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“So Much For Checks And Balances”: Welcome To Tennessee, Where Lawmakers Are Trying To Kneecap Judges

In state houses around the country, January often brings the emergence of many of the year’s most dubious legislative proposals. January is the month of patently unconstitutional bans on “sharia law.” It is the month of promoting the unlawful practice of jury nullification. But mostly it’s the month for legislators to attack the independence of the judiciary.

Again this year, all over the country, state lawmakers have introduced bills to curb their cousins in the judicial branch. In Oklahoma, lawmakers want to remove from the Code of Judicial Conduct references to judicial independence. In Kansas and New York, state lawmakers want to force trial judges to render their decisions within a certain time or be forced out of office. But perhaps the most egregious of this year’s crop of ill-advised measures comes from Tennessee, where lawmakers have introduced a bill that combines many of these bad measures from other states into one big ball of scorn for the state’s judiciary.

SB 2322, as the Tennessee bill is known, seeks to replace the administrative office of the state courts with the treasurer’s office, which is part of the executive branch of state government. The state Supreme Court would no longer be able to “direct” the work of the court administrator but rather “urge” executive branch officials to take certain action. The bill would shut down the state’s judicial disciplinary board, now under the auspices of the judicial branch, and replace it with a new review board that would answer, again, to the state treasurer. That board would be made up of political appointees from the executive and legislative branches of government. Judges would be prohibited from serving on a board evaluating the work of the judiciary.

If that were all SB 2322 did, it would be bad enough. Each of the above components of the pending legislation violates separation of powers principles and constitutes impermissible encroachment upon basic judicial functions. It is axiomatic that judges should have the power and authority to administer their own affairs, as they do in every other jurisdiction in the nation, and should not be precluded from evaluating the disciplinary issues that arise within their profession. You don’t need to be a political scientist to understand the pressure the executive branch would be able to wield over Tennessee’s judiciary if the legislature were to enact this bill.

But there is more. SB 2322 seeks to dramatically alter the nature of death penalty procedures in a way that undermines core judicial functions. Judges would not be able to extend filing deadlines in capital cases — even if such extensions were justified and necessary to ensure the constitutional rights of defendants. And judges also would be forced to meet their own deadlines for resolving capital cases, even if they were not ready to do so. Meanwhile, lawyers representing indigent capital defendants would be required to reimburse the state if they were later found to have rendered “ineffective assistance of counsel,” a requirement that would make it materially harder for indigent defendants in the state to get a court-appointed lawyer willing to take the case.

These proposed measures, too, are patently unconstitutional incursions into the judiciary’s work. But they also happen to be bad ideas beyond their constitutional dimensions. Forcing judges to rush their decisions won’t make those decisions more accurate or justifiable — and that won’t ultimately save Tennessee taxpayers from the costs of appellate work. And precluding capital defendants from seeking more time to file their court papers — so they can better evaluate evidence, for example — won’t help root out instances of false confessions, or flawed eyewitness testimony, or prosecutorial misconduct.

Experts who study these sorts of bills are, quite naturally, both alarmed and disappointed. “There’s a reason no other state in the country has such a system, Bert Brandenburg, the executive director of Justice at Stake, told me Monday. “It denies the courts the most basic of administrative functions and seeks to make our courts of law answer to politicians instead of the law.”

Tennessee’s judicial branch is not perfect. No branch of government anywhere is perfect. But it is reckless to think that the best solution to perceived problems within this state’s judiciary is to turn control of it over to the executive branch. There is a reason that our systems of government have three branches that are asked to provide checks and balances upon each other. What SB 2322 would do is upset that balance, and preclude those checks, in a way that surely would end up harming the people of Tennessee.


By: Andrew Cohen, The Week, January 29, 2014

January 31, 2014 Posted by | Judges, State Legislatures | , , , , | Leave a comment

“Shining A Light On ALEC’s Power To Shape Policy”: A Slow-Motion Corporate Takeover Of Our Democracy

It’s amazing how a little sunlight will change the behavior of some of the biggest names in corporate America — sunlight here meaning greater transparency and accountability.

It’s also amazing how the U.K.’s The Guardian is covering this changed behavior — and its potential consequences for every American — without much competition from U.S.-based media. It seems that reporters in Washington in particular can’t be bothered.

