What Mia Macy's Victory Means for Transgender Workers' Rights

Jul 29, 2013Tyler S. Bugg

The Justice Department's ruling in Mia Macy's lawsuit against the ATF is a significant win in the fight against employment discrimination for the transgender community, but there's still more to be done.

The Justice Department's ruling in Mia Macy's lawsuit against the ATF is a significant win in the fight against employment discrimination for the transgender community, but there's still more to be done.

It has been over a year since I last wrote about Mia Macy and her lawsuit, the Employment Non-Discrimination Act (ENDA), and the state of employment discrimination for transgender people like Macy. To review, Macy was tentatively offered a position as a ballistics expert at the Bureau of Alcohol, Tobacco and Firearms (ATF), pending a background check, and the background check revealed her gender transition. The hiring manager then told Macy the position was being eliminated due to budget cuts and hired another applicant. Her high-profile lawsuit against the ATF for rescinding this job offer has resulted in a long and arduous battle in court. Now her work has finally paid off.

Earlier this month, a Justice Department decision was handed down in favor of Macy, ruling that the ATF broke the law in not offering her a job as a ballistics expert -- a move the ruling says was motivated by direct discrimination based on her gender identity. The ruling requires the ATF to again offer the job to Macy, pay her back pay and benefits with interest, and cover all of her legal costs. Even better, the decision stipulates that the agency must implement its own anti-discrimination policies to be applied to all its other employees and future job applicants.

Macy’s hallmark challenge was already considered a victory last year when the complaint she filed with the Equal Employment Opportunity Commission (EEOC) prompted the agency to independently rule that Title VII of the 1964 Civil Rights Act bans employers from discriminating based on an employee’s gender identity or expression. Her Department of Justice suit win this year only extends and celebrates the progress she began in ultimately ensuring a more just and equitable body of employment law for the United States labor force.

The benefit this has for employer-employee relations, employee productivity, and general satisfaction with job environment safety and morale is obvious. I have written previously about why more inclusive employment anti-discrimination protections are both sound social policy and sound business policy – employees and job applicants feel less anxiety about their workplace environments, employers reap the benefits of happier and more qualified applicant pools, and diverse workplaces encourage a respectful and productive mode of labor that better mirrors the country’s diversity outside of the workplace.

All of those outcomes remain true with Macy’s DOJ win. What is unique about Macy’s case is that, for the first time, the federal government is backing challenges of private and government employers by the transgender community. The DOJ decision in Macy’s case represents a significant precedent in the government’s interest in and implementation of more aggressive anti-discrimination policies, especially at the federal level.

The federal government’s sudden activism on behalf of transgender employees is curious, then, as it also continues to stall the passing of ENDA at the federal level. While Macy’s DOJ win is significant, it only applies to her individual case and to her particular employer. ENDA, as a more comprehensive plan to protect all of the nation’s employees, is a preventative measure, and remains absolutely necessary. If the government wishes to remain consistent with the spirit of its findings in Macy’s case, then it must move forward in considering ENDA. Its passage will be an important next step for extending benefits of protection past Macy to all other persons fired, not hired, or denied a promotion or salary increase as a result of their gender and sexuality identity statuses.

However, even ENDA has its limits, and they point to the failings of employment and labor law in this country more broadly. While ENDA certainly has a symbolic significance and a legal usefulness for transgender employees, real change cannot only rely on the jurisdictions of the court system. The effectiveness of employment protections for everyone, not just transgender people, is less than satisfactory. While proponents of ENDA push its necessity by pointing out that it is legal to fire someone for identifying as transgender in 34 states, in the 49 states where “at-will” employment law is the overarching standard, it is completely legal to fire someone for any reason at all and without explanation.

As we move away from Macy’s case, it is economically, socially, and legally important that transgender activists mobilizing within workers’ rights causes have a stake in the larger, more structural state of employment law for everyone, and vice versa. It is only when we finds the ways to consider all critiques across the board that we can find the change-oriented solution that the transgender community has been fighting for throughout Macy’s legal battles. With this shared understanding, we can build the most just and equitable workplaces for transgender people, and indeed all people.

Tyler S. Bugg is a New York-based writer, activist, and artist and an alumnus of the Roosevelt Institute | Campus Network.

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Why Trayvon Is Inspiring America to Put Stand Your Ground Laws on Trial

Jul 16, 2013Naomi Ahsan

The Zimmerman verdict could spark a nationwide movement to challenge "self-defense" laws that support racism.

The Zimmerman verdict could spark a nationwide movement to challenge "self-defense" laws that support racism.

Immediately following George Zimmerman’s acquittal on all charges brought against him for killing Trayvon Martin, mass protest began in the streets and on social media, evoking the great mobilizations for civil rights in American history. While many trials invite public scrutiny and speculation through intense media coverage, few others so clearly illustrate the racial tensions that connect the present with the embarrassing and ugly pieces of America’s past. The Zimmerman trial offers a status update on systemic racism in the United States and calls for attention to and action on Stand Your Ground laws. It also reminds those working for social justice of what litigation can and cannot accomplish, challenges us to consider how public safety measures can serve all Americans, and plainly illuminates the need for greater legal and political empowerment of young men who look like Trayvon Martin.

