Many readers of this blog are familiar with the broad outlines of America’s nativist history–the periodic eruptions of movements like the Know-Nothings and later, the Klan. But in this explanatory segment, Maddow ties these episodes to the nation’s political history in a way that I, certainly, had never considered, and shows how Donald Trump’s increasingly explicit and ugly fact-free rhetoric fits into that history–and what it means for the Republican party and the American two-party system.
No summary of this extraordinary history lesson could do it justice.
Economic development efforts often seem like a zero-sum game; Indiana offers training funds or infrastructure improvements or property tax abatements to businesses relocating from, say, Illinois, and Illinois does the same for businesses coming from Indiana.
Even within the state, municipalities try to lure employers to City A from City B by offering tempting “goodies.”
There are lots of problems with this state of affairs. It tends to be unfair to small businesses that have been longtime corporate citizens, and all too often, the relocation would have occurred without the (legal) bribe represented by these incentives. Worst of all, however, is the reluctance of the state to require or enforce appropriate “clawback” provisions.
When state or city government offers incentives to businesses, it is in return for that business undertaking to create a certain number of jobs. The idea is that the government will recoup its up-front investment in the form of additional taxes paid by a growing workforce. The agreement, or contract, obligating the unit of government to provide the incentive should include provisions protecting the government in case of default; in other words, if the business fails to create the promised jobs, or moves its operations elsewhere, it should be required to repay the amounts advanced.
Fair enough. You do what you say you will do, or you pay us back. The Pence administration, however, pursues a narrow version of the clawback.
An IndyStar analysis found that the Indiana Economic Development Corporation — which Pence leads — has approved $24 million in incentives to 10 companies that sent work to foreign countries. Of those incentives, nearly $8.7 million has been paid out so far.
During that same period, those companies terminated or announced layoffs of more than 3,800 Hoosier workers while shifting production to other countries, where labor tends to be far less expensive.
The state has clawed back or put a hold on some or all of the incentives in four of those cases, returning $746,000 in taxpayer subsidies. But in the other six cases, the companies faced no consequences.
The primary reason: The job creation and retention requirements in the state’s incentive agreements are usually narrowly tailored to a single facility, leaving workers at other sites owned by the same company vulnerable to offshoring.
During the last legislative session, House Democrats authored language that would have required corporations that move facilities out of Indiana to re-pay any property tax incentives they had received, and also would have prevented those companies from receiving other state tax breaks. The proposal–which was an amendment to another bill–ultimately went nowhere.
Meanwhile, as the Star reported, the state’s much-touted job growth figures pale in comparison to the jobs lost to offshoring.
Those records show that the same 10 companies or their related subsidiaries have laid off or plan to layoff more than 3,820 workers in Indiana because work has been shifted to other countries since 2013.
Those losses are more than three times larger than the number of jobs that would have been created under the state’s incentive agreements, even if they had all come to fruition.
Here’s the thing: companies have the right to move their operations. But that shouldn’t mean they have the right to move and keep the tax dollars that Hoosiers forked over in the expectation that they would honor their commitments, stay in the state, and create jobs.
A deal is a deal–and the state should play hardball, not wiffle-ball.
I rarely follow the ins and outs of liquor permitting in the Hoosier state (or elsewhere, for that matter). To be candid, I consider the complex web of restrictions governing the sale of alcohol to be an unfortunate “leftover” from America’s more Prohibitionary times and impulses; aside from reasonable restrictions on sales to minors, I see no legitimate reason for most of these rules.
However, a lawyer friend suggested I read the court order recently issued in the case of “Spirited Sales v. Indiana Alcohol and Tobacco Commission.” It was an eye-opener.
The take-away lesson will confirm the suspicions of both cynics and libertarian-minded citizens: arcane and excessive regulatory processes can be manipulated if you have friends in high places. (And I might note that with the loss of reporting on local government agencies, the manipulators have become bolder.)