Over the past several decades, one of the country’s most influential political organizations — the 40-year-old American Legislative Exchange Council — was able to operate largely under the radar. Never heard of it? That’s by design. Founded in 1973 by conservative political operatives, ALEC has been successful in shaping  public policy to benefit its corporate patrons in part because few people — including reporters — knew anything about the organization, much less how it went about getting virtually identical laws passed in a multitude of states.

That began to change two years ago when an insider leaked thousands of pages of documents — including more than 800 “model” bills and resolutions, showing just how close ALEC is with big corporate interests and revealing how it goes about getting laws passed to enhance the profits of its sponsors, usually at the expense of consumers.

The Center for Media and Democracy, a nonprofit corporate watchdog organization, sifted through the documents and posted them on a dedicated website, Those bills and resolutions, drafted by or in collaboration with industry lobbyists and lawyers, “reveal the corporate collaboration reshaping our democracy, state by state,” CMD says on the website.

I reviewed all of the health care legislation in the leaked documents and wrote about what I found for The Nation magazine in July 2011. It became clear from my review that health insurers felt one of the best ways to block the profit-threatening provisions of ObamaCare would be to use ALEC to disseminate bills it had helped write to friendly state legislators.  It was also clear that ALEC’s staff and membership had been at work for more than a decade on a broad range of issues important to my former industry, from turning over state Medicaid programs to private insurers to letting them market highly profitable junk insurance.

While ALEC-member legislators hail from every state, the organization has been especially successful in getting bills introduced in legislatures controlled by Republicans. As The New York Times noted in an editorial in February, more than 50 of ALEC’s model bills were introduced in Virginia alone last year.

In addition to insurance companies like State Farm and UnitedHealthcare, ALEC’s corporate membership has included big names ranging from ExxonMobil and Wells Fargo to Johnson & Johnson and Kraft. And it has worked closely with groups like the National Rifle Association as well.

It is the organization’s association with the NRA, in fact, that has led to dozens of corporations severing their ties with ALEC, as The Guardian reported.

Soon after the NRA succeeded in pushing a stand-your-ground bill through the Florida legislature — which George Zimmerman used in his defense in the Trayvon Martin case — ALEC adopted it as a model for other states. The group took that action after a 2005 NRA presentation to ALEC’s Criminal Justice Task Force. As The Center for Media and Democracy reported, the corporate co-chair of that task force at the time was Walmart, the country’s largest seller of rifles. Since then, more than two dozen states have passed laws identical or similar to the ALEC/NRA stand-your-ground model legislation.

News coverage of ALEC’s role in getting the controversial law enacted from coast to coast — coupled with CMD-led disclosures about the organization over the past two years — has caused many of ALEC’s longtime corporate members to abandon it, according to The Guardian.

Documents obtained by the British newspaper indicate that since 2011, ALEC has lost more than 60 corporate members, a hit so severe that during the first six months of this year it has “suffered a hole in its budget of more than a third of its projected income.” It has also lost nearly 400 state legislative members during the same time frame.

The organization has launched what it refers to as the “Prodigal Son Project” to woo back companies like Amazon, Coca-Cola, GE, Kraft and McDonald’s that have dropped their membership. Another “prodigal son” ALEC hopes to welcome back: that big retailer and rifle seller, Walmart. The loss of Walmart alone undoubtedly was a major contributor to the budget shortfall, considering the size of the company.

Meanwhile, just blocks from Capitol Hill where many Washington reporters spend their days, ALEC last week held its annual “policy summit,” but very few of those reporters felt the summit was worth their time, despite the fact that Sen. Ted Cruz, R-Texas, and Rep. Paul Ryan, R-Wis., were on the agenda. And despite the fact that even with fewer resources, ALEC is still hugely influential in shaping public policy. As Nancy MacLean, professor of history and public policy at Duke University, noted in a May column for North Carolina Policy Watch, “What ALEC and the companies that provide it with millions in operating funds seek is, in effect, a slow-motion corporate takeover of our democracy.”

That might be a story worth covering.


