Tuesday, July 31, 2018

What criminal conspiracy charges against an alleged Russian spy might mean for the NRA: 3 questions answered

Brian Galle, Georgetown University
Editor’s note: U.S. authorities have arrested Mariia Butina, a Russian advocate for firearms ownership also known as Maria. In a criminal complaint that led to her indictment, the Justice Department accused her of secretly infiltrating American electoral politics as a foreign agent working on behalf of Russia and engaged in an anti-U.S. conspiracy. Numerous media reports allege that Butina illegally helped funnel Russian money into Donald Trump’s presidential campaign through the National Rifle Association. Brian Galle, a law professor who used to work for the Justice Department, explains what the consequences might be if the charges and accounts are true.

1. How could the government punish the organization?

The court papers allude to the NRA, although not by name. Several news sources have described in detail the relationship Butina and her Russian employer built with the organization, starting in 2013 or earlier. Depending on what NRA officials knew and when they knew it, the government could make a case that the gun advocacy and lobby group coordinated with Butina to help her advance Russian interests here in the U.S. – making it a co-conspirator in her individual lawbreaking.

The NRA has several arms. Its largest operation is technically known as a social welfare group or 501(c)(4) organization, granting it exemption from U.S. taxes. Another branch is a traditional charitable organization, making contributions to that entity tax deductible. Under federal tax law, when either of these kinds of nonprofits break laws, they jeopardize their tax exempt status.

The government has stripped several nonprofits of their tax exemptions for breaking the law over the years, including organizations that used their charitable status to defraud donors and, in the 1940s and ‘50s, groups suspected of supporting communism.

Some media reports suggest the NRA served as a conduit for Russian money that landed in the Trump presidential campaign’s coffers. If that proves true, it would violate election laws that bar foreigners from funding political candidates. At the same time, however, there could be some ways to structure such transactions as technically legal, as dark money expert Robert Maguire notes.

In addition, many state and federal laws treat the use of fake or “straw donors” to make campaign contributions with someone else’s money as a crime, punishable with fines. Conceivably, there could be individual criminal liability, even jail time, for any NRA leaders who might be found guilty of scheming to misreport campaign expenditures.

But, I want to emphasize, nothing in the court papers unsealed on July 16, 2018, support those scenarios.

2. What might happen to its influence?

Since charitable giving tends to be an emotional act, some donors might not continue to support the NRA if it lands in legal trouble. Past scandals have weakened support for other prominent nonprofits, such as the Wounded Warrior Project.

For an organization that has cast itself as a bulwark of patriotism, any evidence that it conspired to undermine U.S. laws seems off-brand. On the other hand, polls indicate that support for Vladimir Putin has soared among Republicans, making it hard to predict how the NRA’s members and big donors might respond.

Public scrutiny might also make the NRA more cautious in how it doles out its political spending, a major source of its influence these days. The organization spent more than $30 million supporting President Trump alone in 2016, according to the Center for Responsive Politics. If its benefactors become more suspect, even among the NRA’s base, that could loosen its grip over many American politicians and policymakers.

3. How might the government catch more of these alleged infractions?

Although U.S. charities can’t engage in political spending, they are allowed to partner with social welfare groups, as the NRA and the NRA Foundation do.

Unlike charities, social welfare groups can lobby, and they are allowed to spend at least some of their budget on election-related activity. Their donors are known to the government, but hidden from the public, which is why their funding is sometimes called “dark money.”

And the Trump administration just made dark money darker.

Just hours after the government announced Butina’s arrest, Treasury Secretary Steven Mnuchin declared that the IRS was reducing the reporting requirements for donations to social welfare groups. Under this new guidance, 501(c)(4) groups will no longer need to reveal most of their donations on their tax returns, even to the IRS.

The ConversationIn my opinion, it’s hard to see this move as anything except an effort to help big-money donors cover their tracks. Without a list of donors, the IRS can’t know when an organization is being used to further the interests of those backers, instead of the public.

Brian Galle, Professor of Law, Georgetown University
This article was originally published on The Conversation. Read the original article.

Thursday, July 26, 2018

Are your children any safer than they were 2 years ago?

The political ad of the week, courtesy of Archives.org, features Hillary Clinton at a time when we still had a President who did everything within his power to provide affordable health care and did not put our nation's future at risk by going out of his way to appease foreign dictators.

Wednesday, July 25, 2018

Kushner Companies Loses a Key Motion in Class Action Filed by Baltimore Tenants

A state judge declined to dismiss the suit filed by apartment residents who claim they were charged inappropriate and excessive fees.

by Alec MacGillis, ProPublica

A Maryland judge is allowing a class action lawsuit against Jared Kushner’s family real estate company to proceed, in a ruling that denies most of the company’s arguments to dismiss the case over its treatment of tenants at large apartment complexes in the Baltimore area.

The lawsuit, filed last September in the Circuit Court for Baltimore City, alleges that the Kushner Companies’ real estate management arm, Westminster Management, has been improperly inflating payments owed by tenants by charging them late fees that are often baseless and in excess of state laws limiting them to 5 percent of rent. The suit also claims that Westminster was making some tenants pay so-called court fees that are not actually approved by any court. The suit alleges that the late fees and court fees set in motion a vicious churning cycle in which rent payments are partly put toward the fees instead of the actual rent owed, thus deeming the tenant once again “late” on his or her rent payment, leading to yet more late fees and court fees. Tenants are pressured to pay the snowballing bills with immediate threat of eviction, the suit alleges.

The lawsuit followed a May 2017 article co-published by ProPublica and The New York Times Magazine that described the highly aggressive legal tactics used by Kushner Companies to pursue tenants and former tenants at 15 apartment complexes in the Baltimore area.

The company’s motion to dismiss the lawsuit was heard on Wednesday by Barry Williams, the same judge who presided over the cases against the six police officers involved in the arrest and transport of Freddie Gray, the 25-year-old Baltimore man who suffered fatal injuries after being taken into custody in 2015. None of the six officers was convicted.

In his ruling, Williams denied the bulk of the company’s motion to dismiss the case, including its argument that too much time had passed since the events the suit described. Williams also rejected for now, deeming it premature, the company’s argument that each tenant’s situation is too unique for the group to constitute a single class.

Williams did grant a couple of points in the company’s motion. Most notably, he granted the company’s motion to dismiss the count of the lawsuit alleging that the company’s treatment of tenants represented a breach of contract.

Andrew Freeman, a lawyer representing the tenants, said dismissing the breach of contract count had little practical effect, given that this count provided no damages beyond what the tenants would recover under the separate claim that the company’s late fees exceeded state limits.

Freeman cheered the ruling overall. “We are very pleased that Judge Williams recognized that plaintiffs have a claim for a violation of Maryland’s laws that protect tenants from excessive late fees and forbid landlords from threatening tenants with eviction for those not paying those fees, and that he refused to dismiss our class action allegations,” he said. “We look forward to proceeding with the case on behalf of the many hundreds, if not thousands, of Westminster Management’s tenants who have been victimized by those illegal fees.”

Michael Blumenfeld, a lawyer representing the Kushner Companies, said the company was pleased that Williams had limited the lawsuit on a few points, and indicated that the company still plans to challenge the assertion that the tenants make up a single class. “Kushner Companies looks forward to presenting these issues to the court soon,” he said. The company declined to comment on the merits of the lawsuit at the time it was filed, but did respond to questions about its tactics for the May 2017 article, saying that its approach to pursuing tenants was in line with industry practices and that it had a fiduciary duty to its partners to collect all money owed by current and former tenants.
The lawsuit now moves to the discovery stage. A hearing on the tenants’ claim to class certification could happen as soon as September.

In November, Kushner Companies and related corporate entities named in the suit sought to have the case transferred from state court to federal court, which would spare the company from having to face a jury drawn only from Baltimore. To prevail on such grounds, the company had to show that none of its ownership partners were Maryland residents. The company requested that its list of partners be sealed from view, citing the “politically-motivated innuendo” that could result from the high degree of media interest in Jared Kushner, President Donald Trump’s son-in-law and senior White House adviser, who has recused himself from a role in the family companies.

