Lindsey

MacKenzie Scott (then Bezos) at an awards ceremony in 2018. | Jörg Carstensen/picture alliance via Getty Images

In the past year, she’s given away $1.7 billion.

A year ago, Jeff and MacKenzie Bezos set records with the world’s biggest divorce settlement. On July 28, MacKenzie Bezos (now MacKenzie Scott) announced that she’s spent the time since aiming to set a much more inspiring record — for how fast she can give the money away.

When the couple divorced in 2019, they were splitting the largest personal fortune in history, estimated at the time at about $145 billion. The couple announced a settlement in April 2019 that left Jeff Bezos 75 percent of his Amazon fortune, while Scott departed the marriage with $35 billion, making her at the time of the announcement the third-richest woman in the world (a recent Forbes ranking now has her at fourth).

Right away, Scott indicated that her approach to philanthropy would be profoundly different from the approach she and Bezos had used as a couple. Jeff Bezos’s forays into philanthropy have been limited. While the wealthiest man in the world, he has not signed the Giving Pledge to eventually donate a significant share of his wealth, and he’s donated a far smaller percentage of it than other ultra-wealthy figures like Bill Gates, Mark Zuckerberg, Warren Buffett, or Mike Bloomberg. When he has given, I’ve criticized his approach for a lack of rigor and clarity.

One month after the divorce, Scott signed the Giving Pledge that Bezos never did. “I have a disproportionate amount of money to share,” she wrote in her pledge letter. “I won’t wait. And I will keep at it until the safe is empty.” And it seems like she’s been acting on that declaration.

MacKenzie Scott’s deeply unusual approach to philanthropy

A year later, she has published an update, and it’s an astonishing one. In the past year, she has donated $1.7 billion to 116 organizations working in areas of interest to her, from racial justice and LGBTQ equality to climate change and global health.

All the organizations listed are established nonprofits, selected, Scott says, for their leadership’s “track record of effective management and significant impact in their fields.” The largest area of grants — $586.7 million — went to organizations working on racial equity, an issue where awareness has grown quickly over the past few months amid protests sparked by George Floyd’s killing by Minneapolis police. Other top priorities included economic mobility ($399.5 million), gender equity, public health, and global development (more on these below).

The total amount — $1.7 billion — is obviously just a fraction of her fortune, but it is deeply unusual for billionaires to give away that much money this quickly, especially without a preexisting organization to do grant research and vetting.

Her methods, too, are unusual. “It was a gift that just fell from the sky,” Jorge Valencia, executive director and CEO of one of those 116 organizations, the Point Foundation, told the Chronicle of Philanthropy. The organization, which offers scholarships to LGBTQ+ students, did not apply for a grant and had no connection to Scott.

And while it’s common for philanthropists to give grants that are restricted for a specific purpose, paid out over the course of several years or conditional on various benchmarks for grant success, Scott says she did none of that. “I gave each a contribution and encouraged them to spend it on whatever they believe best serves their efforts. Unless organization leadership requested otherwise, all commitments were paid up front and left unrestricted to provide them with maximum flexibility,” she wrote in her announcement.

“It’s an interesting contrast to the more technocratic giving of the tech billionaires,” Rob Reich, a Stanford philosopher who writes about the role of philanthropy in society, told me.

Another interesting contrast is the way Scott approached publicizing her giving. The announcement two years ago that Jeff Bezos planned to give $2 billion to education and homelessness charities attracted, Reich says, “fanfare with zero follow-up.” Almost two years later, the website for Bezos’s Day One Fund lists just under $200 million in grants, about 10 percent of the amount initially pledged. Half of the initial pledge was for education, and no progress in this area has been officially announced yet (though Bezos has posted updates on Instagram).

In 2020, Bezos announced on Instagram a planned $10 billion in grants to fight climate change through what he called the Bezos Earth Fund. The Bezos Earth Fund has no website. Bezos’s original Instagram post says that grants will start this summer, though they appear to have not yet started.

All this is not unusual (and it doesn’t suggest that Bezos won’t eventually meet his commitments; he has paid out other grants he’s made, including $100 million to Feeding America for coronavirus relief earlier this year). Typically, philanthropic announcements get widespread coverage even if they are substantially in advance of the actual disbursement of money. And in some cases, money is disbursed to donor-advised funds or other instruments, which means they may take even longer to reach recipients. There is nothing wrong with taking your time to make grants if that means the grants do more good — but it’s easy for delays to mean that givers enjoy all the positive publicity of a major grant long before anyone’s life is improved by it.

Scott, by announcing her gifts only after she’d already disbursed all the money, avoids that pitfall — and could offer a glimpse of a new model of how to give, one that is focused on moving money quickly, not attaching any requirements or conditions, and shifting the power dynamics of the philanthropy world.

Does this model of giving work?

Scott’s fast, massive disbursements and other recent experiments in quickly moving large sums of money to where they are needed, with much less review and fewer application steps than in traditional grantmaking, “weakens the case that giving away $1.7 billion is difficult,” Reich said. “There remains a question about whether it’s difficult to do well.”

Giving away money very quickly with a minimal process does have some disadvantages.

Many charitable interventions don’t work, and the differences between the best organizations and the average organizations can be quite large. It’s reasonable that many funders don’t want to take that chance.

But there’s a good argument that at least some funders should be happy to make lots of grants, many of which may disappoint them anyway. Vetting often adds lots of overhead, delays, and communication problems for charities; a faster process that gets money where it’s needed sooner can make a big difference. In some specific fields (say, scientific research), studies have shown that all the effort-intensive work to find the “best” grants is fairly arbitrary; researchers don’t agree with each other’s rankings at all. In a case like that, you might as well just get money out the door, with minimal vetting — as Scott has done.

And in some areas, like coronavirus relief, getting money to people quickly is really important. If it takes months to make a grant and more months for the money to arrive, it may be too late to help. Scott donated to GiveDirectly, a nonprofit that gives people cash, no strings attached, and which has dramatically expanded its operations this year in order to help people around the world deal with the coronavirus crisis.

Scott’s team reached out to GiveDirectly after having already done their research, GiveDirectly’s managing director Joe Huston told me. Very little staff time was tied up in making the donation happen. (The nonprofit tracks how many resources are expended per dollar raised and said that Scott’s gift was one of the lowest-scoring, on that metric, they could remember.) The money arrived in early June, and 95 percent of it was sent out to recipients within 10 days.

“The pandemic is giving donors experience in handing over the reins in philanthropy,” Huston told me, so that help can reach people as fast as it’s needed. “My hope is that when people are just looking to help, they’ll start with that in general.”

There are other pitfalls to trying to give away money quickly, though Scott avoided many of the biggest ones. Lots of donors making large gifts gravitate toward targets like Stanford, Harvard, or MIT — big research universities with well-staffed donor relations departments that can absorb enormous gifts. (“For the love of God, rich people, stop giving Ivy League colleges money,” my colleague Dylan Matthews wrote after one such mega-gift, and I agree.) Scott donated to several historically Black colleges and universities; in each case, her donation of $20 million to $40 million was the largest single donation in the school’s history.

The money will help ”lift the financial burden off of deserving students and help make ends meet so they can focus on graduating on time,” Howard University said in a statement. “This pure act of benevolence is clearly a game-changer and it could not have come at a better time,” Hampton president William R. Harvey told the HBCU Digest.

In general, picking organizations run by people affected firsthand by the injustices Scott targeted was a priority. “On this list, 91 percent of the racial-equity organizations are run by leaders of color, 100 percent of the LGBTQ+ equity organizations are run by LGBTQ+ leaders, and 83 percent of the gender-equity organizations are run by women, bringing lived experience to solutions for imbalanced social systems,” she wrote in her note announcing the gifts.

That fact might provide a useful lens for evaluating her donations. MacKenzie Scott does not know how to solve racial justice, women’s rights, or LGBTQ+ equality. She just happens to, unlike most of us, be in possession of $35 billion, and so she decided that if she gave much of that money to Black activists and LGBTQ+ activists and women’s activists, probably they would be better suited than she is to figure out how the money could be spent to solve those problems.

The same theme recurs in Scott’s letter and in nonprofits’ descriptions of her process. There wasn’t very much vetting because Scott does not particularly expect that she’s better at vetting than these organizations are. There weren’t restrictions on the grants because Scott does not particularly believe she’s more suited than the recipients to guess what restrictions would be useful. She is “trusting the leaders of the organizations chosen,” Reich told me, “with a very deliberate eye toward leaders with the lived experience of the work they’re doing.”

There’s something deeply inspiring about that. I am in favor of philanthropists putting in the work to identify the most effective approaches to social problems and direct their money with precision where it will do the most good, when they have the resources to do that. I think that work is often well worth the effort.

“There’s room for the bigger foundations, the Bill and Melinda Gates Foundation, that kind of heavyweight model,” Huston told me when I asked whether more philanthropists should be imitating Scott. “But I’m glad there’s more examples, like [MacKenzie] Bezos, like Twitter’s Jack Dorsey,” where philanthropists make donation decisions quickly and trust the decision-making to others.

If you have $35 billion, that fact does not in itself make you qualified to figure out how to fix the world — and if you think that other people are more qualified, you might decide the best plan is to just shovel the money out the door so they can run with it. That seems to be MacKenzie Scott’s approach to philanthropy so far — and a society grappling with the role of billionaires in our world and in our giving should be watching.

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by Marshall Allen

As she waited for the results of her rapid COVID-19 test, Rachel de Cordova sat in her car and read through a stack of documents given to her by SignatureCare Emergency Center.

Without de Cordova leaving her car, the staff at the freestanding emergency room near her home in Houston had checked her blood pressure, pulse and temperature during the July 21 appointment. She had been suffering sinus stuffiness and a headache, so she handed them her insurance card to pay for the $175 rapid-response drive-thru test. Then they stuck a swab deep into her nasal cavity to obtain a specimen.

De Cordova is an attorney who specializes in civil litigation defense and maritime law. She cringes when she’s asked to sign away her rights and scrutinizes the fine print. The documents she had been given included disclosures required by recent laws in Texas that try to rein in the billing practices of stand-alone emergency centers like SignatureCare. One said that while the facility would submit its bill to insurance plans, it doesn’t have contractual relationships with them, meaning the care would be considered out-of-network. Patients are responsible for any charges not covered by their plan, it said, as well as any copayment, deductible or coinsurance.

The more she read, the more annoyed de Cordova became. SignatureCare charges a “facility fee” for treatment, the document said, ranging “between five hundred dollars and one hundred thousand dollars.” Another charge, the “observation fee,” could range from $1,000 to $100,000.

De Cordova didn’t think her fees for the test could rise into the six figures. But SignatureCare was giving itself leeway to charge almost any amount to her insurance plan — and she could be on the hook. She knew she couldn’t sign the document. But that created a problem: She still needed to get her test results.

Even in a public health emergency, what could be considered the first rule of American health care is still in effect: There is no set price. Medical providers often inflate their charges and then give discounts to insurance plans that sign contracts with them. Out-of-network insurers and their members are often left to pay the full tab or whatever discount they can negotiate after the fact.

A portion of the document given to Rachel de Cordova at SignatureCare highlighted by ProPublica describes fees for the “facility” and “observation” that could reach $100,000 each. Obtained by ProPublica

The CARES Act, passed by Congress in March, includes a provision that says insurers must pay for an out-of-network COVID-19 test at the price the testing facility lists on its website. But it sets no maximum for the cost of the tests. Insurance representatives told ProPublica that the charge for a COVID-19 test in Texas can range from less than $100 to thousands of dollars. Health plans are generally waiving out-of-pocket costs for all related COVID-19 treatment, insurance representatives said. Some costs may be passed on to the patient, depending on their coverage and the circumstances.

As she waited, de Cordova realized she didn’t want to play insurance roulette. She changed her mind and decided she’d pay the $175 out-of-pocket for her test. But when the SignatureCare nurse came to collect the paperwork, de Cordova said the nurse told her, “You can’t do that. It’s insurance fraud for you to pay for our services once we know you have insurance.”

Dr. Hashibul Hannan, an emergency room physician, lab director and manager at SignatureCare, told ProPublica his facility is an emergency room that offers testing, not a typical testing site. He said de Cordova should have been allowed to pay the $175 cash price. The staff members were concerned about being accused of fraud because they had already entered her insurance information into the record, he said. So they didn’t want it to appear she was being double-billed. Hannan also said he regrets that she was upset by the disclosure forms that are now required under state law.

Unable to pay cash and unwilling to take a chance on the unknown cost, de Cordova decided to leave without getting the results of her COVID-19 test.

“I Would Have Signed Anything”

Later that day, de Cordova couldn’t get past what happened. She wondered what happened to patients who didn’t read the fine print before signing the packet.

Then she realized she and her husband, Hayan Charara, could investigate it themselves. In June, the couple’s 8-year-old son had attended a baseball tryout. They thought the kids would be socially distanced and that precautions would be taken. But then the coaches had crowded the players in a dugout, with no masks or social distancing, and a couple days later the boy said he wasn’t feeling well.

So just to be safe, on June 12, Charara took their son to the same SignatureCare, the Heights location, for a COVID-19 test. The line was so long they had to wait for hours, go home, come back and wait for hours again in their car in the 100-degree heat. Charara, a poet who teaches at the University of Houston, said he didn’t take a close look at the financial disclosure paperwork. De Cordova wasn’t with them. It had been 10 hours of waiting by the time the boy was tested, so “I would have signed anything,” he said. (The child tested negative.)

Charara, de Cordova and their children are covered by the Employees Retirement System of Texas, a taxpayer-funded benefit plan that covers about half a million people. They hadn’t received any notices about the charges for their son. So they contacted the SignatureCare billing department and asked for an itemized statement. The test charge was indeed $175. But the total balance, including the physician and facility fees associated with an emergency room visit, came to $2,479.

The facility fee was $1,784 and the physician fee $486.

The couple were dumbfounded. Their son’s vital signs had been checked but there had been no physical examination, they said. The interactions took less than five minutes total, and the child stayed in the car. “You’re getting a drive-thru test, and they’re pretending like they’re giving you emergency services,” de Cordova said.

The statement for de Cordova’s son’s evaluation and $175 COVID-19 test came to $2,479 after fees added by SignatureCare. Obtained by ProPublica

The SignatureCare charges shocked experts who study health care costs. Charging $2,479 for a drive-thru COVID-19 test is a “nauseating” example of profiteering during a pandemic, said Niall Brennan, president and CEO of the Health Care Cost Institute, a nonprofit organization that studies health care prices. “It’s one of the most egregious examples of giving the fox the keys to the henhouse I’ve ever seen and yet another example of the absurdity of U.S. health care pricing.

“Imagine a vendor in any other walk of life being allowed to bill a third party for whatever amount they wanted,” Brennan said.

Insurance companies in Texas typically pay between $100 and $300 for drive-thru COVID-19 tests, said Jamie Dudensing, CEO of the Texas Association of Health Plans. But the association’s members have seen hundreds of out-of-network COVID-19 test charges come in far higher, some in the thousands of dollars.

“There’s no excuse for that, especially in a public health crisis,” said Chris Callahan, spokesperson for Blue Cross and Blue Shield of Texas, which likewise has seen high charges for COVID-19 tests from out-of-network providers.

The reimbursement rates negotiated between insurance companies and in-network providers are much lower, but they still vary, according to data provided by the nonprofit FAIR Health, which tracks spending by private insurers. For the same test billed by SignatureCare, an in-network insurer pays a median price of $23 in Utah and $75 in Wisconsin, according to FAIR Health estimates.

Texas is notorious for its high-priced out-of-network emergency bills and free-standing emergency departments. Some of the facilities appear to be using COVID-19 testing to draw in patients so their insurance plans can be charged for additional services, said Blake Hutson, associate state director for AARP Texas, the advocacy organization for older Americans. “It’s not a surprise they would be racking up the charges and adding on everything they can and billing the health plan,” he said.

In some cases, insurers do pay the exorbitant out-of-network charges, Hutson said, but they typically get reduced. In 2019, Texas lawmakers voted to ban billing patients in state-regulated insurance plans for charges not covered by their policy, Hutson said, which is known as “balance” or “surprise” billing. But consumers may still be responsible for any deductibles and other cost-sharing under their health plan. And the costs covered by the health plan get passed back to the consumers over time in the form of higher premiums, he said. “It’s all problematic for the cost of care,” Hutson said.

Hannan defended SignatureCare’s high out-of-network charges by blaming insurance companies for refusing to give what he considers to be fair in-network rates. The charges are a starting point for negotiating a fair deal from out-of-network insurance plans, he said. He described SignatureCare, which has 18 locations, as “small players. When it comes to negotiating with insurance companies, we have no luck.”

Was the Bill Accurate?

The medical record portrays the visit as an emergency and contains details that are not consistent with how Charara and de Cordova describe their son’s condition. The chief complaint in the record is “body fluid exposure,” and elsewhere it says “confirmed COVID exposure.”

But that’s not accurate, according to the parents. No one had coughed or sneezed on their son, and they knew of no one from the tryout who had tested positive for COVID-19, they said. The child’s temperature is registered in the record as 102.8, which is high. But Charara said that could have been caused by sitting in the Texas heat, waiting for the test.

Shelley Safian, a Florida health care coding expert who has written four books on medical billing, examined the bill and medical records of Charara and de Cordova’s son at ProPublica’s request. She said the medical records don’t justify the charges. SignatureCare billed the case as if the exam were an emergency that required an “expanded problem focused history” and “medical decision making of moderate complexity,” she said.

In order to qualify for reimbursement of an exam at that level, the encounter would need to include examining the affected organ system, Safian said. But the medical records do not document any check of the respiratory system, which would be indicated for suspected COVID-19.

Much of the medical record appeared to be cut and pasted from other electronic records, Safian said. “This is boilerplate B.S.,” she said, “and I don’t mean ‘bachelor of science.’”

Hannan, the SignatureCare doctor and manager, stands by the charges associated with the child’s COVID-19 test. The facility has to treat every case like a possible emergency, and that requires an examination, he said. He pointed out that the charges are in line with what other out-of-network providers would charge in the area, according to FAIR Health, though they are far higher than in-network prices.

A doctor’s examination may not be as hands-on during COVID-19, but, similar to a telemedicine visit, a lot can be examined visually, Hannan said. Hannan said the company he uses for coding said COVID-19 requires a higher level of care and vigilance because it’s an infectious disease.

In light of the questions raised by ProPublica and Safian, Hannan said he asked his billing company to audit the charges. Sharon Nicka, president and CEO of Nicka and Associates, the billing company used by SignatureCare, took issue with Safian’s assessment and said the billing codes used were justified by the medical record. She said the charges are high for a drive-thru test, but those are set by SignatureCare.

ProPublica identified several apparent errors and contradictions in the medical record and billing documentation. For example, the notes in the medical record alternatively refer to the boy as “symptomatic” and “asymptomatic.” The record also says the physical exam showed a skin wound that “was not red, swollen or tender,” but the child had no wound of any kind, the family said. And the billing documentation shows a charge for an antibody test when the medical record showed that the patient actually received a diagnostic test, which is something different.

In response to ProPublica’s questions, a SignatureCare medical director reviewed the record. The error about the “wound” may have been caused by a software template adding something that was not in the physician chart, the reviewer wrote. The facility now uses a different template. The charge for the antibody test is likely a billing error, as the physician had ordered the correct test, the reviewer wrote. “We will continue to update and improve our (electronic medical records),” the reviewer said.