By: Wendell Potter, Center for Public Integrity, December 9, 2013

December 11, 2013 Posted by | ALEC, Corporations, State Legislatures | , , , , , , | 1 Comment

“Re-investing Resources”: ALEC Gives In, But There’s No Reason To Celebrate

After weeks of pressure, the American Legislative Exchange Council (ALEC) appears to be backing away from long-term efforts at creating barriers to voting (voter-ID laws) and pushing “Stand Your Ground” legislation. The latter allows those who feel threatened in public places to use force; Florida’s version is currently at the center of the Trayvon Martin case. Giving in to public pressure, ALEC announced Tuesday that it was disbanding its Public Safety and Elections task force, which promoted such legislation and helped see it proliferate. The organization is now “reinvesting these resources in the task forces that focus on the economy.” ALEC’s spokesperson did not respond to interview requests nor did Public Safety Task Force Chair Jerry Madden, a Texas state representative.

ALEC, which proudly calls itself “the nation’s largest, non-partisan, individual public-private membership association of state legislators,” has operated as a largely secret arena in which corporate sponsors and conservative legislators share ideas. The group offers model legislation to its members, which has in the past simply been introduced in legislatures unchanged. While the group says its goals are job growth and economic development, it has actively promoted voter-ID legislation to make it harder to vote as well as anti-union measures and those to limit lawsuits. The group also pushes for law taxes and decreased regulation.

As controversy grew around the slaying of Trayvon Martin and Florida’s Stand Your Ground laws, ALEC found itself on the ropes. The Martin shooting sparked widespread public outcry. Civil-rights group Color of Change helped lead public campaigns against ALEC and its affiliated companies for its support of such laws. In the face of growing grassroots pressure over the last few weeks, major ALEC corporate members like Coca-Cola and PepsiCo have dropped membership, as have McDonald’s, Kraft Food, Mars and others. Just Monday, a New York Times editorial slammed ALEC for its role in promoting Stand Your Ground legislation.

In the statement announcing the end of the Public Safety and Elections task force, the organization shifted its focus to “free-market, limited government, pro-growth policies.”

But this hardly constitutes a victory. ALEC still has a variety of task forces: There’s the Civil Justice Task Force, Education Task Force, and Health and Human Safety Task Force, all of which seem a bit removed from the group’s ostensible goals. The Civil Justice Task Force’s efforts appear largely focused on tort reform, as evidenced by the latest initiative “Expanding the Law Under New Restatement of Torts” and its latest publication, “The State Legislator’s Guide: Tort Reform Boot Camp.”

Then there’s the disturbing impact on health care and education. As The Nation showed in its “ALEC Exposed” series, the group has lobbied all out against health-care reform, while its education task force, headed partially by an executive for the for-profit online education company Connections Academy, has pushed hard for vouchers and increased privatization in American public schools. Its latest publication, a report card on education, begins with by comparing the battle over education reform to the World War II, with teacher unions being—you guessed it—Germany and Japan.

In the end, the Public Safety and Elections task force has already had its success. Voter-ID laws have proliferated around the country, making voting harder for poor and minority Americans. And according to the Times, Stand Your Ground is already law in 24 states.

Color of Change and its boycott isn’t likely to stop the pressure any time soon. In a statement responding to the news, executive director Rashad Robinson didn’t mince words: “To simply say they are stopping non-economic work does not provide justice to the millions of Americas [sic] whose lives are impacted by these dangerous and discriminatory laws courtesy of ALEC and its corporate backers.


By: Abby Rapoport, The American Prospect, April 17, 2012

April 18, 2012 Posted by | Corporations, State Legislatures | , , , , , , , | Leave a comment

“Bad Idea Legislation”: When Fools Try To legislate, Women, Science, And Dwarves Are Among The Targets

March turned to April a couple days ago, and with it came a raft of April Fools’ jokes. (It also elicited a new round of sighs from Republicans who had hoped to find out that their presidential field was really an elaborate reality TV punking.)

In the spirit of the season, I’m devoting this column to April’s Fools and fools. Guess which of these are bills actually introduced in state legislatures around the country, and which are gags of my own creation (answers at bottom).

Ladies first. It should come as no surprise that many of the weirdest, most outrageous bills that have popped up around the country in recent months focus on women. Take a recent Wisconsin Senate bill that would have required the state’s Child Abuse and Neglect Prevention Board to “emphasize” single parenthood “as a contributing factor to child abuse and neglect.” The bill, which happily died this month, had two sponsors. One, state Sen. Glenn Grothman, thinks liberals want children to be born out of wedlock “because they are more likely to be dependent on the government.” The bill’s other sponsor, a state representative named Don Pridemore, has said that spouses in abusive relationships should try to stay in them rather than divorce.