The request to shield the partners’ identities was challenged by ProPublica, the Baltimore Sun, the Washington Post, the Associated Press, and Baltimore TV station WMAR-TV. In January, a federal judge ruled against the request to seal the partners’ identities. As a result, the company opted to keep the case in state court after all.

Kushner Companies is also facing a separate lawsuit filed this month by tenants in New York, alleging a whole other set of behaviors in that much different real estate market: that it used harassing tactics to drive them out of their apartments in order to charge higher rent. The company has called that suit “totally without merit.”

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Texas AG Who Pushed For Harsh Sentence For Illegal Voting Has Been Indicted For Securities Fraud

Rosa Ortega, a green card holder who was brought to the U.S. as an infant, was sentenced to eight years in a Texas prison because she mistakenly believed that she was entitled to vote in the 2012 and 2014 elections. In addition to being torn away from her four children and thrown in prison, she will almost certainly face deportation after she serves her sentence. She has worked and paid U.S taxes all of her adult life -- and is even legally entitled to own property in the United States. So it would have been very reasonable for a Texas court to believe her explanation that she did not know that it was illegal for her to vote. 

 In a statement after the trial, Texas Attorney General Ken Paxton justified the harsh sentence by stating that "Safeguarding the integrity of our elections is essential to preserving our democracy." Yet, as the Texas Tribune reports below, the attorney general may have made a few "mistakes" of his own.

In re-election bid, Attorney General Ken Paxton emphasizes record as Democrat seizes on indictment

"In re-election bid, Attorney General Ken Paxton emphasizes record as Democrat seizes on indictment" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Three years ago almost to the day, a Collin County grand jury indicted Texas Attorney General Ken Paxton for securities fraud. As the state's top lawyer turned himself into a jail in his hometown of McKinney and smiled for his mug shot, Democrats couldn't help but feel optimistic. The last time Texas elected a Democrat for attorney general was over two decades ago. Paxton's legal troubles could potentially serve, they hoped, as the springboard to breaking that streak.

What perhaps no one could have foreseen back in 2015 was the dizzying array of twists and turns the legal case against Paxton would undergo. Three summers later, there is still no trial date in sight, and one is unlikely to emerge before Election Day.

Yet despite avoiding a challenge from within his own party this year – arguably the biggest political threat for a statewide official in deep-red Texas – the political fallout from Paxton's indictment remains to be seen. In November, he'll face his first actual test of it at the ballot box: a challenge from Democrat Justin Nelson. The well-credentialed Austin lawyer is framing the race as a crystal-clear referendum on the charges that have dogged Paxton for the vast majority of his first term.

"The question that voters will have is who voters want to hire as a lawyer for Texas, for all Texans," Nelson said in a recent interview. "Voters will be able to choose me, someone who has clerked for Justice Sandra Day O’Connor on the Supreme Court, who has taught at the University of Texas law school, Texas Super Lawyer, a partner at a successful law firm, versus my opponent, who it’s embarrassing that he’s indicted for fraud in one of the most heavily Republican counties in Texas.
"And I think that when voters see that contrast, it will be integrity versus indictment."

There has been a long-running gag order on all sides in the securities fraud case, leaving Paxton running for re-election without the ability to address his biggest political vulnerability. He held firm on the gag order when asked about the indictment in a recent interview, saying he looks forward to discussing the case "as soon as the courts allow me to speak."

"I've done my job," he then said. "I've worked extremely hard to represent the people of Texas. It's been an honor and really the greatest opportunity of my life."

A stalled case

Stretching back before he was elected attorney general in 2014, Paxton has faced scrutiny related to his soliciting of investment clients. In late July 2015, a Collin County grand jury indicted him on two first-degree felony charges of securities fraud and a third-degree felony charge of failure to register. The charges, to which Paxton pleaded not guilty, allege that when he was a state representative, he mislead investors in a North Texas technology company called Servergy, recruiting them without disclosing he was making a commission.

In the time since then, Paxton drew similar, civil charges from the U.S. Securities and Exchange Commission — and beat them. But the original, criminal case at the state level has persisted, surviving multiple attempts by Paxton’s lawyers to defeat it before trial. The case has also gone through a change in venue — prosecutors successfully pushed to have it moved from Paxton's home county, Collin County, to Harris County — a change in judge and three delays in the trial date, with the most recent one proving indefinite.

That is because all sides are currently waiting for a decision from the state’s highest criminal court, the Court of Criminal Appeals, on whether the prosecutors can be paid, an issue that has effectively frozen the securities fraud case. That side legal battle stems from a series of lawsuits filed by Jeff Blackard, a Paxton supporter and Collin County resident, who has sought to limit payments to the prosecutors, arguing excessive taxpayer money is going toward the case.

In December, the Court of Criminal Appeals agreed to hear prosecutors' challenge to a lower-court ruling that voided a six-figure invoice for work dating back to January 2016. But since then, the Court of Criminal Appeals has not taken any additional action on the case, and it went on summer recess last month, ensuring any further developments will not come until the fall at the earliest.
Nelson has said Texans deserve a trial before Election Day to know whether their attorney general will wind up in prison. But all sides are at the mercy of the Court of Criminal Appeals, which can take however long it wishes to first sort out the prosecutor pay case.

“It is not unusual for the Court of Criminal Appeals to wait with a case, and you know there is no time limit for them,” said David Crump, a professor at the University of Houston Law Center. “The only real … factor that creates any kind of time issue is their own sense of duty. Over and over again, I’ve seen courts want to take their time in spite of external events.”
Paxton's team has maintained it has long been ready for trial.

"No one is above the law, but no one should be below it either,” Paxton spokesman Matt Welch said in a statement. “When a case has gone on for over three years with no end in sight, it conflicts with a citizen’s right to a speedy trial guaranteed under the U.S. and Texas Constitution. Attorney General Paxton looks forward to his day in court when he can finally put this politically motivated prosecution behind him.”

Brian Wice, the special prosecutor who has taken the lead on the payment case, declined to comment on its status on behalf of himself and the two other prosecutors.

An AG with Trump's ear

Paxton's allies and supporters argue he has been anything but distracted as attorney general, building up an impressive record and using his platform to take a national lead on some of the most prominent legal issues of the past three years – including multi-state efforts to repeal signature Obama-era initiatives related to health care and immigration.

"I think if you look at, just to take one example, the attorney’s record before the United States Supreme Court, litigating some of the most high-profile cases, cases that are difficult cases, several of them decided 5-4 — I think the fact that the state of Texas under the AG’s leadership prevailed virtually across the board speaks to that," said Allyson Ho, a veteran appellate litigator in Dallas. "I think the results of that speak to the caliber of his team and his leadership and to the conservative causes that the voters of Texas care deeply about."

In the process, Paxton has emerged as one of President Donald Trump's closest allies among GOP attorneys general. Last year, Paxton was the first state attorney general to come to the defense of the president's controversial ban on travel from seven predominantly Muslim countries, filing an amicus brief backing it in the U.S. Court of Appeals for the 9th Circuit. Paxton was later joined by over a dozen states in support of the travel ban, which was upheld last month by the U.S. Supreme Court.
Trump has announced his support for Paxton's re-election campaign twice — first in a tweet days before the March primary and then in May while speaking at the National Rifle Association meeting in Dallas. Paxton believes it is a relationship that benefits Texas, providing a "night-and-day difference" with the state's hostile stance toward Trump's Democratic predecessor.

"A great thing is dialogue," Paxton said in the interview. "Before with the Obama administration, the only thing we can do is sue them. With this administration, we can meet with almost anyone we want to meet with [and] discuss issues before we have to pursue any kind of confrontational litigation."
Texas Republicans haven’t appeared particularly fazed by Paxton’s lingering legal problems as he runs for re-election. Among his closer supporters, it continues to be viewed as a political witch hunt that stretches back to 2014. That’s when one of the three allegations that comprise the securities fraud case — that Paxton failed to register with the state securities board — came up in Paxton’s GOP primary against then-state Rep. Dan Branch of Dallas.

