What broke Washington: Philip K. Howard, Esq., Unmasked

According to Philip Howard, a Washington lawyer who represents corporations and does their will, the ills being suffered by our society are due to too many laws and regulatory restraints. Howard has whined about this many places, but most recently in a Washington Post OpEd. This sounds a lot like what Republicans have been telling us for years. The American Legal Exchange Council (ALEC) has been conning Republican state legislatures into limiting the ability of the average citizen to sue a corporation which has harmed them. Republicans call this "tort reform". I call it, protecting corporations from the consequences of their own crimes.

Enraged citizens forced tobacco companies to put warning labels on their deadly products by suing corporations in court with class action suits. People dying of cancer on account of exposure to asbestos forced corporations to pay for their medical bills using class action suits. Drivers forced car makers to recall dangerously defective models by suing them in court. Now, citizens are suing coal and oil companies to stop them polluting the environment with mountaintop removal, fracking, and greenhouse gases.

These crimes have been huge and corporations would have gotten away with them but for laws that protect us. The conspiracy of energy moguls to keep spewing out greenhouse gases is the most deadly of all these crimes. Worldwide, millions of people are threatened by global warming, but the energy companies spend millions on propaganda trying to convince us that there is no problem here, and we should just move on. The problem affects the entire planet, of course, and we have nowhere to move on to.

Lawyer Howard does not attempt to hide his sympathies. He lists the plaintiff's bar as one of the culprits in What Broke Washington. The plaintiff's bar is what gives people the right to sue corporations when they lose a lung or break a leg due to some action of an irresponsible corporate executive. Without a plaintiff's bar, corporations can do as they please and let the public pay to clean up the mess later. Some people call this policy "libertarianism". I call it plutocracy, the rule of the many by the most wealthy.

Howard claims another problem is our huge deficit. Many others disagree. They say the deficit is not now nor ever has been a problem. We can pay it down slowly, when the economy is healthy, but we should never make budget cuts that affect the poor when the poor are already bearing the brunt of failed policies of the past. We should rather force the wealthiest 1% to disgorge their millions through a tax on wealth that they can well afford and that will not affect the other 99% of Americans.

Howard blames our failure to repair our aging roads and railroads on Obama and the economic stimulus act passed in 2009. The economic stimulus act budgeted a mere 3% for road repair. Somehow, Howard expects us to believe that the law itself is to blame, perhaps by magic. But it was politicians, Republicans and conservative Democrats, who cut infrastructure funds from that bill and concentrated on giving tax refunds. Tax refunds may be laudable, but they will never repair our potholes.

Lawyer Howard is trying a classic courtroom maneuver, getting his readers to ignore the real problem by pointing to smaller, inconsequential ones. Everyone knows (or should know by now) that what broke Washington is the influence of corporations and their money. Congress can't pass an energy bill, or an immigration bill, or a farm reform bill, or a tax reform bill, or an infrastructure repair bill, because conservative congressmen are too cowardly to vote against the lobbyists who fund their campaigns and send them on junkets to Abu Dhabi.

The solution to congressional deadlock is not to further weaken laws that protect the people from the powerful and irresponsible 1%. The solution is to elect congresspersons with brains and backbones who will pass laws necessary to resolve our problems. These congresspersons will necessarily represent the people and not the 1%. This is a meaningful goal, and not impossible. Lawyer Howard's suggestions would make the 1% happier and sink the rest of us deeper into the morass of plutocracy.

Howard has formed Common Good, a non-profit organization, to push these libertarian doctrines. On its home page, Common Good pretends to be a non-partisan reform coalition, with new ideas. On closer examination, these claims prove false. The Advisory Board includes some middle-of-the-road Republicans like Howard Baker and Jeb Bush. Otherwise, the Board is not a coalition at all, but a bunch of Republicans and corporate front groups like the Manhattan Institute and the Blackstone Group. The ideas Common Good espouses, as noted above, are not new and have been advocated by ALEC and the ultra-conservative American Tort Reform Association, since as early as 1986. I conclude that Common Good itself is a front group for medical corporations and legal firms that want to limit their liability while they continue to kill us.

There once was a liberal on the Common Good Advisory Board: George McGovern. He is still listed on their "about-us" page, but McGovern died in 2012. I don't blame Common Good for mentioning him, though. They want to preserve a semblance of bipartisanship that no longer exists.

Red Onion Prison: Virginia's Shame

Despite its reputation as a liberal city, Washington, DC, sends men convicted of felonies, even non-violent drug offenders, to one of the most inhuman, degrading, and shocking prisons in America: Red Onion Prison.

Inmates at Red Onion Prison in Virginia suffer cruel and degrading treatment at the hands of prison guards and the Virginia Department of Correction (VDOC). This treatment is systematic and condoned by prison authorities and by politicians, both in Virginia and in the District of Columbia. DC courts send men convicted of felonies, both violent and non-violent, to Red Onion, because there is no prison in the district. Virginia authorities also send non-violent convicts to Red Onion and Rollins Ridge because of overcrowding.

Red Onion Prison has been the subject of investigations by Human Rights Watch, which found that the VDOC

"has failed to embrace basic tenets of sound correctional practice and laws protecting inmates from abusive, degrading or cruel treatment."¹

The District of Columbia Department of Corrections (DCDOC) sends persons who have been convicted of felonies to Red Onion because DC has no prison facilities of its own. All prisoners, whether violent or non-violent, are sent to this Super-Maximum prison. As a result, non-violent persons are thrown into a violent criminal population where they are treated more harshly than those convicted of similar crimes in other prisons. VDOC apparently believes that it must control prisoners through aggressive, demeaning, and frequently violent treatment.

There are two kinds of cells at Red Onion, progressive and solitary. In progressive housing, two prisoners share a cell. Non-violent prisoners are routinely placed in cells with violent criminals. Any sign of insubordination can result in solitary confinement, where prisoners are confined in a small, windowless room for 23 hours a day, 7 days a week.