Hannan stressed that SignatureCare is upfront with patients about the possible fees associated with its treatment, including the disclosure paperwork and explanations on its website. It’s an emergency room, he said, so patients should expect emergency room fees. Patients who do not have a medical emergency should not come, he said, though the ER allows patients to book appointments a day in advance for a COVID-19 test.

Dudensing, the chief executive of the Texas Association of Health Plans, said she’s heard Hannan’s contention before and it’s true that freestanding emergency rooms have a license that allows them to charge more. But she still believes that they handle many nonemergency cases and are forcing facility fees of thousands of dollars on them. “They’re hiding under the guise of emergency rooms when they’re really dressed-up urgent care,” she said.

Diana Kongevick, director of group benefits for the Employees Retirement System of Texas, said the health plan had only recently received the bill for the 8-year-old’s test. It hadn’t been processed, so she could not speak to it directly. But, in general, the health plan will pay 100% of the cost of the test, in this case $175, she said. The claim would be processed using out-of-network provisions, she said. So for the other charges, the patient may be responsible for paying in the range of $600, she estimated, for the out-of-network copay and deductibles. “This is a nonemergent patient self-referral to an out-of-network provider,” Kongevick said.

“Testing Should Be Free”

Even if the Employees Retirement System of Texas determines that Charara and de Cordova should pay $600 for their son’s test, SignatureCare will not be sending the family a bill, Hannan said. He said insured patients are not being sent bills for COVID-19 treatment beyond what their insurance companies cover.

De Cordova never did get her test results, and she didn’t seek a test elsewhere. She felt better later and now believes she had just been suffering from allergies. But what if it had turned out to be COVID-19, she wondered. Might she have gone on to infect others, she’s asked herself.

From a public health perspective, the haggling about out-of-network charges and payments puts patients in the middle, and it might discourage them from getting tested for COVID-19 during the pandemic, said Stuart Craig, an economist at the University of Pennsylvania who studies health care costs. “It’s another part of the fragmentation of the health care system that makes patients’ lives miserable,” Craig said.

It’s especially frustrating, he said, because COVID-19 testing is so essential to making it safely through the pandemic. Craig said he believes there should be a nationally mandated price and government subsidies to make sure medical providers and manufacturers are motivated financially to provide tests. “Testing should be free,” Craig said. “In fact, we should probably be paying patients to get tested.”

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Update: Sooo... we already have a bunch of updates on this story. Trump has said he's banning TikTok entirely and is "against" allowing a US company to buy TikTok. Below is the original post, with only a slight clarification regarding Ben Thompson's thoughts on TikTok, which I didn't present very clearly in the original. Then, beneath the post I'll have more thoughts on Trump's comments.

There's been a panic over the last few weeks about TikTok, the rapidly growing social network that is owned by the Chinese internet giant ByteDance (by way of history: ByteDance purchased a startup called Musical.ly in 2017, and rebranded it TikTok in 2018, and then it started growing like crazy). A few weeks ago, the Trump administration started suggesting it would ban TikTok, and a story was built up around the idea that TikTok was some sort of national security threat, despite very little evidence to support this. A separate narrative was simply that Trump was annoyed that TikTok kids made Trump look bad in Tulsa by reserving a bunch of tickets to his rally that they never intended to use.

Either way, it was announced today that the Trump administration was likely to order ByteDance to shed TikTok and immediately with that was the news that Microsoft was a likely buyer.

The whole thing is kind of silly. The most compelling argument I've seen for why the US should ban TikTok came from Ben Thompson at Stratechery, who more or less says (this is a very simplified version of his argument, so read the whole thing) that since China is engaged in a war to impose its ideology on the world, and that it will make use of TikTok and other services to effectively attack Western liberalism, it is effectively dangerous to allow it to operate in the west under Chinese ownership. He supports selling TikTok off to a American company, or barring that, banning the app in the West. I tend to lean the other way: to me, banning TikTok strikes me as effectively proving China's views on liberalism, and allowing them to claim hypocrisy on the west, and use these actions to justify its own actions.

On top of that, if the concern is about China, then the fact that most of our network and computer equipment is built in China would seem like maybe a larger concern? But beyond a weird, similar freakout about Huawei, no one seems to be taking any serious interest in that. And that doesn't get into the fact that US intelligence has leaned heavily on US internet companies to try to get access to global data -- meaning that there does seem to be a bit of US exceptionalism built into all of this: it's okay when we do it, but an affront if any other government might do the same thing...

Separately, this whole situation with TikTok and Microsoft demonstrates the pure silliness of the antitrust hearing in the House earlier this week. Note that there were claims that the four companies there represented "monopoly power." And yet, just days later, we're talking about how a recent entrant in the market, which has grown up quickly, and which Facebook certainly sees as a threat, is so powerful on the internet that it needs to be sold from its Chinese owners -- and the leading candidate to purchase it, Microsoft, is not even one of the "too powerful" companies who were on the panel.

If a new entrant can rise up so quickly to be a "threat" and then needs to be purchased by another giant... it certainly suggests that the internet market still remains pretty vibrant, and not at all locked down by a few monopolies.

Updated thoughts: So that's the original above. Now that Trump is saying he really is going to ban TikTok and is against its sale, there are multiple issues raised. Trump seems to think he can do this under his emergency economic powers (effectively declaring TikTok to be a national security issue -- the same "tool" he used to impose tariffs on China without Congressional approval). If he goes that route, there will be lawsuits -- and there will be significant Constitutional issues raised. The Supreme Court has in the past declared software speech, in Brown v. Entertainment Merchants Association (the case about whether or not the government could regulate video games and require age warnings). And, in the 2nd Circuit, a somewhat frustrating decision regarding the publishing of some code that would break DRM, Universal v. Corley, it is at least notable that the Court made a clear statement that software is protected under the 1st Amendment:

Communication does not lose constitutional protection as "speech" simply because it is expressed in the language of computer code. Mathematical formulae and musical scores are written in "code," i.e., symbolic notations not comprehensible to the uninitiated, and yet both are covered by the First Amendment. If someone [*446] chose to write a novel entirely in computer object code by using strings of 1's and 0's for each letter of each word, the resulting work would be no different for constitutional purposes than if it had been written in English. The "object code" version would be incomprehensible to readers outside the programming community (and tedious to read even for most within the community), but it would be no more incomprehensible than a work written in Sanskrit for those unversed in that language. The undisputed evidence reveals that even pure object code can be, and often is, read and understood by experienced programmers. And source code (in any of its various levels of complexity) can be read by many more. Ultimately, however, the ease with which a work is comprehended is irrelevant to the constitutional inquiry. If computer code is distinguishable from conventional speech for First Amendment purposes, it is not because it is written in an obscure language.

And, later:

Computer programs are not exempted from the category of First Amendment speech simply because their instructions require use of a computer. A recipe is no less "speech" because it calls for the use of an oven, and a musical score is no less "speech" because it specifies performance on an electric guitar. Arguably distinguishing computer programs from conventional language instructions is the fact that programs are executable on a computer. But the fact that a program has the capacity to direct the functioning of a computer does not mean that it lacks the additional capacity to convey information, and it is the conveying of information that renders instructions "speech" for purposes of the First Amendment.

There were other issues with that case, but it remains law in the 2nd Circuit. TikTok suing over being banned would present an interesting 1st Amendment issue at the very least.

As to whether or not Trump could block the sale to a US company -- ordinarily the answer to that should also be no, with a few caveats. However, as was recently revealed in Congress, the Bill Barr-lead DOJ appears to have no problem at all weaponizing its powers against companies the President is annoyed with -- meaning that the DOJ could trump up some ridiculous excuse for why TikTok cannot be sold to an American company, and it's possible a court would buy it.

On a related noted, it's also entirely possible that the President would try to lean on both Apple and Google to remove TikTok from their app stores. And while I'd like to believe both companies would push back -- the fact that there are realistically just those two bottlenecks to blocking TikTok entirely from the country, it could also get... interesting.

I get the feeling we'll be writing about all of this for quite some time.

Maryland Department of Labor announces 13 weeks of extended unemployment benefits

Maryland Department of Labor announces 13 weeks of extended unemployment benefits

Speaker of the House Nancy Pelosi (D-CA), Senate Majority Leader Senator Mitch McConnell (R-KY), and Senate Minority Leader Chuck Schumer (D-NY) speak at the Capitol. | Brendan Smialowski-Pool/Getty Images

Congress is still at an impasse as millions see a sharp drop in their unemployment benefits.

Enhanced unemployment insurance — a key lifeline for millions of workers during the Covid-19 pandemic — has now lapsed, with no clear indication of when it might be renewed.

And in a delay that’s surprising even for Congress, lawmakers’ talks over extending the weekly $600 boost in UI — and approving broader stimulus — remain stalled. As a result, nearly 32 million people are set to see a sharp drop in their UI benefits this week. And depending on the state, weekly UI support could be reduced by as much as 93 percent, CNBC reported July 30.

Congress is also planning to leave for August recess this Friday, putting a tight time frame on next steps. Whether lawmakers are able to reach an agreement by then depends on Democrats and Republicans working through their differences on the scope of the stimulus, as well as Senate Republicans addressing dissent within their own conference.

Thus far, Senate Republicans have been a major source of delays. While House Democrats passed another round of stimulus in May, for example, Senate Republicans didn’t even introduce a bill until last week. And even then, internal GOP fractures over the need for more funding have limited Republicans’ ability to present a united front, further muddling negotiations.

“We’re trying to get them to a coherent position,” Senate Minority Leader Chuck Schumer said last July 29. “We don’t even know what their position is. One senator says one thing. One senator says another. The president says ‘this’ one day. The president says ‘that.’”

Late Thursday, July 30, the White House made a last-ditch attempt at approving a short-term extension of the UI program, which Democrats rebuffed as an attempt by Republicans to get out of doing something more comprehensive. Republicans now argue that Democrats are blocking progress on UI, while Democrats decry the maneuver as a way to avoid confronting the need for broader stimulus.

“They never have understood the gravity of it,” Speaker Nancy Pelosi said Thursday. Congressional lawmakers, as well as Treasury Secretary Steven Mnuchin and White House Chief of Staff Mark Meadows, are poised to continue negotiations in the coming days as they seek to find an agreement on UI, funding for states, and liability protections for businesses.

In the meantime, millions of people are left wondering what’s next.

How we got here

Republicans have been dragging their feet on stimulus for weeks.

Although Democrats approved the HEROES Act — their opening bid for the next package, which included a six-month extension of the $600 weekly UI expansion — more than 10 weeks ago, Republicans have long argued that the economy will recover on its own as states reopen.

“I think conditions are definitely going to improve. We’ve seen the virus take down the best economy in the world, but it looks like it’s pretty resilient and starting to come back,” Sen. John Cornyn (R-TX) told Politico in early June.

Because of this, Republicans weren’t interested in considering more stimulus until it became it impossible to ignore that state reopenings weren’t going as planned in July, due to a resurgence in coronavirus cases. Even then, members who were worried about the national debt remained unconvinced.

“The majority of Republicans are now no different than socialist Democrats when it comes to debt,” Sen. Rand Paul (R-KY) wrote in a July tweet criticizing Republican spending plans.

Given the dissent within the party, it wasn’t until Tuesday, July 28, that Senate Republicans unveiled pieces of their bill, the HEALS Act, which would authorize another round of stimulus checks and a reduced UI expansion aimed at matching 70 percent of a worker’s preexisting wages.

According to Sen. Lindsey Graham (R-SC), many Republicans aren’t expected to get on board with this narrower proposal, either. “Half the Republicans are going to vote ‘no’ to any more aid,” Graham said during a Fox News appearance in July. “That’s just a fact.”

As Senate Republicans have been grappling with their differences, the White House has focused on pushing its own priorities. While McConnell has repeatedly highlighted liability protections for businesses as an important redline, for example, the White House has signaled a willingness to approve a deal without them, according to the Washington Post. Additionally, the administration has sought the inclusion of unrelated measures like funding for a new FBI building, which McConnell has since opposed.

Ultimately, Republicans’ disjointed front led to a slew of negotiations that didn’t really go anywhere.

In recent days, the White House has sought to cast blame on Democrats by framing them as obstructionists for rejecting a temporary extension of UI support, a message that Meadows pushed on July 30.

“It surprises me that when we talk about compassion and caring about those that truly are in need, that a temporary solution to make sure that unemployment — enhanced unemployment — continues has been rejected not once but multiple times,” Meadows told reporters.

Democrats, however, worry that agreeing to a short-term extension means there won’t be any urgency for Republicans to consider a more comprehensive stimulus package — which the economy still needs. Pelosi noted that Democrats were reluctant to back a short-term proposal, with no larger compromise on the horizon.

“There would be a time for that — if we had a bill. What are we going to do in a week?” she said Friday.

Moreover, because final negotiations had been pushed so close to the July 31 expiration of enhanced UI, it would have been weeks before states could actually implement the extension. That’s not to say lawmakers shouldn’t have considered one; it speaks more to the fact that Republicans delayed acting for so long that UI recipients would have faced a gap in benefits no matter what.

For any bill to pass Congress, both Republicans and Democrats will have to buy in. The legislation will require the agreement of the majority of House Democrats, as well as the support of at least seven Senate Democrats, if the Republican caucus sticks together. Since Senate Republicans are expected to split on stimulus, it’s likely they’ll need even more Democratic support to get anything through this week.

There’s a lot at stake in this stimulus bill

The extension of unemployment insurance is just one of a long list of things that are at stake in the next stimulus bill. Funding for states and more coronavirus testing, as well as another round of stimulus checks, are among a slew of pressing provisions that lawmakers still need to work through.

Since it lapsed, the focus on UI has been front and center.

UI support has helped curb or halt a surge in the country’s poverty rate, per a study by researchers at the University of Chicago. And according to the Committee for a Responsible Federal Budget, both supplemental UI and the first $1,200 stimulus check expanded people’s disposable income from 5 percent to 7 percent between February and May.

This support has helped maintain a healthy level of consumer spending, which has, in turn, bolstered roughly 5 million jobs, the Economic Policy Institute found. If the enhanced UI fully lapses in the coming month, the fallout for individual households and the broader economy will be significant.

House and Senate Democrats are also intent on this coronavirus funding package targeting aid to states, cities, and towns, many of which had to dial up their own spending to try to curb the virus even as revenue from lost sales and income taxes dried up.

“The last recession felt like running down a hill,” Phoenix Mayor Kate Gallego told Vox’s Emily Stewart in April. “This one feels like falling off a cliff, it happened so quickly.”

Skip ahead to July, and the situation is still bleak. Far from Covid-19 infections falling in the US, multiple hot spots have broken out around the country. The US has over 4.6 million confirmed cases, and more than 154,000 people have died, according to Johns Hopkins’s tracker. Yet with Congress stalling on a new bill, states are getting no new federal assistance, forcing many to consider cuts to other social services, including funding for public schools and universities. Money for public education support has never been more critical; some schools and colleges are set to open up at the end of the summer, while more will start the year with remote school.

The new stimulus, too, is intended to contain funding to help schools cover the necessary protections and precautions needed for reopening, as well as more money for both coronavirus testing and contact tracing, which will be crucial to get the public health crisis under control.

There are major implications for the general election

With the general election just months away, the pressure is growing on both parties to reach a deal.

Democrats may be able to point to the Republican delay thus far, but both parties are poised to face immense pushback from the public if stimulus continues to stall. And President Donald Trump will have to navigate voter backlash if economic conditions don’t improve. According to polling by CNBC/Change Research, 62 percent of voters in battleground states support extending enhanced unemployment insurance.

The stimulus limbo could also have a notable impact on the operations of the election itself, since states desperately need more funding to help facilitate vote-by-mail and other changes forced by the pandemic.

States also have to figure out how to run their elections in an unpredictable year with little assistance from the feds. The summer primaries have painted a worrisome picture: Many states are woefully underprepared for a 2020 general election in the age of Covid-19. States that have had universal vote-by-mail or no-excuse absentee voting in prior years should be in a better position to handle the high turnout of a presidential year. But it will be more difficult for states that are moving to no-excuse absentee voting for the first time to get up to speed and hold safe in-person elections by November 3.

“They almost have to run two elections instead of just one. It’s quite the challenge,” elections expert Ned Foley, a constitutional law professor at the Ohio State University Moritz School of Law, recently told Vox. “Looking at the primaries, unfortunately they show we have serious capacity challenges we are not yet ready for and we are really running out of time.”

With in-person voting, the main challenges have to do with staffing and physical space. Poll workers tend to be older or retired, and some are choosing not to volunteer at their polling place for fear of contracting Covid-19. This has caused some states and municipalities to close certain polling locations, which results in long lines at the places remaining open.

States trying to adapt to vote-by-mail systems in a short amount of time need to secure contracts with third-party vendors to print ballots, envelopes, and instructions for voters. States that are new to the system may also need to purchase costly equipment to scan and count votes in a timely manner because they simply don’t have enough people to process a crush of returned ballots.

The primaries so far have shown tremendous appetite from voters to cast their ballots by mailing an envelope. In the 2020 primary, Georgia saw nearly 1.5 million requests for absentee ballots, according to the Georgia secretary of state’s office. In the 2016 presidential primary, the state got just 45,000 requests for absentee ballots, according to a Brennan Center report.

Worries also abound about the state of the US Postal Service, which is chronically in debt due to a 2006 law mandating it prepay its employees’ retiree benefits. The Post Office has asked Congress for financial help to no avail; Republicans seem intent on cutting costs there instead of giving it more money. Elections experts fear that recent changes to the USPS mail delivery times ordered by Trump donor and new Postmaster General Louis DeJoy could cause further delays for Americans casting their ballots absentee.

“For tens of millions of Americans, they’ll have their ballot handed to them by a postal worker, not a poll worker,” Tammy Patrick, a senior adviser on elections at the nonpartisan foundation Democracy Fund, recently told Vox. “They’re not getting the same sort of support from Congress and from the administration that we’re seeing fast-food restaurants get or some of these other service providers and markets.”

Congress allocated $400 million to states in the CARES Act it passed this spring, but many states spent most of their money to prepare for their summer primaries, and Congress has yet to pass more federal funds to help them prepare for the election by recruiting younger poll workers and expand their absentee mail capacity.

“It’s not that we’re doing five extra things with the money, it’s more of the things we’re doing now,” Minnesota Secretary of State Steve Simon told Vox. “To minimize the risk of something going wrong, more resources would be appreciated.”

Although Democrats had allocated $4 billion in the Heroes Act to help states on this matter, Republicans have shown little appetite for boosting election funding. And without bipartisan agreement on the issue, states may be left on their own to figure out how to safely and securely conduct an unprecedented election.

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President Trump is reportedly expected to issue an order compelling social media app TikTok to sell its US operations. | Anna Moneymaker/Getty Images

It looks like concerns over the company’s Chinese ownership have real consequences.

It looks like the Trump administration is getting tougher on TikTok, the wildly popular social media app that’s best known as a place for teens to post short videos, amid mounting national security concerns about the app’s relationship with the Chinese government. According to Bloomberg, President Trump plans to sign an order compelling TikTok’s parent company, Chinese-based ByteDance, to sell its US operations. Some are floating Microsoft as a potential buyer.