“We first heard these accusations in the 2014 primary and they were thoroughly vetted and the voters made their voices heard in the primary and the general election,” said state Sen. Bryan Hughes, a Mineola Republican and longtime Paxton ally. “Since that time, there’s been an attempt to gin up other charges, but I think it all goes back to the same facts, and the voters have heard this. It has been thoroughly vetted and litigated and I believe the voters will reject these charges again.”
It also does not go unobserved among some Paxton supporters that he is fighting the securities fraud case against the backdrop of Trump's battle against his own alleged "witch hunt": special counsel Robert Mueller's investigation into Russian interference in the 2016 election. Hughes said it was fair to compare the two, adding that he believes "more and more people are concerned about the criminal justice system being used as a political weapon."

The dearth of intra-party resistance to Paxton's re-election bid became even clearer late last year, when the filing deadline for March primary came and went without anyone signing up to challenge him — the only other major statewide official who did not draw a primary opponent then was Comptroller Glenn Hegar. And while Gov. Greg Abbott conspicuously declined to say whether he voted for Paxton and two other fellow statewide officials in the nominating contest, the top of the ticket is clearly behind Paxton for November.
“Ken Paxton has been a fearless defender of the Texas and United States Constitutions and Governor Abbott is proud to support his re-election,” Abbott spokesman John Wittman said in a statement.

Democrats optimistic

In Nelson, Democrats have ample reason to be optimistic. He brings an impressive resume to the race as a clerk for former U.S. Supreme Court Justice Sandra Day O'Connor and current partner at Houston-based litigation powerhouse Susman Godfrey. That network that comes with that — as well as Nelson's own wealth — has allowed him to build a bigger war chest than any other Democratic statewide candidate beside U.S. Rep. Beto O'Rourke, who is running a far more high-profile race to unseat U.S. Sen. Ted Cruz. Still, Paxton maintains a wide cash-on-hand advantage.

In addition to Nelson's fundraising, Democrats have been buoyed by a pair of public polls that suggested the race may be close. A recent University of Texas/Texas Tribune poll found Paxton leading Nelson among registered voters by just 1 percentage point, but 26 percent of voters had yet to pick a candidate.

"I feel really good about his race," said state Sen. Sylvia Garcia, D-Houston, ranking Paxton and Agriculture Commissioner Sid Miller as ripe targets for Democratic upsets in November. "[Nelson's race] is particularly compelling because ... I’ve seen people react when you talk about an indictment and an attorney general — I mean, this is our lawyer, and they can’t get their head around the idea that our own lawyer is under indictment. They’ll easily concede, 'Yeah, he's innocent until proven guilty', but it’s the whole image — it’s the whole cloud over the work — it just doesn’t sit easy when you hear about that."

To be sure, Nelson is not building his challenge entirely around the incumbent’s legal troubles. Nelson also is campaigning on issues like ending gerrymandering, which was the topic of a pub crawl he led last month in Austin that touched three congressional districts in a five-block radius. During an interview at the last stop — at Easy Tiger in downtown Austin — Nelson said he would use his platform as attorney general to fight partisan gerrymandering in particular through written opinions, through the litigation process and at the Legislative Redistricting Board, where the attorney general has a seat. Nelson and Paxton were already on opposite sides of the issue before their race began, having signed on to dueling amicus briefs in the Wisconsin gerrymandering case that the U.S. Supreme Court declined to decide on last month.

The anti-gerrymandering pub crawl turned out Nelson supporters like Sarah Sharp, an Austin musician who has known him since high school.

“I love that he’s never run for office before and that I also happen to personally know that he’s a brilliant man and a thoroughly decent man,” Sharp said as Nelson mingled with the boisterous happy-hour crowd at Easy Tiger. “It would be nice to have less corruption. I believe Justin when he talks about actually following the rule of law.”

National radar

The contest for attorney general is playing out in the shadow of higher-ballot races for U.S. Senate and governor, and accordingly, there has been little to no sparring between Paxton and Nelson.
Paxton, asked in a November C-SPAN interview about his re-election campaign, welcomed all challengers and said he was “happy to debate anybody on the issues and look forward to it.” However, he was noncommittal in the recent Tribune interview when asked whether he would debate Nelson, calling it “an issue that we’ll address down the road.”
The race is on the radar of the Democratic Attorneys General Association and its Republican counterpart, of which Paxton is vice-chairman. The Republican Attorneys General Association has already contributed $150,000 to Paxton's campaign, and RAGA Executive Director Scott Will, in a statement, said Paxton is "one of our leading rule of law champions, and for good reason, he has an envious record of accomplishments."

DAGA, meanwhile, formally endorsed Nelson the day after he secured his party's nomination and quickly launched a mini-website attacking the incumbent as "Corrupt Ken Paxton." Since then, DAGA says it has texted more than 100,000 voters in Texas as part of a multi-state program to educate electorates about the office of attorney general and the importance of elections for it.
In an interview, DAGA Executive Director Sean Rankin said the association was taking Texas "very seriously," encouraged by the demographic changes in the state, a national landscape poised to favor Democrats, the potential for crossover voters and, of course, the securities fraud case.

"He has not gone through an election cycle while under indictment," Rankin said, dismissing GOP claims that Paxton's legal troubles are old news to voters. "The average Texan does not want someone who's under indictment in this office."

Disclosure: The University of Houston and the University of Texas at Austin have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/07/25/texas-attorney-general-ken-paxton-justin-nelson/.

Texas Tribune mission statement
The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Tuesday, July 24, 2018

After loss at state Supreme Court, Texas keeps fighting to conceal its execution drug supplier

After buying new, hard-to-obtain execution drugs last month, the Texas Department of Criminal Justice is fighting a loss at the state Supreme Court that would force it to name a pharmacy that has supplied lethal doses in the past.

On June 1, the Texas Supreme Court declined to hear the department’s appeal from a lower court, which ruled that a pharmacy that supplied lethal injection drugs in 2014 must be revealed under the state’s public information law. Last week, both Texas and Arizona’s attorneys general fought against the high court’s denial, claiming that revealing a drug supplier could threaten the death penalty nationwide.

“Put simply, public disclosure of a rare and valuable supplier of lethal-injection drugs chills other current and potential suppliers, and facilitates the escalating ‘guerilla war against the death penalty,’” wrote Nick Dranias, senior litigation counsel for the Arizona attorney general, in a brief submitted Friday.

In 2014, three death row attorneys filed suit to reveal the name of Texas’ supplier of execution drugs after Republican Gov. Greg Abbott, then the attorney general, said the state could withhold the information because the suppliers faced “real harm.” Previously, he had said in three rulings that the information was public.

The lawyers have said they requested the information to ensure potency and purity of the drugs used to put their clients to death, citing drug scarcity and botched executions. In the same year as the lawsuit was filed, several states — including Arizona — gained national attention for grizzly executions using new, experimental drug combinations.

Texas has lost the lawsuit at every point in the court process. Though the 2015 Texas Legislature passed a law that made secret any identifying information of those involved in executions, including drug suppliers, the law was not retroactive. It is unclear whether the 2014 supplier is the same pharmacy that provided drugs in June.

But the department is not giving up. On Wednesday, the state filed a motion for a rehearing, asking the state Supreme Court to reconsider its rejection last month. The motion, which was expected, came after the department obtained a new batch of execution drugs in a market that has become increasingly scarce.

