues. The second is more interesting because a good bit of this comes from the outsourcing of American industrialization. Of course, Chinese industrialization is quite complicated and results from many factors, the most important of which is the Chinese state’s desire for immediate modernization at all costs. But it’s not like American consumers have no culpability here.

Americans used to die from this pollution. In late October 1948, a weather inversion hit the town of Donora, Pennsylvania. A steel and zinc-producing town for U.S. Steel southwest of Pittsburgh, Donora sat in a valley where under certain weather conditions air would stagnate. As it did so, it mixed with pollutants from the smokestacks belching pollution into the atmosphere. Normally, the pollution was bad but the winds would move it out of the valley. During periods of air stagnation though, Donora’s environmental problems, already bad, became a poisonous soup. Nearly all vegetation within a half-mile of U.S. Steel’s Donora Zinc Works was dead even before the disaster struck. On October 27, air pollution and weather patterns became a deadly combination. A thick yellowish smog hung over the town as people breathed in poisonous gases such as nitrogen dioxide, sulfuric acid, and fluorine. The smoke lasted until November 2. Despite heroic efforts by local fire and police forces, as well as the town’s eight doctors who worked night and day, twenty people in Donora died and another 7000 became sick. Nearly 800 pets also died.

That doesn’t happen here anymore. Americans rallied to pass environmental legislation, including several successive Clean Air Acts, to force companies to clean up their operations. But the response of corporations was to move abroad in order to keep on polluting. NAFTA facilitated this. The increased air pollution companies could emit meant profit. It also meant over 36,000 children visiting Ciudad Juarez emergency rooms between 1997 and 2001 because of breathing problems. Mexican federal spending on environmental protection fell by half between 1994 and 1999 at the same time that American corporations polluted the nation like never before.

Eventually much of this production moved to China, whether directly outsourced or to be exported to the United States as the U.S. stopped producing much steel. In January 2014 alone, the United States imported 3.2 million tons of Chinese steel. American corporate interests do not own these Chinese steel companies, but they do own thousands of other heavily polluting factories in the country. Recreating pollution is why companies move from the U.S. to China. They want to avoid “environmental nannies” as companies have called Natural Resource Defense Council health director Linda Greer, who frequently writes about these issues. The Institute of Public and Environmental Affairs in Beijing, a leading Chinese environmental NGO, released a report in October 2012, detailing the massive pollution by apparel factories that contract with U.S. corporations like Disney. The report noted subcontractors for Ralph Lauren discharge wastewater filled with dyes and other pollutants into streams and do not use pollution reduction devices on coal boilers, thus releasing extra pollutants into the air. Chinese people are protesting the pollution but their government has little tolerance for these protests, which pleases foreign investors. A recent scientific estimate shows that in 2006, U.S. exports were responsible for 7.4 percent of Chinese sulfur dioxide, 5.7 percent of nitrogen oxide, and 4.6 percent of carbon monoxide. Earlier estimates suggested one million people die in China from air pollution each year, but we now see it is much higher. How many of these people fall thanks to outsourcing? It’s impossible to know, but the answer is some.

How many of those lives could be saved with better environmental standards on products imported to the United States? American companies may not be responsible for all or even most of the suffering of the Chinese working class from pollution, but they certainly contribute to it. Outsourcing production means that we as Americans look overseas and talk about Chinese air pollution, but we are completely unaware of our responsibility for at least part of that smog. In a globalized economy and integrated world, it’s dishonest to separate out responsibility based around what is convenient for us. We hear that ideas and capital and jobs flow around the world, but labor standards and environmental standards, well that’s just impossible. Not only is that an incorrect assertion–it is of course possible to set global standards at some level–but it also serves the interest of capital, as we see the pollution happening across the globe as something totally disconnected from our lives and something we can do nothing about it. This mentality generates profits for corporations.

Hobby Lobby’s Political Attack on the ACA

[ 82 ] March 26, 2014 |

The fact that the IWF’s attacks on the ACA’s contraception non-mandate were just consevertarian attacks on the ACA with no particular religious freedom content was no coincidence.  As Stephanie Mencimer notes in her brilliant piece, the particular ad hoc challenge to the ACA advanced by the Hobby Lobby’s lawsuit makes the political roots of the challenge particularly clear:

On many levels, the Hobby Lobby case is a mess of bad facts, political opportunism, and questionable legal theories that might be laughable had some federal courts not taken them seriously. Take for instance Hobby Lobby’s argument that providing coverage for Plan B and Ella substantially limits its religious freedom. The company admits in its complaint that until it considered filing the suit in 2012, its generous health insurance plan actually covered Plan B and Ella (though not IUDs). The burden of this coverage was apparently so insignificant that God, and Hobby Lobby executives, never noticed it until the mandate became a political issue.

I’ll return to the issue of how the court should interpret RFRA later today. But the fact that the managers of the Hobby Lobby never noticed that the contraceptive coverage in the insurance they offered to their employees intolerably contradicted their Deeply Held Religious Principles until the Republican Party decided that the  Affordable Care Act was the greatest threat to freedom in known human history tells you what you need to know about how seriously we should take these legal arguments.

Legalistic Environmentalism

[ 34 ] March 26, 2014 |

Two recent pioneers of environmental law–David Sive and Joseph Sax–died recently. Both of these deaths reminded me of the complex legacy of legalistic environmentalism. By this, I mean the reliance by environmentalists on the courts to enforce environmental law as the primary means of effective advocacy, as opposed to grassroots organizing. This strategy began in the early 1970s but really took off in the late 70s as the political system became increasingly hostile to environmentalism with the growth of conservatism and the organization of the business lobby after the Powell Memo.