Trump’s order would reportedly direct ByteDance to divest from the US-based TikTok, last valued at around $80 billion, most likely by selling to another company. US Treasury Secretary Steven Mnuchin confirmed that the app was under government review on Wednesday, and that a recommendation would come by the end of the week. A government decision that forces TikTok to sell would be a game changer for the social media industry and would threaten to disrupt the app’s extraordinary rise in popularity with its some 80 million users in the US, many of them young. And for established US social media giants Facebook and Google, the decision could significantly weaken their fiercest new competitor.

For months, Trump and other politicians have raised concerns about TikTok as a potential national security threat, worrying that the company could censor content or access user data at the behest of the Chinese Communist Party. TikTok has denied taking orders from the Chinese government to moderate content, and said it maintains all of its American user data outside of China, in either the US or Singapore. But reports last year indicated that TikTok was seemingly censoring content related to the Hong Kong protests, as well as other topics that are controversial with the Chinese government like Tiananmen Square and Tibetan independence. These reports have fueled US government suspicions, particularly as China has been expanding its surveillance state in recent years and US-China diplomatic relations have cooled.

Republicans have escalated their attacks on TikTok this summer, with some bipartisan support from Democrats as well. On Thursday, Sens. Richard Blumenthal (D-CT) and Josh Hawley (R-MO) sent a letter to the Justice Department demanding that the agency open an investigation into TikTok and Zoom over reported violations of “Americans’ civil liberties” and national security concerns about relationships between these companies and the People’s Republic of China. This followed statements in July from Trump and US Secretary of State Mike Pompeo, who both said the Trump administration was considering banning TikTok altogether. While the plan reportedly being considered wouldn’t amount to a ban, an order from President Trump would significantly disrupt TikTok’s business by forcing its ownership to change hands.

That could have negative consequences beyond the people running TikTok, too. The move threatens to jeopardize the success of an app that’s had a meteoric rise from a relative underdog to one of the most downloaded apps in the world. And since TikTok is one of the only recent social media startups to compete with tech giants like Facebook, weakening TikTok could further reinforce what many argue is the monopolistic nature of the US tech economy.

“While we do not comment on rumors or speculation, we are confident in the long-term success of TikTok,” a spokesperson for TikTok told Recode, adding that the company is “committed to protecting their privacy and safety as we continue working to bring joy to families and meaningful careers to those who create on our platform.”

Here’s a breakdown of what’s going on and what’s expected next.

How this would work

You may be asking how Trump can force a company as popular as TikTok to sell off. The answer is complicated and bureaucratic.

If what’s being reported is true, Trump would issue the order for ByteDance to divest from TikTok through the Committee on Foreign Investment in the United States (CFIUS), an interagency committee that reviews foreign acquisitions and investments in US businesses that can threaten national security. The committee, which is chaired by Mnuchin, has the power to block or reverse mergers and acquisitions involving US and foreign companies.

Increasingly, the agency has been exercising its authority over foreign-owned tech companies operating in the US. Last year, CFIUS helped block one of the biggest deals in tech history, after Trump followed its recommendations to stop Singapore-based Broadcom to halt its acquisition of the US semiconductor company Qualcomm. The committee also forced Chinese owners to divest from the dating app Grindr and the health startup PatientsLikeMe.

But as Brookings fellow Geoffrey Gertz has written, tech companies weren’t always the target of CFIUS. In the past, the committee “tended to focus on companies with military or intelligence connections,” but more recently, personal data and high-tech intellectual property are of greater concern.

Last year, CFIUS started investigating ByteDance, which had purchased the Chinese-owned lip-sync video platform Musical.ly in 2017 and then rebranded and launched a similar app in the US under the name TikTok. When that investigation comes to a close, the committee’s recommendations will reportedly lead to Trump’s order for ByteDance to sell TikTok or divest its US operations.

It’s unclear how CFIUS would enforce a potential unwinding of ByteDance and TikTok, but last year, the committee issued a $1 million fine to an undisclosed company for not following through on a mitigation agreement, its first penalty of that kind.

What comes next

If Trump decides to order ByteDance to divest in it, that doesn’t mean TikTok as we know it will simply shut down in the US. TikTok is a valuable brand in a lucrative industry. Instead, the company behind the app will likely change ownership.

If TikTok is compelled to sell its US operations, it needs to find a buyer. And while tech giants like Facebook or Google might otherwise jump at the chance to buy a fierce rival, the current antitrust scrutiny they face could make it difficult for them to do so. Which is where Microsoft may come in.

Unlike the other major tech companies, Microsoft does not have a major stake in the social media space, which could put regulators at ease, making the deal more likely to get approved. Then again, Microsoft is a dinosaur by tech company standards, and its involvement could be seen as a kiss of death for TikTok, the ingenue of social media.

But if Microsoft runs it well, TikTok could continue to grow, and with the backing of a major US tech company, it might more seriously take on other social media companies, including Facebook. And Microsoft is by no means the only option — other firms could try to buy TikTok.

It’s too soon to say who exactly will end up buying TikTok’s US operations. In the meantime, there are plenty of Clippy jokes to make.

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There's been a panic over the last few weeks about TikTok, the rapidly growing social network that is owned by the Chinese internet giant ByteDance (by way of history: ByteDance purchased a startup called Musical.ly in 2017, and rebranded it TikTok in 2018, and then it started growing like crazy). A few weeks ago, the Trump administration started suggesting it would ban TikTok, and a story was built up around the idea that TikTok was some sort of national security threat, despite very little evidence to support this. A separate narrative was simply that Trump was annoyed that TikTok kids made Trump look bad in Tulsa by reserving a bunch of tickets to his rally that they never intended to use.

Either way, it was announced today that the Trump administration was likely to order ByteDance to shed TikTok and immediately with that was the news that Microsoft was a likely buyer.

The whole thing is kind of silly. The most compelling argument I've seen for why the US should ban TikTok came from Ben Thompson at Stratechery, who more or less says (this is a very simplified version of his argument, so read the whole thing) that since China mostly bans US apps and services within its Great Firewall, there's an uneven playing field. I tend to lean slightly the other way: that supporting more freedom is a better approach. It feels like banning TikTok or forcing a sale is stooping to their level, and even validating their approach. And that worries me. And, yes, in the short run it puts us at a slight disadvantage on the global playing field, but frankly, US internet companies are still doing pretty damn well. The idea that we need to force a sale like this sets a questionable and potentially dangerous precedent -- suggesting we don't think that American firms can really compete.

On top of that, if the concern is about China, then the fact that most of our network and computer equipment is built in China would seem like maybe a larger concern? But beyond a weird, similar freakout about Huawei, no one seems to be taking any serious interest in that. And that doesn't get into the fact that US intelligence has leaned heavily on US internet companies to try to get access to global data -- meaning that there does seem to be a bit of US exceptionalism built into all of this: it's okay when we do it, but an affront if any other government might do the same thing...

Separately, this whole situation with TikTok and Microsoft demonstrates the pure silliness of the antitrust hearing in the House earlier this week. Note that there were claims that the four companies there represented "monopoly power." And yet, just days later, we're talking about how a recent entrant in the market, which has grown up quickly, and which Facebook certainly sees as a threat, is so powerful on the internet that it needs to be sold from its Chinese owners -- and the leading candidate to purchase it, Microsoft, is not even one of the "too powerful" companies who were on the panel.

If a new entrant can rise up so quickly to be a "threat" and then needs to be purchased by another giant... it certainly suggests that the internet market still remains pretty vibrant, and not at all locked down by a few monopolies.

Four ways America’s system of government is rigged against democracy (and Democrats).

The United States came within inches of an anti-democratic disaster in 2020.

Nearly 160 million Americans voted in the 2020 presidential election, and President-elect Joe Biden won over 81 million of these votes — winning a clear majority and defeating outgoing President Donald Trump by 4.5 percentage points in the national popular vote.

Yet Biden’s margin of victory in three crucial states — Georgia, Arizona, and Wisconsin — was harrowingly close. If a total of 43,000 Biden voters in those states had not voted in the election, Trump would have won a second term under the rules laid out in our Constitution.

In the House of Representatives, Democratic candidates also received a clear majority of all ballots cast — 50.8 percent — and Democratic House candidates defeated their Republican counterparts by 3.1 percentage points in the national popular vote. Yet Democrats lost a dozen seats, and barely held on in a few others, with one race still uncalled. If Republicans had picked up half a dozen more seats, they would have captured the House.

Mark Wilson/Getty Images

And then there’s the Senate. When Senators-elect Raphael Warnock (D-GA) and Jon Ossoff (D-GA) are sworn in, each party will control 50 seats in the Senate. But the Democratic half will represent 41,549,808 more people than the Republican half. In November, moreover, Ossoff barely held his Republican opponent, former Sen. David Perdue, under the threshold that forced Perdue into a runoff election that he lost. If a few thousand more voters had turned out for Perdue, Republicans would control the Senate.

Solid majorities of the nation, in other words, voted for a Democratic White House, a Democratic House, and a Democratic Senate. And yet Republicans nearly walked away with control of all three.

This anti-democratic system deserves at least some of the blame for the violent siege of the US Capitol by a Trump-supporting mob last week. If the United States chose its presidents in free and fair elections — awarding the office to the candidate preferred by the voters — Donald Trump would have never become president and he wouldn’t have spent the last four years with the bully pulpit that comes with that office.

And Trump’s lies that the 2020 election was somehow stolen from him would have been even more implausible if he was demanding that enough ballots be tossed out to overcome Biden’s 7 million vote lead in the national popular vote. The phantom fears of a stolen election — fears that drove nearly 150 Republican lawmakers to try to invalidate Biden’s victory and that encouraged sitting United States senators to rile up a violent mob — would have been even more transparently ridiculous in a nation without the Electoral College.

The system is rigged. It was rigged from the outset, quite intentionally, to favor small states. Under current political coalitions, that’s become an enormous advantage for Republicans. The country’s framers obviously could not have known that they were creating a system that would give Donald Trump’s party an unfair advantage over Hillary Clinton’s party more than two centuries later — and that would allow Trump to become president despite losing the popular vote by nearly 3 million ballots in 2016. But the framers did create a system that favors small states over large states.

That means that a political coalition that is largely powered by voters in dense, urban areas — like, say, modern-day Democrats — are at a terrible disadvantage under this constitutional arrangement. (And, to be clear, the system would be just as anti-democratic if it put Republicans at a disadvantage instead.)

Republicans, meanwhile, take their unfair advantage and build on it by gerrymandering the states they control, using their Senate “majority” to fill the courts with Republican judges, and then using their control of the judiciary to bolster their own party’s chances in elections.

This is how United States now finds itself barreling toward a legitimacy crisis.

Four features of our anti-democratic democracy

Broadly speaking, there are four features of our system of government that make our democracy less democratic, many of them working in interlocking ways. These features also happen to give the GOP a structural advantage.

1) The Senate is deeply unrepresentative of the country

According to 2018 Census Bureau estimates, more than half of the US population lives in just nine states. That means that much of the nation is represented by only 18 senators. Less than half of the population controls about 82 percent of the Senate.

It’s going to get worse. By 2040, according to a University of Virginia analysis of census projections, half the population will live in eight states. About 70 percent of people will live in 16 states — which means that 30 percent of the population will control 68 percent of the Senate.

Once all of its members are sworn in, Democrats and Republicans will each control an equal number of seats in the Senate, but the Democratic half will represent nearly 42 million more people than the Republican half. The 25 most populous states contain about 84 percent of the population, and Democrat senators have a 29-21 majority in those states. Republicans, meanwhile, have an identical 29-21 majority in the 25 least populous states.

Republicans, in other words, have equal representation in the Senate because of their strength in thinly populated states that make up about 14 percent of the nation. Those small states tend to be dominated by white voters who are increasingly likely to identify with the Republican Party.

Senate malapportionment is a relic of an unstable alliance among 13 young nations. As Yale law professor Akhil Amar explains, the Articles of Confederation that preceded the Constitution were “an alliance, a multilateral treaty of sovereign nation-states.” The Constitution did not simply change the rules that governed an existing nation; it bound 13 independent and sovereign states together.

William Thomas Cain/Getty Images

The Founding Fathers came together at Philadelphia to achieve union at nearly any cost, because they wanted to avoid the persistent warfare that plagued Europe. Without a union, Amar says, “each nation-state might well raise an army, ostensibly to protect itself against Indians or Europeans, but also perhaps to awe its neighbors.”

Nor was this merely a hypothetical concern. When large states proposed a fair legislature, where each state would be given seats proportional to its population, Delaware delegate Gunning Bedford literally threatened that his state would make war on its neighbors. “The large states dare not dissolve the Confederation,” Bedford insisted, or else “the small states will find some foreign ally of more honor and good faith.”

This is why we have a Senate: In a negotiation among 13 sovereign nations, each of these nations may demand equality as the price of union. Whatever the wisdom of this devil’s bargain in 1787, America is a very different place today. There is little risk that Utah will make war on Colorado, or that New Hampshire will invade Vermont.

Instead, we are heading toward a future where — barring some kind of major partisan realignment — the Senate will routinely feature a majority that represents far less than half of the nation as a whole. In the current Senate, the Republican “majority” represents about 15 million fewer people than the Democratic “minority.” And if current trends continue, the Republican advantage is likely to grow.

A common defense of our current arrangement is that Senate malapportionment wards off a “tyranny of the majority.” As the Heritage Foundation’s Edwin Feulner argues in a piece that’s fairly representative of Senate defenders, malapportionment “keeps less-populated states from being steamrolled.”

But there’s no reason to believe that residents of small states, as a class, make up a coherent interest group whose political concerns are in tension with residents of large states. The residents of Vermont (population: 623,989) vote more like the residents of New York (population: 19,453,561) than they do like the residents of Alaska (population: 731,545). The people of Wyoming (population: 578,759) vote more like the people of Texas (population: 28,995,881) than they do like the people of Delaware (population: 973,764).

There are over 20,000 more farms in California than there are in Nebraska. There are rural regions in large states. And there are some urban centers in small states.

There’s another factor to consider when thinking about the small state advantage: race. The Senate does not simply give extra representation to small states, it gives the biggest advantage to states with large populations of white, non-college-educated voters — the very demographic that is trending rapidly toward the GOP.

Data for Progress

Republican dominance of the Senate is a relatively recent occurrence; Democrats, after all, held a supermajority in the Senate as recently as 2009. Yet the GOP’s dominance is also likely to remain durable for as long as many white voters continue to sort into the Republican Party. The Democratic supermajority in 2009 was made possible by Democratic senators in places like Nebraska, North Dakota, and South Dakota. It’s tough to imagine any of those states electing a Democrat so long as America’s current political coalitions remain stable.

Of course, Democrats could try to buck this trend by becoming more like Republicans. They could shift their positions to appeal to the whiter, more socially conservative voters that dominate many of the smaller states. But that’s hardly a solution for the majority of voters that support the Democratic Party’s current positions, who would become even more isolated from power.

And there’s one other point that’s worth making here. Two years ago, Neil Gorsuch made history, becoming the first member of the Supreme Court in American history to be nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country. The second was Brett Kavanaugh. The third was Amy Coney Barrett.

Similarly, Senate malapportionment also allowed Republicans to hold the late Justice Antonin Scalia’s vacant seat open until Trump could fill it. When Scalia died in 2016, Republicans had a 54-46 majority in the Senate, despite the fact that Democratic senators represented about 20 million more people than Republicans in 2016.

Malapportionment, in other words, does not simply give Republicans an undemocratic advantage in the Senate. It also gave them control of the courts.

2) The next winner of the Electoral College could lose the popular vote by as much as 6 percentage points

The best case for the Electoral College was offered by Alexander Hamilton in the Federalist Papers. The choice of a president, Hamilton wrote, “should be made by men most capable of analyzing the qualities adapted to the station.” Such a process, Hamilton assured us, “affords a moral certainty” that “the office of President will never fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications.”

Hamilton’s argument is refuted by three words: “President Donald Trump.”

Setting aside the fact that the Electoral College is the reason why a man who is not in any degree endowed with the requisite qualifications is in the White House, the Electoral College is not capable of achieving Hamilton’s stated goal. The people who make up the Electoral College are rarely “men most capable of analyzing” who would be an excellent president. They are typically partisan loyalists, selected by their party to perform one and only one task: robotically voting for whoever the party nominated to be president.

To date, this system has allowed five men who lost the popular vote to become president— Trump, George W. Bush, Benjamin Harrison, Rutherford B. Hayes, and John Quincy Adams. Barring a political realignment, it’s likely that such “inversions” will become more common (as they already have in the past couple decades). A recent study by three researchers from the University of Texas found that “a 3.0 point margin favoring the Democrat (i.e., 48.5% Republican vote share, or a gap of about 4 million votes by 2016 turnout) is associated with a 16% inversion probability.”

In other words, a Democrat could potentially win the popular vote by as much as 6 percentage points and still lose the Electoral College to a Republican.

Michael Geruso, Dean Spears, and Ishaana Talesara

A more modern defense of the Electoral College is similar to the conservative defense of the Senate. The Electoral College, according to Heritage’s Hans von Spakovsky, “prevents candidates from winning an election by focusing only on high-population urban centers (the big cities), ignoring smaller states and the more rural areas of the country.”

But if ensuring that candidates focus on the nation as a whole is the goal, the Electoral College defeats this goal. Thanks to the Electoral College, candidates focus almost exclusively on a handful of swing states like Pennsylvania, Wisconsin, or Michigan, while solid red states and solid blue states are largely ignored.

The real reason why the Electoral College exists is hotly contested. Some scholars, such as Amar and Harvard historian Jill Lepore argue that, in Lepore’s words, the Electoral College “was a compromise over slavery.”

This theory points to the Three-Fifths Compromise, which allowed slave states to count each slave living within their borders as three-fifths of a person for purposes of determining how many representatives those states should receive in the House. Because states gain electoral votes as they gain representation in the House, the Three-Fifths Compromise inflated slave states’ ability to choose a president.

Another theory, recently offered by political scientist Josep Colomer at the Monkey Cage, is that the framers never intended for the Electoral College to choose presidents. They merely expected the Electoral College to whittle down the list of candidates.

Under the original Constitution, the Electoral College would vote on who its members believed should be president. But, if no candidate received a majority, the House would choose the president from among the five candidates who received the most votes.

According to Colomer, “delegates in Philadelphia expected states would put forward a variety of candidates; none would win a national majority in the electoral college; and the election would typically pass to the House of Representatives.” The framers’ error was that they “didn’t expect candidates to emerge and run nationwide.”

So the Electoral College was either a poorly designed kludge that failed to achieve its intended purpose, or a misbegotten device intended to preserve a great evil.

3) Partisan gerrymandering is still allowed

As mentioned above, Justices Gorsuch, Kavanaugh, and Barrett owe their jobs to Senate malapportionment and the Electoral College — and Republicans owe their dominance of the judiciary to these three people. That dominance, in turn, has profound implications for who controls the House of Representatives.

Gerrymandering, to be clear, is not a uniquely Republican sin. When the Supreme Court took up the question of whether partisan gerrymandering violates the Constitution earlier this year, it heard two cases. One involved a Republican gerrymander in North Carolina, the other a Democratic gerrymander in Maryland.