Red Onion and its nearby twin, Wallens Ridge Prison, were constructed during the administration of Virginia Governor George Allen (1984-1988), who ran for election on a severe anti-crime platform. The result of the governor's advocacy was a suite of laws consistent with American Legal Exchange Council (ALEC) recommendations that increased mandatory minimum sentences, delayed parole eligibility until 85% of the sentence is served, and made sentences up to 10 times as long. In some states, “three-strike” laws were adopted that guaranteed men who were convicted on a third felony, no matter how minor, a sentence to prison for life. These laws led to long sentences for non-violent offenders and increased the number of prisoners in Virginia's state prisons.

Red Onion and Wallens Ridge were deliberately located in a remote region of Virginia. Red Onion is 4 hours from Charlottesville, the nearest city, and 7 hours from DC. Relatives of prisoners rarely visit them there. These prisons were intended to be dehumanizing, according to Ronald Angelone, a former Virginia Director of Corrections: “It's not a nice place, and I designed it not to be a nice place.²

Human Rights Watch released its report on Red Onion in 1999. In it they described conditions at the prison but also gave details on what HRW was not permitted to do. They could not visit the prison facilities or interview prisoners or prison employees about conditions there. HRW reported that the DOC used prison walls to keep investigators out. Much of what comes out of the prison is based on rumor and hearsay. Prison officials keep facts away from media and the public.

HRW reported the following abuses in 1999:

• Prisoners who are not incorrigible are arbitrarily deprived of the activities and freedoms available ordinarily even in maximum security prisons.
• Prison staff use force unnecessarily, excessively, and dangerously. Inmates are fired at with shotguns loaded with rubber pellets and have been injured for minor misconduct, non-threatening errors, or just behavior that guards have misinterpreted.
• Prison staff routinely use electrical stun-guns.
• All prisoners are subjected to remarkable levels of control and forced to live in oppressive and counterproductive idleness, denied educational, behavioral, vocational and work programs and religious services.
• Correctional officers and other prison staff threaten inmates with abuse and subject them to racist remarks, derogatory language and other demeaning and harassing conduct.³

The preponderance of inmates at Red Onion are black, and the staff is almost entirely white, drawn from the rural coal-mining area in which the prison is located. Many of the staff have family or community ties with each other. They have had little or no direct contact with blacks before beginning work at Red Onion.

We do not know what selection process or special training the DOC has provided staff at Red Onion. Inmates assert that many of the staff are respectful and professional. But they also describe some officers as determined to show “they can be badder than we are.” These officers are quick to use derogatory terms and slurs, quick to use force, quick to impose their authority unnecessarily and capriciously. One inmate described to HRW the relations between staff and inmates as follows: “The guards are young—for the most part—and possess the mentality of juveniles—as do most of the prisoners—and they are into the macho mentality—as are most of the prisoners. The two do not mix well.”⁴

Tensions and misunderstandings perhaps inevitably arise from a clash of cultures in which both black prisoners and white staff hold misconceptions and believe in caricatures about the other. But in a well-run facility with appropriate staff selection, training and supervision, those tensions can be minimized and kept from escalating into provocation, confrontations and violence. Unfortunately, white and black inmates alike at Red Onion describe an atmosphere of pervasive and blatant racism. Inmates claim that officers routinely use such terms as “boy” and “n*r”. One white inmate told HRW that an officer said to him, with reference to a black inmate with a reputation for sexual misbehavior, “What do you expect from a fucking n*r?” Another white inmate wrote to HRW that he had talked with an officer escorting him about a shooting. He described the officer as “so excited about being able to shoot ‘n*rs...’[H]e couldn’t wait to shoot some of them black bastards.”

Men in Red Onion prison have started hunger strikes on at least 2 occasions. VDOC has shut down all communications with the outside world at those times and spread misinformation to the public about how many men were protesting, what conditions they were protesting, and how they were being treated by VDOC. After the hunger strikes ended, leaders were identified and transferred to other prisons as far away as Washington state.

1Red Onion State Prison: Super-maximum Security Confinement in Virginia 1, Human Rights Watch, 1999, at http://www.hrw.org/reports/1999/redonion/Rospfin.htm#P59_713.

2Craig Timberg, At Virginia's Toughest Prison, Tight Controls C1, Washington Post, April 18, 1999, http://www.washingtonpost.com/wp-srv/local/daily/april99/supermax18.htm

3HRW 1.

4HRW §VII.

Heartland Institute: Slick and Sleazy

While much of the world was waiting for the Intergovernmental Panel on Climate Control (IPCC) to release its fifth report on global warming, the Heartland Institute released its fake report, issued under a fake name, with plenty of deception inside as well.

The Heartland Institute has been around for a long time. It has always remained true to its original mission. Heartland takes money from corporations and writes misleading articles on their behalf. Heartland also works with the American Legislative Exchange Council (ALEC) to write laws that favor their donors. Heartland considers its primary audience to be lawmakers, just as ALEC does. They do not trouble themselves to convince scientists or the public. They merely want to confuse legislators and make sure they don't pass any regulations on CO2.

The fun begins with the intentionally confusing name of the group issuing the report. It's the Non-Governmental International Panel on Climate Control (NIPCC). The fake report has a slick color cover. Just like the real report, the fake report has articles written by scientists, only instead of actual climate scientists who are contributing to the advancement of knowledge, they are scientists in name only, who draw paychecks from Heartland so long as they spew meaningless articles with scientific jargon.

Fred S. Singer is the head scientist at Heritage. He helped them in their campaign against regulations on second-hand smoke. Singer took money from front groups for the Tobacco Companies, but claims he never took money from the tobacco companies themselves. Nowadays Singer is the scientific front man for the oil companies that contribute to Heritage, including the Koch Brothers.

In addition to fake experts, the fake report has a number of testimonials. It does not include what Nature, the preeminent British scientific journal said about Heritage, In a 2011 editorial, Nature said

Many climate sceptics seem to review scientific data and studies not as scientists but as attorneys, magnifying doubts and treating incomplete explanations as falsehoods rather than signs of progress towards the truth. ... The Heartland Institute and its ilk are not trying to build a theory of anything. They have set the bar much lower, and are happy muddying the waters.¹

That description by Nature fits the current fake report as well.