Stand Your Ground bills have been passed by over 30 states, based on a campaign that began in Florida in 2005 led by the National Rifle Association and the American Legislative Exchange Council (ALEC). (ALEC went on to disavow advocacy for Stand Your Ground in 2012.) These laws provide immunity from criminal and civil proceedings to people who “stand their ground” and use potentially deadly force instead of retreating if they reasonably believe doing so is necessary to “prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.” They are alternatively known as “Castle” laws based on Castle doctrine, which traditionally provides for defense in a home and is named based on the saying, “a man’s home is his castle.”

While Stand Your Ground was not invoked by the Zimmerman defense, the case has raised the law’s profile because it is the reason that Zimmerman was not arrested until almost two months after he killed Trayvon Martin. Florida Stand Your Ground law requires police to have specific evidence refuting a self-defense claim in order to arrest someone claiming self-defense as the basis of their violent actions, shifting accountability to law enforcement from people who use force in the name of “self-defense.” There is a growing realization that Stand Your Ground serves to promote anti-black racism — both in who is perceived as threatening and whose claims of feeling threatened are legitimized.

According to a federal lawsuit brought by Markel Hutchins that challenges Georgia’s Stand Your Ground law, some courts have “accepted the race of a victim as evidence to establish the reasonableness of an individual’s fear in cases of justifiable homicide.” The lack of specificity in circumstances justifying the use of deadly force leads to Americans of color being disproportionately targeted by such force. Stand Your Ground is more likely to be applied in cases of white-on-black crime. Hutchins also claims that the law does not equally protect him and other black Americans acting in self-defense. According to the Tampa Bay Times, people in Florida who kill a black person walk free 73 percent of the time in Stand Your Ground cases, while those who kill a white person go free 59 percent of the time.

Marissa Alexander, an African American woman, was not protected by Florida’s Stand Your Ground law when confronting her ex-husband, who was violating his restraining order and had a documented record of domestic violence. For firing a single warning shot as she “stood her ground,” even though the shot did not injure anyone, Alexander was sentenced to 20 years in prison. Stand Your Ground thus failed to serve a black woman who was being threatened by a man who was known to have abused her.

The Zimmerman verdict is not only disappointing because it seems wrong that killing Trayvon Martin, who was innocently walking along in his hoodie on the wrong street at the wrong time, should go unpunished. It is also because an institution of justice seems to have affirmed the racism in Zimmerman’s suspicion and pursuit of Trayvon – racism evidenced by Zimmerman’s history of dozens of “emergency calls“ to the police to report suspicious black men, including one incident where the “suspicious black male” in question was between seven and nine years old.

But while offensive to contemporary American morality, racism is not a crime. In fact, racist thought and speech are protected in American courts of law by the First Amendment, an application of Voltaire’s principle of “I disapprove of what you say, but I will defend to the death your right to say it.” Our foundational legal doctrines are ill-suited to today’s tasks of addressing issues of race advantages and disadvantages to achieve an authentically equal and just society. This is one reason that our courts are often not ideal tools for policy change.

The Department of Justice is investigating Trayvon Martin’s killing, and the U.S. Commission of Civil Rights launched an investigation into the racial bias of Stand Your Ground laws in May. While a lawsuit proceeds to challenge Stand Your Ground in Georgia, there is also the possibility that the Martin will family will bring a civil suit to challenge the constitutionality of Stand Your Ground in Florida.

In the meantime, grief, outrage and worry in reactions to the Zimmerman trial could prove effective and meaningful in motivating new race consciousness and appropriate action. Americans can civically engage and establish a productive discourse to scrutinize Stand Your Ground; increase awareness of the law and of related rights, especially in communities of color; and get involved in state legislative processes to demand alternative policies on public safety and permissible use of guns. The creeping proliferation of Stand Your Ground legislation and its flaws, which are only now starting to be recognized, underlines the importance of these steps as well as the need to increase the diversity of Americans who vote and serve the country as attorneys and elected officials.

Naomi Ahsan is a Research and Program Associate at the Center for Community Change and is Director of Programming for the DC chapter of Roosevelt Institute | Pipeline.

 

Hand with gun image via Shutterstock.com.

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What’s New in the New Surveillance State?

Jun 11, 2013Mike Konczal

I had a post at Wonkblog over the weekend, “Is a democratic surveillance state possible?”

In some sense, the issue of the government spying and collecting data on its citizens isn’t a new problem. One of my favorite tweets of the past week was Brooke Jarvis noting "Collapsing bridges alongside massive spy networks... Ah, the Jeffersonian ideal of government."

The United States has been tracking, observing, and surveilling its citizens for centuries. That includes that long-standing form of communication, the mail. As Senator Lindsey Graham just said, “In World War II... you wrote a letter overseas, it got censored...If I thought censoring the mail was necessary, I would suggest it.”

From the Census in the Constitution to the Cold War spy network (including the NSA, founded in 1952 through the Executive Branch), maybe this should be seen as a continuation of an old issue rather than a brand new one. But I think there are genuinely new and interesting problems with the 21st century Surveillance State and the brand new digital technologies that create the foundations for it. What’s new about the new surveillance state?

1. It’s always on and always has been. Old acts of surveillance had to be triggered and were forward-looking. However, we now spend so much of our lives online, and that is always being recorded. As the leaker Edward Snowden said in his interview, “they can use this system to go back in time and scrutinize every decision you've ever made, every friend you've ever discussed something with. And attack you on that basis to sort to derive suspicion from an innocent life and paint anyone in the context of a wrongdoer."