On June 18, the department received 15 new doses of pentobarbital, a drug commonly used as a sedative and the only drug used in Texas executions, according to inventory logs obtained by The Texas Tribune. The last doses purchased were in early 2017, and the department had relied on extending expiration dates of doses to carry out executions before the recent purchase.
In its filing, the state pointed to the effects the high court’s denial has already had — Arkansas inmates have sought to obtain the identity of Texas’ supplier. In an anonymous affidavit, a pharmacy that has provided drugs said that it would no longer conduct business with TDCJ if its identity is revealed. The affidavit does not mention when it supplied the drugs, or if it still does.

“This scenario confirms the U.S. Supreme Court’s recent warning on this issue,” wrote Texas Solicitor General Scott Keller, referring to a 2015 decision by Justice Samuel Alito on lethal injection drugs. “Death-penalty opponents have created ‘practical obstacle[s]’ to carrying out the death penalty by ‘pressur[ing] pharmaceutical companies to refuse to supply the drugs used to carry out death sentences.’”

But the state needs to show that the disclosure of such information would need to create a substantial threat of physical harm — not economic harm or unwanted attention — if it wants to withhold the information. The 3rd Court of Appeals ruled in 2017 that it is not the role of the court to focus on threats of harm to “privacy or economic interests.”

“Nor is it our proper role ... to consider whether or how disclosure might impact the availability of this particular source of supply to TDCJ, or any others, in the future,” wrote Justice Bob Pemberton.
Texas has argued that there is a threat of physical harm, pointing to angry emails and protests of The Woodlands Compounding Pharmacy near Houston after it was named as a supplier in 2013.

The state has also cited Steven McCraw, director of the Texas Department of Safety, who said in a one-page memo that some of the threats received by The Woodlands pharmacy should be taken seriously. The memo was a result of a threat assessment asked for by the prison department.

But the lower court of appeals wasn’t convinced.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2018/07/23/texas-supreme-court-execution-drug-rehearing/.

Texas Tribune mission statement
The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

Friday, July 20, 2018

How Your Social Media Posts Could Save You A Fortune On Health Insurance

Do you like to post details about your personal life on social media? If your health insurance costs are going through the roof, you might want to consider placing a post on Facebook that goes something like "Just got back from the gym -- had a great workout!" or a post on Twitter like "Doctor just gave me a clean bill of health on my annual physical--says I'm healthier than most 25 year olds."

As Marshall Allen explains below in his article for ProPublica, health insurance have gone into the business of data mining in a big way; and it could be affecting your insurance rates.

Health Insurers Are Vacuuming Up Details About You — And It Could Raise Your Rates