He might be comfortable with a prize of a bill introduced this year in the New Hampshire state House that would have required police to obtain a warrant before making an arrest in a domestic violence case unless they had seen the abuse taking place firsthand. Happily, that bill also met its deserved fate when the legislature killed it as “inexpedient to legislate.”

No discussion of legislative assaults upon women would be complete without touching on contraception. A law shot down just this week in the Arizona state Senate would have allowed any employer (not just religiously affiliated ones) to refuse to provide contraception coverage on moral grounds … unless a woman produced a note from her doctor certifying that she needed it for medical reasons (rather than the presumed moral turpitude).

“Feticide.” I’ll skip over conservatives’ insistence that women must undergo (sometimes invasive) ultrasounds before getting the perfectly legal medical procedure known as abortion. (The same people who object to warnings on cigarette packs because everyone knows the hazards of smoking simultaneously believe that a woman who wants an abortion must not realize how pregnancy works.) That’s not the only abortion-related fight going on. A proposed Iowa law would classify abortion as “feticide,” bringing life in prison without parole for the doctor.

For sheer weirdness, though, nothing beats Oklahoma. State Sen. Ralph Shortey wants to ban “food or any product intended for human consumption which contains aborted human fetuses.” Even he admitted, “I don’t know if it is happening in Oklahoma.” No word on whether he’s going to follow on with a bill banning Soylent Green. Oklahoma also brought what has been called the “every sperm is sacred” bill, for the old Monty Python sketch, which, in the spirit of granting personhood at the moment of conception, would deem any waste of sperm (as in, for example, masturbation) “an action against an unborn child.” This month a local Delaware council approved a similar resolution.

Don’t say gay. Tennessee has become a culture wars battleground. One bill in the Volunteer State’s legislature would ban teachers from talking about homosexuality in elementary and middle school sex ed classes (hence its nickname: the “don’t say gay” bill). Homosexuality “happens in nature, but so does bestiality,” said the bill’s sponsor, Sen. Stacey Campfield. “That does not make it right or something we should be teaching in school.” Campfield and his allies agreed to let the bill stall when they realized that Tennessee currently has no sex ed in elementary and middle school.

The Tennessee state Senate this month passed a bill encouraging teachers to give both sides of “controversial” topics such as evolution and global warming. Maybe they hope to set up a modern-day Scopes monkey trial.

The never-ending crazy. The Tennessee House also voted overwhelmingly this month to condemn a two-decade-old nonbinding United Nations sustainable development plan as a “destructive and insidious” communist plot. Not to be outdone, Wyoming’s legislature debated (and killed) legislation that called for the state to start making plans for a catastrophe that incapacitated the federal government—including the possibility of setting up an “alternative currency” to the U.S. dollar. Another provision, which would have looked into setting up a draft and acquiring an aircraft carrier, was added with the intent of sinking the bill. It succeeded.

Not all state lawmakers look abroad with fear. Three New Hampshire representatives proposed a bill (since killed) requiring that all Granite State legislation include a quotation from the Magna Carta “which sets forth the article from which the individual right or liberty is derived.”

Of course, this would have run afoul of the movement against sharia, or Islamic law. Legislators in 22 states have introduced bills banning courts from applying foreign or sharia laws, a mystifying solution in search of a nonexistent problem.

And did I mention the Florida lawmaker who wants to repeal the state’s ban on dwarf-tossing?

You can’t make this stuff up—literally. If you guessed that all of these examples are real, you get full credit. If you guessed the “every sperm is sacred” bills were too absurd to be true, you get half credit: Their sponsors proffered them with legislative tongues planted firmly in cheeks.


By: Robert Schlesinger, Washington Whispers, U. S. News and World Report, April 7, 2012


April 9, 2012 Posted by | State Legislatures | , , , , , , , | Leave a comment

“A Tsunami Of Anti-Union Legislation”: The GOP’s State And National Assault On Labor Rights

The past 15 months have seen a remarkable assault by the GOP on federal labor rights.