To the extent that old surveillance was capable of going back, it was by checking old records or interrogating old sources. And there the concept of amnesia comes into play.

2. It will never forget. “Amnesia” is a normal front line of defense. People forget things. Clear memories, stories, and ideas become grey. Photos and documents get lost with time. Trying to piece together history will necessarily involve a lot of missing gaps and poor recollection.

Not with the surveillance state. Cheap digital storage means that clear, easily replicable data will exist for the foreseeable future.

3. It scales easily. If the FBI was keeping records on 100 people in the 1950s, and it then wanted to monitor 1,000 people, it would probably need 10 times as many resources. Certainly it wouldn’t be effortless to scale up that level of surveillance.

As we can see in the age of Big Data and fast computing, this is no longer the case. The resource costs of accessing your phone’s metadata history versus all phones’ metadata history is going to be (somewhat) trivial. And the fact that there’s no amnesia means that you’ll always have access to that extra data.

4. It’s designed to be accessible. As Orin Kerr emphasizes, digital data here isn’t collected or surveilled via the human senses. A person can’t simply “peek” into your email the way they could peek at your physical mail. Instead devices need to be installed to access and make sense of this data. Private sector agents will do this, because it is part of their business model to make this information accessible. These access points will also be accessible to government agents under certain conditions - part of the major debate over the PRISM program is under what conditions the government can actually access these devices.

5. It’s primarily driven by the private sector. Broadly speaking, measures of democratic accountability and constitutional protections do not extend to the private sector. More on this soon, but things like the Freedom of Information Act to the Administrative Procedure Act to our whole regime of transparency laws do not apply to outside businesses. The government has worked with private groups before on surveillance, but here it is in large part driven by private agents, both for contractors and information gathering.

6. It predicts the future for individuals using mass data. Surveillance has generally used mass data to either predict or determine future courses of action on a mass scale. For instance, Census data is used to allocate federal money, or predict population growth. Alternatively, it uses individual data to analyze individual behavior - asking around and snooping to dig up dirt on someone, for instance.

The surveillance state, however, allows for using mass data to predict the actions of individuals and groups of individuals. This is what generates your Netflix and Amazon suggestions, but it is also now providing the basis for government actions. As Kieran Healy notes, this would have been interesting back in the American Revolution.

This is distinct from the normal Seeing Like a State (SLS) critique of how states see their citizens. Some think states produce “a logic of homogenization and the virtual elimination of local knowledge...an agency of homogenization, uniformity, grids and heroic simplification” (SLS 302, 8). But rather than flatten or homogenize its citizens when observed under bulk conditions, it actually creates a remarkably individualized image of what its citizens are up to.

What else is missing, or shouldn't have been listed? You could view these as a technological evolution of what was already in place, and in some ways that would make sense. But the technology has opened a brand new field. This existed before the War on Terror, and will likely exist afterwards; dealing with the laws and institutions behind this new state is crucial. As the technology has changed, so must our laws.

Follow or contact the Rortybomb blog:

  

 

I had a post at Wonkblog over the weekend, “Is a democratic surveillance state possible?”

In some sense, the issue of the government spying and collecting data on its citizens isn’t a new problem. One of my favorite tweets of the past week was Brooke Jarvis noting "Collapsing bridges alongside massive spy networks... Ah, the Jeffersonian ideal of government."

The United States has been tracking, observing, and surveilling its citizens for centuries. That includes that long-standing form of communication, the mail. As Senator Lindsey Graham just said, “In World War II... you wrote a letter overseas, it got censored...If I thought censoring the mail was necessary, I would suggest it.”

From the Census in the Constitution to the Cold War spy network (including the NSA, founded in 1952 through the Executive Branch), maybe this should be seen as a continuation of an old issue rather than a brand new one. But I think there are genuinely new and interesting problems with the 21st century Surveillance State and the brand new digital technologies that create the foundations for it. What’s new about the new surveillance state?

1. It’s always on and always has been. Old acts of surveillance had to be triggered and were forward-looking. However, we now spend so much of our lives online, and that is always being recorded. As the leaker Edward Snowden said in his interview, “they can use this system to go back in time and scrutinize every decision you've ever made, every friend you've ever discussed something with. And attack you on that basis to sort to derive suspicion from an innocent life and paint anyone in the context of a wrongdoer."

To the extent that old surveillance was capable of going back, it was by checking old records or interrogating old sources. And there the concept of amnesia comes into play.

2. It will never forget. “Amnesia” is a normal front line of defense. People forget things. Clear memories, stories, and ideas become grey. Photos and documents get lost with time. Trying to piece together history will necessarily involve a lot of missing gaps and poor recollection.

Not with the surveillance state. Cheap digital storage means that clear, easily replicable data will exist for the foreseeable future.

3. It scales easily. If the FBI was keeping records on 100 people in the 1950s, and it then wanted to monitor 1,000 people, it would probably need 10 times as many resources. Certainly it wouldn’t be effortless to scale up that level of surveillance.

As we can see in the age of Big Data and fast computing, this is no longer the case. The resource costs of accessing your phone’s metadata history versus all phones’ metadata history is going to be (somewhat) trivial. And the fact that there’s no amnesia means that you’ll always have access to that extra data.