But states must redraw their legislative maps every 10 years, shortly after the completion of the decennial census. This means that if one party dominates in an election year ending in a zero — as Republicans did in 2010 — that party will get to gerrymander a disproportionate number of states. Large swing states like Ohio, Michigan, and Pennsylvania drew maps that locked Republicans into power in the state legislature. Their control over the state legislatures then gave the GOP an unfair advantage in the US House.

Some of these gerrymanders have since been weakened or dismantled by courts. But the legacy of others persisted into the 2020 election and potentially beyond thanks to the Supreme Court’s 5-4 decision in Rucho v. Common Cause (2019), in which the Court ruled it can’t stop partisan gerrymandering. Rucho did not even attempt to defend partisan gerrymandering on the merits — indeed, it described it as “incompatible with democratic principles.”

Nevertheless, a majority of the justices believed that federal courts should not even consider challenges to partisan gerrymandering because they believed that the task of devising a legal test that could sort illegal gerrymanders from permissible maps is too difficult.

In Rucho, all five of the Court’s Republicans voted that federal courts are powerless to stop partisan gerrymandering. All four Democrats agreed that, at the very least, courts should dismantle the most egregious gerrymanders.

Again, Republicans owe that five-justice majority to Senate malapportionment and the Electoral College. Without these two anti-democratic features of our Constitution, it is likely that, at the very least, the most aggressive partisan gerrymanders would also be forbidden.

4) The Constitution is virtually impossible to amend

And that brings us to the last way that the Constitution is anti-democratic: It is almost impossible to amend it in order to remove these defects.

The United States Constitution, according to University of Texas law professor Sanford Levinson, “is the most difficult to amend or update of any constitution currently existing in the world today.” It takes three-quarters of the states to ratify constitutional amendments — which means that Republicans will almost certainly be able to block any attempt to remove the Constitution’s anti-democratic features.

Now, in fairness, there are good reasons why a constitution should not be too easy to amend. The Constitution’s difficult amendment process prevents a transient majority from coming into power and then enacting a raft of amendments that entrench themselves in leadership.

But a difficult amendment process is only a virtue if the Constitution’s underlying structures are, themselves, conducive to democracy. If those structures become hostile to democracy — or if they tend to cement a minority faction in power — a difficult amendment process prevents the nation from replacing those flawed structures with a more democratic system.

Democrats could resort to nuclear tactics. With control of Congress and the White House, Democrats could divide large blue states like California and New York up into several states (provided that the legislatures of those states agreed to such an arrangement), thus changing the makeup of the malapportioned Senate. They could also add new seats to the Supreme Court to cancel out the GOP’s treatment of Obama Supreme Court nominee Merrick Garland.

But such moves invite retaliation if Republicans regain control. If there can be 10 Californias, why not 50 Alabamas?

Realistically, the most democratic solutions, such as abolishing the Senate or replacing it with a body that fairly represents all Americans, are off the table in a nation that cannot amend its Constitution. And so we’re likely left with our undemocratic system for a long while, pushing for reform when and where possible, but likely unable to fix the system absent a major political realignment.

Vehicles wait in line for Covid-19 testing at Dodger Stadium in Los Angeles on July 7, 2020. | Sarah Reingewirtz/MediaNews Group/Los Angeles Daily News via Getty Images

Smarter testing could help save the US pandemic response.

In late June, an Austin, Texas, man with a runny nose and sore throat got a Covid-19 test and was told it could take up to 10 days for his results to come back. While he waited, he shrugged off his symptoms as a cold and continued with his plans, which included attending a wedding outside Dallas.

Several days after the wedding, however, he felt much worse, with shortness of breath and a cough. So he went to the ER, where his physician, Natasha Kathuria, ordered a rapid Covid-19 test. It came back positive.

“If he had a test turnaround of 24 to 48 hours, he would have had a sustained sense of urgency, likely quarantined, and avoided infecting up to 150 people at a wedding,” Kathuria, who is also on the board of Global Outreach Doctors, a humanitarian nonprofit, tells Vox. Though Kathuria isn’t sure whether the patient infected anyone at the wedding, she says four or five of his friends have tested positive since. (It’s not clear if they caught it at the wedding or if they had been infected earlier, as “they had also been socializing quite a bit in the same group,“ she says.)

Although some Covid-19 results can be delivered within hours, 10-day wait times are now not unusual for results from the most common test — the kind that uses polymerase chain reaction (PCR) to look for an active infection — when patients who are not isolating can go on to infect others. While testing failures have been a blight on the US response since the beginning of the pandemic, the latest delays reveal a strikingly uneven system that hasn’t been able to scale up to meet spiking demand, stymying efforts to stop the virus’s spread.

It’s not just the new people with symptoms — and those with known exposure to the virus — who are stretching testing capacity, but also people who want assurance that they won’t infect others before traveling, socializing, or going back to work or school. And with the school year starting soon, the demand for testing is set to surge even more.

“There is a continuing, insatiable demand for testing that is expanding, from symptomatic patients to anyone interested in having a test performed,” Gary Procop, medical director of clinical virology at Cleveland Clinic and a board member of the American Society for Clinical Pathology, told Vox.

Quest Diagnostics, which has run about one in five US Covid-19 tests, for example, currently has an average wait time of a week or more for most people, with some waiting up to two weeks, it said in a statement.

While the federal government and others have been focused on the number of tests performed and encouraging more people to get tested, the backlog has been piling up.

If people at a high risk for spreading the disease — such as essential workers — are facing the same delays as someone at a low risk, it’s not a terribly efficient system and makes the prospects for getting control of the virus fairly grim. “The idea of just telling people to go get tested I think is the real challenge,” said Michael Osterholm, director of the Center for Infectious Disease Research and Policy at the University of Minnesota.

Waits of longer than a day, other experts agree, severely hinder our ability to stop the spread of the coronavirus in the US. Delays “really undercut the value of testing, because you do the testing to find out who’s carrying the virus and then quickly get them isolated so they don’t spread it around,” Francis Collins, director of the National Institutes of Health, said on Meet the Press July 19.

Indeed, a paper, published July 16 in The Lancet Global Health, argues that if test results were provided the same day — and comprehensive contact tracing happened right away — about 80 percent of new transmissions could be prevented, effectively stopping the spread of the virus.

But if test results take a week — and even if contact tracing is quick and effective — we’re only stopping about 5 percent of onward transmissions, the researchers concluded. They didn’t even bother to extrapolate to longer wait times than a week, which plenty of people in the US are experiencing.

The ideal turnaround for test results would be no longer than 24 hours and preferably less, say experts. And many hospitals, clinics, and academic institutions can meet this time frame. But if results take longer than three days, as they do in many communities, particularly underprivileged, hot spot areas, “they’re totally useless,” says David Lubarsky, a physician and CEO of UC Davis Health.

Why are these delays getting so bad? “We don’t have enough test kits to test everybody, or enough labs or enough machines or enough trained personnel,” says Lubarsky.

Our World in Data

But it’s also about how tests, and results, are or aren’t getting prioritized.

Hospitalized patients typically get rapid results, often within a matter of hours. But when people in the community get a test — whether because they feel sick or because they are hoping to go on vacation — labs often aren’t being told whose tests to analyze first. So that leads everyone’s results to get delayed, including those who are most likely to be spreading the virus.

Though experts are adamant that community transmission must come down to alleviate some of the pressure on the testing system, they’re also calling on the government to approve rapid tests — and offer clearer guidance on who needs their results back first. Let’s dive in.

Labs are taking so long to process Covid-19 tests because we still don’t have enough supplies

To understand what’s behind the disastrous delays in Covid-19 test results, it helps to look first at the labs, which are struggling to maintain adequate levels of basic testing supplies, much as they did earlier in the pandemic.

The American Clinical Laboratories Association, whose members include Quest, LabCorp, BioReference, the Mayo Clinic, and others, says labs are facing high demand for key materials for the testing process, from the test kits themselves to essential chemicals, like reagents, and even the PCR machines used to run the tests.

And the near future doesn’t look much better. “The global supply chain remains constrained,” Louise Serio, a spokesperson for the association, wrote to Vox in an email. As production and international trade remain slow, and demand continues to surge, many components remain hard to come by. “We anticipate continued shortages of the supplies and equipment.”

Other labs are finding basic plastic components, like pipette tips and plates, in short supply, Procop says, for the same reasons. And deliveries for many materials “are not always consistent.”

Academic labs are also struggling. UC Davis Health, for example, has invested $3 million in the past few months to build up its testing capabilities, and now has the capacity to run more than 2,000 tests per day, providing results in less than 12 hours. But the labs aren’t able to get enough reagents to run more than 250 tests per day. “So we’re at about 12 percent of our current capacity,” Lubarsky says. “It’s just not right.”

As one Harvard public health expert put it recently in Time: “America’s testing infrastructure is collapsing.”

Brian van der Brug/Los Angeles Times via Getty Images

Delayed results are especially terrible for this virus

One of the biggest challenges in containing this coronavirus is that it frequently spreads before people develop any symptoms. In fact, an estimated 40 percent of people who get the virus may catch it from someone without symptoms. And others might be carrying — and spreading — the virus without ever getting sick. Which all makes it very challenging for people to make decisions, like avoiding all contact with others while waiting for test results, based on how they are feeling.

This presymptomatic and asymptomatic spread makes catching early cases particularly difficult, and essential, in high-risk settings like an assisted living facility. Lubarsky points out that delays in getting test results to prevent or stop outbreaks in these settings are especially harmful. If a facility can pinpoint infected individuals within a day of their test, they can quickly isolate them, find their contacts, and prevent much further spread. But, says Lubarsky, if results are trickling in over several days or a week, the virus has likely spread to other people, and the old results are, as he says, “absolutely useless.”

The long delays can also disincentivize even those with symptoms or with a known Covid-19 exposure from getting tested, says Osterholm. If people know they might have to wait more than a week for results that may no longer be relevant, they are more likely to figure, “why should I go get tested?” he says.

People might be especially reluctant to go in for testing if they know they will be in this limbo for a week or more. “One of the greatest impediments to viral containment is human impatience,” Lubarsky says. If you add to that people’s work realities and behavior, substantial testing lags “are just not acceptable and will not contain spread.”

The delays are also a reminder of the disparities between those who can more easily quarantine while waiting for results and those who cannot. For example, if you work a job that requires you to be physically present and doesn’t offer paid leave, it could be particularly hard to decide to miss work for 10 days as a precaution while you wait.

Additionally, many essential workers in relatively low-wage jobs who don’t get paid sick leave also regularly interface with the public. “So not only do they have a higher risk because of increased exposure, but they also increase the exposure to all of us,” Lubarsky says. “And while they might make a reasonable living, they don’t make the kind of living to take two weeks [off] waiting to find out if they’re positive.”

This is one of the big factors Lubarsky sees as contributing to the disproportionate spread of Covid-19 in underserved communities, including agricultural workers he sees in the Sacramento area. It’s also showing up in the preliminary scientific literature. One early report, cited in a recent Health Affairs article, found that in a mixed-income San Francisco neighborhood (the Mission District), Latinx people made up 95 percent of positive Covid-19 tests — and 90 percent of those who tested positive were unable to work from home.

As Bill Gates, the Microsoft co-founder and co-chair of the Bill and Melinda Gates Foundation, put it in a Tuesday CNBC interview, “You need to make sure that low-income communities that are most at risk, that they’re getting those results back within 24 hours.”

On the other end of the spectrum, many universities are proposing to test their students and staff on a regular basis with quick-turnaround on-site processes. Harvard University, for example, is already testing faculty and plans to test all residential students and staff every three days starting in the fall semester. MIT is planning to test students living on campus with a similar frequency — twice a week — providing results within 24 hours. Both can do so because their tests can be processed at the Broad Institute, a biomedical research center that converted its genomics facility into a test processing center.

“I think it’s important to recognize the disconnect between the turnaround time and testing in different places in our community,” Sarah Fortune, an immunologist at Harvard T.H. Chan School of Public Health, said on a call with reporters this week. Those working in labs on campus are already getting at least weekly tests, results for which they get back in less than a day. But if someone else in the Cambridge area were to get a standard test, they wouldn’t see results for upward of a week, she noted. “So there’s an enormous discrepancy.”

Testing delays are hindering contact tracing efforts

As people wait additional days and weeks before getting their Covid-19 test results back, their memories naturally get hazier about whom they could have spread the virus to. And because mobile phone-based coronavirus tracking is not widely used in the US, we are still relying on people to tell contact tracers whom they remember being in contact with — a task that gets harder with each passing day.

Even if we all had perfect memories though, a delay in getting a positive result means that not only could that person be out infecting others, but also that those contacts could now also be spreading the virus.

For example, if the average symptom onset is about five days after infection, but people have the highest amount of virus in their system about a day before they start feeling sick, that means a delay of a week in getting results for one not-yet-symptomatic person could have sent the virus into two or so additional generations of patients. And with this virus’s exponential spread, if everyone infected goes on to infect an average of two other people, that means eight additional people now have the virus by the time contact tracing can even begin for the first individual.

And if the contacts face similar delays for their own test results, the new cases quickly pile up. (The number of new infections could be much higher if any of those people fails to physically distance and mask up in crowded places. This is also based on the assumption that people self-isolate once they start to feel sick.)

If that first person could have received their positive results in the same day, they could have reasonably been instructed to self-isolate, halting any forward transmission from them, and immediately informing any contacts to isolate and test, stopping spread there as well.

The authors of the new paper in The Lancet Global Health also map out how especially crucial rapid test results are for areas that are not using mobile app technology for tracing contacts.

The team found that viral spread could still be contained (reducing the average number of new infections from each person — known as the “R0” ratio — to below 1) with test result delays of about two and a half days, if 100 percent of the population were using a mobile contact tracing platform. If about half of a population were using the platform, test results could still come back after a day and a half. But with a conventional (person-based) contact tracing system, as we are relying on in the US, their model suggests test results would need to come back in less than a day to get the virus under control.

And not only is this not happening, but as cases spiral in certain areas, like they are in Florida and Texas, the budding contact tracing system gets overwhelmed, decreasing their ability to efficiently track every case. Or as Osterholm puts it: “It’s kind of like trying to plant pansies in a Category 5 hurricane — it’s not easy.”

How can we run more tests more quickly?

One thing that could improve the speed of getting results is, of course, using faster testing methods. The current PCR-based tests typically send tests to a lab for processing, which involves specialized supplies, machines, and personnel — not to mention the transport time and handling logistics. Some facilities, such as many hospitals, are able to do quick testing on site. (This is important, Lubarsky notes, because not only does that prevent the spread of Covid-19 from patients, but also every hour caring for someone who is potentially Covid-positive means another hour of staff using full PPE, yet another still-limited resource in some places.)

There are also other technologies we could be using to test for the coronavirus.

Many companies are at work on rapid at-home tests, which “would be tremendously helpful” if they are accurate enough, Osterholm says. (They would also need to be linked to the health department for tracking and communication back to the individual, he notes.)

There are concerns about robust accuracy in many rapid tests that are being developed — and some that have already been deployed. Although some experts argue that we shouldn’t, as they say, let “the perfect be the enemy of the good” in this case.

“We need the best means of detecting and containing the virus, not a perfect test no one can use,” Michael Mina, an epidemiologist at the Harvard T.H. Chan School of Public Health, and Laurence Kotlikoff, an economist at Boston University, asserted in an opinion piece in the New York Times. “Simple at-home tests for the coronavirus ... could be the key to expanding testing and impeding the spread of the pandemic.”

Others make the case that such rapid testing would also help us find more people who are infectious and let them know to isolate before they can spread the virus to others.

An interim step is “pooled” or “batch” PCR testing of samples. In mid-July, the Food and Drug Administration gave Quest emergency authorization to start using this process, in which some material from up to four tests is mixed together and run through the full PCR testing procedure. (LabCorp received a similar authorization in late July to pool up to five samples.) If the pooled result is negative, they were able to consolidate what would have been four or five analyses down to one. If the analysis picks up evidence of the virus, each one of the samples is then tested individually to determine which one (or ones) was positive.

With about 91.5 percent of tests coming back negative in the US right now, there is a good chance many batches will come back without signs of the virus, clearing all of the pooled individuals and freeing up that additional testing capacity for those who need it most.

MediaNews Group via Getty Images

To slow the spread of Covid-19, should we actually be testing fewer people right now?

Many experts say what we really need right now is not more, broader testing but instead to be stricter — or, as they say, “smarter” — about who gets tested in the first place.

The Centers for Disease Control and Prevention currently provides rough guidance on the use of testing. But Osterholm and his colleagues put together a much more robust hierarchy for “smart testing” when resources are limited. They lay out the order of who should get tests when resources are lacking:

1. Hospitalized patients with symptoms
2. Symptomatic health care workers, first responders, essential workers, and those who work in high-risk facilities (like long-term care institutions or homeless shelters)
3. Symptomatic people in the community
4. People without symptoms who live in high-risk facilities

“That’s where we’re going to get the most bang for the buck,” Osterholm says of making sure testing resources are used for these groups and in this order. This strategy “would cut down on a lot of unnecessary tests,” he says, “so we could do more with the tests that we currently have, which would speed things up — less volume and more high-impact outcomes.” And, of note, when basic testing capabilities are limited, as they are now, they specifically recommend not testing in schools, most workplaces, or the general community.

California has instituted a statewide prioritization hierarchy, which has four distinct levels for testing. The first groups include hospitalized patients with Covid-19 symptoms and people who have been identified as a part of an outbreak. Only in the last group for testing — which are conducted if results in the state are taking less than 48 hours — fall people who are asymptomatic but think they might have been infected and people getting routine workplace testing.

This is already playing out in the general community, which might be frustrating for many people but might be conserving testing resources for those with the very highest risk.

Some of the trouble nationwide, multiple experts said, is that many labs are not able to tell what category a person might fall into and thus are not always able to prioritize correctly.

Quest said that as of late July, it was stratifying “priority” and “other” patients, providing the former with a faster turnaround. But for the week of July 20, its average turnaround time for priority patients was still more than two days (versus one day the previous week). LabCorp also reported it was providing faster turnaround times for hospitalized patients.

UC Davis Health uses an algorithm to decide which tests to prioritize based on the risk of a person spreading the virus. “If there is a migrant worker who has suggestive symptoms, who lives in a multigenerational home, who’s about to get on a bus with 30 other workers, we want to know that now — as opposed to a 38-year-old executive who lives alone who has the sniffles,” Lubarsky says. “What’s gumming up the work is we’re testing all the worried well and don’t have a tiered system” for the country.

Those representing major testing labs want this sort of direction, too. “Now is the time to decide what kind of testing is needed, at what levels, and where to ensure we’re deploying these tools where they’re most needed,” says Serio of the ACLA. “For example, we recently received guidance [from the Department of Health and Human Services] to prioritize samples from nursing home patients in certain hot spots. Continued clear direction [like this] is critical to better manage demand.”

And without more widespread rules, the testing giant Quest has been requesting individual health care providers themselves be the gatekeepers for who gets tested and how many tests they send to the company’s laboratories “so that we can direct our capacity to patients most in need,” it said in a statement.

But, in general, the federal government seems to be moving in the opposite direction of more targeted testing. In late July, the FDA authorized the first test specifically to screen people without symptoms or any reason to suspect they might have been infected. The test from LabCorp, which has been in use for suspected Covid-19 cases since March, requires the same PCR process and equipment as other current tests.

The currently limited PCR resources, Osterholm and others say, should instead be deployed for the most actionable cases.