The general tenor of goofiness continues on the Heartland home page. There you will see a picture of David Suzuki, world-famous environmentalist, with the headline, “David Suzuki Attacks Climate Science”. If you click on the article you will find that Suzuki does not attack climate science. Instead he attacks “Climate Change Reconsidered II”--the fake report just issued by Heartland.

Accept no substitutes. The real IPCC Fifth Assessment Report on Climate Change is here.

1Heart of the Matter, Nature 475, 432-424 (28 July 2011), http://www.nature.com/nature/journal/v475/n7357/full/475423b.html?WT.ec_id=NATURE-20110728. The complete editorial is also informative.

Trans-Pacific Partnership: The new, not so improved, NAFTA

Letting corporations write their own laws without federal oversight is a very dangerous practice. Many corporations are established to make profits without any concern for the consequences to society at large. They see making laws as just another opportunity to make profits for themselves and their owners.

This practice has created ALEC, a secretive organization that enables corporations to write bills and send them to state legislatures. ALEC makes a number of virtuous-sounding claims on its public web site but has secret agendas that only become apparent after bills have been turned into laws. Officially, ALEC claims to be nonpartisan, but its staff members have no problem calling it conservative when they are speaking to a friendly audience, as Michael Hough did when he was interviewed on NRA TV.

ALEC is not the only forum where corporations are permitted to make their own laws, however. The Obama administration is currently participating in a series of “stake-holder forums” to create a new international trade agreement, the Trans-Pacific Partnership (TPP). Foreign countries and international corporations are involved in the negotiations, now in their 19th round. The people of the US are missing from the table, although we will all benefit or suffer from the consequences of these negotiations.

Particularly offensive is the attempt of the Obama administration to get approval for the “Fast Track” authority that has been enjoyed by every president since Nixon. The administration has changed its name to “Trans-Pacific Authority”, but it's still the same fast track authority that enabled previous presidents to adopt World Trade Organization (WTO) and North American Free Trade Agreement (NAFTA) with little opportunity for discussion. It was a bad idea then and it's a bad idea now.

WTO(1995) and NAFTA(1993) have decimated the middle class in America. President Clinton signed NAFTA in 1993 promising that the treaty would mean better jobs and higher wages for the US. After surging for a few years, wages have been stagnant since 2000. More and more production jobs have been off shored but new, high-skill jobs have not materialized to take their place. Instead, low-paying service jobs have proliferated, along with higher unemployment and more underemployment. The corporate elite who pushed these laws have prospered.

Well-connected business interests like agriculture and energy were able to preserve their subsidies under free trade. Agricultural interests, with a negligible labor force, were able to keep high subsidies owing to the undemocratic design of the US Senate. Oil lobbyists kept Congress from levying a windfall profits tax or a cap and trade tax as the price of oil skyrocketed and their profits with it. Wall street brokers and banks raked in huge profits by rigging the housing market and then packaging their bad debts into derivatives and selling those to their hapless clients. It turned out the banks were playing with house money, since the US bailed them out to stave off another Great Depression

Now the same corporate elites want more “free trade”. They want more favorable regulations and see TPP as a way to get them. The companies holding copyrights, having failed to pass the Stop Online Piracy Act (SOPA) through the Congress are trying to get the same laws, this time in an international treaty. Wall Street Banks are trying to use TPP as an end run around restrictions passed by the US Congress.

There are more than 600 people with access to documents revealing the proposals in TPP. There should be 300 million more: the American people. We deserve to know everything about a treaty that will affect our lives and well-being for the foreseeable future. We are not disenfranchised members of some backwater dictatorship. We are voters in the greatest democratic republic in the world.

We elected Barack Obama as President partly because he promised us transparency in government. His Trade Representative, who is negotiating the treaty for the American people, refuses to provide us with information that is crucial to our well-being. He evidently fears that, if we find out what is in the treaty, we won't like it. He's probably right, but that is all the more reason we should know all about it.

Corporations know the details. Other countries know the details. Many unelected organizations know the details. But our government refuses to give us a seat at the negotiating table.

Transparency means we, the People, have a right to know all about what the government is doing on our behalf. It's getting dark here. President Obama, we could all use a little more light.

Snopes.com committed a major blunder

Snopes.com committed a major blunder when it rated as false a rumor that Koch Industries (Koch) was paying the defense attorney's fees in the Trayvon Martin murder trial. Koch.com, a website owned by Koch Industries, still publishes Snopes's judgment on the front page of its web site, although the article was published back in April 2012. KochFacts.com implies that Snopes backs up its other claim, that MSNBC falsely accused Koch of supporting the Florida stand-your-ground statute that let Martin's killer go free. This judgment puts Snopes squarely on the side of an organization, Koch Industries, that routinely spreads disinformation about climate change, its own activities, and the reputations of others.

Snopes did not investigate the issue thoroughly enough and was too willing to take the word of company spokespersons. They also wrote that Mark O'Mara, the defense lawyer, said something he didn't say. Snopes went to the Koch web site, kochfacts.com, where it found that Koch denies having anything to do with "stand-your-ground” laws. This is a completely false assertion. Koch-financed groups gave $75,000 to ALEC between 2005 and 2008, a period when ALEC and  the NRA were promoting stand-your-ground laws to state legislatures. ALEC resident fellow Michael Hough explained in a 2008 interview that NRA and ALEC were working together to push stand-your-ground laws to state legislatures.

Koch had two representatives from its Koch Companies Public Sector on the Public Interest and Criminal Law study group at American Legislative Exchange Council (ALEC) in Cincinnati in 2011. Michael K. Morgan of Koch Industries has been on the board of ALEC since 1999.

Snopes also took Koch's word that Koch had “nothing whatsoever” to do with the defendant in the Trayvon Martin case. As verification, Snopes posts an interview with the defense attorney, Mark O'Mara. The interviewer asks O'Mara who financed the defense.

Interviewer: Who gave? Who were the people who gave?

O'Mara: It's funny, because we got a lot of $5 contributions, a lot of $100 contributions...