4. It’s designed to be accessible. As Orin Kerr emphasizes, digital data here isn’t collected or surveilled via the human senses. A person can’t simply “peek” into your email the way they could peek at your physical mail. Instead devices need to be installed to access and make sense of this data. Private sector agents will do this, because it is part of their business model to make this information accessible. These access points will also be accessible to government agents under certain conditions - part of the major debate over the PRISM program is under what conditions the government can actually access these devices.

5. It’s primarily driven by the private sector. Broadly speaking, measures of democratic accountability and constitutional protections do not extend to the private sector. More on this soon, but things like the Freedom of Information Act to the Administrative Procedure Act to our whole regime of transparency laws do not apply to outside businesses. The government has worked with private groups before on surveillance, but here it is in large part driven by private agents, both for contractors and information gathering.

6. It predicts the future for individuals using mass data. Surveillance has generally used mass data to either predict or determine future courses of action on a mass scale. For instance, Census data is used to allocate federal money, or predict population growth. Alternatively, it uses individual data to analyze individual behavior - asking around and snooping to dig up dirt on someone, for instance.

The surveillance state, however, allows for using mass data to predict the actions of individuals and groups of individuals. This is what generates your Netflix and Amazon suggestions, but it is also now providing the basis for government actions. As Kieran Healy notes, this would have been interesting back in the American Revolution.

This is distinct from the normal Seeing Like a State (SLS) critique of how states see their citizens. Some think states produce “a logic of homogenization and the virtual elimination of local knowledge...an agency of homogenization, uniformity, grids and heroic simplification” (SLS 302, 8). But rather than flatten or homogenize its citizens when observed under bulk conditions, it actually creates a remarkably individualized image of what its citizens are up to.

What else is missing, or shouldn't have been listed? You could view these as a technological evolution of what was already in place, and in some ways that would make sense. But the technology has opened a brand new field. This existed before the War on Terror, and will likely exist afterwards; dealing with the laws and institutions behind this new state is crucial. As the technology has changed, so must our laws.

Follow or contact the Rortybomb blog:

  

 

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How to Pensa 2040: Italy's Millennials Share Their Blueprint for Change

May 13, 2013Alan Smith

An Italian offshoot of the Roosevelt Institute | Campus Network shows that Millennial policy priorities reach across national borders.

An Italian offshoot of the Roosevelt Institute | Campus Network shows that Millennial policy priorities reach across national borders.

In 2010, the Roosevelt Institute | Campus Network created the Blueprint for Millennial America, a generational vision for the country we hoped to see by the year 2040. In the conversations that established the backbone of the blueprint, we identified a core set of values shared by Millennials. The top three -- a deeply held concern for equity, a respect for the individual and society, and a belief in community empowerment and self-determination – represent a commonality that we think underlines what is unique about this generation of Americans. We are a group that seeks self-empowerment and strives to improve our society, but not always through the traditional power structures.

Over the last year, a similar project has been taking root on university campuses and among active Millennials – except this time it’s in Italy, where students have stepped up to take charge of their country’s uncertain future. “Pensa 2040” has taken the values-based collective ethos of the Roosevelt Blueprint and the Budget for Millennial America but introduced an Italian perspective. More than a thousand Italians have participated in conversations similar to those that built the Blueprint, and a Millennial vision for Italy is coming into focus.

If we’ve learned anything at the Campus Network, it’s that ownership of the process is equally as important as ownership of the outcomes. From what we’ve seen so far, the leaders of the Pensa 2040 process have carried on the successes of the Thinks 2040 framework by being willing and able to customize their discussions for the people in the room and the issues that are near and dear to their hearts. Holding discussions that engage people through the fundamental framework of values, and in so doing asks participants to examine which issues they truly believe are the most important, can yield a deeper and more lasting engagement on the issues that the community decides on together. 

So, what happened in Pensa 2040? The top-ranked value listed by the Italian Millennials reveals a clear difference between our two cultures: a deeply held respect for the idea of “legality.” This concept, rooted in Italy’s ongoing problems with the mafia and organized crime, extends to ending tax evasion and corruption within government. The very fact that the idea of legality would be a core value reveals a desire for order that is not at the forefront of many Americans’ minds. Still, some of the outcomes that students hope for in this category include a fair tax system and a more effective and fair legal system – important underpinnings of the Government By and For Millennial America discussion. 

It is in the second and third values expressed by the Italian students that we find a direct match with their American counterparts: equality and respect for the rights of the person. These essentially match word for word the underpinnings of the American Blueprint, and we find kinship with a generation focused on an absolute right to citizenship, same-sex marriages, and “civil service for all” (outcomes under “Uguaglianza”) as well as a right to health and full access to the sorts of “primary goods” that people need to be active and successful citizens (outcomes listed under “Rispetto per i diritti della persona”). There is something here, direct and definable, that speaks to a global generational identity. 

This sympathetic outlook makes sense: there are more and more shared experiences for people across borders and oceans. Not only could we jump on Skype to hear the results of the Pensa 2040 discussions, but many of the core issues facing Millennial Italians are the same issues facing American students in the Campus Network. Global climate change, economic uncertainty, and the challenges of a consistently volatile yet ever-more-interconnected world mean that the experience of being young often establishes a stronger bond than the experience of being “American” or “European.” While the 39 percent youth unemployment rate in Italy dwarfs the 17 percent unemployment rate for American youth, both countries are experiencing talk of a “lost generation,” and anyone trying to get a job out of college right now can tell you that unemployment is only a part of a bitter cocktail that includes low-wage jobs and student debt.  The economic example serves to highlight a greater truth: that a generational movement is real and important. 