Otherwise, we will continue to overwhelm the testing system, and localities will continue to need to reinstitute shutdowns to keep the virus in check.

But the other big piece of the testing puzzle is actually using our other methods — masking, physical distancing, etc. — to decrease the spread of the virus so we don’t have to test as much. “We’ve got to drive these case numbers down,” Osterholm says. “If we only needed to test one-tenth the number of clinical cases, we can start matching supply with actual need. Right now, our caseload outstrips supply capacity.”

Procop suggests we could still be in the early days of this challenge, especially as some people call for regular testing of school students and staff, which could add a massive burden to testing laboratories.

All of this means, however, in absence of more organized guidance about who should be getting tests right now, it is up to people to make that decision on their own, Procop says. “Individuals visiting friends or going on vacation should not use precious testing resources and deny these to individuals in need,” he says. “They need to mask, respect social distancing as much as possible, and wash their hands frequently.”

This could help reduce wait times for those at real risk of spreading the virus. We have to stop the virus as much as we can now, Osterholm says, because this fall, “things are only going to get worse.”

Katherine Harmon Courage is a freelance science journalist and author of Cultured and Octopus! Find her on Twitter at @KHCourage.

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Retailers who encounter customers who flout the face mask requirement in D.C. should call police, Mayor Muriel Bowser said Wednesday. 

Bowser extended an order last week requiring people to wear face coverings in most public settings. It also mandates that businesses post signs prohibiting people from entering unless they wear a mask. But national retailers, including Lowe’s, have said in recent days they will not ask workers to put themselves in potential danger by confronting mask-less shoppers.  

“They should call the police and the police will enforce it,” Bowser said during a news conference, after a reporter asked what businesses in the District should do if shoppers refuse to wear a mask.

People who violate the city’s mask mandate could be fined up to $1,000 and could face prosecution in D.C. Superior Court, according to the order.

The recommendation from Bowser comes as community members and activists have struggled to get D.C. police to wear masks, including during protests supporting the Black Lives Matter movement. Nassim Moshiree, the policy director of the D.C. chapter of the ACLU, asked Bowser and Police Chief Peter Newsham  earlier this month to mandate that officers wear face masks.

“It is alarming to see Metropolitan Police Department officers, as front-line government workers, not adhering to public health guidance on the use of personal protective equipment,” Moshiree said earlier this month. 

Protests against police brutality have also led to increased scrutiny of citizen calls to the police, and the violence that sometimes follows.

Bowser also urged community groups and advisory neighborhood commissioners, who advise D.C. government, to encourage social distancing as the region grapples with rising coronavirus cases. The city is in Phase 2 of reopening, which prohibits mass gatherings of more than 50 people. 

Earlier this week, the city imposed a 14-day self-quarantine requirement for people traveling to Washington from states deemed “high-risk” by health department officials. States are considered high-risk if they record 10 or more new COVID-19 cases per 100,000 people each day.

The DOJ's Civil Rights Division has wrapped up an Obama-era probe into the Alabama prison system. Initiated in 2016, the investigation covers 13 prisons in the state, containing nearly 17,000 prisoners. What the DOJ found was widespread deployment of excessive force and a resolute lack of concern for inmates' well-being. (via Huffington Post)

The report [PDF] notes that the Constitution (indirectly) gives inmates the right to be free from violence from other prisoners. The correctional facilities investigated here did almost nothing to prevent inmate-on-inmate violence.

After carefully reviewing the evidence, the Department concluded that there was reasonable cause to believe that conditions at Alabama’s prisons violate the Eighth Amendment to the Constitution and that these violations are pursuant to a pattern or practice of resistance to the full enjoyment of rights protected by the Eighth Amendment. In particular, the Department informed Alabama that it had reasonable cause to believe that Alabama routinely violates the constitutional rights of prisoners housed in Alabama’s prisons by failing to protect them from prisoner-on-prisoner violence and prisoner-on-prisoner sexual abuse, and by failing to provide safe and sanitary conditions. The serious deficiencies in staffing and supervision, and overcrowding, contribute to and exacerbate these constitutional violations.

Inmates also have the right to be free from excessive force. The pattern of excessive force deployment in Alabama correctional facilities continued right up to the DOJ's closing of its investigation.

In October 2019, correctional officers at Donaldson used force against a prisoner, resulting in his death. As part of the autopsy, an ADOC investigator informed a coroner that, after an officer opened his cell, the prisoner rushed toward another prisoner carrying two prison-made weapons. [...] The prisoner eventually went to the ground face down and officers reported that the prisoner concealed a knife between his upper torso and the floor. Numerous prisoner-witnesses, however, reported that correctional officers continued to strike the prisoner after he dropped any weapons and posed no threat. The prisoner was airlifted to a hospital due to the extent of his injuries. [...] The level of force used caused the prisoner to sustain multiple fractures to his skull, including near his nose, both eye sockets, left ear, left cheekbone, and the base of his skull, many of which caused extensive bleeding in multiple parts of his brain. The autopsy listed 16 separate and distinct injuries to the prisoner’s head and neck, in addition to multiple fractured ribs and bleeding around a kidney.

Two months later, in December 2019, a prisoner at Ventress died after the use of force by staff. The autopsy revealed that the prisoner died from blunt force trauma to the head. He sustained multiple areas of intracranial bleeding, fractures of his nose and left eye socket, and had at least six teeth knocked out. ADOC personnel informed hospital medical personnel that the injuries occurred after the prisoner fell from a bunk bed. Two correctional officers were placed on mandatory leave while ADOC investigated the circumstances surrounding the death.

The DOJ says Alabama's Department of Corrections documented 1,800 uses of force in 2017 alone. Hardly any of those were investigated. Those that did result in investigations almost never resulted in corrective action or further institutional review. Half of the prisons reviewed either referred one or zero uses of force for further investigation. And despite the fact that one prison (Bullock) had more than half the referrals (55%) despite making up only 6% of the total referred, no further investigation of the prison itself was ever initiated.

There's a distressingly long section in the report that lists documented uses of excessive force by correctional officers. Here's some brief lowlights from the DOJ's investigation:

In September 2019, a lieutenant at Ventress lifted a handcuffed prisoner up off the ground and slammed him on a concrete floor several times, knocking him unconscious. The prisoner was unable to breathe on his own, was intubated, and taken to an outside hospital, where medical personnel administered CPR several times to keep the prisoner alive.

[...]

In December 2018, a correctional officer brutally hit, kicked, and struck a handcuffed prisoner with an expandable baton in the Ventress medical unit. Two nurses saw the officer beat the prisoner, and two other nurses could hear the beating from adjacent rooms. The prisoner did not antagonize the officer before the beating and his hands were handcuffed behind his back. During the beating, all four of the nurses heard the officer yell something to the effect of, “I am the reaper of death, now say my name!” and the prisoner begged the officer to kill him. At one point, a nurse observed the officer place his palms against the wall and his right foot on the side of the prisoner’s face to grind the prisoner’s head into the floor...

[...]

The prisoner was then taken into the medical unit where he continued to thrash and gyrate his hips. The nurse believed the prisoner was unable to control his actions because he was under the influence of an illicit substance. The prisoner then fell from the examination table to the floor as the nurse tried to obtain his vital signs. The first sergeant threatened to kill the prisoner if he did not control his movements. While thrashing, the prisoner struck the sergeant’s boot. In response, the sergeant kicked the prisoner several times in the stomach and chest. Another sergeant then took a shoe and hit the prisoner multiple times in the genitals.

This goes on for nearly five pages. The DOJ points out the prisons are doing nothing to control this excessive force deployment and appear to be wholly uninterested in any form of accountability. This impression holds up under scrutiny. The DOJ investigators were stonewalled by uncooperative Departments of Corrections officials and officers nearly every step of the way.

For the June 2017 through April 2018 period, ADOC refused to produce any attachments to the incident reports, even though the attachments include critical information, including the initial, institution-level use of force investigations completed by captains or wardens, photographs documenting the aftermath of uses of force, and witness statements. ADOC also produced only I&I investigative files for closed investigations. Throughout the investigation, ADOC also prohibited us from interviewing non-supervisory correctional officers and severely restricted our access to individuals working in prison health care units.

The list of corrective actions recommended is almost longer than the list of atrocities carried out by corrections officers. The DOJ says immediate change is needed, starting with the installation of cameras anywhere corrections officers might interact with inmates, strict controls over access to this recorded footage, an influx of internal investigators, and extensive documentation for every deployment of force. Without this in place, any long-term fixes will be impossible. But given the state's corrections department's unwillingness to cooperate with this investigation, it seems unlikely a bunch of strong words from the federal government will result in immediate -- or lasting -- change.

Former President Barack Obama speaks during the funeral of late civil rights leader Rep. John Lewis (D-GA) on July 30, 2020, at the Georgia State Capitol in Atlanta. | Alyssa Pointer/Pool/AFP via Getty Images

It’s looking more and more like Democrats will abolish the filibuster if they win back the Senate.

Former President Barack Obama delivered a passionate and deeply political tribute to the late Rep. John Lewis (D-GA) at Lewis’s funeral service on Thursday. Lewis was one of the nation’s foremost civil rights leaders beginning in the 1960s, and Obama spoke of how even as a very young man, Lewis endured beatings and other violence to advance the cause of voting rights for Black Americans.

Obama called for legislation restoring the Voting Rights Act, much of which was gutted by the Supreme Court’s decisions in Shelby County v. Holder (2013) and Abbott v. Perez (2018). He also endorsed other democratic reforms, including an end to partisan gerrymandering, extending statehood to Washington, DC, and Puerto Rico, and making Election Day a national holiday.

And then he called upon the Senate to remove an obstacle that has consistently stood in the way of civil rights legislation throughout American history.

“If all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do,” said Obama.

The filibuster typically allows a bloc of 41 senators to prevent legislation from passing, and Republican filibusters stymied much of Obama’s policy agenda during his presidency.

A common metric used to measure how frequently filibusters occur is the number of “cloture” motions filed by the majority in order to break a filibuster. The number of such cloture motions more than doubled after Sen. Mitch McConnell (R-KY) became the Senate Republican leader in 2007, and McConnell continued to use the filibuster aggressively after Obama took office two years later.

Obama has criticized the widespread use of the filibuster in the past. He told Vox’s Ezra Klein in 2015 that the Senate should eliminate “the routine use of the filibuster in the Senate,” for example. But Obama’s remarks at Lewis’s funeral — in which he didn’t just oppose the filibuster but also noted the role it played in preserving Jim Crow — is probably his strongest statement in opposition to the filibuster to date.

The filibuster is a historical accident that became a tool of white supremacy

The filibuster itself predates Jim Crow and was created entirely by accident. In 1805, shortly after he killed Alexander Hamilton in a duel, Vice President Aaron Burr returned to the Senate to deliver a farewell speech and suggested that the Senate make changes to its rules. Burr proposed eliminating the “previous question motion,” a process that was rarely used prior to his speech, and the Senate followed Burr’s advice in 1806.

But the previous question motion was hardly superfluous. Indeed, this motion was the only process allowing the Senate to cut off debate among members. No one recognized Burr’s error for 35 years — until 1841, when the first filibuster occurred. Without a way to end debate, rogue senators could delay Senate action indefinitely by insisting on “debating” a proposal forever.

Since then, the Senate has changed the rules many times to make it easier to break a filibuster, but most legislation still cannot pass over a filibuster unless 60 senators join together to invoke cloture. That means that unless Democrats win an absolutely crushing majority in November — they would have to gain 13 seats in the Senate, a nearly impossible feat — Republicans will be able to block nearly any voting rights bill through the filibuster.

Unless, of course, the filibuster is eliminated, something the Senate could do at any time with just 51 votes.

If Republicans were to use the filibuster to stop legislation expanding voting rights, they would join a long and inglorious tradition of illiberal senators filibustering civil rights legislation. From 1875 until 1957, Congress did not enact a single civil rights bill, even as Jim Crow flourished in the South.

Congress could not even pass civil rights legislation that enjoyed majority support. Between the end of World War II and 1957, when a modest bill finally became law, the House passed five civil rights bills. But white supremacist senators were able to block each of these five bills using the filibuster.

Democrats appear to be turning sharply against the filibuster

It took Democrats more than four agonizing years to realize just how severely the filibuster had hobbled their ability to govern while Obama was president, and even then they made only modest reforms to the filibuster — allowing most presidential nominees to be confirmed with just 51 votes but leaving the legislative filibuster largely intact.

Indeed, just a few years ago, much of the Democratic caucus appeared committed to maintaining the filibuster. In April 2017, Sens. Chris Coons (D-DE) and Susan Collins (R-ME) organized a letter calling on Senate leadership to “preserve existing rules, practices, and traditions” that allow senators to filibuster legislation. More than two dozen Democrats joined this letter, and a total of 61 senators signed it.

And yet, even Coons — once one of the Senate’s most outspoken opponents of eliminating the filibuster — is now singing a different tune. “I will not stand idly by for four years and watch the Biden administration’s initiatives blocked at every turn,” Coons told Politico in June. “I am gonna try really hard to find a path forward that doesn’t require removing what’s left of the structural guardrails, but if there’s a Biden administration, it will be inheriting a mess, at home and abroad. It requires urgent and effective action.”

Likewise, presumptive Democratic presidential nominee Joe Biden recently signaled support for eliminating the filibuster if Senate Republicans are too “obstreperous.”

There is a very real chance, in other words, that the incoming Senate will have 51 votes to eliminate the filibuster — or to at least pare it back sufficiently to allow voting rights legislation to become law. If Democrats do win control of the federal government, the chances of such law becoming a reality will almost certainly hinge on whether Senate Democrats are willing to target the filibuster.

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The large-scale protests in Washington following George Floyd’s death, and the militarized Trump administration response to them, may be over. But two months later, military-occupation aesthetics remain a dominant feature of the streetscape around the While House. And it will stay that way for another month or so. Pennsylvania Avenue in front of the White […]

The Microsoft store is seen on April 30, 2020 in New York City. | Photo by Eduardo MunozAlvarez/VIEWpress via Getty Images

The company plans to wipe out all of its carbon emissions — and keep going.

You could be forgiven for missing it, given the surplus of news, but the last few years have seen a profusion of climate change commitments from big tech companies. Facebook, Google, Amazon, and Apple have all promised to shrink their climate footprints, each attempting to outdo the others.

Climate advocates are naturally leery of these commitments. Those who lived through the faddish interest in climate in the mid-2000s, around the release of Al Gore’s An Inconvenient Truth, will recall the endless torrent of breathless corporate announcements. NBC had a “green week,” big corporations bought cheap offsets to become “carbon neutral,” automakers sold SUVs with vegan leather seats, and dozens of companies sold “sustainable” coffee cups, T-shirts, and tchotchkes. It was a greenwashing parade.

But times really have changed. The steps tech companies are taking these days represent a sea change in engagement. Climate change has moved out of the public relations department, into the C-suite, and down to the shop floor.

To explore the strength of recent corporate climate commitments (and their limits), I want to focus in on Microsoft, a widely acknowledged leader in the field. Earlier this year, it committed not just to reducing its emissions, but to going carbon negative, wiping out all the carbon the company and its suppliers have emitted since its founding in 1975. In recent weeks, Microsoft has released a flurry of announcements updating its progress, so now seems like a propitious time to take a close look.

Brian Smale/MSFT

Over the last week, I’ve been talking to corporate sustainability experts and people who have worked with, and at, Microsoft. I tried to piece together how big a deal its work on climate is — how seriously to take it, what influence it may have, and where it might fall short.

To spoil the ending: It is a big deal. The company is setting new standards, especially in the rigor and transparency it is applying to the effort, and it is deliberately attempting to bring other companies, both suppliers and competitors, along with it into a world of shared metrics and data. There is more it could do, but it is earning its good climate reputation.

I’ll dig in to what Microsoft is doing and what makes it unusual. But first, some background.

A quick note on kinds of emissions

In the carbon world, the emissions of a company (or person, city, or country) can be divided into three buckets:

• Scope 1 emissions come directly from resources the business owns or controls, like furnaces or delivery vehicles;
• Scope 2 emissions come from the power plants that generate the electricity the business uses;
• Scope 3 emissions are indirect, “embedded” in the materials and services the business uses, representing the emissions of the full supply chain. (Business travel is a common example — there are carbon emissions embedded in every plane ticket.)

In the early days of corporate climate engagement, companies typically measured and reduced only their direct energy emissions (scope 1 and 2). But in the last several years, in part thanks to the example set by companies like Dow, Unilever, Apple, and Microsoft, measuring and taking responsibility for scope 3 emissions has become the new norm.

This is significant, because for most companies, including Microsoft, scope 3 emissions are substantially larger than scope 1 and 2 combined.

“At Microsoft, we expect to emit 16 million metric tons of carbon this year,” president Brad Smith wrote in a January blog post. “Of this total, about 100,000 are scope 1 emissions and about 4 million are scope 2 emissions. The remaining 12 million tons all fall into scope 3. Given the wide range of scope 3 activities, this higher percentage of the total is probably typical for most organizations.”

Microsoft has a recent history as a sustainability leader

On Monday, Microsoft announced it has completed the largest-ever test running data-center servers on hydrogen fuel cells, which can be powered by zero-carbon hydrogen generated from renewable energy. Currently, even if they run entirely on renewables, data centers have diesel generators on site for long-term backup in case of an outage.

Power Innovations

With 160 data centers worldwide and multiple generators per data center, that adds up to a lot of diesel generators. The company has pledged to phase them all out by 2030. That’s why it is testing fuel cells as backup power.

It is the latest in a string of climate initiatives that go back almost a decade. The company has been 100 percent carbon neutral, through the purchase of carbon offsets, since 2012. In 2013, it implemented an internal carbon tax on the scope 1 and 2 emissions of all divisions, with the revenue going toward sustainability improvements. It created a business unit focused on climate solutions, which produces things like AI for Earth. It recently succeeded in buying enough renewable energy to account for all US domestic operations.

Its latest sustainability report recounts all these efforts and more, including substantial efficiency upgrades at its campuses. In 2016, it won a climate leadership award from EPA.

“We’ve seen them as a leader since 2013,” says Nicolette Bartlett, climate change director at the Carbon Disclosure Project (CDP), a global clearinghouse of corporate sustainability data. The CDP has a scorecard, which takes into account hundreds of sustainability and transparency metrics, and Microsoft has consistently gotten an A. “It really matters to them,” Bartlett says.

In recent years, thanks to the IPCC report and pressure from investors and employees, concern over climate change has risen to the highest levels of the company. Josh Henretig, who spent 12 years on the company’s global sustainability team, rising to Senior Director before leaving in February, says he witnessed the shift from his team pushing to his team being pulled. “We started to almost stumble under the full weight and examination that the executive team imposed on us around the question: what’s really required?” he says.

“At this stage,” says Verena Radulovic, director of corporate engagement at the Center for Climate and Energy Solutions, “Microsoft has enough experience with reducing its own emissions, and support from its leadership to keep doing so, that it is able to take its climate commitment to a more ambitious level.”

And that’s what it did in January.

Microsoft will go carbon negative and wipe out all the carbon it has ever emitted

In January, Microsoft made a startling announcement: Not only will it reduce its scope 1, 2, and 3 emissions by 55 percent, it will continue beyond that and go carbon-negative, drawing down more carbon than it emits, by 2030. By 2050, it will draw down enough carbon to account for all the company’s emissions since its founding in 1975.

