Under Cover Of Jargon

The Indiana Statehouse is confusing. Often, that confusion is intentional. Lengthy bills are written in turgid “legalese,” and go on for pages. I’m a (recovered) lawyer and my eyes frequently glaze over.

And very often, you don’t have to be a hard-core libertarian to wonder: is this law really needed?

That was my first question when I received an email asking about Senate Bill 471, described as follows:

Would heighten the penalties for protests near oil and gas pipelines and other infrastructure by creating the offenses of “criminal infrastructure facility trespass” and “critical infrastructure facility mischief.” The bill provides that an individual who knowingly enters critical infrastructure facility without permission commits critical infrastructure facility trespass, a Level 6 felony punishable by up to 30 months in prison. Under the bill, recklessly or knowingly defacing such a facility constitutes critical infrastructure facility mischief, punishable by up to six years in prison as a Level 5 felony. In either case, the individual may additionally be liable to the property owner for damages, costs, and attorney’s fees. An organization found to have conspired with an individual who commits either offense may also be liable for a fine of $100,000. The bill newly defines “critical infrastructure facility” under Indiana law to include a range of oil, gas, electric, water, telecommunications, and railroad facilities, as well as any “facility that is substantially similar” to one of the listed facilities.

No one wants to see a “critical infrastructure” damaged. But a bit of digging suggests that more is going on with this bill–being pushed in several states by ALEC, evidently in reaction to Dakota pipeline protests– than the protection of “critical” utilities.

As my correspondent notes,

This description is accurate, but to get into more specifics one of the most troubling provisions is Ch. 10, Sec. 4 that says if an organization is found to be a conspirator with a person convicted of either trespassing or committing criminal mischief on “critical infrastructure” the organization can be fined up to $100,000. Sec. 5(a) could also potentially be interpreted as creating a cause of action by someone who has suffered damages not only against the person who caused the damage, but an organization found to be a conspirator with that person, to recover those damages. If that was the case the organization could be liable for more than a $100,000.

A Sierra Club officer explains the effect:

A couple of years ago the Hoosier Chapter was in discussions with some Northwest Indiana groups about a protest at the BP Whiting Refinery to oppose its expansion to allow it to process tar sands petroleum. When it became clear that some of the groups were contemplating civil disobedience, the chapter withdrew from the discussions, since the Sierra Club forbids illegal activities. In the event, about 40 people sat in front of an access to the refinery and were arrested for trespassing. I believe that most were let go without a fine. Under the proposed law, could we be found to have participated in the protest even though we withdrew? Could we be found liable for informing the public about the protest via our website, FB, and twitter, even though we didn’t support the civil disobedience? Certainly we would have to think long and hard about even participating in such discussions under this bill.

And that, I think, illustrates the actual purpose of the bill: to stifle dissent.

Indiana already has laws against trespassing and damaging property. S.B.471 ramps up the severity of the potential charges–from misdemeanors to felonies–and greatly increases the penalties. Although the bill contains a recitation that it is not intended to apply to “constitutionally-protected activities” (a provision added to mollify opponents of the measure), the question from the Sierra Club officer illustrates the chilling effect.

If one or two people at a protest inflict damage that was unintended and unforeseen by others, those others–including not-for-profits and civic organizations–run the risk of being hit with enormous fines. Of course they would “think long and hard.” That’s the whole point.

I am aware of no evidence that existing measures against trespass and property damage are inadequate or ineffective. But unnecessary and chilling as it may be, S.B. 471 is apparently moving “under the radar” toward passage.

This is how it’s done by the big “players” who understand how the system works.

While public attention and media coverage (such as it is) are focused on high-profile measures like bias crimes and teachers pay, troubling laws get a pass–in both senses of that word.

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An Excellent Example

Ever since my days as Executive Director of Indiana’s ACLU, I have tried to explain the philosophy behind the First Amendment to well-meaning citizens who simply wanted to shut down those people spreading “bad” ideas, or later, to students who couldn’t understand why people they found hateful (many of whom were, indeed, hateful) were being allowed to peddle their bigotry.