Pensa 2040 has moved from the conversation stages to the building of a values-based blueprint for Italy. Students are working with other stakeholders now to write policy recommendations for Italy going forward, and to follow in the footsteps of the Campus Network by creating a crowd-sourced and collaborative budget for Italy that tackles their ongoing economic woes from a place of shared values. We’re excited that Italian students have taken on a part of our brand of collective discussions and are using it to build something equally as empowering and exciting for themselves. Look for a Blueprint for Millenario Italia entro il 2014! 

Alan Smith is the Roosevelt Institute | Campus Network's National Policy and Program Director.

 

"Made in Italy" image via Shutterstock.com

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How Congress and the Courts Are Closing in on Dodd-Frank

Apr 4, 2013Mike Konczal

What are the serious threats to Dodd-Frank? Last month, Haley Sweetland Edwards wrote "He Who Makes the Rules" at the Washington Monthly, which is the best single piece on Dodd-Frank implementation I've seen. In it, she identifies "three main areas on this gauntlet where a rule can be sliced, diced, gouged, or otherwise weakened beyond recognition." The first is "the agency itself, where industry lobbyists enjoy outsized influence in meetings and comment letters, on rule makers’ access to vital information, and on the interpretation of the law itself." The second is the courts, "where industry groups can sue an agency and have a rule killed on a variety of grounds." And the third is Congress, "where an entire law can be retroactively gutted or poked through with loopholes."

How important have those three areas been? Looking at the first two and a half years of Dodd-Frank, the courts turned out to be the unexpected danger for financial reform. I have a piece in Bloomberg View today arguing this, as well as the fact that the courts are structurally biased against reform in some very crucial ways.

That's not to say the lobbying battle is going well. But when the bill passed, people understood that rulewriting would be a difficult battle, and some groups like Americans for Financial Reform and Better Markets could at least help balance the lobbying efforts of financial industry groups. What was less understood was that the D.C. Circuit Court would have so many vacancies, and thus tilted to the far right and a radical agenda. I hope you check out the piece.

But what about Congress? Erika Eichelberger at Mother Jones has an excellent piece about the ongoing, now biparistan, efforts to roll back parts of Dodd-Frank's derivative regulations that are starting up in the House Agriculture Committee. (I wrote about this effort for Wonkblog here.) This third area Edwards identifies, Congress, is only now becoming a serious battlefield. But isn't the timing off? President Obama and the Democrats lost in 2010 but won in 2012. Yet while the threat of Congress rolling back Dodd-Frank, one of President Obama's major achievements, with new bills wasn't on the radar in 2011, it may be in 2013. Isn't that backwards?
 
Part of the answer is that the rules are becoming clearer, so financial industry lobbyists have more concrete targets to bring to Congress. But there's a political dimension as well. The general shutdown and polarization that dominated Congress after 2010 made a congressional threat to Dodd-Frank less likely. And ironically, the rise of the Tea Party within the conservative movement, even with its anti-Obama and anti-regulatory zeal, made bills to weaken Dodd-Frank less likely to pass. One reason is that the Tea Party wanted a full repeal of the bill or to gut entire sections, rather than more targeted interventions. Another is that the biggest losers in the 2010 shellacking were centrist “new Democrats,” those that would be more responsive to the needs of the financial industry than the progressive caucus that gained in relative strength afterwards.
 
It’s possible many more centrist Democrats could have moved a bill through Congress weakening Dodd-Frank as it was being implemented, especially if conservatives were looking to compromise. But remaining centrist Democrats were not going to remove the FDIC's new resolution authority to end Too Big To Fail, which is what the Ryan budget calls for, or knee-cap the CFPB out the door, which is what the Senate GOP wants in exchange for nominating a director, or vote to repeal the bill in its entirety, which was a litmus test for the 2012 GOP presidental candidates. Especially after they just took a lot of heat to pass the bill. Deficit hysteria was the only thing that got momentum, with both parties doing serious damage by cutting the budget of the CFTC.
 
(The unpopularity of the financial industry probably didn't help either. The congressional change that the financial industry most wanted, the delay of a rule designed to limit the interchange fees associated with debit cards, failed to clear 60 votes in the Senate.)
 
Now that the GOP is realizing that Dodd-Frank is here to stay, we might see more effort to reach across the aisle to dismantle smaller pieces of it in accordance with what the financial industry wants. Health care is facing a similar situation, where conservatives policy entrepreneurs are currently debating whether or not to work within the framework of Obamacare or continue trying to repeal it. Sadly, conservatives will probably do far more damage if they get to the point of accepting that Dodd-Frank is the law of the land and try to do more targeted repeals rather than wage all-out war.
 
Follow or contact the Rortybomb blog:
  

 

What are the serious threats to Dodd-Frank? Last month, Haley Sweetland Edwards wrote "He Who Makes the Rules" at the Washington Monthly, which is the best single piece on Dodd-Frank implementation I've seen. In it, she identifies "three main areas on this gauntlet where a rule can be sliced, diced, gouged, or otherwise weakened beyond recognition." The first is "the agency itself, where industry lobbyists enjoy outsized influence in meetings and comment letters, on rule makers’ access to vital information, and on the interpretation of the law itself." The second is the courts, "where industry groups can sue an agency and have a rule killed on a variety of grounds." And the third is Congress, "where an entire law can be retroactively gutted or poked through with loopholes."