“It set a new bar for what is considered climate leadership,” says Radulovic.

As you can see on the graph below, the target represents a radical acceleration of Microsoft’s carbon reduction efforts.

Microsoft

The January announcement, which came from the company’s president Brad Smith, backed by CFO Amy Hood and CEO Satya Nadella, laid out a set of principles that would guide the company’s approach:

1. Grounding in science and math.
2. Taking responsibility for our carbon footprint.
3. Investing for new carbon reduction and removal technology.
4. Empowering customers around the world.
5. Ensuring effective transparency.
6. Using our voice on carbon-related public policy issues.
7. Enlisting our employees.

The post goes into detail on each. I’ll just hit some highlights.

Nos. 1 and 2 are about proper measurement, scope 1-3 emissions, and historical emissions. “While we at Microsoft have worked hard to be ‘carbon neutral’ since 2012,” Smith writes, “our recent work has led us to conclude that this is an area where we’re far better served by humility than pride.”

“We had some very heartwarming, but also uncomfortable, conversations,” says Henretig.

Through these discussions, the company concluded that voluntary offsets are insufficient. It is now moving to a model where it directly contracts with renewable projects through power purchase agreements, (PPAs) — it is aiming to hit net-zero for its scope 1 and 2 emissions by 2025 — and will compensate for what it can’t directly reduce with negative emissions.

In this area, especially, Microsoft is showing real leadership.

As for No. 3, the company announced it will establish an investment fund that will target early-stage clean-energy technologies, aiming to spend $1 billion over the next four years.

Some critics have argued that the venture-capital model, built around big bets with potentially big returns, is a narrow way to approach the needs of the energy sector. Just recently, for instance, the International Energy Agency argued that crucial early-stage technologies need enabling infrastructure to continue developing.

“I think it’s a missed opportunity,” says consultant and former corporate social responsibility (CSR) executive Lindsay Baker. “There are opportunities to invest in infrastructure and other types of projects that have a market rate of return, more in line with just getting your money back — I would really like to see corporations making more of those kinds of investments.”

Baker also notes that there are “plenty of opportunities for charitable giving that will help move the needle on climate,” including in lab-stage research or companies still in product development. A company like Microsoft, with well over $100 billion in the bank, could put some money toward these other areas as well, or at least divert a portion of its $1 billion to them.

Nonetheless, a billion dollars in VC money is nothing to sneeze at. Nor is the signal Microsoft has sent to other companies by committing to a goal it admits it does not yet have the technology to achieve. It says going carbon negative will require “negative emission technologies (NET) potentially including afforestation and reforestation, soil carbon sequestration, bioenergy with carbon capture and storage (BECCS), and direct air capture (DAC).”

Some of those technologies don’t exist at meaningful scale yet, and Microsoft is making a concerted effort to accelerate them. Especially if it can inspire other companies to make similar investments — Amazon announced a $2 billion climate fund in June — the spillover effects will help boost the entire sector.

“While much of Microsoft’s focus is on technologies that will help it reduce its own footprint,” says Radulovic, “the hope and vision is that these technologies will scale and others can use them.”

No. 4 is about products and services Microsoft will design that will enable its clients to reduce their own emissions. We will return to No. 4 in a bit, since some of the biggest controversies reside here.

No. 5, transparency, is another area where the company is showing leadership. Every year, Microsoft will publish a sustainability report, breaking down its emissions and progress against its goals. It has had its targets verified by the Science Based Targets Initiative as being in line with a pathway to limiting temperature rise to 1.5°C. In reporting its emissions, it is following the World Resources Institute’s Greenhouse Gas Protocol. And it is sharing its data with the CDP. In short, it is modeling best practices in transparency.

MSFT

No. 6 is also interesting, but we’ll come back to that later as well.

The company just announced its first concrete steps toward its target

This month, Microsoft Chief Environmental Officer Lucas Joppa published an update on Microsoft’s progress, with several new announcements.

First, Microsoft is joining with nine other large companies — A.P. Moller-Maersk, Danone, Mercedes-Benz, AG, Natura & Co, NIKE, Starbucks, Unilever, and Wipro, along with the Environmental Defense Fund — in Transform to Net Zero, “a cross-sector initiative to accelerate the transition to a net zero global economy.” It will run on much the same principles that Microsoft laid out for itself, including science-based measurement and transparency, with a commitment to knowledge sharing and norm-setting.

“When you look at the reach of these initial eight companies, as well as the supply and value chains of those companies, you start to get a pretty big market share,” says Jenn Crider, senior director of communications at Microsoft. It will exert a pull on other companies to use “a common and standardized approach to the math, the language, and the accounting,” she says.

Second, Microsoft debuted a sustainability calculator that will help its cloud clients calculate and reduce their carbon footprint. Third, it pledged to be completely free of diesel fuel and diesel generators by 2030. Fourth, it raised its internal carbon tax and broadened it to encompass scope 3 emissions. Fifth, it updated its Supplier Code of Conduct to require suppliers to calculate and report their full emissions.

Sixth and perhaps most intriguingly, it has issued a request for proposals (RFP) seeking, for this fiscal year, a million metric tons of “carbon removal from a range of nature- and technology-based solutions that are net negative and verified to a high degree of scientific integrity.” It recognizes that these technologies are not fully developed, acknowledges that it will make mistakes, and says it is explicitly “using this RFP to harvest and share best available science and market intelligence on carbon removal,” to make things easier for other companies that want to follow suit.

“Someday, CO2 removal will be fully commoditized,” says Julio Friedmann, a carbon researcher at the Center for Global Energy Policy at Columbia University, who has helped advise Microsoft on its RFP. “These actions help put us on that course.”

It will be extremely interesting to see which and what type of carbon-removal projects Microsoft ends up choosing through its RFP.

Carbon Engineering

Seventh, Microsoft announced the first investment from its $1 billion Climate Innovation Fund: $50 million will go to Energy Impact Partners, “a leading venture capital firm focused on decarbonized, decentralized energy industry transition that shares learnings among partners and facilitates collaboration.”

Eighth and finally, the company is taking action on environmental justice, partnering with renewables developer Sol Systems on 500 megawatts of distributed solar energy projects “in under-resourced communities, working with local leaders and prioritizing minority and women-owned businesses.” Given that the average residential rooftop solar system is a bit over 5 kW and commercial solar rooftop systems around 100 kW, that’s a lot of solar projects, representing the “single largest renewable energy portfolio investment Microsoft has ever made.”

Alongside those projects, the company will provide $50 million in “community-led grants and investments that support educational programs, job and career training, habitat restoration and programs that support access to clean energy and energy efficiency.”

So that’s one big target, seven principles, and eight initiatives. What should we make of it?

Microsoft is earning kudos for its climate efforts

I’ve talked with numerous experts in corporate sustainability to wrap my head around how to judge Microsoft’s efforts. Without exception, they praised Microsoft as a leader on climate change. Its commitment to good science, shared metrics, transparent reporting, and full carbon responsibility (not relying on offsets) is already setting a good example.

“In Microsoft being among the first large companies to set such an ambitious target,” says Radulovic, “it allowed others, especially in non-tech sectors with more risk averse or less innovative cultures, a safe space to do the same.”

It is difficult to trace direct causal lines between Microsoft’s announcements those of other companies. Major corporate initiatives take years to develop. Their true effects will be measured by how many companies they pull into their wake in years to come. This was a common theme from experts in the field: Microsoft will have its biggest impact through the partnerships and collaborations it forms to spread its tools and ambitions.

Another notable feature of Microsoft’s efforts is the clear support from the top of the company. “All the big environmental announcements come from the CEO himself, which means there’s C-suite buy-in for everything they are doing,” says Jen Boynton, who works in corporate social responsibility at Cisco. “He’s making the commitment, he’s accountable, and there is financial and investor skin in the game.”

You could think of this as the evolution of corporate climate engagement, both within individual companies and across sectors: It begins in public relations, moves to the “environmental department,” and then gets taken up by top leadership, who look to their engineers to figure it out.

“The sustainability guys tend to think inside of a box,” says Bartlett, “but as soon as the shop floor gets hold of it, it becomes part of the DNA of the organization.”

Brian Janous, general manager of energy and sustainability at Microsoft, recalls the effect at the company when carbon reporting was expanded from scope 1 and 2 (energy) to scope 3 (supply chain, materials, and everything else): “Suddenly everyone is coming out of the woodwork. ‘Oh, we have to solve this, we have to solve that. We have to think about the amount of electricity being used to manufacture Xboxes. We have to think about the electricity being consumed by the people that use Xboxes.’”

It brought designers and engineers from every division to the task, people whose lives revolve around solving problems within resource parameters. Microsoft has made carbon a parameter for every team of engineers in the company now, and they are going to work on it.

And there’s one other feature worth celebrating. “The thing about Microsoft’s work that I love, love, love is the investment in climate equity and environmental justice,” says Alison Murphy, who has directed sustainability and social impact work at companies like Lime and Lululemon. “This has been missing from the corporate dialogue. More companies should take this kind of intersectional lens.”

As much as Microsoft is doing, though, this is climate change, which means it’s never enough. Climate advocates and activists are not going to stop pushing for more. What would more look like?

As I’ve asked around, the areas where Microsoft’s efforts could be critiqued fall into roughly four buckets.

Microsoft could go even further by requiring suppliers to reduce emissions

The same day Microsoft published its updates on progress, Apple announced that it would aim to be “carbon neutral across its entire business, manufacturing supply chain, and product life cycle by 2030,” an astonishing goal for a company that manufactures, ships, and disposes of so many devices.

“Apple has said their suppliers will all run on renewable energy,” says Bartlett. “It set targets for them.”

Apple

So far, Microsoft — which deals more in software and thus has a smaller scope 3 footprint — has only said that its suppliers must measure and report their full emissions. “Right now I read it to say, ‘we’re working with suppliers to find efficiencies’,” says Elizabeth Jardim, a corporate campaigner at Greenpeace USA. “And efficiency is important. But it only gets you so far.”

Apple will not simply cut off suppliers, Bartlett says, but will work with them to build their capacity to reduce emissions. “It’s not going to be every company in your supply chain” that needs special attention, she says. “It’s the 80/20 rule — go for the big ones first.”

There are signs Microsoft is heading in the same direction. In its commitments thus far, “you see a forecasting of where we’re going,” says Crider. “The first step is reporting requirements; the next steps will be reduction. You can make the assumption that there will be requirements on that reduction over time.”

For now, Apple is setting the bar on supply chain reductions, but it’s a close race.

It could stop selling products to companies that use them to dig up fossil fuels

Microsoft says it will develop products and services that will help its clients reduce their emissions, which is laudable. But there remains the question of how its other products are used.

In particular, attention has recently focused on contracts for cloud and AI services between big tech companies like Amazon, Google, and Microsoft and some of the world’s largest oil and gas companies. Journalist Brian Merchant had a great exposé on this at Gizmodo last year. The services in question “are explicitly aimed at streamlining, improving, and rendering oil and gas extraction operations more profitable,” he wrote.

In May, Greenpeace issued a report looking closer at “how tech companies are helping big oil profit from climate destruction.” It found, among other things, that “Microsoft’s contract with ExxonMobil alone could lead to emissions greater than 20% of Microsoft’s annual carbon footprint.”

“Right now, the emissions from those contracts are not included in [Microsoft’s] carbon footprint,” says Jardim. “They’re not even tracking it.”

In response to the Greenpeace report (which followed on the heels of years of criticism from tech workers, investors, and politicians), Google announced that it will no longer “build custom [artificial intelligence or machine learning] algorithms to facilitate upstream extraction in the oil and gas industry.”

In Microsoft’s January announcement, Smith writes that the company is “committed to continuing to work with all our customers, including those in the oil and gas business.” Because a prosperous future will require more energy, he says, “it’s imperative that we enable energy companies to transition.” (The company issued a response to the Greenpeace report which says much the same thing.)

“Another acceptable path forward would be to show us how Microsoft’s machine learning technology is actually scaling up renewables or scaling down fossil fuel production,” says Jardim. “Right now their contracts are not doing that.” Improving fossil fuel extraction projects doesn’t do much to help fossil fuel companies transition away from fossil fuel extraction.

The oil company contracts are “a revolving debate within the company right now,” Henretig says. “It’s one of the areas a lot of employees are feeling conflicted about.”

If they want to stay ahead of the pack, Microsoft and Amazon should listen to their employees and follow Google’s lead.

It could throw some elbows on public policy

Microsoft says that it will use its voice to advocate for public policy in four areas: more public research, “the removal of regulatory barriers” to clean energy, market-based mechanisms, and universal standards for measuring the carbon content of consumer goods.

That is, relative to the breadth and specificity of its other commitments, fairly weak tea. It sounds like a devotion to incremental, bipartisan policy, which is not only inadequate, but has proven nearly impossible to achieve in practice.

In its defense, the company has spoken up on some important issues. It pushed for more renewables in Virginia, supported the carbon-tax initiative in Washington, and opposed the rollback of Obama’s Clean Power Plan.

Hannah Letinich, Yes On 1631

“It’s great to see Microsoft and others stepping up in ways that clearly acknowledge the urgency of the climate crisis,” says Bill Wiehl, founder of ClimateVoice, a nonprofit working to organize tech workers behind climate ambition. “Now we need them to step up their lobbying for a broad range of public policies to address climate change, everywhere they operate.”

Microsoft could speak up for clean energy money in the next stimulus bill, call out denialist politicians, push back on state-level conservative efforts to block electric vehicles or prop up coal plants, or help push a national clean electricity standard or tightened fuel economy standards. There’s a whole lot of policy needed to get where Microsoft says the world needs to go.

Perhaps most importantly, Microsoft is still a part of the US Chamber of Commerce, a conservative trade group that relentlessly lobbies against clean energy. Will Microsoft leave the Chamber (as Apple did in 2009) or at least step off its boards and lobby within it for a new direction (as Nike did in 2009)? Microsoft said they won’t participate in Chamber climate initiatives, but that’s it so far. (Read my story on a trio of Senators going after the Chamber on climate.)

Microsoft isn’t fully throwing around its weight. “We do have a PAC, the PAC does make investments,” says Crider, “but not at a level that sways an election in one direction or the other.”

A more vigorous form of power politics is called for in an age of climate crisis.

It could clearly pledge to eliminate its own emissions

Microsoft aims to reduce its full emissions by 55 percent by 2030, with negative emissions technology soaking up the rest. While it has said it will draw down enough carbon to account for all its historic emissions, it has not said how fast, or even whether, its own emissions will reach zero after 2030.

While carbon-negative is an admirable and standard-setting target, it is, in the end, a way of buying time. Every sector and business that possibly can hit true zero — run on 100 percent carbon-free energy — must ultimately do so. Pushing for negative emissions is not a license to ease up on the broader goal.

Microsoft should make clear that true zero emissions, as fast as possible, is still its long-term target. “Its voice saying that we need to get to zero is really powerful,” Bartlett says. “Ultimately, you need a business model that will flourish in a zero world, right?”

True zero emissions is a bit of a moonshot for Microsoft, but if Apple can do it, Microsoft can too. And there are reasons to think it will try.

“Obviously, the first thing we want to do is reduce emissions,” says Janous. “The goal is, get our scope 3 emissions down to as close as possible to zero. The commitment we made, 55 percent reduction — I think we’re going to do better than that.”

Zhou You/VCG via Getty Images

Microsoft is doing what it can within the bounds of capitalism

Most of Microsoft’s emissions are from energy and will ultimately be eliminated by a cleaner, more robust electricity grid. Janous says the company is experimenting with using its data centers to provide backup and other ancillary services to grids, in pursuit of a “holistic solution” to grid issues, but to get there, “markets need to evolve to create more opportunities for flexibility.”

While Microsoft is working on a better energy grid, its peers will be approaching the problem from other angles. “It’s not like we’re all going to solve electricity, right?” says Janous. “Amazon’s going to work on transportation; Apple is going to work on materials and inputs. I’m excited about the breadth of impact we’re going to have as an industry, because we are all going to attack this thing a little bit differently.”

It is difficult to predict anything in today’s world, but there’s every reason to expect that large, well-established companies like Microsoft, Dow, Apple, Unilever, and Amazon committing to net zero will reverberate.

It’s not just that the target could become the expected norm in the business world (though that appears to be happening faster than anyone expected). It’s that all the people working in those companies, and all the people who interact with those companies, will see that reducing emissions produces a torrent of innovation. They will see that the process draws top talent to these companies and gives their young, diverse workforces focus and motivation.

They will see that common purpose brings out the best in people and that decarbonization is not a hair shirt or a sacrifice, but a chance to design and build a better world. They will take what they’ve seen to the voting booth.

It is the nature of climate change that virtually nothing that is possible today amounts to enough, and that’s true of Microsoft’s climate efforts. Within the conventional boundaries of US consumer capitalism, the company is unquestionably a leader, but if climate is a crisis, it may call for pushing at those boundaries: throwing some political elbows, cutting off some clients, perhaps even questioning the imperative for continuous growth.

Microsoft has shown what can happen when engineers get ahold of the carbon problem. Now its leaders should trust its engineers and move farther, faster.

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How was your Wednesday? I spent 5 and a half hours of mine watching the most inane and stupid hearing put on by Rep. David Cicilline, and the House Judiciary Committee's Subcommittee on Antitrust, Commercial & Administrative Law. The hearing was billed as a big antitrust showdown, in which the CEOs of Google, Facebook, Apple and Amazon would all answer questions regarding an antitrust investigation into those four companies. If you are also a glutton for punishment, you can now watch the whole thing yourself too (though, at least you can watch it at 2x speed). I'll save you a bit of time though: there was very little discussion of actual antitrust. There was plenty of airing of grievances, however, frequently with little to no basis in reality.

If you want to read my realtime reactions to the nonsense, there's a fairly long Twitter thread. If you want a short summary, it's this: everyone who spoke is angry about some aspect of these companies but (and this is kind of important) there is no consensus about why and the reasons for their anger is often contradictory. The most obvious example of this played out in regards to discussions that were raised about the decision earlier this week by YouTube and Facebook (and Twitter) to take down an incredibly ridiculous Breitbart video showing a group of "doctors" spewing dangerous nonsense regarding COVID-19 and how to treat it (and how not to treat it). The video went viral, and a whole bunch of people were sharing it, even though one of the main stars apparently believes in Alien DNA and Demon Sperm. Also, when Facebook took down the video, she suggested that God would punish Facebook by crashing its servers.

However, during the hearing, there were multiple Republican lawmakers who were furious at Facebook and YouTube for removing such content, and tried to extract promises that the platforms would no longer "interfere." Amusingly (or, not really), at one point, Jim Sensenbrenner even demanded that Mark Zuckerberg answer why Donald Trump Jr.'s account had been suspended for sharing such a video -- which is kind of embarrassing since it was Twitter, not Facebook, that temporarily suspended Junior's account (and it was for spreading disinfo about COVID, which that video absolutely was). Meanwhile, on the other side of the aisle, Rep. Cicilline was positively livid that 20 million people still saw that video, and couldn't believe that it took Facebook five full hours to decide to delete the video.

So, you had Republicans demanding these companies keep those videos up, and Democrats demanding they take the videos down faster. What exactly are these companies supposed to do?