The 50+ pages of the Marion Superior Court’s order detail how favoritism and cronyism benefitted competitors of Spirited Sales, whose parent company is owned by shareholders of Monarch Beverage, a beer and wine wholesaler.
Spirited Sales had applied for a liquor wholesaler’s permit. The rules (for some unknowable reason) prohibit beer and wine wholesalers from also being liquor wholesalers. The permit was denied, ostensibly due to the “common ownership” of Monarch and Spirit’s parent, although the Court noted in excruciating detail the reasons that the companies were clearly separate under relevant law–and more separate than at least eleven cases in which the Commission had awarded permits to affiliated entities.
The court acidly noted that the only opposition to the permit came from the company’s competitors: No alcoholic beverage producers, retailers, persons interested in public health or morality, no persons concerned about collection of taxes, and no public officials opposed the permit.
Just the competitors.
Despite the clear impropriety, those competitors were allowed to take part in the proceedings as if they were parties; and they had numerous “inappropriate and concerning ex parte communications with the Commission,” which the Court meticulously listed.
The Court also listed all of the ways in which the hearings deviated both from the rules and from the way other hearings were conducted–unexplained delays, refusals to provide information to which the petitioners were entitled, acceptance of “evidence” offered by competitors, refusal to allow Spirited to cross-examine competitors’ witnesses, and much more.
So–why? What explained this highly inappropriate treatment of a petitioner?
Evidently, people on the Governor’s staff “harbored animosity” toward Monarch and its President, and freely communicated to the Commission their desire to see the petition denied. Several of those discussions are referenced in the Court’s order, and they display a shared intent to deny Spirit the benefit of the impartial hearing to which they were entitled, and a smug satisfaction in their ability to (forgive the language) screw them over.
After ruling that the denial had been “arbitrary and capricious” and that Spirited was entitled to its permit, the Judge wrote
this Court considers the relationship between members of the Commission, staffers of the Governor’s office, the Hearing Officer, and the Remonstrators as evidenced by emails submitted to the Court, to be disturbing and inappropriate…Such discussions challenge the integrity of the application process and raise questions about the Commission’s willingness to serve all citizens of Indiana equally, fairly and without bias.
This is precisely the sort of cronyism and influence peddling that undermines the rule of law, and gives rise to the belief that “it isn’t what you know, it’s who you know…”
When the U.S. Supreme Court ruled in 2014 in Burwell v. Hobby Lobbythat the owners of secular for-profit businesses could challenge laws they believed infringed on their religious liberties, civil rights advocates warned that the decision was just the start of a new wave of litigation. On Thursday, those predictions came true: A federal district judge in Michigan ruled that a funeral home owner could fire a transgender worker simply for being transgender.
The facts are evidently not at issue. Two weeks after the employee notified the employer that she would be beginning to transition, the employer–who owned the funeral home–fired her for “engaging in behavior offensive to his religious beliefs.”
In September 2014, the Equal Employment Opportunity Commission (EEOC) filed a lawsuit on behalf of Stephens, arguing the funeral home had violated Title VII of the federal Civil Rights Act, which prohibits employment discrimination. According to the EEOC, Stephens was unlawfully fired in violation of Title VII “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”
Lawyers representing the employer argued that the Religious Freedom Restoration Act (RFRA) protected their client from legal liability, and a federal court agreed, holding that paying damages for unlawfully discriminating against an employee could amount to a substantial burden on an employer’s religious beliefs.
Well, yes. That’s the purpose of damages. If I fire an African-American employee simply because he is African-American and my religion teaches that African-Americans are inferior (an argument made by many Southern shopkeepers in the wake of the 1964 Civil Rights Act), I have violated his civil rights and I will owe damages that will “burden” that belief.
If I refuse to promote a woman to an executive position for which she is qualified because my religion teaches that women should be submissive, I can be sued for damages that would “burden” my religious beliefs.