How important have those three areas been? Looking at the first two and a half years of Dodd-Frank, the courts turned out to be the unexpected danger for financial reform. I have a piece in Bloomberg View today arguing this, as well as the fact that the courts are structurally biased against reform in some very crucial ways.

That's not to say the lobbying battle is going well. But when the bill passed, people understood that rulewriting would be a difficult battle, and some groups like Americans for Financial Reform and Better Markets could at least help balance the lobbying efforts of financial industry groups. What was less understood was that the D.C. Circuit Court would have so many vacancies, and thus tilted to the far right and a radical agenda. I hope you check out the piece.

But what about Congress? Erika Eichelberger at Mother Jones has an excellent piece about the ongoing, now biparistan, efforts to roll back parts of Dodd-Frank's derivative regulations that are starting up in the House Agriculture Committee. (I wrote about this effort for Wonkblog here.) This third area Edwards identifies, Congress, is only now becoming a serious battlefield. But isn't the timing off? President Obama and the Democrats lost in 2010 but won in 2012. Yet while the threat of Congress rolling back Dodd-Frank, one of President Obama's major achievements, with new bills wasn't on the radar in 2011, it may be in 2013. Isn't that backwards?
 
Part of the answer is that the rules are becoming clearer, so financial industry lobbyists have more concrete targets to bring to Congress. But there's a political dimension as well. The general shutdown and polarization that dominated Congress after 2010 made a congressional threat to Dodd-Frank less likely. And ironically, the rise of the Tea Party within the conservative movement, even with its anti-Obama and anti-regulatory zeal, made bills to weaken Dodd-Frank less likely to pass. One reason is that the Tea Party wanted a full repeal of the bill or to gut entire sections, rather than more targeted interventions. Another is that the biggest losers in the 2010 shellacking were centrist “new Democrats,” those that would be more responsive to the needs of the financial industry than the progressive caucus that gained in relative strength afterwards.
 
It’s possible many more centrist Democrats could have moved a bill through Congress weakening Dodd-Frank as it was being implemented, especially if conservatives were looking to compromise. But remaining centrist Democrats were not going to remove the FDIC's new resolution authority to end Too Big To Fail, which is what the Ryan budget calls for, or knee-cap the CFPB out the door, which is what the Senate GOP wants in exchange for nominating a director, or vote to repeal the bill in its entirety, which was a litmus test for the 2012 GOP presidental candidates. Especially after they just took a lot of heat to pass the bill. Deficit hysteria was the only thing that got momentum, with both parties doing serious damage by cutting the budget of the CFTC.
 
(The unpopularity of the financial industry probably didn't help either. The congressional change that the financial industry most wanted, the delay of a rule designed to limit the interchange fees associated with debit cards, failed to clear 60 votes in the Senate.)
 
Now that the GOP is realizing that Dodd-Frank is here to stay, we might see more effort to reach across the aisle to dismantle smaller pieces of it in accordance with what the financial industry wants. Health care is facing a similar situation, where conservatives policy entrepreneurs are currently debating whether or not to work within the framework of Obamacare or continue trying to repeal it. Sadly, conservatives will probably do far more damage if they get to the point of accepting that Dodd-Frank is the law of the land and try to do more targeted repeals rather than wage all-out war.
 
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Mark Schmitt: Constitutional Amendment Against Citizens United Distracts from Real Progress

Mar 13, 2013

Few on the left were happy with the Supreme Court's ruling in Citizens United that paved the way for so-called corporate personhood and opened the floodgates for money in politics. But taking that frustration and focusing it solely on a constitutional amendment is misguided, as Senior Fellow Mark Schmitt told Democracy Now. "I view it as a real distraction from some of the progress that we can make on money in politics," he explained.

Few on the left were happy with the Supreme Court's ruling in Citizens United that paved the way for so-called corporate personhood and opened the floodgates for money in politics. But taking that frustration and focusing it solely on a constitutional amendment is misguided, as Senior Fellow Mark Schmitt told Democracy Now. "I view it as a real distraction from some of the progress that we can make on money in politics," he explained. The amdendment is "sending the wrong signal to people and overlooking the tremendous progress that’s actually being made…on public financing that offsets the role of money from individuals and money from big corporations."

And there's a lot of hope in public financing for money in politics reformers. "We’re really undergoing a grand experiment of how much we can do with public financing of elections," Schmitt says. "I think we’re beginning to find that those systems that either provide a fixed amount of money to candidates who agree to forgo most private money or that match small contributions…those can really help candidates get to the point of being heard without turning to big money and get them enough that they’re not necessarily shot down by big money." Systems in New York City, Arizona, Minnesota, and Connecticut are all working, he said: "These systems are popular, they’re resilient, they withstand legal challenges, and that’s really where the energy ought to be focused at this point."

While he understands the appeal of a constitutional amendment -- "it’s easy to get people to sign a petition for it because it sounds very clear cut" -- the slow and perhaps even impossible progress on this front could send the signal that nothing can be done. "The message it sends is we can’t do anything until we have a constitutional amendment," he said, which is "exactly the same as saying we can't do anything."