Snopes should have noticed that O'Mara did not answer this question fully. O'Mara has recently asked the court to pay $300,000 for expenses in the case, so O'Mara did not get the entire amount he was seeking in small contributions. Anyone trying to answer the question of whether Koch helped fund the defense cannot give a definitive answer on the basis of this interview, because the interviewer did not ask about Koch Industries, nor did O'Mara volunteer anything about it.

Snopes was faced with this dilemma. There is no concrete evidence the rumor is true, but there is equally as little evidence that it is false. Snopes decided to believe Koch. There is plenty of evidence on Kochfacts.com and elsewhere, however, that Koch is entirely unreliable. The site is a compendium of scurrilous charges and half-truths which must be familiar to Snopes from every other web site in the right-wing echo chamber.

Kochfacts states that “Democratic operative” Karen Finney wrongly accused Koch of a “connection” with Trayvon Martin's death. This is a false statement, in two ways. Finney did not mention Koch as the cause of Martin's death. She excoriated several Republicans for heightening the atmosphere of racial tension through their thoughtless remarks and personal attacks. Finney made no statement about whether Koch had anything to do with Florida's "stand your ground" law, for she was referring to events after Martin's death, not before it. The remark has been repeated out of context on numerous web sites, but mere repetition does not convert falsehood into truth. Furthermore, Finney is now a commentator on MSNBC, not a Democratic operative. Kochfacts.com calling her an operative is simply another falsehood intended to undermine the reputation of MSNBC.

Koch has underwritten numerous false and misleading statements. Greenpeace documents Koch's funding of a polar bear study, a report that claims that polar bears are not endangered by global warming. This subject is important for oil companies, like Koch, who intend to profit from oil in the arctic. The study discloses that it received funding from Koch Industries, the American Petroleum Institute, and Exxon-Mobil Corporation. The study was a fraud, however, because it pretended to be a research paper and it was not. Its authors, one of whom was an astrophysicist, had no professional knowledge of polar bears and did no original research for the article. Subsequently, two actual experts on polar bears published a response that the Koch-funded study did not adequately support its radical claim that non-climate factors were causing the polar bear population decline.¹

Other examples of Koch front groups publishing misinformation are too numerous to mention here.

Snopes had a problem. It wanted to make a decision about whether this rumor, about Koch paying O'Mara's fee, was true or false, but it had insufficient data. Koch said it didn't pay, but Koch is a notably unreliable witness, having told half-truths or outright lies on numerous occasions. O'Mara said he received small donations, but he didn't deny receiving larger ones, or promises of future donations.

Snopes should have given up at this point and said that the truth of the rumor is unknowable. Instead, it made an unwarranted assumption, that the rumor “appeared to be tied” to a coincidence of other popular beliefs. Saying a rumor “appears” to be something proves nothing at all. It is an opinion based on an assumption, not a conclusion based on facts.

Rumors arise from an excess of secrecy and a shortage of facts. The rumors about Koch Industries arise from the fact that Koch has tried for years to hide its political activities behind numerous front groups and conservative organizations. The habit of secrecy is deeply ingrained.

ALEC also has a history of secrecy. It disbanded the Public Safety and Elections study group--which pushed NRA-backed laws--in response to pressure from civil rights groups and its corporate sponsors. ALEC did not stop its activities in these areas, however. It just transferred the assets into other study groups. The NRA continued to be a partner for ALEC.

The net effect of Snopes's rash assumption is that Kochfacts.com now features Snopes.com on its front page, implying that Snopes has verified all the lies and half-truths that follow. Snopes should repair its reputation by removing its flawed opinion from the website and do some more serious fact checking of Kochfacts.com.  

1Koch Industries Secretly Funding the Climate Denial Machine 25, Greenpeace USA, 2010.

David Koch and ALEC: Dancing With the Devil and the 40-Foot Dump

“David Koch has donated generously and without fanfare to [us] for many years.”--Julie Stewart, President and Founder of Families Against Mandatory Minimums

Everyone knows, or should know, that deals with the devil never work out the way you think they will. The same is true for deals made with ultra-rich, ultra-immoral benefactors like David Koch.

David Koch is one of the wealthiest men in the world. His investment interests are mainly in “outlaw industries”--industries that many people believe are harmful in some way: oil, lumber, and commodities trading. His political contributions show that he solidly endorses the one-percent solution, in which the richest one percent continue to hold vast fortunes and fight against paying their fair share of taxes while they force working Americans to pay higher taxes for basic government services.

Koch is well known for giving financial support to Republican politicians and climate deniers. He has recently become more prominent in the media, due partly to attacks by Rachel Maddow (MSNBC) and ThinkProgress.org. In the past, he has been a shadowy figure who contributed without fanfare to conservative organizations like American Legislative Exchange Council (ALEC), Americans for Prosperity Foundation (AFPF), Cato Foundation (a libertarian think tank), Republican Governors Association, and Heritage Foundation (formerly a think tank, now a propaganda mill headed by Republican ex-Senator Jim DeMint).

Union supporters know Koch as the man who bankrolled Wisconsin Governor Scott Walker's recall election, when Unions and progressives tried to throw Walker from office. Thanks to Koch (who admits making a $700,000 contribution), Walker is still able to pass anti-labor legislation while his subordinates continue to rob veteran organizations and raise campaign funds while drawing state paychecks.

Koch Carbon, one of Koch's privately owned companies, recently dropped a 40-foot pile of petroleum coke (petcoke) on Detroit's waterfront. The company did not ask for a permit or bother to protect the fine powder from the wind. The petcoke accumulated in the homes of nearby residents. One day a storm came up and blew a great cloud of it over to Windsor, Ontario. Koch Carbon promised to move the pile to Ohio after Canadians protested.

Petcoke is a byproduct of the tar sands mined in Alberta. It contains 60% of the carbon from bitumen, the oil source. The Kochs regularly sell the stuff to China as fuel, despite the enormous amount of greenhouse gases it puts into the earth's atmosphere when burned.  

David Koch has said that humans are not the cause of global warming but that global warming will be good for the planet because growing seasons will be longer and the earth will be able to support more people. No climate study agrees with Koch. Most climate scientists believe that large populations will be displaced as currently populous areas become uninhabitable due to extreme heat and drought. When Obama gave a major speech on global warming in 2008, the Koch-funded Cato Institute took out a full-page ad in the New York Times to attack him.