By Marshall Allen, ProPublica

To an outsider, the fancy booths at last month’s health insurance industry gathering in San Diego aren’t very compelling. A handful of companies pitching “lifestyle” data and salespeople touting jargony phrases like “social determinants of health.”
But dig deeper and the implications of what they’re selling might give many patients pause: A future in which everything you do — the things you buy, the food you eat, the time you spend watching TV — may help determine how much you pay for health insurance.
With little public scrutiny, the health insurance industry has joined forces with data brokers to vacuum up personal details about hundreds of millions of Americans, including, odds are, many readers of this story. The companies are tracking your race, education level, TV habits, marital status, net worth. They’re collecting what you post on social media, whether you’re behind on your bills, what you order online. Then they feed this information into complicated computer algorithms that spit out predictions about how much your health care could cost them.
Are you a woman who recently changed your name? You could be newly married and have a pricey pregnancy pending. Or maybe you’re stressed and anxious from a recent divorce. That, too, the computer models predict, may run up your medical bills.
Are you a woman who’s purchased plus-size clothing? You’re considered at risk of depression. Mental health care can be expensive.
Low-income and a minority? That means, the data brokers say, you are more likely to live in a dilapidated and dangerous neighborhood, increasing your health risks.
“We sit on oceans of data,” said Eric McCulley, director of strategic solutions for LexisNexis Risk Solutions, during a conversation at the data firm’s booth. And he isn’t apologetic about using it. “The fact is, our data is in the public domain,” he said. “We didn’t put it out there.”
Insurers contend they use the information to spot health issues in their clients — and flag them so they get services they need. And companies like LexisNexis say the data shouldn’t be used to set prices. But as a research scientist from one company told me: “I can’t say it hasn’t happened.”
At a time when every week brings a new privacy scandal and worries abound about the misuse of personal information, patient advocates and privacy scholars say the insurance industry’s data gathering runs counter to its touted, and federally required, allegiance to patients’ medical privacy. The Health Insurance Portability and Accountability Act, or HIPAA, only protects medical information.
“We have a health privacy machine that’s in crisis,” said Frank Pasquale, a professor at the University of Maryland Carey School of Law who specializes in issues related to machine learning and algorithms. “We have a law that only covers one source of health information. They are rapidly developing another source.”
Patient advocates warn that using unverified, error-prone “lifestyle” data to make medical assumptions could lead insurers to improperly price plans — for instance raising rates based on false information — or discriminate against anyone tagged as high cost. And, they say, the use of the data raises thorny questions that should be debated publicly, such as: Should a person’s rates be raised because algorithms say they are more likely to run up medical bills? Such questions would be moot in Europe, where a strict law took effect in May that bans trading in personal data.
This year, ProPublica and NPR are investigating the various tactics the health insurance industry uses to maximize its profits. Understanding these strategies is important because patients — through taxes, cash payments and insurance premiums — are the ones funding the entire health care system. Yet the industry’s bewildering web of strategies and inside deals often have little to do with patients’ needs. As the series’ first story showed, contrary to popular belief, lower bills aren’t health insurers’ top priority.
Inside the San Diego Convention Center last month, there were few qualms about the way insurance companies were mining Americans’ lives for information — or what they planned to do with the data.
The sprawling convention center was a balmy draw for one of America’s Health Insurance Plans’ marquee gatherings. Insurance executives and managers wandered through the exhibit hall, sampling chocolate-covered strawberries, champagne and other delectables designed to encourage deal-making.
Up front, the prime real estate belonged to the big guns in health data: The booths of Optum, IBM Watson Health and LexisNexis stretched toward the ceiling, with flat screen monitors and some comfy seating. (NPR collaborates with IBM Watson Health on national polls about consumer health topics.)
To understand the scope of what they were offering, consider Optum. The company, owned by the massive UnitedHealth Group, has collected the medical diagnoses, tests, prescriptions, costs and socioeconomic data of 150 million Americans going back to 1993, according to its marketing materials. (UnitedHealth Group provides financial support to NPR.) The company says it uses the information to link patients’ medical outcomes and costs to details like their level of education, net worth, family structure and race. An Optum spokesman said the socioeconomic data is de-identified and is not used for pricing health plans.
Optum’s marketing materials also boast that it now has access to even more. In 2016, the company filed a patent application to gather what people share on platforms like Facebook and Twitter, and link this material to the person’s clinical and payment information. A company spokesman said in an email that the patent application never went anywhere. But the company’s current marketing materials say it combines claims and clinical information with social media interactions.
I had a lot of questions about this and first reached out to Optum in May, but the company didn’t connect me with any of its experts as promised. At the conference, Optum salespeople said they weren’t allowed to talk to me about how the company uses this information.
It isn’t hard to understand the appeal of all this data to insurers. Merging information from data brokers with people’s clinical and payment records is a no-brainer if you overlook potential patient concerns. Electronic medical records now make it easy for insurers to analyze massive amounts of information and combine it with the personal details scooped up by data brokers.
It also makes sense given the shifts in how providers are getting paid. Doctors and hospitals have typically been paid based on the quantity of care they provide. But the industry is moving toward paying them in lump sums for caring for a patient, or for an event, like a knee surgery. In those cases, the medical providers can profit more when patients stay healthy. More money at stake means more interest in the social factors that might affect a patient’s health.
Some insurance companies are already using socioeconomic data to help patients get appropriate care, such as programs to help patients with chronic diseases stay healthy. Studies show social and economic aspects of people’s lives play an important role in their health. Knowing these personal details can help them identify those who may need help paying for medication or help getting to the doctor.
But patient advocates are skeptical health insurers have altruistic designs on people’s personal information.
The industry has a history of boosting profits by signing up healthy people and finding ways to avoid sick people — called “cherry-picking” and “lemon-dropping,” experts say. Among the classic examples: A company was accused of putting its enrollment office on the third floor of a building without an elevator, so only healthy patients could make the trek to sign up. Another tried to appeal to spry seniors by holding square dances.
The Affordable Care Act prohibits insurers from denying people coverage based on pre-existing health conditions or charging sick people more for individual or small group plans. But experts said patients’ personal information could still be used for marketing, and to assess risks and determine the prices of certain plans. And the Trump administration is promoting short-term health plans, which do allow insurers to deny coverage to sick patients.
Robert Greenwald, faculty director of Harvard Law School’s Center for Health Law and Policy Innovation, said insurance companies still cherry-pick, but now they’re subtler. The center analyzes health insurance plans to see if they discriminate. He said insurers will do things like failing to include enough information about which drugs a plan covers — which pushes sick people who need specific medications elsewhere. Or they may change the things a plan covers, or how much a patient has to pay for a type of care, after a patient has enrolled. Or, Greenwald added, they might exclude or limit certain types of providers from their networks — like those who have skill caring for patients with HIV or hepatitis C.
If there were concerns that personal data might be used to cherry-pick or lemon-drop, they weren’t raised at the conference.
At the IBM Watson Health booth, Kevin Ruane, a senior consulting scientist, told me that the company surveys 80,000 Americans a year to assess lifestyle, attitudes and behaviors that could relate to health care. Participants are asked whether they trust their doctor, have financial problems, go online, or own a Fitbit and similar questions. The responses of hundreds of adjacent households are analyzed together to identify social and economic factors for an area.
Ruane said he has used IBM Watson Health’s socioeconomic analysis to help insurance companies assess a potential market. The ACA increased the value of such assessments, experts say, because companies often don’t know the medical history of people seeking coverage. A region with too many sick people, or with patients who don’t take care of themselves, might not be worth the risk.
Ruane acknowledged that the information his company gathers may not be accurate for every person. “We talk to our clients and tell them to be careful about this,” he said. “Use it as a data insight. But it’s not necessarily a fact.”
In a separate conversation, a salesman from a different company joked about the potential for error. “God forbid you live on the wrong street these days,” he said. “You’re going to get lumped in with a lot of bad things.”
The LexisNexis booth was emblazoned with the slogan “Data. Insight. Action.” The company said it uses 442 non-medical personal attributes to predict a person’s medical costs. Its cache includes more than 78 billion records from more than 10,000 public and proprietary sources, including people’s cellphone numbers, criminal records, bankruptcies, property records, neighborhood safety and more. The information is used to predict patients’ health risks and costs in eight areas, including how often they are likely to visit emergency rooms, their total cost, their pharmacy costs, their motivation to stay healthy and their stress levels.
People who downsize their homes tend to have higher health care costs, the company says. As do those whose parents didn’t finish high school. Patients who own more valuable homes are less likely to land back in the hospital within 30 days of their discharge. The company says it has validated its scores against insurance claims and clinical data. But it won’t share its methods and hasn’t published the work in peer-reviewed journals.
McCulley, LexisNexis’ director of strategic solutions, said predictions made by the algorithms about patients are based on the combination of the personal attributes. He gave a hypothetical example: A high school dropout who had a recent income loss and doesn’t have a relative nearby might have higher than expected health costs.
But couldn’t that same type of person be healthy? I asked.
“Sure,” McCulley said, with no apparent dismay at the possibility that the predictions could be wrong.
McCulley and others at LexisNexis insist the scores are only used to help patients get the care they need and not to determine how much someone would pay for their health insurance. The company cited three different federal laws that restricted them and their clients from using the scores in that way. But privacy experts said none of the laws cited by the company bar the practice. The company backed off the assertions when I pointed that the laws did not seem to apply.
LexisNexis officials also said the company’s contracts expressly prohibit using the analysis to help price insurance plans. They would not provide a contract. But I knew that in at least one instance a company was already testing whether the scores could be used as a pricing tool.
Before the conference, I’d seen a press release announcing that the largest health actuarial firm in the world, Milliman, was now using the LexisNexis scores. I tracked down Marcos Dachary, who works in business development for Milliman. Actuaries calculate health care risks and help set the price of premiums for insurers. I asked Dachary if Milliman was using the LexisNexis scores to price health plans and he said: “There could be an opportunity.”
The scores could allow an insurance company to assess the risks posed by individual patients and make adjustments to protect themselves from losses, he said. For example, he said, the company could raise premiums, or revise contracts with providers.
It’s too early to tell whether the LexisNexis scores will actually be useful for pricing, he said. But he was excited about the possibilities. “One thing about social determinants data — it piques your mind,” he said.
Dachary acknowledged the scores could also be used to discriminate. Others, he said, have raised that concern. As much as there could be positive potential, he said, “there could also be negative potential.”
It’s that negative potential that still bothers data analyst Erin Kaufman, who left the health insurance industry in January. The 35-year-old from Atlanta had earned her doctorate in public health because she wanted to help people, but one day at Aetna, her boss told her to work with a new data set.
To her surprise, the company had obtained personal information from a data broker on millions of Americans. The data contained each person’s habits and hobbies, like whether they owned a gun, and if so, what type, she said. It included whether they had magazine subscriptions, liked to ride bikes or run marathons. It had hundreds of personal details about each person.
The Aetna data team merged the data with the information it had on patients it insured. The goal was to see how people’s personal interests and hobbies might relate to their health care costs. But Kaufman said it felt wrong: The information about the people who knitted or crocheted made her think of her grandmother. And the details about individuals who liked camping made her think of herself. What business did the insurance company have looking at this information? “It was a dataset that really dug into our clients’ lives,” she said. “No one gave anyone permission to do this.”
In a statement, Aetna said it uses consumer marketing information to supplement its claims and clinical information. The combined data helps predict the risk of repeat emergency room visits or hospital admissions. The information is used to reach out to members and help them and plays no role in pricing plans or underwriting, the statement said.
Kaufman said she had concerns about the accuracy of drawing inferences about an individual’s health from an analysis of a group of people with similar traits. Health scores generated from arrest records, home ownership and similar material may be wrong, she said.
Pam Dixon, executive director of the World Privacy Forum, a nonprofit that advocates for privacy in the digital age, shares Kaufman’s concerns. She points to a study by the analytics company SAS, which worked in 2012 with an unnamed major health insurance company to predict a person’s health care costs using 1,500 data elements, including the investments and types of cars people owned.
The SAS study said higher health care costs could be predicted by looking at things like ethnicity, watching TV and mail order purchases.
“I find that enormously offensive as a list,” Dixon said. “This is not health data. This is inferred data.”
Data scientist Cathy O’Neil said drawing conclusions about health risks on such data could lead to a bias against some poor people. It would be easy to infer they are prone to costly illnesses based on their backgrounds and living conditions, said O’Neil, author of the book “Weapons of Math Destruction,” which looked at how algorithms can increase inequality. That could lead to poor people being charged more, making it harder for them to get the care they need, she said. Employers, she said, could even decide not to hire people with data points that could indicate high medical costs in the future.
O’Neil said the companies should also measure how the scores might discriminate against the poor, sick or minorities.
American policymakers could do more to protect people’s information, experts said. In the United States, companies can harvest personal data unless a specific law bans it, although California just passed legislation that could create restrictions, said William McGeveran, a professor at the University of Minnesota Law School. Europe, in contrast, passed a strict law called the General Data Protection Regulation, which went into effect in May.
“In Europe, data protection is a constitutional right,” McGeveran said.
Pasquale, the University of Maryland law professor, said health scores should be treated like credit scores. Federal law gives people the right to know their credit scores and how they’re calculated. If people are going to be rated by whether they listen to sad songs on Spotify or look up information about AIDS online, they should know, Pasquale said. “The risk of improper use is extremely high. And data scores are not properly vetted and validated and available for scrutiny.”
As I reported this story I wondered how the data vendors might be using my personal information to score my potential health costs. So, I filled out a request on the LexisNexis website for the company to send me some of the personal information it has on me. A week later a somewhat creepy, 182-page walk down memory lane arrived in the mail. Federal law only requires the company to provide a subset of the information it collected about me. So that’s all I got.
LexisNexis had captured details about my life going back 25 years, many that I’d forgotten. It had my phone numbers going back decades and my home addresses going back to my childhood in Golden, Colorado. Each location had a field to show whether the address was “high risk.” Mine were all blank. The company also collects records of any liens and criminal activity, which, thankfully, I didn’t have.
My report was boring, which isn’t a surprise. I’ve lived a middle-class life and grown up in good neighborhoods. But it made me wonder: What if I had lived in “high risk” neighborhoods? Could that ever be used by insurers to jack up my rates — or to avoid me altogether?
I wanted to see more. If LexisNexis had health risk scores on me, I wanted to see how they were calculated and, more importantly, whether they were accurate. But the company told me that if it had calculated my scores it would have done so on behalf of their client, my insurance company. So, I couldn’t have them.
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Friday, July 13, 2018