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The Case for Optimism About Campaign Finance Reform – With Scalia on the Bench

Mar 4, 2013Mark Schmitt

Current limits on money in politics being tested across the country should give reformers hope.

Current limits on money in politics being tested across the country should give reformers hope.

Last Monday, the Supreme Court declined to hear a case challenging the century-old ban on direct corporate contributions to federal election campaigns. That counts as good news in a month that included the court’s earlier decision to hear a case that challenges the aggregate contribution limits in campaign finance and Obama strategist David Axelrod declaring that he would prefer a system of unlimited contributions with full disclosure. Almost all Republicans, the Supreme Court, and a powerful faction of the Democratic Party now fall somewhere on the spectrum between skepticism and vehement opposition to limits on contributions. The flimsy remains of the post-Watergate system of campaign finance regulation are on the verge of collapse.

Richard Hasen, law professor and proprietor of the indispensable Election Law Blog, argued in Slate last week that there was still hope for campaign finance reform – just not until Justice Antonin Scalia leaves the court. But there are other reforms currently being tested on the ground that hold out hope for changing the power of money in politics.

Hasen is right, of course, that until at least one of the five members of the Citizens United majority leaves the court by death or retirement and is replaced by a Democratic appointee, the best hope is that it will rule narrowly in cases such as the one involving aggregate contribution limits, rather than using them as opportunities, as they did in Citizens United, to punch holes in the law that are bigger than the cases themselves. He’s also right that expecting a constitutional amendment to overturn Citizens United (or do various other things, depending on the version) is far less likely to reopen the path toward a reasonable balance of the role of money in politics than a change in the membership of the court.

Hasen proposes that campaign finance reform advocates take the time now “to plan for the next Supreme Court.” We should use the indefinite waiting period to “think more about what a reasonable campaign finance regime would look like” and acknowledge that “conservatives are absolutely right that campaign finance laws can boost incumbents and stifle political competition.”

I agree with Hasen on all of that, even the last points, but I’d go even further: A reasonable campaign finance regime, one that doesn’t boost incumbents or stifle competition, could even be put in place with the existing Supreme Court. (The current Congress is another story.) The thinking he’s proposing is going on right now, and is even being tested, in systems based on the principle of “small-donor public financing.” These systems use some combination of matching funds, tax credits, vouchers, or generous public financing for candidates who show a base of small-donor support. They make it easier for candidates to run who don’t have big-donor support in order to enhance public participation and to ensure that elected officials aren’t entirely dependent on big donors or corporations, whether those donors are giving directly to campaigns or to outside groups.

The public financing systems in Arizona, Maine, and Connecticut, which have been resilient, strongly supported by the public, upheld in the courts, and used by almost as many Republicans as Democrats, fall into this category. So does the generous matching system in New York City that has the support of Governor Andrew Cuomo and a growing number of legislators, which can serve as a model for legislation elsewhere. So can Minnesota’s system, which is currently unfunded but which until a few years ago offered a quickly refundable tax credit for small contributions along with a match on the candidate side. All of these systems can be considered part of a broad experiment, and scholars are looking closely at them to see whether they change who runs for office, who donates, and ultimately whether the states’ political processes are more responsive to the public.

Legislation at the federal level has followed the small-donor model as well. Rep. John Sarbanes’ Grassroots Democracy Act, for example, draws on elements from several of the successful state programs, including a refundable tax credit for small donors along with a matching program for campaigns. The Fair Elections Act similarly incorporates a combination of small donor incentives with full public financing. A voucher that would allow every citizen to contribute in the same way that she votes, long advocated by Yale Law Professor Bruce Ackerman who calls them “Patriot Dollars,” and more recently by his Harvard counterpart Lawrence Lessig, is attracting renewed interest as well.

All these systems are voluntary, and alone they don’t go too far toward controlling big money, except for the candidates who participate. But they do make it possible for candidates to run who wouldn’t be able to otherwise or who want to run independently of big money. If they’re designed well, they can help candidates be in the position to get their messages out, and at a certain point it doesn’t matter all that much if the other candidate has a lot more money or more outside money spent on her behalf. (The Brennan Center put out an excellent report in 2011 on the many positive effects of small-donor public financing.)

The big question is whether these systems can work without limits on outside money. Without limits, candidates might hesitate to participate, voluntarily limiting their own spending, if they worry about being overwhelmed by big outside campaigns. It’s also unlikely that the public will support throwing good money into a cesspool of unregulated spending for very long. If that’s the case, these systems will need backup from the kind of limits that are under challenge in the recent cases or rejected by the court in Citizens United or other cases. But even after the court rejected a feature of the Arizona system that gave candidates more money if they were attacked by outside money, the system survived, and a majority of candidates for statewide office in 2010 and 2012 participated in the system.

The 2012 federal elections offered even more evidence that small-donor systems can work. It was not that “money doesn’t matter” (a view challenged by Roosevelt Institute Senior Fellow Thomas Ferguson and colleagues here), but rather that once a candidate for the House, Senate, or lower office has reached the threshold that allows him to be heard, extra money on the other side, whether from outside groups or the opposing campaign itself, matters less. For example, all the Senate candidates hit with outside spending by the Sheldon Adelson and Koch Brothers-funded groups won reelection. If small-donor public financing can get candidates to that threshold, then limits on outside spending won’t be as important in making the system work.