Koch's primary political-advocacy group these days is Americans for Prosperity Foundation. AFPF is the engine that drives the Tea Party, according to memos from the Romney campaign. AFPF lobbied fiercely against health care and financial regulation. In 2012, AFPF spent $3 million on TV ads attacking Obama and another $9 million on ads attacking Obama's health care law.

Families Against Mandatory Minimums(FAMM)

Julie Stewart, President of FAMM, recently wrote an article praising ALEC and its long-time benefactor, David Koch. She said that ALEC and Koch had embraced bold sentencing reform. I don't see how anyone could call the Justice Safety Valve Act (S.B. 619) “bold”. The bill would leave the entire mandatory sentencing law completely untouched, along with its extraordinarily high sentencing guidelines for drug-related crimes. All S.B. 619 would do is give judges some flexibility in sentencing some defendants—but only if the defendants met conditions already written into the law. Furthermore, it would affect only federal laws, not state laws, where 80% of drug cases are tried.

The mandatory sentencing laws are a travesty of justice, as Stewart well knows. They have filled our prisons with non-violent petty criminals while failing to reach the drug kingpins and money-laundering banks that make the really big money and commit the really big crimes. ALEC wrote these laws specifically to benefit private prison corporations, for whom having more prisoners means more profits.  

Recently, Attorney General Holder gutted the federal version of those laws by instructing his agents not to list the amounts of drugs recovered in their reports. By this single act, Holder returned all the sentencing power to judges. Holder is trying to correct injustice; Koch is trying to preserve it.

While David Koch has been funding FAMM, he has also been funding ALEC, the right-wing organization that wrote state and federal mandatory sentencing laws in the first place. Those laws have failed utterly to win the war on drugs, but ALEC would like to keep them in place with just a few cosmetic changes. This approach is nonsense. The laws should be repealed and those inmates who were sentenced under them should have their sentences reviewed and reduced, or possibly revoked.

ALEC strongly supports the right of vigilante gunmen to carry arms and murder innocent people--ALEC wrote the “stand your ground” laws. Yet ALEC is also responsible for adding five years or more to the sentence of any non-violent drug offender if there is a gun found in their home. To ALEC and its supporters, gun ownership is an inviolable constitutional right—unless the gun owner has a small amount of marijuana in his pocket.

The racist stench of these laws is nauseating. Two laws, one for the white population, another for the brown population; whites can carry guns, African-Americans can't carry a matchbox of marijuana. ALEC and its oh-so-genial backer, David Koch, approve this division of society into unequal parts. Stewart should not be supporting this bill. She should be advocating repeal of this odious law. But she can't, because she's funded by David Koch, and he tells her what to do now.

David Koch is a likeable man. The devil is always likeable, otherwise he couldn't do his job. But when you shake hands with David Koch, you've shaken hands with the devil.

ALEC: Profiteers in the War on Drugs

The American Legal Exchange Council (ALEC) has been convincing state legislators to adopt laws with mandatory, determinate sentencing guidelines for a long time now. ALEC started this project back in the 1970s, when people were panicked about the high crime rate.

Liberals were concerned about inconsistent sentences being handed out by different judges for the same crime. Politicians in both parties contended that the laws gave too much leeway for judges. Senator Edward Kennedy was an early advocate for determinate sentencing. Conservatives gave speeches about bleeding heart liberals and judges who were soft on crime.

States began replacing indeterminate sentencing laws with determinate sentences. Republican legislators vied with each other to see who could be toughest on crime. To many voters, being tough on crime meant getting tough with African Americans, whom many white people, north and south, believed to be a criminal class.  Such beliefs resulted in a disproportionate number of arrests and convictions of African-Americans: in 2000, according to records in seven states, 80-90% of drug offenders sent to prison were African-Americans.¹

ALEC has been pushing harsh sentencing laws since 1975. They were responsible for enacting “three strikes” and “truth in sentencing” laws in 27 states. Three strikes laws sentenced a person who was convicted of a third crime, no matter how minor, to life in prison without possibility of parole. Truth in sentencing laws replaced the discretion of judges with definite lower and upper limits for sentences. Prisoners could not be released before the lower limit, nor could they be released before serving 85% of the upper limit.

Truth in sentencing laws mandated higher sentences for drug offenders, and pushed the average time served for drug offenses in federal prison from 17 months to 47 months. The result of these "three strikes" and "truth in sentencing" laws was that drug offenders were more likely to spend time in prison than those arrested for murder, assault, burglary, or rape.²

ALEC is also responsible for the Minimum-Mandatory Sentencing Act that established sentencing guidelines for drug offenses, and which is now in effect in many states. This model law erased the distinction between mere possession of a drug and possession for sale, so that a marijuana user faces the same penalty as a marijuana seller working for a cartel. The law also increases penalties for higher-ups, but the higher-ups are seldom arrested and can escape prison sentences through clever lawyers and legal technicalities.  

For example, the executives of HSBC Bank, the largest bank in Europe, failed to monitor $690 billion in wire transfers and $9.4 billion in money order sales from Mexico. HSBC's failure to monitor these sales, as required by law, permitted Mexican and Colombian drug cartels to launder more than $881 million in profits from their illegal enterprises. Not only did these executives escape prison, their failure to monitor these transactions also means that cartel kingpins will never stand trial because the proof of their crimes—the record of money received for drugs—was erased by the bank.

The judge in the case fined the bank $1.9 billion but imprisoned no one. A company can't be imprisoned, he wrote.³ Contrast this with the fate of Weldon Angelos, a first offender and father of two, who was sentenced to 55 years in jail for selling $350 worth of marijuana to undercover police officers.

Packing the prisons for the private prison industry

The net effect of these changes was an increase in the prison population in states where they were passed. Another effect was an increase in the demand for private prisons. Corrections Corporation of America (CCA) and the Geo Group (formerly Wackenhut) were the first corporations to build prisons and manage them for state governments. By 2010 the two companies were netting $2.9 billion in annual profits from contracts with state and federal governments.