Republicans have introduced numerous bills designed to undermine the National Labor Relations Act, all with wonderfully deceptive names suggesting they would strengthen the rights of ordinary workers: Workforce Democracy and Fairness Act, Protecting Jobs from Government Interference Act, Employee Rights Act, Jobs Protection Act, Employee Workplace Freedom Act, Secret Ballot Protection Act, National Right to Work Act, Truth in Employment Act, National Labor Relations Reorganization Act, and others.

Republicans on the federal level have also attempted to defund and abolish the National Labor Relations Board, subjected its Democratic members to repeated subpoenas and requests for information, protested President Obama’s recess appointments to the board, joined lawsuits by corporate and anti-union organizations and threatened Congressional Review Acts – which could happen within weeks – to block the implementation of new board rules streamlining union certification elections and requiring notice posting on federal labor rights.

Rarely, if ever, has the board, and the rights it enforces, been subjected to such relentless attacks. And the attacks continue. While impressive, this assault on federal labor rights pales in comparison to what has been happening – occasionally in full view, but mostly with little notice – at the state level. Almost everyone knows about the 2011 legislation stripping public sector workers of collective bargaining rights in Wisconsin and Ohio, and Indiana’s 2012 “right-to-work” (RTW) legislation, which outlaws union security agreements.

However, the sheer number of anti-union bills supported by GOP-controlled legislatures demonstrates the breadth and depth of the party’s anti-unionism. So what is happening in the states?

In addition to Indiana, at least 18 other states have considered RTW measures. South Carolina and Tennessee passed bills strengthening RTW legislation that has been on the books for six decades, while another RTW state, Virginia, attempted to write RTW into its constitution. And last week, the New Hampshire House passed a RTW bill identical to one vetoed last year by the state’s Democratic governor. Other states that may act on RTW this year — sometimes over the wishes of the GOP establishment — through legislation or ballot initiatives include Maine, Michigan, Minnesota and Ohio.

In addition to high-profile bills in Wisconsin and Ohio, at least 13 other states have considered legislation that would eliminate or restrict public sector collective bargaining. New Jersey eliminated public sector bargaining over health benefits, Oklahoma outlawed collective bargaining for municipal employees, and Tennessee replaced bargaining for public school teachers with “collaborative conferencing.” And at least 14 states have considered legislation that would ban public employers from deducting union dues from employees’ paychecks, thereby making it difficult for unions to finance their basic activities. Last week, Michigan Gov. Rick Snyder signed a measure prohibiting public schools from deducting union dues from the paychecks of teachers and other employees.

Many Republican legislatures have promoted bills that, while not directly attacking labor rights, are clearly intended to weaken unions, including unions in the building trades and public schools. 14 states have introduced legislation restricting Project Labor Agreements, and 11 have bills attacking prevailing wage laws, both of which protect building trades standards.

At least 28 states have considered charter school and voucher bills that would weaken public school unions, and others have bills privatizing most schools services, along with bills privatizing transportation, water supply, port authorities, airport security, liquor distribution, prisons and prison medical services, Medicaid delivery, state park vendors, kindergarten development and evaluation, and every municipal service imaginable.

At least 10 states have introduced so-called “paycheck protection” measures, which are designed to place strict limits on the use of union dues money for political purposes, while placing few, if any, restrictions on corporate political spending. Alabama, Arizona and North Carolina passed paycheck measures in 2011 – though all three bills have been challenged in the courts – while California and New Jersey have upcoming paycheck ballot initiatives.

Deception dominates in the messaging on state bills. California’s paycheck ballot initiative is ludicrously misnamed “Stop Special Interest Money Now.” Backers of the bill, the ultra-conservative Lincoln Club of Orange County, co-produced “Hillary: The Movie,” which led to the Supreme Court’s Citizens United decision. The Lincoln Club welcomed Citizens United as a “victory for free speech,” but now claims that its measure is a balanced effort to remove all special interest money from state elections, to the extent allowed by federal law. In reality, it would undermine the ability of unions to engage in core political activities but have almost no impact on corporate political spending.

This type of obfuscation is central to Republicans’ anti-union strategy. If the party were unable to hide behind deceptive messaging, it would be exposed as a front for the American Legislative Exchange Council and other extreme organizations.

And finally: not one new job has been created by this tsunami of anti-union legislation.

March 26, 2012 Posted by | Labor, State Legislatures | , , , , , , , | 2 Comments

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