That’s not to say that it isn’t worth trying to strengthen the limits that remain and to build on the broader consensus that supports disclosure. In particular, the Internal Revenue Service should enforce the law governing 501(c)(4) non-profits, which are increasingly being used as vehicles for undisclosed and unlimited campaign spending, but which are not permitted to have influencing elections as their “primary activity.” The sheer number of mechanisms by which a donor can try to influence the outcome of an election has proliferated so far beyond the old standby of broadcast advertising that it will be impossible to chase it all down.

The next generation of campaign finance reform doesn’t have to be developed in a laboratory while waiting for Scalia or one of his colleagues to retire or to encounter a higher judge. It’s being designed, refined, tested, and improved as you read this in a half dozen states and municipalities. If it works, it will lead us to a system that will moderate the influence of economic inequality on democracy while enhancing competition and strengthening First Amendment rights of free expression. 

Mark Schmitt is a Senior Fellow at the Roosevelt Institute.

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Mike Konczal: The BP Trial Could Be Environmental Regulation's Last Stand

Mar 4, 2013

This past weekend, Roosevelt Institute Fellow Mike Konczal joined a panel on MSNBC's Melissa Harris-Perry to discuss the significance of the BP trial and the true cost of the damage caused by the Deepwater Horizon oil spill in 2010. Because of weak laws and regulatory capture, Mike says, the civil court system "is ultimately the last form of regulation we have." But will the punishment, if any, fit the crime?

This past weekend, Roosevelt Institute Fellow Mike Konczal joined a panel on MSNBC's Melissa Harris-Perry to discuss the significance of the BP trial and the true cost of the damage caused by the Deepwater Horizon oil spill in 2010. Because of weak laws and regulatory capture, Mike says, the civil court system "is ultimately the last form of regulation we have." But will the punishment, if any, fit the crime? "It's one thing for them to say, 'There's all these damages and we're going to pay them out.' That's just basic fairness," Mike argues. But "without a serious payout that is punitive and that actually deters future behavior, we're going to see more things like this." Unfortunately, "People will tally up things that they can measure, but human suffering, third-order poverty that has skyrocketed as a result of all this industry collapse, that is very difficult to put a price tag on."

Watch the full video of Mike's appearance below:




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Dorian Warren: We Need "National Voting Reform" if SCOTUS Decides Against Voting Rights Act

Feb 28, 2013

Antonin Scalia made his feelings on the Voting Rights Act, which took a beating during Supreme Court oral arguments this week, pretty clear, calling it a "perpetuation of

Antonin Scalia made his feelings on the Voting Rights Act, which took a beating during Supreme Court oral arguments this week, pretty clear, calling it a "perpetuation of racial entitlement." But as Roosevelt Institute Fellow Dorian Warren explained on MSNBC's The Last Word, he's not alone -- nor is his line of thinking unique. Attacks on the Voting Rights Act are part of "a long-term, more than 30-year effort to chip away at most of the civil rights victories." Which is ironic, given that the arguments came on the same day the U.S. Capitol unveiled its new statue of Rosa Parks, "who led the Montgomery bus boycott in Alabama, the very state challenging the most significant and important civil rights victory of the movement," he said.





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The argument against the Voting Rights Act is basically that we've moved beyond racism, so targeting certain states for their histories of discrimination is out of line. But impulses to morph the law in ways that would discriminate against black people "have always been there, from the founding and especially through the '60s, until we had an effective legislation measure to deal with it," Dorian said. That's a lot of history to have already overcome.

So what do we do if the Supreme Court strikes down this law? There could be one upside. "In response we can then make a demand for some kind of national voting reform," he concluded. We'll have to wait and see.

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Dorian Warren: We Need "National Voting Reform" if SCOTUS Decides Against Voting Rights Act

Feb 28, 2013

Antonin Scalia made his feelings on the Voting Rights Act, which took a beating during Supreme Court oral arguments this week, pretty clear, calling it a "perpetuation of racial entitlement." But as Roosevelt Institute Fellow Dorian Warren explained on MSNBC's The Last Word, he's not alone -- nor is his line of thinking unique.

Antonin Scalia made his feelings on the Voting Rights Act, which took a beating during Supreme Court oral arguments this week, pretty clear, calling it a "perpetuation of racial entitlement." But as Roosevelt Institute Fellow Dorian Warren explained on MSNBC's The Last Word, he's not alone -- nor is his line of thinking unique. Attacks on the Voting Rights Act are part of "a long-term, more than 30-year effort to chip away at most of the civil rights victories." Which is ironic, given that the arguments came on the same day the U.S. Capitol unveiled its new statue of Rosa Parks, "who led the Montgomery bus boycott in Alabama, the very state challenging the most significant and important civil rights victory of the movement," he said.



Visit NBCNews.com for breaking news, world news, and news about the economy

The argument against the Voting Rights Act is basically that we've moved beyond racism, so targeting certain states for their histories of discrimination is out of line. But impulses to morph the law in ways that would discriminate against black people "have always been there, from the founding and especially through the '60s, until we had an effective legislation measure to deal with it," Dorian said. That's a lot of history to have already overcome.

So what do we do if the Supreme Court strikes down this law? There could be one upside. "In response we can then make a demand for some kind of national voting reform," he concluded. We'll have to wait and see.

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