What The Jury Said

I have heard damning stories about Monsanto for years, so it didn’t surprise me when Trump’s EPA retreated from Obama-era findings that a chemical in one of the company’s herbicides, glyphosate, is a carcinogen. Glyphosate is a component of  Round-Up, which is widely used; numerous studies have linked that use to cancer, shortened pregnancies and other serious health outcomes.

The EPA may have backed off, but just last month, the Guardian reported a fairly stunning legal victory over the company.

Dewayne Johnson tries not to think about dying.

Doctors have said the 46-year-old cancer patient could have months to live, but he doesn’t like to dwell on death. These days, he has an easy distraction – navigating the international attention on his life.

The father of three and former school groundskeeper has been learning to live with the gift and burden of being in the spotlight in the month since a California jury ruled that Monsanto caused his terminal cancer. The historic verdict against the agrochemical corporation, which included an award of $289m, has ignited widespread health concerns about the world’s most popular weedkiller and prompted regulatory debates across the globe.

Johnson, who never imagined he would be known as “dying man” in dozens of news headlines, is still processing the historic win.

What is especially telling about the verdict is that Johnson–the first cancer victim to sue Monsanto and win– alleged that the company had spent decades intentionally covering up the cancer risks of its herbicide.

The groundbreaking verdict further stated that Monsanto “acted with malice” and knew or should have known that its chemicals were “dangerous”.

Monsanto, of course, has already filed a motion seeking to throw out the verdict– and prevent Johnson’s family from receiving the money. When a David like Johnson faces a Goliath like Monsanto, the eventual odds favor Goliath, and there are indications that the Judge is listening to Monsanto.

That said, deceiving the public about the risks of its products is hardly the only “rap” against Monsanto. I’ve read stories for years about the company’s vendetta against small farmers who save patented seeds they’ve purchased for use in ensuing years.

The agricultural giant Monsanto has sued hundreds of small farmers in the United States in recent years in attempts to protect its patent rights on genetically engineered seeds that it produces and sells, a new report said on Tuesday.

The study, produced jointly by the Center for Food Safety and the Save Our Seeds campaigning groups, has outlined what it says is a concerted effort by the multinational to dominate the seeds industry in the US and prevent farmers from replanting crops they have produced from Monsanto seeds.

In its report, called Seed Giants vs US Farmers, the CFS said it had tracked numerous law suits that Monsanto had brought against farmers and found some 142 patent infringement suits against 410 farmers and 56 small businesses in more than 27 states. In total the firm has won more than $23m from its targets, the report said.

There are also allegations that Monsanto will sue farmers whose fields contain more than one percent of crops grown from seeds that have “blown in” from adjacent fields. I was unable to verify the accuracy of that claim, although I once had a colleague whose father was a farmer, and my colleague claimed his father been targeted in just such a suit.

Fifty-three percent of the world’s commercial seed market is controlled by three firms – Monsanto, DuPont and Syngenta. That amount of power and market dominance undoubtedly has something to do with the EPA’s reversal, despite the conclusions reached by numerous scientists.

Of course, Trump’s EPA doesn’t believe any science. They probably put more stock in voodoo–and they’re probably sticking pins in a doll that looks like Dewayne Johnson now.

Hard Cases And Bad Law

Lawyers have a saying: hard cases make bad law. A couple of pending cases over Net Neutrality offer a good illustration.

A bit of background: One of the many outrages perpetrated by the Trump Administration was the cynical elimination of net neutrality rules by Ajit Pai of the FCC, despite the fact that a huge majority of Americans supported those rules. Pai came to the agency from Verizon, where he’d been an executive; Verizon and other large telecom interests don’t want to be restrained by pesky regulations requiring that they treat internet users equally.

When the FCC eliminated Net Neutrality, more than 20 states filed lawsuits, arguing that the agency had acted arbitrarily. Those lawsuits are supported by companies like Mozilla, trade associations representing Amazon, Facebook and Google, and consumer groups like Free Press and Public Knowledge.

For its part, California responded to the elimination of Net Neutrality by passing a version of its own. On September 30th, The Washington Post reported

California on Sunday became the largest state to adopt its own rules requiring Internet providers like AT&T, Comcast and Verizon to treat all web traffic equally. Golden State legislators took the step of writing their law after the Federal Communications Commission scrapped nationwide protections last year, citing the regulatory burdens they had caused for the telecom industry.

That same Sunday, the Trump Administration announced that it would sue California to block that law, setting up what the Post characterized as a high-stakes legal showdown over the future of the Internet. The administration will argue that only the federal government has the authority to regulate the Internet, and that the reason Congress gave the federal government exclusive authority was to ensure that all 50 states wouldn’t write their own conflicting rules governing the web.

Fair enough. Fifty different regulatory approaches would be a nightmare for ISPs, and arguably impossible to enforce. On the other hand, the  federal government’s actions weren’t just bad policy that ignored the great weight of both expert and public opinion–its nullification of the net neutrality rules arguably constituted yet another gift by the administration to moneyed interests.

When the Justice Department announced that it would sue California, it set up a “lose-lose” “hard cases” scenario. In a sane world, the U.S. would have one comprehensive set of policies governing Internet practices–not 50. But in a sane world, the administration wouldn’t have repealed rules that were widely seen as necessary, reasonable and equitable.

If all this wasn’t bizarre enough, a couple of days ago, the FCC submitted its defense of the repeal in the lawsuit brought by the states by arguing that it had no authority to pass net neutrality rules in the first place.