In a meeting in Washington, DC, in 2010, CCA representatives and ALEC member Russell Pearce conceived and drafted Arizona S.B. 1070, aka the "Papers Please" bill .  S.B. 1070 gave Arizona police the right to stop people and ask them for their citizenship papers. CCA promised the City Manager of Benson that the law would bring prosperity to his small town.  It also brought prosperity to CCA: in 2011, CCA reported that immigrant detention was a significant portion of corporate revenue. CCA successfully convinced Arizona to strengthen its anti-immigrant laws in order to increase its own profits from prison management. After S.B. 1070 passed, 30 of its 38 legislative co-sponsors received campaign donations from CCA and Geo.

ALEC has also helped corporations profit from the increase in prison populations by pushing the Prison Industries Act (PIA) model legislation. PIA permits prisons to "rent out" inmates to corporations at sub-minimum wage rates. In Florida, the prisons then deduct 40% of the prisoner's already sub-minimum wages for “room and board”. Many of these prisons are “for-profit” private corporations which thus benefit directly from their state and federal lobbying efforts, as one filthy "hand" washes the other.

1National Lawyers Guild, High Crimes: Strategies to Further Marijuana Legalization Initiatives 11, NLG 2013, https://docs.google.com/gview?embedded=true&url=https://www.nlg.org/sites/default/files/High%2520Crimes-Digital_0_0_1.pdf

2Human Rights Watch, United States: Punishment and Prejudice, Racial Disparities in the War on Drugs (2000), http://www.hrw.org/reports/2000/usa/Rcedrg00-03.htm#P241_48009.

3U.S. v. HSBC Bank USA NA, 12-cr-00763 20, U.S. District Court, Eastern District of New York (Brooklyn), http://www.justice.gov/usao/nye/pr/2013/doc/HSBC%20Memorandum%20and%20Order%207.1.13.pdf

ALEC and NRA: How Trayvon Martin's killer got away with murder

ALEC

A group of conservatives founded the American Legislative Exchange Council (ALEC) in 1973. They intended ALEC to be a study group for advancing conservative ideas on the state level. The original founders included Henry Hyde, Paul Weyrich, and Lou Barnett. Henry Hyde was a practical politician who was elected to the House in 1968. Weyrich became a leader of the religious right and founded the Heritage Foundation, a right-wing think tank. Weyrich gained the backing of Joseph Coors for the organizations he founded, including the Free Congress Association. Barnett had participated in the unsuccessful presidential campaign of Ronald Reagan. He later started the Conservative Political Action Committee.

The founders shared an anti-federalist philosophy that was in line with then-president Nixon, who had decided on a southern strategy to bring southern Democrats into the Republican party. One key tenet of the southerners was a strong commitment to states' rights. Jesse Helms, who had just been elected to the Senate from North Carolina as a Republican, was an early member of the group. Helms was an overt racist and former Democrat. The composition of ALEC mirrored what would later become the Republican coalition. ALEC was at first nonpartisan but became solidly Republican as the white southern Democrats deserted their party.

In 1980 President Reagan formed a National Task Force on Federalism to seek ways to return power to the states. ALEC members took lead roles in the Task Force, and ALEC soon created task forces of its own to study issues and propose legislative solutions. In 1983 ALEC responded to Reagan's report on education by making recommendations to “improve” the educational system. Later statistical analysis (the Sandia report) showed that the educational system wasn't declining at all, but improving. The Sandia report was ignored by conservatives, who didn't want facts to get in the way of their theories—neither the first nor the last time this happened.

In 1986 ALEC started internal task forces of its own. By 1987 the Civil Justice Task Force was formed in response to the nation's “frivolous” litigation explosion. This explosion was an invention of the American Tort Reform Association (ATRA) and other front groups for the asbestos and tobacco industries. The litigation against these companies, far from being frivolous, was a result of decades of deceit and arrogance on the part of the executives of these companies, who concealed from their customers the deadly nature of the products they were selling. This “frivolous” litigation explosion is an example of an invented problem (litigation crisis) whose solution (lower awards, more hurdles and extended delays) coincided exactly with what the corporations needed to solve their own crisis, one which they had caused: an enormous number of product liability cases waiting to be filed.

In 1988, ALEC made the fateful step of inviting direct participation of the corporate sponsors who had until then remained in the background. The wording of positions and model legislation was thenceforward decided, not by the state legislatures who formed the membership, but by the corporations who provided the money for lobbying activities. It can be argued that ALEC was “captured” at that time, that is, it was secretly taken over by the very companies its model legislation was supposed to regulate.

NRA

The National Rifle Association (NRA) is much older than ALEC, having been formed after the civil war by former Union soldiers. The original purpose of the NRA was to promote and encourage rifle shooting on a scientific basis. In keeping with its purpose, NRA spent over 100 years without becoming actively involved in politics.

In their 1975 elections, NRA was taken over by a group of conservatives who envisioned a much more active role for the organization. NRA and ALEC soon began collaborating on legislative ideas. ALEC formed a study group that eventually became the Public Safety and Elections Task Force. ALEC stated that this group was dedicated to producing model bills to reduce crime and violence in our cities and neighborhoods. NRA had a permanent seat on this task force.

Among the model bills developed jointly by NRA and ALEC are those that change the definition of self defense, so-called “stand your ground” laws. These laws came into sharp focus when jurors at the Trayvon Martin murder trial acquitted the killer because they had no other alternative under the new definition of self-defense written into Florida law at the suggestion of ALEC.

NRA may support such laws because their corporate sponsors want to sell more guns. This motive is indefensible morally because it makes profits more important than human lives. This is actually what defines an “outlaw corporation”. People have a low opinion of tobacco companies, not because the business of selling tobacco is despised, but because tobacco kills its users. Tobacco companies were not held liable in court for the deaths of smokers until it was proven that the executives knew their product was deadly and ignored that fact. The same is true of asbestos mining companies.

Gun manufacturers are similarly “outlaws” because their products kill. The public will always look down on people who make a profit from killing.