Similarly, Rep. Jim Jordan made some conspiracy theory claims saying that Google tried to help Hillary Clinton win in 2016 (the fact that she did not might raise questions about how Jordan could then argue they have too much power, but...) and demanded that they promise not to "help Biden." On the other side of the aisle, Rep. Jamie Raskin complained about how Facebook allowed Russians and others to swing the election to Trump, and demanded to know how Facebook would prevent that in the future.

So... basically both sides were saying that if their tools are used to influence elections, bad things might happen. It just depends on which side wins to see which side will want to do the punishing.

Nearly all of the Representatives spent most of their time grandstanding -- rarely about issues related to antitrust -- and frequently demonstrating their own technological incompetence. Rep. Greg Steube whined that his campaign emails were being filtered to spam, and argued that it was Gmail unfairly handicapping conservatives. His "evidence" for this was that it didn't happen before he joined Congress last year, and that he'd never heard of it happening to Democrats (a few Democrats noted later that it does happen to them). Also, he said his own father found his campaign ads in spam, and so clearly it wasn't because his father marked them as spam. Sundar Pichai had to explain to Rep. Steube that (1) they don't spy on emails so they have no way of knowing that emails were between a father and son, and (2) that emails go to spam based on a variety of factors, including how other users rate them. In other words, Steube's own campaign is (1) bad at email and (2) his constituents are probably trashing the emails. It's not anti-conservative bias.

Rep. Ken Buck went on an unhinged rant, claiming that Google was in cahoots with communist China and against the US government.

On that front, Rep. Jim Jordan put on quite a show, repeatedly misrepresenting various content moderation decisions as "proof" of anti-conservative bias. Nearly every one of those examples he misrepresented. And then when a few other Reps. pointed out that he was resorting to fringe conspiracy theories he started shouting and had to be told repeatedly to stop interrupting (and to put on his mask). Later, at the end of the hearing, he went on a bizarre rant about "cancel culture" and demanded each of the four CEOs to state whether or not they thought cancel culture was good or bad. What that has to do with their companies, I do not know. What that has to do with antitrust, I have even less of an idea.

A general pattern, on both sides of the aisle was that a Representative would describe a news story or scenario regarding one of the platforms in a way that misrepresented what actually happened, and painted the companies in the worst possible light, and then would ask a "and have you stopped beating your wife?" type of question. Each of the four CEOs, when put on the spot like that, would say something along the lines of "I must respectfully disagree with the premise..." or "I don't think that's an accurate representation..." at which point (like clockwork) they were cut off by the Representative, with a stern look, and something along the lines of "so you won't answer the question?!?" or "I don't want to hear about that -- I just want a yes or no!"

It was... ridiculous -- in a totally bipartisan manner. Cicilline was just as bad as Jordan in completely misrepresenting things and pretending he'd "caught" these companies in some bad behavior that was not even remotely accurate. This is not to say the companies haven't done questionable things, but neither Cicilline nor Jordan demonstrated any knowledge of what those things were, preferring to push out fringe conspiracy theories. Others pushing fringe wacko theories included Rep. Matt Gaetz on the Republican side (who was all over the map with just wrong things, including demanding that the platforms would support law enforcement) and Rep. Lucy McBath on the Democratic side, who seemed very, very confused about the nature of cookies on the internet. She also completely misrepresented a situation regarding how Apple handled a privacy situation, suggesting that protecting user's privacy by blocking certain apps that had privacy issues was anti-competitive.

There were a few Representatives who weren't totally crazy. On the Republican side, Rep. Kelly Armstrong asked some thoughtful questions about reverse warrants (not an antitrust issue, but an important 4th Amendment one) and about Amazon's use of competitive data (but... he also used the debunked claim that Google tried to "defund" The Federalist, and used the story about bunches of DMCA notices going to Twitch to say that Twitch should be forced to pre-license all music, a la the EU Copyright Directive -- which, of course, would harm competition, since only a few companies could actually afford to do that). On the Democratic side, Rep. Raskin rightly pointed out the hypocrisy of Republicans who support Citizens United, but were mad that companies might politically support candidates they don't like (what that has to do with antitrust is beyond me, but it was a worthwhile point). Rep. Joe Neguse asked some good questions that were actually about competition, but for which there weren't very clear answers.

All in all, some will say it was just another typical Congressional hearing in which Congress displays its technological ignorance. And that may be true. But it is disappointing. What could have been a useful and productive discussion with these four important CEOs was anything but. What could have been an actual exploration of questions around market power and consumer welfare... was not. It was all just a big performance. And that's disappointing on multiple levels. It was a waste of time, and will be used to reinforce various narratives.

But, from this end, the only narrative it reinforced was that Congress is woefully ignorant about technology and how these companies operate. And they showed few signs of actually being curious in understanding the truth.

Sen. Kamala Harris hugs Joe Biden after she endorsed him at a rally in Detroit, Michigan, on March 9. | Jeff Kowalsky/AFP via Getty Images

What we know about Biden’s possible vice presidential picks.

Former Vice President Joe Biden is about a week away from announcing the name of the woman who will be his vice presidential pick.

“I’m going to have a choice in the first week in August,” Biden told reporters after a Tuesday speech. “I promise I’ll let you know when I do.”

With a lengthy background interview process near completed, all that is left for the Biden campaign is for the critically important one-on-one interviews between Biden and his potential picks, although Biden said Tuesday he didn’t know whether those interviews would happen in person. Biden’s team has been slowly narrowing a lengthy list of candidates. There’s been increased pressure for Biden to pick a woman of color, and a number of his top candidates are Black women, like Sen. Kamala Harris and former National Security Adviser Susan Rice.

Picking a woman running mate is already a smart political choice; for months, Biden has opened up a vast lead with women voters. A New York Times analysis of a slew of May and June polls found Biden 25 points ahead of President Donald Trump with women. More recent polls from the Washington Post, CBS, and Pew have found Trump still trailing Biden among women voters, albeit by narrower margins. The Post poll found Trump slightly behind Biden among white women — a group he won by 9 points in 2016.

And another recent poll conducted by Democratic strategist Karen Finney and veteran pollster Cornell Belcher suggests Biden picking a Black woman could boost his standing particularly with younger voters — a group lacking enthusiasm for the 77-year-old former vice president.

There are a number of factors going into Biden’s important decision that go far beyond politics. As former President Barack Obama’s No. 2, Biden wants a vice president who is ideologically aligned with him and is someone he can work well with. A potential boon for the US senators on Biden’s list is that as a former longtime senator and Obama’s frequent deputy to Capitol Hill as vice president, Biden may be seeking someone with built-in relationships on the Hill. He also has expertise and an intense interest in foreign policy, meaning he may be seeking a candidate with those credentials.

As the oldest first-term president ever, if elected, Biden has also been clear he wants someone considerably younger and ready to assume the duties of the presidency should health problems or other unforeseen circumstances arise.

“The most important thing — and I’ve actually talked to Barack about this — the most important thing is that there has to be someone who, the day after they’re picked, is prepared to be president of the United States of America if something happened,” Biden said.

Do vice presidential picks actually matter politically?

There’s a prevailing idea that a vice presidential candidate can “deliver” their home state for the party. There are candidates on Biden’s list who hail from Midwestern states, as well as candidates who come from key Sun Belt states like Georgia and Florida. There are others who come from safe Democratic states like California, and at least one — Rice — who has little firsthand political experience.

The data supporting the idea of a home-state advantage in a general election is very slim, according to two political science professors — Chris Devine of the University of Dayton and Kyle Kopko of Elizabethtown College — who have been studying it for years.

“We’re pretty skeptical of the home-state advantage too,” Kopko told Vox in a recent interview. “You have to make a lot of assumptions that someone’s going to feel so strongly about their home state that’s going to override any partisan predispositions.”

Kopko and Devine analyzed election and voter data going back more than 100 years and found vice presidential candidates usually only make a difference to the outcome of a general election when they are either very popular or very polarizing.

The Wall Street Journal in 2016 also analyzed years of election data and found that even when a vice presidential pick was viewed favorably by voters in their party, a majority of voters said the VP pick ultimately had no measurable impact on their vote for president.

Mark Makela/Getty Images

The importance of a vice presidential candidate has to do more with what the selection says about the presidential candidate and their judgment. A vice presidential pick sends an early signal about what a future administration might look like.

“It provides some info to voters about how this person would operate as a president, what does he or she stand for, what are going to be the priorities in office,” Devine said.

The fact that Biden is only considering women candidates for his running mate says more about where the Democratic Party is than it does about Biden’s personal convictions, Devine and Kopko said.

“Up to this point it’s seen as picking a woman would be a bold move, an unconventional move, a strong signal,” said Devine. “At this point, I think the script is flipped somewhat, and it would be a slight to have an all-male ticket.”

The real question now is whether Biden will pick a woman of color like Harris, Rice, Reps. Karen Bass and Val Demings, or Stacey Abrams; a progressive like Sen. Elizabeth Warren; or a figure from the Midwest like Sen. Tammy Baldwin or Gov. Gretchen Whitmer.

The veepstakes list, explained

Biden’s list is still pretty long; he previously said he hoped to narrow it to a “shortlist” of around 12 or so contenders. One young political star, Rep. Alexandria Ocasio-Cortez (D-NY), won’t be on it. At 30 years old, she is still five years shy of the minimum age for a vice presidential candidate — not to mention more ideologically aligned with Sen. Bernie Sanders.

Here’s a list of potential contenders either mentioned by Biden himself or raised by his prominent allies and advisers.

Sen. Kamala Harris (D-CA)

Kamala Harris tops many vice presidential lists, for good reason. Biden’s onetime competitor for the 2020 presidential nomination represents California in the US Senate; she was elected to that position after serving as the state’s attorney general. As a Black woman, she may appeal to the Democratic Party’s most loyal constituency, and she recently helped craft the Justice in Policing Act, the sweeping policing reform bill from House and Senate Democrats. However, Harris’s criminal justice record as a former prosecutor has not always translated into the easiest relationship with Black communities — especially with groups on the left.

Despite some tense moments between Harris and Biden early in the campaign (she scored a polling bump after criticizing his record on racial issues at the first presidential debate), the two seem to have reconciled — maybe. Politico recently reported that former Sen. Chris Dodd, who is helping lead Biden’s VP search committee, told a Biden donor that Harris “had no remorse” over her debate skirmish with Biden.

Still, Harris’s profile could be boosted by the fact that she’s a sitting senator with relationships on Capitol Hill, and that she’s an experienced campaigner who has already been subjected to media scrutiny during the Democratic primary. She also hails from blue California, a Senate seat that will be easy for Democrats to fill. Biden has showered Harris with praise and confirmed she is on the list early on.

“She is solid. She can be president someday herself. She can be the vice president,” he said in December. “She can go on to be a Supreme Court justice. She can be attorney general. I mean, she has enormous capability.”

Harris has also shown she’s not afraid to go toe-to-toe with members of the Trump administration or Supreme Court Justice Brett Kavanaugh. Having a vice presidential nominee who is a fighter can satisfy the base and leave Biden free to pitch himself as the commonsense unity candidate going up against Trump.

Rep. Karen Bass (CA)

In recent weeks, Bass’s profile has risen considerably in the vice presidential search. Bass is the chair of the Congressional Black Caucus and a five-term member of Congress from Los Angeles. Before serving in Congress, she was in the California state Assembly for years, and was assembly speaker for two years.

Unlike many other names on Biden’s list, Bass is not known for seeking the spotlight. But her hardworking, behind-the-scenes approach on Capitol Hill has made her beloved within the House Democratic caucus and even gotten her approval from some House Republicans, including fellow Californian and House Minority Leader Kevin McCarthy.

Brendan Smialowski/AFP via Getty Images

“She’s very respectful of everybody, and she works with people extremely well, but she doesn’t create tension or respond to it,” said longtime California Democratic strategist Bill Carrick, who has known Bass for years. “She’s focused on getting things done, and she doesn’t necessarily believe that’s a function of getting a lot of media attention or drawing attention to yourself. She’s much more into bringing people together or working together to get things done.”

Bass was a Biden pick for the recent policy task forces that included members picked by progressive Sen. Bernie Sanders. She’s viewed as someone who can keep the party united, and progressives who know Bass would view her selection as a win for the left.

Like Harris, Bass has played an integral role in crafting and introducing Democrats’ police reform bill, the Justice in Policing Act. With a background in health care before becoming a state and now national politician, she’s also become an important voice on coronavirus and its disproportionate impacts on communities of color. And like Biden, she has experienced the loss of a child; her daughter and son-in-law were both killed in a 2006 car accident.

One potential problem with Bass as a vice presidential pick was remarks she made about former Cuban leader Fidel Castro upon his death in 2016, when Bass referred to him as “comandante en jefe.” Some fear the term of respect could anger Cuban Americans in Florida, a key swing state in the 2020 general election.

Bass won’t necessarily be a flashy debater against Vice President Mike Pence, but if Biden wants to lean into his message of “healing” a fractured nation, Bass could be instrumental in delivering on that message.

Former national security adviser and UN Ambassador Susan Rice

Rice’s name has been generating speculation for months, which has only intensified recently.

At first glance, Rice may seem like an unusual pick. A career civil servant and expert in foreign policy, Rice isn’t necessarily the strongest choice in campaigning or political maneuvering. But in her corner is the fact that she already has something with Biden that he’s said he wants in his No. 2: a close working relationship. Biden and Rice worked together on a number of critical foreign matters in the Obama White House, where he was also a key figure in advising Obama on foreign policy after chairing the Senate Foreign Relations Committee for years.

Win McNamee/Getty Images

Biden surrogates have confirmed Rice is being vetted by the campaign. But Biden must also consider the prospect that Republicans could once again dredge up their favorite issue, the US-led intervention in Libya and the resulting deaths of four Americans in Benghazi. Democrats may hope the issue will no longer be salient in the minds of swing voters, but Republicans may still hammer it nonetheless.

Still, having worked with Rice extensively on foreign policy issues he cares deeply about could be about as meaningful for Biden as any other factor he must weigh in his decision. After Trump’s chaotic presidency, the US will have to do a lot of rebuilding relationships with other foreign leaders in Europe and elsewhere.

Having a vice president who is steeped in these issues could free up Biden to focus on myriad domestic issues he will have to tackle as president.

Gov. Gretchen Whitmer (MI)

Gretchen Whitmer’s political star is rising, and Biden is taking notice.

Whitmer is the 48-year-old Democratic governor of Michigan and served as the state Senate minority leader years before that. She’s a pragmatic, middle-of-the-road governor focused on health care and infrastructure whose 2018 campaign slogan was “fix the damn roads.”

Bill Pugliano/Getty Images

Michigan is one of the states representing Democrats’ recent troubles (and possible redemption) in the Midwest, and Biden’s path to the White House runs through it. Whitmer could be a big asset in this endeavor. She worked to appeal to Michigan’s Republican and independent voters in the 2018 election, where she beat the state’s Republican then-attorney general Bill Schuette by 9 points. Whitmer won counties that went for Trump in 2016, showing her appeal across party lines.

“We are a state that goes back and forth; we are not a state that comfortably fits into one party or another,” she told Vox in a 2018 interview.

As Detroit has been hit hard during the coronavirus crisis, Whitmer has become a fixation of Trump’s as she’s attempted to secure more federal aid and health care equipment for her state. Whitmer is far from the only governor (Republican and Democrat alike) to call for more help, yet Trump reserved some of his worst insults for her. He called her “Gretchen ‘Half’ Whitmer” in a tweet and said he had a “big problem” with the “young ... woman governor” in Michigan.

Biden invited Whitmer onto his podcast in early April, where he called her “one of the most talented people in the country” and a “friend.” In addition to talking about the challenges facing the country, the two seem to have an affinity for each other; Whitmer recounted how Biden shared Fig Newtons with her and her daughter during a campaign stop.

Whitmer seems to have a lot of what Biden is looking for in a running mate, although she has spent fewer years in higher office than some other contenders. The larger question might be if she’d accept (she has already said “it’s not going to be me”), or if Democrats would be willing to jeopardize a key governor’s seat.

Sen. Elizabeth Warren (D-MA)

If Biden wants to do some serious outreach to progressives, Elizabeth Warren is the obvious choice.

Warren’s campaign was the tireless policy machine of 2020, churning out plans for everything from pandemic preparedness to debt-free college. Biden recently backed a Warren plan that allows student debt to be canceled during bankruptcy — a notable move, given a famous policy disagreement between the two on a 2005 bankruptcy bill. He also mused to Axios in December that while he would add Warren to his VP list, “The question is would she add me made to her list.”

Drew Angerer/Getty Images

Warren may be the choice for uniting the ideological wings of the party, and picking her would certainly say something about where a Biden administration would be willing to go policy-wise. But electorally, it might make more sense to go with a woman of color, or a moderate from the Midwest, rather than an unapologetic liberal Democrat representing Massachusetts.

And then there’s the question of whether Warren would actually want the vice presidential job. As Vox’s Emily Stewart wrote, Warren’s time setting up the Consumer Financial Protection Bureau demonstrated her executive leadership and knack for “pulling administrative levers.”

With this in mind, Warren actually might be more at home — and have more of an impact — as a Cabinet pick like secretary of Treasury or education, where she could actually enact a chunk of her broad regulatory agenda.

Sen. Tammy Baldwin (D-WI)

The two-term senator from Wisconsin checks a whole lot of boxes. She made history in 2012 as the first openly gay senator. And even as Republicans spent millions to try to oust her in 2018, she cruised to reelection, beating her Republican challenger by 11 points.

Wisconsin Republicans were hoping to prove the state was red once and for all in 2018, as Vox’s Dylan Scott wrote. Instead, Baldwin hung on and former Gov. Scott Walker (R) lost to Democrat Tony Evers, showing signs of life for the Democratic Party there. Baldwin ran — and won — on the issue of health care. Her fight in the Senate to protect those with preexisting conditions is personal; she has a preexisting condition from childhood.

Alex Wong/Getty Images

In addition to proving her staying power in a Midwestern swing state, Baldwin has serious progressive bona fides, even if they don’t get as much attention as Warren’s or Sanders’s credentials. Like Michigan, Wisconsin is crucial for Biden to win, and Baldwin could give him a boost.

But taking her away from the Senate could be risky for Democrats; Wisconsin voters will by no means automatically elect another Democrat to take her place.

Sen. Tammy Duckworth (D-IL)

There’s been a lot of push and pull between a woman of color and a woman from the Midwest — Tammy Duckworth is both.

A Thai American who made history as the first US senator to give birth while holding office (and then spoke to the challenges of taking maternity leave while holding that office), Duckworth is helping change one of America’s oldest institutions. She cast a vote in 2018 while holding her newborn baby.

Drew Angerer/Getty Images

Duckworth has an impressive résumé; she’s a military veteran who flew Black Hawk helicopters in Iraq and had a double leg amputation after her helicopter went down.

The senator from Illinois is also unapologetically moderate. In the wake of Alexandria Ocasio-Cortez’s surprise primary win in 2018, Duckworth questioned whether that brand of progressivism could be replicated in more moderate parts of the country.

“I think it’s the future of the party in the Bronx.” Duckworth said, adding, “I think that you can’t win the White House without the Midwest, and I don’t think you can go too far to the left and still win the Midwest.”

Former Georgia gubernatorial candidate Stacey Abrams

Abrams, a voting rights activist who narrowly lost a bid for Georgia’s governorship in 2018, has been generating VP speculation for some time.