I still remember a hearing held by a City-County Council committee “investigating” the Marion County Library because it allowed minors to access books that the chair of the committee considered inappropriate. (She wasn’t mollified by the fact that the library honored the directives of parents who didn’t want their kids to access certain materials. She explained that a lot of parents weren’t–in her eyes, at least–good parents who would avail themselves of the opportunity to censor their children.)

I don’t know how often I’ve tried to explain that the Bill of Rights–and especially the First Amendment–answers the question “who decides?” The Bill of Rights is a list of things that  government doesn’t get to decide.

I just read one of the very best explanations of that simple rule that I’ve come across. It was written by Wally Paynter, Executive Director of the Tri-State Alliance, in response to folks who want the Evansville Public Library to discontinue its “Drag Queen Story Hour.”

A few quotes:

Some members of the community are trying to limit what library programs are available to the public. It is similar to banning books. As an EVPL patron, I have a choice of what books I read and what programs I attend. However, it is not my right to decide what books other patrons are allowed to read and what programs others are allowed to attend….

Some Christians oppose Santa Claus, stating it takes away from the reason for the season. My pastor does Santa Claus Story Hour at the EVPL locations. Those who oppose the character Santa Claus do not try to stop other parents from bringing their kids to the event. They just don’t take their kids.

The same is true for Halloween. Some Christians oppose the celebration of Halloween. But do we end Halloween events at EVPL, or do we let parents choose what programs to take their kids to?

The letter also calls out the homophobia being expressed during this debate, a reminder that it is all too often marginalized people who are censored. But the most powerful point being made is reflected in the quoted paragraphs: our Constitution protects individual autonomy–the right of each of us to form our own moral, religious and political opinions, to determine what is important in our lives (what philosophers call our telos) and to choose how to live those lives.

So long as we do not harm the person or property of others, and so long as we are willing to respect the same rights for others, we are free to “do our own thing.”

Don’t like that magazine? Don’t read it. Don’t approve of that play? Don’t see it. Think that book is scandalous? Don’t buy it. Don’t approve of drag queens reading books to kids at the library story hour? Don’t take your kids.

In our system, you have the right to decide what you will read, attend and believe. But as Wally Paynter points out, you don’t have the right to decide what other people will read, attend and/or believe.

Live and let live is evidently really hard for some people.

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Race And American Inequality

This is Black History Month, but rather than a post on black history, I think it may be useful to share some depressing information about the current status of African-Americans vis a vis the White Americans who have occupied a privileged social position in this country even after most of the legal disabilities targeting people of color were repealed.

The Institute for Policy Studies recently issued a report on the wealth gap between whites, Latinos and blacks in the United States.The report looked at trends in household wealth among Black, Latino and White households over the past three decades.

Since the early 1980s, median wealth among Black and Latino families has been stuck at less than ten thousand dollars, while the median wealth of White households, adjusted for inflation, grew from $105,300 to $140,500. The median White family has 41 times more wealth than the median Black family and 22 times more wealth than the median Latino family.

The wealth gap has gotten wider as wealth in America has become extremely concentrated.The median American family of any color has seen its wealth drop 3 percent between 1983 and 2016–a period of time in which the richest 0.1 percent have seen their wealth jump 133 percent. The three wealthiest families–the Waltons, the Kochs and the Mars–have seen their wealth increase by nearly 6,000 percent.

Wealth held by members of the Forbes 400 equals that of all Blacks plus a quarter of Latinos.

The  report takes issue with analyses that treat the racial wealth divide and the growth of economic inequality as two separate issues; instead, it finds that they are mutually reinforcing outcomes of larger economic issues–issues that result from public policies that have favored–and continue to favor–both White Americans and the very wealthy.

Just one example: As this is being written, Mitch McConnell and the Senate GOP are proposing to eliminate what they like to call the “death tax,” and the rest of us call the estate tax.