Chairman Ajit Pai’s FCC argued that broadband is not a “telecommunications service” as defined in federal law, and therefore it must be classified as an information service instead. As an information service, broadband cannot be subject to common carrier regulations such as net neutrality rules, Pai’s FCC said. The FCC is only allowed to impose common carrier regulations on telecommunications services.

That argument would be a tad more convincing if the DC Circuit appeals court hadn’t ruled in 2016 that the rules were legal.

The argument also would seem to complicate the administration’s threatened preemption suit against California; lawyers defending the ability of states to pass rules say the FCC can’t preempt state laws that regulate conduct over which the FCC has no regulatory authority.

Does your head hurt yet? (Mine does.)

The various entities suing the FCC have until November 16 to file reply briefs. Final briefs are due November 27, and oral arguments are scheduled for February 1.

Oh what a tangled web we weave when trying to enrich an administration’s cronies.

People Without Power

I’m old enough to remember the 60s slogan “Power to the People!”  And I’ve lived long enough to see “the people”–at least the people who vote– overpowered.

I’ve written periodically about the various ways in which America’s systems have become undemocratic–about gerrymandering, vote suppression, the Electoral College–but Ezra Klein puts it all together in a truly chilling essay for Vox. 

Brett Kavanaugh was nominated to the Supreme Court by an unpopular president who won 3 million fewer votes than the runner-up. He was confirmed by a Senate majority that represents a minority of the country. He was confirmed despite most Americans telling pollster after pollster they did not want him seated on the Supreme Court.

As Klein points out, a constitutional system built in America’s founding era, structured to address the issues of that era, is currently making the country both less democratic and less Democratic.

Since 2000, fully 40 percent of presidential elections have been won by the loser of the popular vote. Republicans control the US Senate despite winning fewer votes than Democrats, and it’s understood that House Democrats need to beat Republicans by as much as 7 or 8 points in the popular vote to hold a majority in the chamber. Next year, it’s possible that Republicans will control the presidency and both chambers of Congress despite having received fewer votes for the White House in 2016 and for the House and Senate in 2018.

Kavanaugh now serves on a Supreme Court where four of the nine justices were nominated by a president who lost the popular vote in his initial run for office, and where the 5-4 conservative majority owes its existence to Senate Majority Leader Mitch McConnell’s extraordinary decision to deny Merrick Garland a hearing. This Court will rule on the constitutionality of gerrymandering, voter ID laws, union dues, campaign finance, Obamacare, and more; that is to say, they will rule on cases that will shape who holds, and who can effectively wield, political power in the future.

When it is all put together, it amounts to a bloodless coup. (“Bloodless” in the sense that the GOP has taken power without force of arms. Not so bloodless if you think of people who are dying for lack of access to medical care although majorities favor Medicare-for-All, or consider the rising suicide rate being attributed to despair, or factor in the deaths that will occur as a consequence of ignoring climate change.)

Sandy Levenson teaches Constitutional law at the University of Texas, and has been warning about waning democracy and American government’s lack of legitimacy for several years. The article quotes him warning “At some point, people will get so angry that they will either talk about secession or start engaging in more direct measures, whether it takes the form of rioting or violence.”

Klein’s article goes into some detail about the original reasons for our unrepresentative systems–the compromises that were “baked into” the Constitution in order to get it ratified. As he points out, any free political system must determine how to ensure that different interests can engage in balanced competition. The problem in our system is that what we balanced for–large and small states– is no longer what’s competing.

The compromises made to calm the divisions between places is exacerbating the divisions between the parties, as Republicans dominate rural areas while Democrats cluster in urban centers.

By 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.

It is not difficult to imagine an America where Republicans consistently win the presidency despite rarely winning the popular vote, where they control both the House and the Senate despite rarely winning more votes than the Democrats, where their dominance of the Supreme Court is unquestioned, and where all this power is used to buttress a system of partisan gerrymandering and pro-corporate campaign finance laws and strict voter ID requirements and anti-union legislation that further weakens Democrats’ electoral performance.

For those inclined to dismiss this analysis as overheated, Klein says

If this seems outlandish, well, it simply describes the world we live in now, and assumes it continues forward. Look at North Carolina, where Republican legislators are trying to change the state Constitution to gain power over both elections and courts. Look at Wisconsin, where state Republicans gerrymandered the seats to make Democratic control a near impossibility. Look at Citizens United, which research finds gave Republicans a 5 percentage point boost in elections for state legislators. Look at Georgia, where the GOP candidate for governor currently serves as secretary of state and is executing a voter purge designed to help him win office.

Klein references a number of changes that are being proposed, but whatever we might think of those changes, they won’t even be considered unless Democrats can overcome the odds and win control of both the House and Senate.

Pundits are always insisting that whatever election is imminent is “the most important of our lifetime.”

This one is.

Why Genuine Conservatives Are Leaving The GOP

A post to Daily Kos: The Republican party in reality is a broad coalition of White Supremacists, anti-democracy authoritarian fascists, and religious fanatics that can only be described as a cult. The conservatives made a deal with the devil in the 1960’s with the Nixon “southern strategy” to bring in the racists, and then Reagan grabbed the anti-choice people in the 80’s, and finally, Gingrich brought in the anti-democracy fascists where power became the goal at any costs.

https://www.alternet.org/millennial-conservative-leader-explains-why-hes-leaving-trumps-republican-party-after-kavanaugh-vote?src=newsletter1097154