Stand-your-ground laws are an example of laws that solve a problem that didn't exist. Self-defense laws have been well-accepted for centuries, dating back to English law. Stand-your-ground, or castle doctrine laws, elevate the personal prerogative above the societal one. Under castle doctrine, the most important element is personal honor, so a person has a right to use deadly force if he believes an attacker intends to kill him. Using this premise, it would be dishonorable to retreat before such an attacker.

This conception of personal rights is part of libertarian theory. The Libertarian Party platform asserts:

“We affirm the individual right recognized by the Second Amendment to keep and bear arms, and oppose the prosecution of individuals for exercising their rights of self-defense.”¹

This assertion shows that libertarian thought is just not practical in our society. Civil society cannot exist if you are allowed to kill someone because you don't like his face. Stand-your-ground laws make violence justifiable if the perpetrator believed his life was in danger. If the perpetrator claims that he believed his life was in danger, it is extremely difficult to prove otherwise in court because only he knows the contents of his mind.

The traditional definition of self-defense deals only with actions. It considers what the defendant did, not what he thought. It requires him to avoid violence whenever possible. A person's actions are easier to prove than his thoughts and make a preferable basis on which to draw a reasonable conclusion. If a person tries to avoid violence, he should not be blamed if he is forced by circumstance to use it.

Under traditional laws governing self-defense Trayvon Martin was murdered, because he was not the aggressor. His assailant did not try to avoid violence, he sought it out. Trayvon, on the other hand, did try to escape from his pursuer. We don't need the services of a mind-reader to prove those facts.

1Libertarian Party Platform §1., http://www.lp.org/platform

ALEC (part two): How Tobacco Companies gamed the legal system for 50 years

The American legal system relies heavily on adversarial representation. There are two sides to every court case, the plaintiff and the defendant. These two are theoretically balanced. Each side has a lawyer and the lawyers argue in open court, trying to persuade the judge or jury to rule in their favor.

This system has its flaws. Not all lawyers are equally skilled, or equally experienced. Both skill and experience affect the outcome of a case. Rich clients can afford better lawyers than poor clients. The legal system ignores this flaw in its logic.

Product liability law is completely different, especially as it is practiced in the U.S. today. One side, the manufacturer of the product, has infinitely more resources than users of the product. An inexperienced plaintiff's attorney will be hard pressed to prevail over a company that keeps lawyers on retainer for years while they learn the complexity of the law.

Victor E. Schwarz, counsel for the American Tort Reform Association (ATRA) and ALEC has a long history of supporting the interests of what he calls “outlaw defendants”--tobacco and asbestos companies. Schwartz was associated with ATRA at least as long ago as 1999, when he wrote a statement as Counsel of ATRA in support of the Litigation Fairness Act.

The first companies threatened by product liability suits were the asbestos mining and manufacturing companies and the tobacco companies. From 1950 until 1980, tobacco companies overwhelmed victims who had contracted cancer by using their products with expert witnesses and skillful attorneys.¹

Until then, cigarette companies boasted that they had never lost a liability suit. But plaintiffs began winning judgments as the evidence piled up that cigarette smoking was addictive and did cause cancer. In 1983, Rose Cipollone filed suit claiming that her lung cancer had been caused by smoking cigarettes and that she had been deceived by the claims of cigarette companies that smoking was not addictive and did not cause cancer. Cipollone's husband won a judgment of $400,000 in1984 after his wife had The first case to award a judgment to a plaintiff was Cipollone v. Liggett Group, Inc. (1992). The case was later reversed by the Supreme Court, but by that time thousands of documents had been leaked to the public detailing how, in the 1960s, tobacco company executives had knowledge that cigarettes were addictive and caused cancer. The executives concealed this information and continued to run advertisements claiming that cigarettes were harmless.

Schwartz made numerous public statements supporting the tobacco companies against their victims. He must have known about ATRA's campaigns of disinformation on the dangers of tobacco and asbestos. Schwartz had connections with the American Tobacco Institute(ATI) as well. The ATI was the industry's public relations group that carried out corporate plans to deceive and confuse the American people. Judge Gladys Kessler, in United States v. Philip Morris (2006), ruled that the tobacco companies had engaged in racketeering for decades. She singled out lawyers in her judgment:

“Finally, a word must be said about the role of lawyers in this fifty-year history of deceiving smokers, potential smokers, and the American public about the hazards of smoking and second hand smoke, and the addictiveness of nicotine. At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes. They devised and coordinated both national and international strategy; they directed scientists as to what research they should and should not undertake; they vetted scientific research papers and reports as well as public relations materials to ensure that the interests of the Enterprise would be protected; they identified “friendly” scientific witnesses, subsidized them with grants from the Center for Tobacco Research and the Center for Indoor Air Research, paid them enormous fees, and often hid the relationship between those witnesses and the industry; and they devised and carried out document destruction policies and took shelter behind baseless assertions of the attorney client privilege.”²

Schwartz has been a product liability attorney with Shook, Hardy, and Bacon, a Washington, D.C., law firm that was singled out for its actions over 100 times in Judge Kessler's final judgment. Schwartz also lobbied for laws that protected corporations from law suits. His experience in this field was well-suited to ALEC's purpose, which is to pass laws that assist its corporate clients.

1UCSF Legacy Tobacco Documents Library, Memorandum to the Tobacco Institute 2, 1985, http://legacy.library.ucsf.edu/tid/htc00c00.

2Amended Final Opinion 4, US v. Phillip Morris(2006), US District Court for the District of Columbia, Civil Action No. 99-2496 (GK).

ALEC: Corporations buy their own laws (first in a series)

The American Legislative Exchange Council (ALEC) is among the most powerful and dangerous front groups for anonymous corporate contributions. ALEC claims to be non-partisan, but there are few Democrats to be found among the notable personalities with which it decorates its web site. The Board of Scholars on ALEC's web site consists of Arthur Laffer, Stephen Moore, Victor Schwartz, Dr. Richard Vedder, and Bob Williams. All these men have influenced conservative policies.