The estate tax raises $20 billion dollars a year, which is a lot of money, but a pretty insignificant part of the federal budget. It applies only to estates worth more than $5.5 million dollars, and people with lots of money can pretty easily structure their wills to avoid it.

As the Atlantic points out, however, there’s more than money involved in this debate.

The tax code is more than a ledger. It is a national statement of values. And so this little law inspires a great commotion during each tax debate. To its opponents, it is the ultimate (literally) punishment on success and an affront to the family legacy that each striving individual hopes to leave. To its supporters, it is a necessary bulwark against inherited plutocracy, which offends the national virtue of merit over privilege.

The article goes through the arguments advanced in favor of repeal and in favor of retention of the estate tax, and is worth reading for a quick review of the debate. But the argument for retention most relevant to policy’s role in worsening inequality is that, in a period defined by the rising gap between rich and poor, we need to recognize the enormous role played by inheritance.

According to analysis byMatt Bruenig, a writer and the founder of the advocacy group People’s Policy Project, four out of 10 members of the wealthiest 1 percent inherited some money, with an average inheritance in the millions of dollars….

In the last half century, the average wealth of the bottom half has gone from about nothing to about $1,000 in debt. Meanwhile, the returns at the top have accelerated. In the 1960s, families in the top 1 percent were six times wealthier than families in the middle, according to the Urban Institute. By 2016, the 1 percent was 12 times wealthier than the typical family. As wealth inequality has soared, the estate tax has been diminished, with the number of estate tax returns declining by 76 percent between 2006 and 2015. There is little doubt that 21st-century tax policy has assisted the concentration of wealth.

When ostensibly color-blind tax policy benefits “haves,” that policy inevitably benefits Whites.

And let’s face facts: money is power.

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Kakistocracy

Kakistocracy is defined as government by the least competent or suitable. To which I would add: most corrupt. And that corruption goes well beyond the White House, where Trump’s incompetence is on constant display.

Examples abound. The Guardian recently reported accusations that the FDA has “direct links” to the opioid crisis.

The Food and Drug Administration is sacrificing American lives by continuing to approve new high-strength opioidpainkillers, and manipulating the process in favor of big pharma, according to the chair of the agency’s own opioid advisory committee.

Dr Raeford Brown told the Guardian there is “a war” within the FDA as officials in charge of opioid policy have “failed to learn the lessons” of the epidemic that has killed hundreds of thousands of people over the past 20 years and continues to claim about 150 lives a day.

Brown accused the agency of putting the interests of narcotics manufacturers ahead of public health, most recently by approving a “terrible drug”, Dsuvia, in a process he alleged was manipulated.

Brown’s accusations come at a time when the FDA’s credibility is low; it has been damaged by  the opioid crisis and by accusations that the agency has behaved less as a regulator and overseer of the pharmaceutical industry and more like a business partner of drug manufacturers.

The FDA was also embarrassed by revelations that officials responsible for opioid approvals were taking part in “pay to play” schemes in which manufacturers paid to attend meetings to draw up the criteria for approving prescription narcotics.

Things are no better at the EPA.

The EPA is in charge of ensuring companies and utilities follow national environmental laws. Its enforcement has actually been on the decline for the past decade and reached 10-year lows in the fiscal year 2017, according to the agency’s own data. But the numbers really plummeted between the fiscal years 2017 and 2018, according to the Environmental Data and Governance Initiative, an advocacy group formed by university researchers to counter what they see as the Trump administration’s rejection of science.

The decline in enforcement is intentional, according to environmental groups and former EPA personnel.

“The administration has strongly sent a message, to the folks who do enforcement, that they should cut back on their role,” says Marianne Sullivan, a public-health professor at William Paterson University in New Jersey and an EDGI volunteer who conducted the interviews. “There are declining resources. There’s much more deference to industry.”

Less enforcement, of course, means–among other things– that more Americans may be exposed to lead, smoke, and other pollutants that the EPA regulates.

Here in Indiana, we have  two recent examples of the consequences of EPA non-performance. In Franklin, Indiana, residents attribute a cluster of childhood cancers to a toxic site identified years ago by the EPA–after which nothing was done.