Damages are awarded to compensate people who suffer losses when their rights are violated. They are intended to “burden” discriminatory behavior–whatever the motivation.
It’s one thing to exempt churches and religious organizations from laws of general application that are inconsistent with their theologies. It is quite another to say that owners of secular businesses can hire and fire employees or refuse to accommodate customers based upon the religious preferences of the owner.
I find it hard to believe that this court would have reached the same conclusion had the person fired been Jewish or African-American, whatever the employer’s church preached. Although attitudes about LGBTQ Americans have changed dramatically, there is still substantial prejudice against the gay community, and claims of “religious liberty” that would be given short shrift if used to justify discrimination against blacks or women or Jews are somehow seen as more meritorious or “sincere.”
They aren’t. And the likely consequences of this ruling, if it is not overturned, are stunning:
Think of the implications, should other courts follow this lead. Conservatives have, in the past, launched religious objections to child labor laws, the minimum wage, interracial marriage, and renting housing to single parents—to name a few. Those early legal challenges were unsuccessful, in part because they were based on constitutional claims. Hobby Lobby changed all that, opening the door for religious conservatives to launch all kinds of protests against laws they disagree with.
In her Hobby Lobby dissent, Ruth Bader Ginsberg warned that the Court had ventured into a minefield.
Would the exemption…extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations[?]…Not much help there for the lower courts bound by today’s decision.”
When Indiana went through the “great RFRA battle,” the focus of the arguments pro and con centered on the law’s impact on LGBTQ citizens .The measure was seen as an effort to legitimize discrimination against the gay community (and as a defiant response to the Supreme Court’s same-sex marriage decision), since that was transparently the intent of its supporters.
But the law was not limited to matters of sexuality.
A more recent assertion of religious liberty–and the question of the degree to which RFRA protects that liberty over and above the requirements of the Free Exercise Clause–illustrates the more fundamental and wide-ranging conflict between the rights of individuals who are acting on the basis of their religious beliefs, and the duty of government to act on behalf of the public good.
30-year old Kin Park Thaing is a good Christian woman who feared for her son’s salvation when the 7-year old allegedly engaged in what she says was dangerous behavior that would have harmed his 3-year old sister. So she beat him with a plastic coat hanger to save his soul and teach him how Jesus wants him to behave. She is fully within her right to do so, based on her deeply held religious beliefs, under Indiana Governor Mike Pence’s Religious Freedom Restoration Act (RFRA), her attorney is arguing in Marion Superior Court before Judge Kurt Eisgruber.
“I was worried for my son’s salvation with God after he dies,” Thaing, a Burmese refugee here under political asylum, says in court documents, according to the Indianapolis Star. “I decided to punish my son to prevent him from hurting my daughter and to help him learn how to behave as God would want him to.”
Unfortunately, we live in an era that doesn’t “do” nuance, doesn’t recognize complexity and rarely engages with the genuinely difficult questions that arise in diverse societies when government tries to respect everyone’s individual rights–the right of religious people to live in accordance with their sincerely held beliefs, and the right of others not to be victimized by those beliefs. So we are unlikely to engage the really hard questions.
When does protection of religious liberty function to privilege certain people and their beliefs to the detriment of those with different (or no) faith commitments? What sorts of harms may government forbid, even when those harms are inflicted by sincerely religious people?
If the welts and bruises inflicted by this mother had been the result of a temper tantrum or a drunken rage, she would clearly be guilty of child abuse. Does her religious motivation insulate her from legal sanction? If so, who protects that child from further, possibly more serious harm?
The First Amendment’s Free Exercise Clause protects the rights of Americans to believe anything, but it has never been interpreted to allow citizens to act on the basis of those beliefs if such action would violate otherwise valid laws of general application.
If your assertion of religious liberty requires harming someone else, or denying them rights or protections to which they are otherwise entitled, surely RFRA doesn’t prevent government from intervening.
But that, evidently, is the argument. [To be continued…]