By the early 1970s, environmental organizations found the legal requirements of newly passed environmental legislation useful tools to force corporations and government to rethink their impact and policies. These laws passed with widespread support, sometimes unanimous voice votes in the Senate and nearly unanimous votes in the House. The overwhelming support for these laws is why Richard Nixon deserves no liberal credit for them, but that’s another issue. The laws themselves came out of grassroots demands and an overwhelming sense by Americans before 1973 that they could have both jobs and a clean environment. The mess of the American environment before 1970 profoundly moved citizens, as air and water pollution, the decline of wildlife, and other environmental hazards were manifested every day before people’s eyes (and noses and ears).

Of course, just because legislation passed didn’t mean that polluters and natural resource managers immediately stopped what they were doing and changed course. It required lawsuits to make that happen. The Izaak Walton League for instance sued the United States Forest Service to stop clearcutting on the Monongahela National Forest, noting that the Organic Act of 1897 allowed for logging only “dead, matured or large growths of trees” that had been “marked or designated.” Clearcutting definitely doesn’t qualify under that language. When the courts found in favor of the plaintiffs, Congress came back with the National Forest Management Act of 1976, a law that explicitly allowed clearcutting, but also created public comment periods and environmental impact statements for each national forest unit. These requirements gave environmentalists the ability to challenge the USFS and BLM on all sorts of entirely legitimate grounds, especially the Endangered Species Act after the NFMA required federal agencies to manage for wildlife.

And who can blame environmentalists for using these great tools. By the 1980s, they became all the more important because the hostility of the Reagan Administration and the rising conservative movement, personified in the Sagebrush Rebellion but really affecting environmentalism everywhere, slowly closed the legislative doors to environmentalists. What’s more, economic crises, job blackmail, and capital mobility went a long ways to undermining the popular environmentalism of the 60s and early 70s. When workers fear their employers are going to move to Mexico or Taiwan if they have to put that scrubber on the smokestack or stop dumping the PCBs, they are going to be too scared to push their employer on it (even though the employer was already planning to shift operations anyway). Consolidating gains and forcing the hands of reluctant government through lawsuits became the most important strategy for environmentalists. People live Sive and Sax played important roles in this process.

So the strategy totally made sense and I don’t want to criticize it per se. Taking companies to court made a lot of sense. But it’s also worth noting that the reliance upon court cases by the 80s and 90s basically meant that there wasn’t much of an effort to mobilize people on the ground. The big green organizations focused on fundraising for their legal operations and political lobbying. The focus of environmentalism turned from the nature you and I experience every day to charismatic animals like polar bears or the Amazon rainforest, things most of us will never see. Mobilizing the populace was becoming less important. Grassroots environmentalism became politically marginalized, although locally important. By the time of the spotted owl situation in the late 80s, the ground for environmentalists to talk to working class people had already slipped away. Some environmentalists understood that their own strategy shifts exacerbated this problem, although it’s of course complicated. More to the point, what the lack of a grassroots environmentalism has done is make the movement so overly reliant upon legal and political strategies that at a time of conservative domination, where courts increasingly don’t find for greens and even Democrats in statehouses and Congress increasingly ignore them, there is no real ability for mobilization.

Of course, this is perhaps an overly simplified narrative of shifting environmentalism and one can always question the extent to which big green organizations ever could truly call out the troops. And again, they didn’t make the wrong choices by using the courts. But it’s worth noting that the shift to legal strategies as the primary arena of fighting was both entirely justifiable from a strategy perspective and also had negative repercussions that environmentalists’ struggle to deal with today.

Today In the Party of Calhoun

[ 24 ] March 25, 2014 |

Republican political hack and confederate nostalgist with  no particular scholarly credentials selected to be president of the College of Charleston.

Taking “Religious Freedom” seriously

[ 107 ] March 25, 2014 |

Shorter Patrick Deneen: A soulless, disembedded, fully globalized 21st capitalist corporation like Hobby Lobby claiming ‘religious freedoms’ is fundamentally absurd, and makes a mockery of the very concept. I sincerely hope they are successful.

That Term “Poor and Rural,” I Do Not Think…

[ 65 ] March 25, 2014 |

The man who considers Cinderella Man one of the peaks of Western Civilization has yet more Deep Thoughts about culture to share:

What does a poor or lower-middle-class white person, especially one from the South or Southwest, have to do to get a break from fancy high-end TV producers? It is a remarkable fact about this new Golden Age of television, which began with The Sopranos in 1999, that its primary focus of attention is the population cohort known (with the exquisite cultural sensitivity we have all learned in the era of political correctness) as “white trash.”


Still, rich Hollywood folk making mincemeat out of poor rural folk is another element of the ongoing American culture war that should not go unremarked.

As Scocca notes, J-Pod’s examples of “poor rural folk” include:

  • Tony Soprano, a millionaire who lives in a mansion in New Jersey.
  • Walter White, a middle-class schoolteacher.
  • Don Draper, a prosperous advertising executive who works in New York City.

And also Bill Henrickson, a wealthy suburbanite who ultimately becomes a state senator. Although at least he is from the southwest, so as with Walter White at least one out of three on that one!

You have probably already guessed that the punchline is something about how Democrats, unlike rich white Manhattan Republicans, are clueless about the rural poor. There is nobody who can refute himself like J-Pod.

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