ICE releases immigrant mother from Colorado detention center. Now she has to find her son.

“I never imagined I would be away from my son for a single day, let alone months.”

by Alex Burness, The Colorado Independent

On Wednesday, the day she was released from ICE detention in Aurora, the Guatemalan woman met a few others at a safe house near the airport.

Someone brought yellow cake with festive blue and white icing to celebrate her release and her birthday, which passed while she was locked up. She had no appetite. Her six-year-old son was taken from her at the border and is somewhere in Texas. She has not seen him for two months.

The woman, traumatized and in poor health, is worried about her son. It took her six weeks to find out where in the country he was being held. She can’t eat, she can’t sleep and she told her attorney, there’s a tumor in her throat.

“I never imagined I would be away from my son for a single day, let alone months,” she wrote, in a firsthand account passed to The Independent through her lawyer, Laura Lunn of the Rocky Mountain Immigrant Advocacy Network. “I can’t see him, I can’t hug him. I can’t describe how much I miss him. The truth is it is killing me each day that passes when I cannot see him.

“He asks me what I’m doing, and all I think about is how difficult it is for him to understand why he is not with me. I tell him that we will be together very soon, and I keep saying that. But, I still don’t know when that will happen.”

The woman is seeking asylum and is afraid of angering the federal government, so she asked that her name not be used and insisted upon sharing her story through Lunn, who translated the woman’s messages.

The pain doesn’t pass

The woman is one of 13 immigrants moms separated from their kids at the border this spring and brought to detention in Colorado who’ve passed through northeast Denver’s nonprofit Casa de Paz in recent weeks. Just three of the 13 have been reunited, said Sarah Jackson, who runs and lives in the home.

The others, who have moved to various parts of the country, “are absolutely terrified if they’re even gonna ever see their child again,” Jackson said, “I stay in touch with them by text and every second of their day is just worrying when they’re going to get their kid.”

Denver immigration attorneys estimate that between 70 and 100 parents separated under the Trump administration’s “zero-tolerance” policy are currently being held in Aurora. The number’s risen since mid-June, when attorneys and ICE said 50 parents were being held there.

Since then, ICE had stopped offering any Colorado-specific updates to the public. The agency is secretive and, over time, its media department’s occasional trickle of information about Aurora has simply stopped.

After more than 25 attempts over three weeks to reach the agency’s public information officers by phone and email, an ICE spokeswoman in Washington finally responded a few days ago to say only that there is no local update available. She provided a link to a press release entirely unrelated to the situation in Aurora.

In late June, ICE spokesman Carl Rusnok, who handles outreach for Colorado, assured The Independent that there was a “plan” in the works to reunite separated parents in Aurora with their kids. He hung up the phone when pressed for details.

And so for the dozens brought to Colorado under “zero-tolerance,” including many of the estimated 20 to 30 who’ve been released to date, it remains unclear if and when they’ll see their families again, even though Trump signed an executive order intended to end family separation. In late June, a U.S. District Court judge ordered the administration to reunite the family by July 26. That order was upheld Tuesday by another federal judge, who refused a Department of Justice request to extend the deadline.

“Sometimes I think that the pain is a figment of my imagination, perhaps it is because my son is not by my side,” the woman wrote. “It could be a reflection of my mental anguish because I cannot see my son. Because I cannot sleep or eat. I keep thinking the pain will pass, but it does not.”


In May, she and her son fled Guatemala to seek asylum in the United States. The woman was very sick then, dealing not only with her tumor but also healing from a recent appendectomy, she told her attorney.

At the border, she wrote, a social worker said her son was “dirty” and needed to be bathed. He was ushered away from her for what she was told would be two days.

“He knew that I was sick and he wanted to be with me,” she added. “He was afraid I was dying and he wouldn’t see me again.”

Following their separation, the woman was brought to the ICE detention center in Aurora, a 1,500-bed facility run by GEO Group, a private prison company with a federal contract. She wondered for a month and a half where her son was.

Her health also began to deteriorate. She wasn’t eating much or getting much sleep. She worried constantly about the prospect that she’d never be reunited with her son.

“It is the most painful thing I have ever experienced,” she wrote in a message to Lunn last week.

There’s a commissary at the Aurora ICE facility, where the woman and others can buy calling cards if they have money on their accounts. Casa de Paz and other organizations fill those accounts so that detainees can contact their loved ones. When she finally tracked her son down and got to speak with him, he told her he’d been mistreated in foster care.

“They grabbed him by his arms, they punished him, they put him in a room alone. The woman was very mean to him before and harmed him. He cried a lot,” she wrote. “He said the food hurt his stomach. He was hit by the son of the woman who was charged with his care.”

From Colorado, lawyers worked to get her son eventually transferred to a new home, then taken to the hospital. He reports that he’s being treated well and making some friends.

But a call with her son’s social worker in Texas didn’t ease her mind: “The social worker got on the phone and said he gets very sad each time he talks to me. He cries a lot, they try to calm him, but he gets exceptionally sad,” the woman wrote.

“He is very impacted by us being separated. She said that other children are coping better, but my son cries all of the time. He wants to be with me, he asks to be with me. She told me that my son is suffering a lot.”

‘This is how it is’

The detention facility in Aurora is tucked inside a nondescript industrial neighborhood, populated by several auto mechanic businesses and some overflow parking lots for the ICE building.

On a hot afternoon earlier this week, a young detention officer named Darson Tabbilos monitors the front driveway. He’s aware that there are many separated parents inside, and, his voice slows and quiets when asked about it.

“We’re all human. Of course we feel sad,” he said, pausing before adding, “but this is how it is.”

During the daytime, there’s a pretty steady stream of visitors to the facility — attorneys, advocates like those who volunteer with Casa de Paz, family members and friends of detainees.

The woman has gotten to know quite a few of the other detainees brought to Colorado recently, and she says their stories seem to echo her own. It’s an impression confirmed in recent weeks by journalists around the country tracking separated children and their parents.

“I think the only reason my son changed foster homes is because my attorney spoke to the agency and filed a complaint,” the woman wrote. “I have heard similar things from other friends who are detained here. They say that their children are being mistreated by the people charged with their care.

“The social workers are not the ones charged with caring for our children, and how can we trust that the homes they are in are good for them? It is very painful because we feel like we don’t have any direct control over the treatment of our children.”

‘You can just tell’

In the six years since Jackson, now 33, opened Casa de Paz, more than 1,300 people have passed through. Some stay for a night or two, and some stop in for only a few hours.

Through getting to know the 13 moms separated under “zero-tolerance,” she’s noticed a common thread of extreme anxiety.

“I can tell by the look on the mom’s face if they have a child still in a detention center,” she said. “You can see the fear on their face, and it’s a stark difference between someone who’s been released and is headed to their family in California or wherever, and a mom who’s just been released whose child is still in detention. You can just tell the second they walk in the door.”