Arthur Laffer was the godfather of Republican supply-side economics. Laffer argued that if you reduced taxes, you would increase revenues, and, conversely, if you raised taxes, you would decrease revenues. Following Laffer's philosophy, Newt Gingrich predicted that Clinton's tax raise in 1994 would lead to a recession, a loss of jobs, and a decrease in tax revenues. Instead, it led to five years of increased revenue and a boom that lasted until 2000. Gingrich later claimed that the boom in 1997 was due to a capital gains tax decrease, which he said gave more money to the job creators. When Clinton lowered the capital gains tax in 1997, the economy was already riding a wave of prosperity. The relatively small increase in capital gains tax revenue that followed the reduction was caused by the booming economy, not the reduction in capital gains tax rate.

Supply-side economic theory had predicted a recession following tax increases. Instead there was a boom. This boom was a complete repudiation of Laffer's supply-side theories.

In 2000, the federal government collected taxes equal to 20.6% of the Gross Domestic Product (GDP). Again following the Laffer philosophy, the Republicans passed massive tax cuts in 2001. While the tax bill was debated in the Congress, the American Heritage Foundation (another Conservative front group) predicted that the new tax cuts would pay off the federal national debt by 2010. They also predicted the new, lower taxes would increase employment by 20 million new jobs, and raise the GDP by $3.5 trillion.

After Bush lowered income tax rates, revenues fell immediately and remain lower than the revenues for 2000 until the present day. Bush's tax policies increased the national debt by $8 trillion and resulted in one million more jobs, not the 20 million he predicted. This number of jobs was not sufficient to provide employment for new entrants into the employment market.

Stephen Moore claimed the failure of Bush's tax cuts to raise revenues was due to increased spending. This statement is total nonsense. Laffer's theory states that lowering taxes will raise revenues. During the Bush administration, tax revenues fell. Bush relied on Laffer's theory when he raised spending. He believed, irrationally, that revenues would rise eventually, but they did not. Furthermore, both Republican and Democratic presidents before Bush routinely increased government spending to stimulate the economy. If Moore's opinion was correct, there should have been increased tax revenues and an economic boom. Instead, revenues fell and the economy collapsed.

Despite the utter failure of Laffer's policies, ALEC's web site praises him as “one of the [twentieth] century's greatest minds." 

Stephen Moore was a founder of the Club for Growth, a front group that raises money for conservative candidates. Moore led the Club for Growth in furthering Laffer's policies, which meant supporting candidates who favored smaller government and lower taxes. His group was instrumental in passing the Bush tax bill of 2001 which contributed to the great recession of 2009.

Moore made excuses for the economy's poor performance by claiming, in 2005, that Bush's capital gains tax cut in 2003 had increased taxes because it increased prosperity. But prosperity was not increased in 2004, because capital gains tax revenues were artificially inflated by the real estate market and the bond market. Rather than increase prosperity, those bubbles led to the collapse of the bond market and the Great Recession, as well as a decrease in capital gains tax revenues by $100 billion over two years.

Under Moore's leadership, the Club for Growth supported primary challenges against Republicans who fail to support its policies. This practice has contributed to the rise of the Tea Party and the subsequent stalemate in Congress. Moore, like Laffer, has proved himself an ideologue who ignores the serious negative consequences of his economic policies. Instead, he continues to support candidates who favor more tax cuts and deeper cuts in government spending.

Victor Schwartz was a director of the American Tort Reform Association (ATRA). ATRA was formed by Johns-Manville, a company facing numerous lawsuits for knowingly exposing its employees to asbestos in the workplace. ATRA presented itself as a grass-roots organization that was trying to stop abuses by plaintiff's lawyers. It was actually a public relations shop run by Matthew Swetonic, a Johns-Manville employee out of Hill and Knowlton (H&K), a public relations firm. Eventually, the asbestos industry joined with the tobacco industry to fight against adverse judgments for cancer victims of cigarette smoking or asbestos installation.

ATRA anonymously planted false and misleading stories as op-eds and magazine articles. Swetonic sometimes wrote these articles and used fake names. ATRA also formed astro-turf groups in the individual states and wrote sensationalized articles to make the public believe that plaintiff's attorneys were getting huge settlements for people who weren't actually injured.

ATRA eventually morphed into ALEC, which writes bills for their corporate clients and pushes them to its conservative customers, mostly legislators. The problem with this approach is that legislators are supposed to represent the interests of their constituents, not corporations and their lobbyists. ALEC takes the constituents out of the equation and delivers the legislators to the corporations. Frequently, the legislators do not know who is pushing these model laws or why. The legislators have no opportunity to discover adverse consequences to ALEC's laws because the corporations spoon feed them one-sided arguments.

Schwartz has always been a corporation lawyer, especially for tobacco companies, who argued for years that tobacco was not harmful before it was revealed that executives knew about the deadly effects of their product all along. In his opinion, corporations have no responsibility for the safety of the products they market. He says the warning label should be sufficient. But tobacco is a physically addictive product. Users do not understand that they are addicts and tobacco companies do not tell them.

Consumers will get no sympathy from Schwartz and his kind, whose motto will always be, let the buyer beware. Schwartz is a fine lawyer and has written many books on tort litigation. There is no consumer representative in ALEC, however. The legal system is based on advocates for both parties arguing in open court. There is no adversary allowed to argue against corporate interests here.

ALEC makes the claim that it is a non-partisan membership association for lawmakers who believe in limited government, free markets, federalism, and individual liberty. This is a misleading statement. Only one percent of its budget is funded by membership dues. ALEC is bankrolled by corporations who want to use the government to gain higher profits. These corporations spin their profitable legislation as advancing limited government and the rest, but they are only interested in their bottom line.

These three “scholars” prove that ALEC has strong corporate ties: Laffer created the intellectual basis for giving taxpayer funds to corporations and their owners. Stephen Moore helped install a generation of Republican lawmakers who ignore the express wishes of a majority of voters and prefer to stall government rather than trying to make it work for the people. Schwartz led the movement toward laws that prevent consumers and victims from receiving just recompense for their injuries. Together they have made voters and consumers irrelevant to the running of the country, which is still nominally a democracy.

See also how ALEC has been used by the Private Prison Industry and caused mass incarceration.