And in the small town of Wheatfield, Indiana, toxic coal ash is leaching into the groundwater.

In Indiana, coal ash ponds are leaking at 15 out of 15 power plant sites tested. But the problem isn’t limited to the Hoosier State, which currently has the most coal ash dumps in the country. Based on the industry’s own data, 92 percent of all coal ash ponds and landfills tested under the new rule have contaminated groundwaterwith harmful levels of toxic chemicals like arsenic and boron. Oklahoma reported in June that 4 out of 4 sites tested had contaminated groundwater, while Illinois revealed in November that 22 out of 24 coal ash sites tested positive for groundwater contamination. In total, the U.S. is home to more than 1,400 of these sites, many of them filled with millions of gallons of toxic ash.

As news about the contamination leaks out, coal companies and electric utilities are desperate to water down the 2015 regulations, including weakening the reporting, closure, siting, and cleanup requirements in the new rule.

Last March, Trump’s EPA heeded their wishes, proposing to gut coal ash regulationsjust as the nation began discovering that many coal ash ponds and landfills are leakingtoxic pollutants into groundwater. The 2015 rule opened a door to a hidden disaster; weak regulators now want to slam it shut. And they’re just getting started.

To characterize the current administration as “just” a Kakistocracy is to be kind. If it isn’t also a criminal enterprise, it’s close.

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Transparency

Classes in public management routinely include lectures on the importance of transparency; after all, democratic processes depend upon the participation of informed voters, and–as yesterday’s post noted– being informed requires knowledge of what government is doing.

From that perspective, I suppose we might applaud news of the most recent survey from Transparency International.

Transparency International publishes an annual Corruption Index that ranks the world’s governments on their honesty. The United States didn’t do so well.

The U.S. has plummetedin an annual corruption index, falling out of the top 20 countries for the first time since 2011, watchdog Transparency International said in a new report that links the global erosion of democracy and tidal wave of autocrats to an uptick in graft.

“Corruption chips away at democracy to produce a vicious cycle, where corruption undermines democratic institutions and, in turn, weak institutions are less able to control corruption,” said Patricia Moreira, managing director of Transparency International (TI).

The Corruption Perceptions Index, which ranks 180 countries by their perceived levels of public sector corruption, found overall that the failure to control corruption is contributing to a “crisis of democracy around the world.”

It will probably not shock you to learn that the U.S. slipped four points since the election of Donald Trump. That’s the lowest score we have registered in seven years.

The low score comes at a time when the U.S. is experiencing threats to its system of checks and balances as well as an erosion of ethical norms at the highest levels of power,” according to TI.

President Donald Trump is a “symptom, not a cause,” Zoe Reiter, the watchdog’s acting representative to the U.S., told Reuters

“Conflict of interest wasn’t a new problem, but it was illuminated in its glory when you have someone who is basically breaking norms,” she said.

According to the Index, the least corrupt countries were Denmark and New Zealand; Western Europe and the European Union scored the highest by region.

The most obvious question raised by America’s declining honesty is: what are we going to do about it? The most obvious answer is: we’re going to begin by getting rid of Donald Trump and Mitch McConnell. As salutary as that would be–as much of an improvement their exit from public life would represent–that should only be a start. As Zoe Reiter has pointed out, they are symptoms.

There’s a reason we have rarely heard pundits and public figures use terms like “public servant” and “statesman” over the past couple of decades. The political figures worthy of those labels–in Indiana, the Richard Lugars and the Lee Hamiltons–have been replaced by ambitious empty suits who lack both gravitas and integrity (and frequently, intelligence) and who are unwilling to do the hard work needed to master policy areas.

Empty suits are much easier to corrupt. Hence America’s declining place on the Corruption Index.

The problem is, when politics becomes a dirty word, it’s much harder to recruit bright, idealistic young people to run for office.

We can only hope that the number of newcomers who ran and won in 2018 are a sign of renewed political interest among young citizens intent upon cleaning up what has become America’s disgraceful political sewer.

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