The Guatemalan woman was released on bond Wednesday, after getting a positive judgment at her asylum interview. The $1,500 bond was covered by Casa de Paz, which, Jackson said, has spent $22,000 on the 13 separated moms. The money comes from dues paid by teams in a local volleyball league that Jackson started.

Now the woman will have to resettle somewhere in the U.S. — she hasn’t decided exactly where that’ll be, according to Lunn — through a process in immigration court for non-detained people.

Today, she is somewhere in Texas, headed for her six year old. The only sign remaining of her at Casa de Paz Thursday was a barely eaten cake still sitting on a kitchen counter.

Kavanaugh’s Supreme Court Nomination Serves as Perfect Case Study of Election Year Politics

by JAN PYTALSKI, 100 Days in Appalachia

Late Monday night, President Trump introduced his nominee for the new Supreme Court Justice, Brett Kavanaugh, a 53-year-old United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit. In the past, he served as the lawyer at the George W. Bush White House and was part of the 1998 Bill Clinton investigation lead by the independent counsel Kenneth Starr.
Kavanaugh’s name came from the list of 25 candidates for the Supreme Court bench that Trump first made public during his presidential campaign. The list bears a seal of approval from the The Federalist Society for Law and Public Policy Studies, a conservative organization “of 60,000 lawyers, law students, scholars, and other individuals who believe and trust that individual citizens can make the best choices for themselves and society”
Kavanaugh, Trump’s second appointment to the court to date, is three years senior to Trump’s first nominee for the Supreme Court Justice, Neil Gorsuch. Together they would represent a solid conservative block of younger Justices that might influence and sway the bench for decades to come. Because of this, the selection comes packed with controversy and faces criticism from both sides of the aisle.
Kavanaugh has a track record of decisions that tend to favor a strong presidency and support staple conservative principles, like gun ownership. He openly opposed Consumer Financial Protections Bureau on the basis of the separation of powers violation, and he voted against EPA regulations during Obama’s administration, citing government overreach.
Although not free from the Republican criticism, Democrats’ stronger fears lie in his potential role as the nail in the Roe v. Wade coffin.
Amy Davidson Sorkin wrote for The New Yorker that:
“[H]e embodies what is likely the near future of reproductive-rights jurisprudence: the stretching into meaninglessness of the standard, laid out in the Supreme Court decisions following Roe v. Wade, that the government should not put an “undue burden” on a woman when she seeks to exercise her right to end an early pregnancy. (The next-near future may simply be the overturning of Roe.)”
Kavanaugh might see some wiggle room when it comes to interpreting what “undue burden” means and how it manifests.
Meanwhile, conservatives may not see him as tough enough. For example, while Kavanaugh expressed a belief in the past that the President has the right to refuse to enforce the Affordable Care Act, he also claimed that it was within the Congress’s constitutional power to impose the ACA’s individual mandate since he perceived it as a tax and Congress is mandated to impose taxes across the state lines.
That said, support for the nominee falls largely along the party lines. Republicans have praised Kavanaugh’s resume and dedication to the “letter of the law” and its strict reading. Here are some Appalachian Senators praising the nominee:
Sen. Richard Burr (NC): “In nominating Brett Kavanaugh to the Supreme Court, President Trump has put forth a highly qualified and respected candidate committed to the rule of law. Judge Kavanaugh’s credentials are impeccable[…]”
Sen. Lindsey Graham (SC): “Brett #Kavanaugh will be an outstanding Justice on the Supreme Court. I also want to congratulate President @realDonaldTrump on this great choice[…]”
Sen. Johnny Isakson (GA): “Judge Kavanaugh is a talented & experienced jurist, and he shares a strong commitment to the Constitution & the rule of law. I look forward to ensuring that this highly qualified candidate is voted on by the Senate in time for the Court’s next session.”
The most prominent Republican Senator, Kentucky’s Mitch McConnell, had this to say about the Supreme Court hopeful: “Judge Kavanaugh understands that, in the United States of America, judges are not unelected super-legislators whom we select for their personal views or policy preferences. A judge’s duty is to interpret the plain meaning of our laws and our Constitution according to how they are written[...]”
McConnell’s comment might strike one as cynical since he was the one to refuse to grant Merrick Garland —Obama’s nominee to replace the late Justice Antonin Scalia — even a hearing, pointing to an election year as a less than perfect moment to appoint a new Supreme Court judge.
As 2018 is an election year, McConnell’s pressure to push the confirmation process forward at the breakneck pace seems to be informed by the slim majority margin the GOP still holds in the Senate. If the vote were to happen after the November midterm elections, Republicans risk similar gridlock they have created for the Democrats in 2016.
Democrats present a fairly unified front in opposing the candidate, focusing primarily on portraying Kavanaugh as danger to the Roe v. Wade decision.
His nomination is a perfect case study of an election year politics. West Virginia’s Sen. Joe Manchin treads lightly when speaking about the nominee. In a press release he stated that “As the Senator from West Virginia, I have a constitutional obligation to advise and consent on a nominee to fill Supreme Court [...] Just as I did when Merrick Garland and Neil Gorsuch were nominated, I will evaluate Judge Kavanaugh’s record, legal qualifications, judicial philosophy [...] his views on healthcare [...] I believe the Senate should hold committee hearings; Senators should meet with him, we should debate his qualifications on the Senate floor and cast whatever vote we believe he deserves.”

Sunday, July 8, 2018

We estimate China only makes $8.46 from an iPhone – and that's why Trump's trade war is futile

Originally published by The Conversation

Jason Dedrick, Syracuse University; Greg Linden, University of California, Berkeley, and Kenneth L. Kraemer, University of California, Irvine

The Trump administration’s tariffs on China have so far targeted mostly industrial goods like aircraft engines and gas compressors. But the administration has also threatened to slap tariffs on US$200 billion in other goods if the dispute continues.

No list of all the goods that might be subject to tariffs has been released, but it would have to include consumer electronics, such as smartphones, which is the largest single product category in China’s exports to the U.S.

One well-known product that might be affected is Apple’s iPhone, which is assembled in China. When an iPhone arrives in the U.S., it is recorded as an import at its factory cost of about $240, which is added to the massive U.S.-China bilateral trade deficit.

IPhone imports look like a big loss to the U.S., at least to the president, who argues that “China has been taking out $500 billion a year out of our country and rebuilding China.” One estimate suggests that imports of the iPhone 7 and 7 Plus contributed $15.7 billion to last year’s trade deficit with China.

But, as our research on the breakdown of an iPhone’s costs show, this number does not reflect the reality of how much value China actually gets from its iPhone exports – or from many of the brand-name electronics goods it ships to the U.S. and elsewhere. Thanks to the globe-spanning supply chains that run through China, trade deficits in the modern economy are not always what they seem.

Who really makes the iPhone?

Let’s examine an iPhone 7 a little more closely to see how much value China is actually getting.
Start with the most valuable components that make up an iPhone: the touch screen display, memory chips, microprocessors and so on. They come from a mix of U.S., Japanese, Korean and Taiwanese companies, such as Intel, Sony, Samsung and Foxconn. Almost none of them are manufactured in China. Apple buys the components and has them shipped to China; then they leave China inside an iPhone.

So what about all of those famous factories in China with millions of workers making iPhones? The companies that own those factories, including Foxconn, are all based in Taiwan. Of the factory-cost estimate of $237.45 from IHS Markit at the time the iPhone 7 was released in late 2016, we calculate that all that’s earned in China is about $8.46, or 3.6 percent of the total. That includes a battery supplied by a Chinese company and the labor used for assembly.

The other $228.99 goes elsewhere. The U.S. and Japan each take a roughly $68 cut, Taiwan gets about $48, and a little under $17 goes to South Korea. And we estimate that about $283 of gross profit from the retail price – about $649 for a 32GB model when the phone debuted – goes straight to Apple’s coffers.

In short, China gets a lot of (low-paid) jobs, while the profits flow to other countries.

The trade balance in perspective

A better way of thinking about the U.S.-China trade deficit associated with one iPhone would be to only count the value added in China, $8.50, rather than the $240 that shows up as a Chinese import to the U.S.

Scholars have found similar results for the broader U.S.-China trade balance, although the disparity is less extreme than in the iPhone example. Of the 2017 trade deficit of $375 billion, probably one-third actually involves inputs that came from elsewhere – including the U.S.

The use of China as a giant assembly floor has been good for the U.S. economy, if not for U.S. factory workers. By taking advantage of a vast, highly efficient global supply chain, Apple can bring new products to market at prices comparable to its competitors, most notably the Korean giant Samsung.

Consumers benefit from innovative products, and thousands of companies and individuals have built businesses around creating apps to sell in the App Store. Apple uses its profits to pay its armies of hardware and software engineers, marketers, executives, lawyers and Apple Store employees. And most of these jobs are in the U.S.

If the next round of tariffs makes the iPhone more expensive, demand will fall. Meanwhile Samsung, which makes over half its phones in Korea and Vietnam, with a lower share of U.S. parts, will not be affected as much by a tariff on goods from China and will be able to gain market share from Apple, shifting profits and high wage jobs from the U.S. to South Korea.

Put another way, research has shown globalization hurt some Americans while it made life better for many others. Putting globalization in reverse with tariffs will also create winners and losers – and there could be far more of the latter.

Why not make the iPhone in America?

When we discuss these topics with policymakers and the media, we’re often asked, “Why can’t Apple just make iPhones in the U.S.?”

The main problem is that the manufacturing side of the global electronics industry was moved to Asia in the 1980s and 1990s. Companies like Apple have to deal with this reality.

As the numbers we’ve cited make clear, there’s not much value to be gained for the U.S. economy or its workers from simply assembling iPhones here from parts made in Asia.

While it’s possible to do so, it would take at least a few years to set it up, cost more per unit than production in Asia, and require a lot of carrots and sticks from policymakers to get the many companies involved to do so – for example, like the potential $3 billion in subsidies Wisconsin gave to Foxconn to build an LCD factory there.

A flawed response to the challenge from China

There is, of course, plenty for the U.S. to complain about when it comes to China’s high-tech industry and policies, whether it’s the lack of intellectual property protection or non-tariff barriers that keep major tech companies such as Google and Facebook out of the huge Chinese market. There is room for much tougher and more sophisticated bargaining to address these issues.

But where trade is concerned, policies should reflect that manufacturing is now a global network. The World Trade Organization has already developed an alternate set of trade numbers that shows each country’s trade in value added terms, but the administration seems to have missed the memo.

Trump’s trade war is based on a simplistic understanding of the trade balance. Expanding tariffs to more and more goods will weigh on U.S. consumers, workers and businesses. And there’s no guarantee that the final outcome will be good when the dispute ends.
The ConversationThis is a war that should never have been started.

Jason Dedrick, Professor, Syracuse University; Greg Linden, Research Associate, University of California, Berkeley, and Kenneth L. Kraemer, Research Professor, University of California, Irvine
This article was originally published on The Conversation. Read the original article.

Friday, July 6, 2018

How ProPublica Illinois and WBEZ Worked Together to Find Thousands of Duplicate Tickets in Chicago

We heard from you about how ticket debt, especially from $200 city sticker citations, has affected you. And we would like your help as we continue our reporting.


Hi. Two of us are writing this week: Melissa Sanchez from ProPublica Illinois and Elliott Ramos from WBEZ. Why two of us? Well, a few months ago, we realized we were both digging into data on Chicago parking and traffic camera tickets. And lucky for us, we both work for news organizations that believe in collaboration, so it was easy to team up instead of racing to beat each other.
Last week, we published our first story together on how Chicago has issued thousands of duplicate tickets to drivers and why impoverished black communities are getting the worst of it.
We plan to do more. But first, we want to tell you about how we teamed up, what we’ve learned and where we want to report next. Maybe you can help us find the next story.
— Melissa and Elliott

Why we are so interested in the tickets:

Elliott: In Chicago, people complain that ticketing, fines and fees make it harder and harder to afford to live here. The silver lining, if there is one, is that all those tickets come with a data trove that says who owes what and where they live and where they were ticketed. You can start to compare what’s happening in different neighborhoods, see how ticketing has changed over time and determine whether complaints about disparities are true.
Melissa: Ticket debt is devastating thousands of Chicago families — generations of families, really — right under our noses. I’ve talked to people who are in bankruptcy, and whose parents, siblings, children and grandchildren have also filed for bankruptcy — all because of debt from tickets. The city’s long had this narrative about how “scofflaws” just need to pay up. It’s a lot more complicated than that.

How we started working together:

Elliott: I have been working on ticket and towing stories for almost a year now. When I read Melissa and Sandhya’s first story, I was blown away. It was refreshing to see someone else not only look at the data the same way, but they blew the doors open and went right into how it was affecting people and sending thousands of people into debt — even into bankruptcy. I knew the data they were using and had some data they hadn’t used, and offered it up to see if there was any way it could advance their work.
Melissa: I didn’t know Elliott but I’d read (and heard) his previous reporting and seen his name in city request logs for similar sets of data. I was nervous he was going to scoop us on the bankruptcy story. Instead, when that story came out, Elliott reached out with a sweet email offering to share four data sets “which might be helpful for you guys if you hadn’t already FOIA’d [reporter shorthand for “filed a records request under the Freedom of Information Act”] or obtained it.” Match made in nerd heaven.

What collaboration looked like:

Melissa: We did almost everything using Google Docs — from writing the story and watching editors jump in with revisions, to compiling FOIA requests and preparing questions for the city.
Our offices aren’t super close so we didn’t see each other a lot in person. But sometimes we met for lunch or coffee to check in, like this day at a tea shop, which Elliott documented with a nerdy photo of our spreadsheets and paperwork.
Elliott: I like that we complement each others’ skills. I tend to use Pandas in Python and Melissa uses SQL for analysis. I was mapping data while she was knocking on doors. I joked that I’m like the man in the van in those movies where the tech geek is on radio and the laptop hacking doors for the secret agent.

The reaction from readers:

Melissa: Super engaged! Especially after we got to talk about our findings on Cliff Kelley’s afternoon show on WVON. One comment that really stood out came from a man from Hyde Park who works in IT. He couldn’t believe the city didn’t systematically flag and toss out duplicate tickets. “That’s a very simple technology application,” he told us. “You don’t need Mark Zuckerberg.”
Elliott: After WVON, I had folks calling my desk phone. I think there’s genuine frustration with tickets that goes beyond the money. There’s a perception of harassment or that the city is out to get them. With data, we can actually figure out if there’s some truth to that feeling. Whether or not it’s exaggerated, or whether or not some areas are genuinely getting hit harder with tickets.

What drivers are supposed to do if they feel they’ve been wrongly ticketed:

Melissa: There’s an appeals process, which can be done online, by mail or through in-person hearings. The city also said drivers can bypass the hearings process and call the Finance Department’s customer service line, at 312-744-7275, if they believe they’ve been issued a ticket in error.
If you go the hearings route, feel free to reach out and let us know how it went. We might even ask to tag along.

What we want to know more about:

Elliott: I’m interested in what happens when tickets escalate to a boot or an impound. Often the ticket debt compounds, but when a vehicle is impounded, it can set off a whole new set of circumstances with different outcomes for different people.
Melissa: We plan to look a bit deeper into the city sticker and related tickets, in addition to a few other kinds of citations. I’m also interested in talking with people who’ve lost city jobs because of ticket debt, and learning more about the city’s administrative hearings process and the companies it contracts to do debt collection.
If you have any other ideas or tips, email us at melissa.sanchez@propublica.org and eramos@wbez.org. We like to work together.
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