She came within 1.4 points of being America’s first Black woman governor in 2018, but now that 2020 is here and there are two Senate races in her home state of Georgia, she’s showing few signs of wanting to run in either one. Even with her relative lack of experience in higher office, she’s very popular with Black women. A March poll done by She the People, an organization for and by women of color, found Abrams was the clear first choice among its respondents — even over Harris.

Melina Mara/The Washington Post via Getty Images

As Abrams continues her work on the issue of expanding voting rights for voters of color, she has very publicly been making a case for herself to be the vice president in TV interviews and podcast appearances. Even so, Abrams recently said she has not yet been contacted by the Biden campaign.

“I would be honored to be on the campaign trail as a running mate,” Abrams recently told Pod Save America. “That is a process you can’t campaign for and I’m not campaigning for.”

Gov. Michelle Lujan Grisham (NM)

In the same vein, Biden may also want to take a look at New Mexico Gov. Michelle Lujan Grisham, the first Democratic Latina governor in the US. Before she was elected governor in 2018, Lujan Grisham was a member of Congress, serving as the chair of the Congressional Hispanic Caucus.

Toya Sarno Jordan/Getty Images

Even though New Mexico is no longer considered a swing state, the governor’s mansion was under Republican control for eight years. Lujan Grisham flipped it from red to blue. She also led the influential Congressional Hispanic Caucus during the Trump administration’s family separation policy and was a loud voice against the administration’s treatment of migrants.

“We’re doing everything we can to stop the president and Homeland Security from continuing to enact pain using the terminology for zero tolerance for anybody breaking the law,” Lujan Grisham told the Associated Press in June 2018.

She has proved she’s electable in her home state, but it might be tough to introduce her to the rest of the country.

Atlanta Mayor Keisha Lance Bottoms

One of Biden’s earliest supporters, Bottoms has stuck with the former vice president from the beginning. She endorsed him after the first Democratic debate, rather than throwing her support behind Harris or Sen. Cory Booker (D-NJ), the two Black candidates running at the time.

Her reasoning was a belief that Biden was best positioned to beat Trump in a general election. Even as Biden was faltering in Iowa, New Hampshire, and Nevada, Bottoms was one of the main surrogates campaigning for him in South Carolina, the state where he staged his comeback. Bottoms’s city of Atlanta has been one of the epicenters of protests against police brutality, especially after police shot and killed Rayshard Brooks in a Wendy’s parking lot. Bottoms has vowed police reforms in the Atlanta Police Department, including limiting the amount of force officers can use.

One of Biden’s top allies, Jim Clyburn, has been pushing Biden to choose a woman of color as his running mate for months. And Clyburn made it clear early that he thinks Bottoms could be the woman for the job.

“There is a young lady right there in Georgia who I think would make a tremendous VP candidate, and that’s the mayor of Atlanta, Keisha Lance Bottoms,” Clyburn told the Financial Times in a recent interview.

Rep. Val Demings (D-FL)

The lone House member on this list, Demings has developed a high profile in Congress in a relatively short time. She was one of the impeachment managers selected by House Speaker Nancy Pelosi to present the case against President Trump to the US Senate.

Tom Williams/CQ-Roll Call, Inc via Getty Images

Before she was a member of Congress, Demings had a background in law enforcement. She was the first woman chief of police in Orlando, Florida. Even though she’s not as well known as some other names on this list, the fact that she hails from the Orlando area is politically important — the I-4 corridor from Tampa to Orlando is a competitive part of a key swing state Democrats would like to win back in 2020.

Biden confirmed Demings was on his shortlist in a May interview, calling her “a very competent, very capable person.”

Demings’s role in the impeachment trial lends her some name recognition, but impeachment could be ripe for Republican attacks; Democrats might avoid wading into that area and instead focus on issues like health care. Demings has said she’d be up to take the slot if Biden asked her.

“I love being a member of Congress,” Demings recently told Florida TV station WFTV-9. “But if asked, I would consider it an honor.”

Former Arizona Gov. Janet Napolitano

Napolitano’s name has been floating around a bit — albeit much less than some other more high-profile contenders. Napolitano served as Arizona governor from 2003 to 2009 before making the transition to Barack Obama’s Cabinet, working as the director of the Homeland Security Department from 2009 to 2013. Napolitano hasn’t been in office for years, but she has valuable national security experience and led a red state as a Democrat in the mid-2000s.

While there’s been a lot of talk about the importance of Midwestern swing states in the 2020 election, Arizona is just as significant. It used to be reliably Republican, but it is diversifying and Democrats had some notable success in a key 2018 Senate race. They could pick up a second Senate seat as well this year, and election forecasters say Arizona will likely be key to Biden’s Electoral College math in November. Napolitano is an unknown for a lot of people outside the state, but if Biden is serious about winning there, she could be an asset.

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Swimply—essentially an Airbnb for pools—lets folks rent a backyard oasis by the hour. The app and website, which launched in 2018, has apparently seen a growth rate at about 2,000 percent during this pandemic summer as folks are looking for outdoor, secluded escapes, reports a recent CNBC article. It makes sense: Folks may have had […]

Senate Majority Leader Mitch McConnell (R-KY) speaks to the media after weekly policy luncheons on Capitol Hill July 21, 2020 in Washington, DC. | Photo by Tasos Katopodis/Getty Images

Senate Republicans want to give sweeping lawsuit immunity to businesses accused of helping spread the coronavirus.

On Monday, Senate Republicans unveiled their opening offer in negotiations over new legislation to mitigate the economic impact of the Covid-19 pandemic. The Senate GOP’s $1 trillion package of proposals arrived just days before enhanced unemployment benefits are set to expire at the end of July, meaning that many jobless Americans’ incomes will drop precipitously if a new bill isn’t signed into law this week.

House Democrats passed their proposal 10 weeks ago — a $3 trillion package that extends the enhanced benefits and provides various forms of relief to individuals, businesses, and state governments.

One of the centerpieces of the Senate Republican package is a bill that would give businesses sweeping immunity from lawsuits alleging that they helped spread the coronavirus to their workers or customers.

It’s such a high priority that Senate Majority Leader Mitch McConnell (R-KY) told CNBC on Tuesday that Republicans are “not negotiating over liability protection” — a position that, if true, could blow up any possibility of additional pandemic relief becoming law.

Democratic House Speaker Nancy Pelosi, warned that McConnell’s refusal to negotiate over the proposed liability shield is a sign that McConnell “does want to get to an agreement” on additional pandemic relief.

Senate Democratic Leader Chuck Schumer (D-NY) echoed Pelosi, saying that “we asked [Treasury Secretary Steven] Mnuchin and [White House Chief of Staff Mark] Meadows to go back and see if Mr. McConnell really meant that. Because that would mean he’s probably not interested in any bill at all.”

It’s easy to see why Democrats feel this way. When this bill’s critics describe the Republican proposal, they frequently use a strong word: “impossible.” As Sen. Dick Durbin (D-IL) said in a Senate floor speech denouncing the bill on Tuesday, the legislation “makes it nearly impossible to prevail” in court against a company accused of taking inadequate measures to slow the spread of the pandemic.

The bill, entitled the SAFE TO WORK Act, places a wide array of obstacles before workers and consumers who allege that they were infected due to a business’s negligence — or even against plaintiffs who allege they were infected because of truly reckless behavior by a business. Many of these obstacles are significant barriers to liability in and of themselves. But the combination of these many new hurdles could give businesses all but total immunity from lawsuits alleging that they allowed the virus to spread unchecked.

As Remington Gregg, a lawyer with Public Citizen, told me, “it is near impossible for a suit” to even get to court under the Republican proposal. And once a suit commences, proving a plaintiff’s case is “almost impossible.”

Among other things, the bill requires plaintiffs to identify “all places and persons” they visited and “all persons who visited [their] residence” two weeks prior to the onset of symptoms. It shields businesses from liability unless they acted in “reckless disregard” of their legal obligations — while simultaneously reducing the scope of those obligations in many jurisdictions. It imposes a heightened burden of proof on plaintiffs. It shields many businesses so long as they have a “written or published policy on the mitigation of transmission” that aligns with “applicable government standards.” And it drastically limits the remedies available to most plaintiffs who somehow overcome all of these hurdles.

Oh, and one more thing. It allows businesses to sue — and collect damages and attorney’s fees from — anyone who so much as writes a letter to a business demanding compensation for certain Covid-19-related legal violations, if the allegations in that letter are later deemed “meritless.” And it allows the United States attorney general to sue law firms, unions, and other entities that are “engaged in a pattern or practice” of seeking compensation for similar violations.

The bill, in other words, does not simply make it nearly impossible for Covid plaintiffs to prevail in court. It also discourages lawyers from even taking on clients with the coronavirus who want to hold a business accountable for their infection, because those lawyers could potentially face crippling costs for representing such clients.

What the bill does

The Republican proposal imposes a wide array of barriers on plaintiffs alleging that they became infected with Covid-19 due to the negligent (or worse) actions of their employer or a business that they patronized. Think of a meat-packing plant that forbids its workers from wearing masks, and that forces them to work in close quarters even though the bosses are aware that workers are becoming sick.

As noted above, these barriers require plaintiffs to give a detailed account of where they’ve been and who they’ve been in contact with prior to becoming infected; they limit the amount of money damages available to most plaintiffs; and they actively discourage lawyers from taking clients with Covid-19-related concerns.

Perhaps most significantly, the bill drastically alters the legal and evidentiary standards governing suits against a business accused of spreading the coronavirus.

Though tort law varies by state. plaintiffs who claim they were injured by a business will typically prevail if they can show that the business was negligent in allowing an injury to happen. As Gregg explains, that means that the business failed “to take reasonable care under the circumstances.”

There is already a great deal of flexibility built into this “reasonable care” standard. Courts, for example, might excuse an error by an emergency room physician who is so inundated with Covid-19 cases that they can barely focus on each individual patient, even though they might hold another doctor liable for the same error if that doctor were acting in ordinary circumstances.

Similarly, a business that did not require its employees to wear masks at the beginning of the pandemic, when little was known about the disease and how it spreads, would likely not be liable for this mistake. But a business that did not require masks after the benefits of mask-wearing became widely known is more likely to be deemed negligent.

Negligence suits are normally weighed under a “preponderance of the evidence” standard, meaning the plaintiff must show that the entirety of the evidence supporting their position is more persuasive than the evidence supporting the defendant’s position.

The SAFE TO WORK Act makes several significant changes to this ordinary framework.

First, it requires plaintiffs to prove far more than negligence to prevail. Rather, the plaintiff must show that a business committed a “conscious, voluntary act or omission in reckless disregard” of its legal obligations to that plaintiff. It’s not enough, in other words, for a plaintiff to show that a business failed to “take reasonable care” to prevent the spread of Covid-19. Rather, plaintiffs will generally have to show that the business made a conscious choice to ignore the danger that its actions would spread the disease.

Second, a plaintiff has to do more than show that a preponderance of the evidence supports their claims. Rather, they must prove their claims by “clear and convincing evidence,” a heightened burden of proof that courts typically reserve for unusually sensitive cases. For instance, if the government wants to confine a person with mental illness against their will because they believe that person to be a threat to themselves or others, the government typically must prove that such confinement is justified by clear and convincing evidence.

Third, the bill specifically requires a plaintiff to prove — again, by clear and convincing evidence — that the business’s reckless behavior exposed them to the coronavirus, and that this “actual exposure to coronavirus caused the personal injury of the plaintiff.”

The implications of this requirement are profound. Imagine a worker in a meat-packing plant who is infected on the job due to unsafe working conditions. Now imagine that, on the same day that the worker becomes infected, they make a weekly grocery shopping trip. Under the Republican proposal, this worker has a heightened burden to prove that they became infected at work and not at the grocery store. That’s a difficult task under a preponderance of the evidence standard. It could very well be impossible under the more demanding clear and convincing evidence standard.

It should be noted, moreover, that these are only some of the additional burdens imposed on coronavirus plaintiffs by the SAFE TO WORK Act. Taken together, the many burdens imposed by this law will make it extraordinarily difficult for such plaintiffs to even find a lawyer willing to take their case. They will make it unusually hard for that lawyer to even file a complaint. And, even if the case proceeds to trial, the plaintiff will face a nearly insurmountable burden of proof.

On top of all that, if the plaintiff does prevail, the bill places strict limits on the amount of money damages they are able to collect unless they can show that the business engaged in “willful misconduct.”

The case for the Republican proposal

The SAFE TO WORK Act opens with nearly a dozen pages of findings laying out Senate Republicans’ case for immunizing businesses from Covid-19-related liability. “To halt the spread of the disease,” the bill notes, “state and local governments took drastic measures. They shut down small and large businesses, schools, colleges and universities, religious, philanthropic and other nonprofit institutions, and local government agencies.”

But now, the United States faces an “economic storm,” and additional government spending “alone cannot protect the United States from further devastation.” Rather, “only reopening the economy so that workers can get back to work and students can get back to school can accomplish that goal.”

The bill, in other words, fairly candidly places the goal of “reopening the economy” before the goal of continuing to halt the spread of Covid-19. The bill also claims that “one of the chief impediments to the continued flow of interstate commerce as this public health crisis has unfolded is the risk of litigation.” Such lawsuits “threaten to keep” many businesses and other institutions “from reopening for fear of expensive litigation that might prove to be meritless.”

There is little evidence, however, that Covid-19-related litigation is a major impediment to economic growth — or even that it is particularly common. Hunton Andrews Kurth, a multi-national law firm that primarily represents corporate clients, tracks coronavirus-related litigation within the United States. As of this writing, its database identifies 3,832 legal complaints filed since January 30 — the date the first legal complaint in the database was filed — relating to the disease. (Disclosure: My father was a partner at Hunton & Williams, one of two firms that merged to form Hunton Andrews Kurth.)

Nearly 4.000 cases may seem like a lot — but about 16 million civil lawsuits were filed in state trial courts in 2018, according to the Conference of State Court Administrators and the National Center for State Courts. So the 3,832 coronavirus-related cases identified by the Hunton database are a tiny fraction of the American justice system’s civil docket.

Most of the cases flagged by the Hunton database, moreover, are not the sort of personal injury or employment-related suits targeted by the SAFE TO WORK Act. Some, for example, involve contractual obligations that could not be performed due to the pandemic. Others are suits brought by students seeking refunds from colleges or universities. Many are suits challenging state public health orders requiring businesses to close.

Fewer than 100 of the cases listed in the Hunton database involve personal injury or wrongful death suits brought on behalf of people who claim they were exposed to the coronavirus in a workplace or other business setting.

So what happens now?

Many opponents of the Republican proposal doubt that Senate leaders actually believe this bill will become law. “It’s very clear that this is not a serious attempt at policymaking,” Gregg, the lawyer from Public Citizen, told me. McConnell’s threats to not negotiate notwithstanding, the SAFE TO WORK Act reads more like an intentionally provocative entry into negotiations with congressional Democrats than a proposal that has any serious chance of passing muster with those Democrats.

“I’ll bet you dollars to donuts that [Republicans] will come out and say ‘we’re willing to compromise,’” Gregg told me, though he was concerned that, by taking such an extreme position in their initial proposal, Senate Republicans could tilt the negotiations and the final compromise in their direction.

It’s unlikely that Republicans will agree to a compromise that does not include some kind of liability protections for businesses in the broader package of pandemic relief legislation. McConnell has repeatedly claimed that some kind of liability shield is a “red line” and that “we can’t pass another bill unless we have liability protection.”

So what would a reasonable compromise look like? University of Chicago law professor Daniel Hemel and Northwestern University law professor Daniel Rodriguez lay out one possibility in an op-ed that ran Tuesday in the Washington Post. Instead of just giving a blanket liability shield to businesses, they propose Congress should reward businesses that promote public health with a limited degree of lawsuit immunity.

Suppose that a hairdresser tests positive for Covid-19. The best way to prevent more infections would be for this individual’s employer to immediately identify who that hairdresser’s clients were in the last several days, and to call them and warn them that they may have been exposed to the virus.

But there’s a problem, Hemel and Rodriguez explain. “The salon owner worries that by doing so, she could be opening the door to lawsuits from customers who become ill.”

To avoid this problem, Hemel and Rodriguez propose a targeted fix: “A safe harbor from tort liability for businesses that inform customers about potential exposures within 24 hours of the business receiving notice that one of its employees or another customer on its premises had covid-19.”

Such a proposal would not be without costs. As the two professors acknowledge, it could prevent some customers from being compensated by genuinely negligent businesses. And a safe harbor for businesses that immediately warn customers “might weaken incentives for businesses to take safety precautions in the first place.” But these costs would, at the very least, have offsetting benefits — Hemel and Rodriguez’s proposal would give businesses a powerful incentive to warn customers of possible infection.

When I asked Hemel about this proposal, he pointed to a couple examples of similar legal rules that protect negligent companies or individuals that try to correct their error. The Federal Rules of Evidence, for example, provide “that subsequent remedial measures cannot be used to prove negligence, culpable conduct, product defect, or failure to warn.”

For example, if Toyota recalls cars with a defective airbag, the fact that a recall happened cannot be used to prove that the airbag was defective — because otherwise Toyota would be reluctant to conduct a recall in the first place.

Similarly, Hemel noted, many states have “I’m sorry” laws that provide that “if a doctor apologizes to you for a medical error, you can’t use the apology as evidence in your malpractice suit.”

As Hemel admits, neither of these examples are a “perfect analogy” for his and Rodriguez’s proposal. Though lawyers cannot cite a product recall as evidence that a product was defective, they still might be able to prove that product defective by other means. Hemel and Rodriguez, by contrast, propose giving much broader immunity to businesses that swiftly warn their customers about possible infection.

But their proposal is also fairly narrowly targeted and, unlike the euphemistically named SAFE TO WORK Act, Hemel and Rodriguez accept that protecting the public health is a valuable goal that shouldn’t be undermined by over-broad legal immunity.

Republicans waited until the last moment to even offer a proposal for the next round of pandemic relief legislation. If that legislation does not pass in just a few days, millions of Americans’ incomes will fall off a cliff — and the nation could plunge deeper into economic ruin.

And yet, McConnell insists that no bill will pass unless it includes a liability shield. If he sticks to that position, that’s not just terrible news for the country — it’s likely to be a disaster for the Republican Party in an election year.

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by Zipporah Osei and Mollie Simon

It has been almost two months since a Los Angeles Police Department patrol car accelerated into Brooke Fortson during a protest over police violence. She still doesn’t know the name of the officer who hit her or whether that person is still policing the city’s streets. The officer did not stop after hitting Fortson and instead turned around, nearly hitting other demonstrators in the process, and sped off.

The LAPD almost surely knows who the officer is. The squad car’s number is clearly visible in one of the multiple videos that captured the incident. But the department hasn’t released any information: not the officer’s name, or whether that person has been disciplined. The police say the incident is still under investigation.

As hundreds of videos of police violence during protests have circulated, ProPublica wanted to see what happened to officers in the aftermath.

We set out to see whether the incidents caught on camera were investigated, whether officers were named and what information we could get about any investigations or discipline. We found a widespread lack of transparency that made it difficult to find out even the most basic details about whether and what sort of investigations were taking place.

ProPublica looked through hundreds of viral videos and focused on those that most clearly show an officer using apparently disproportionate force. We ended up with 68 videos involving more than 40 law enforcement agencies across the country, in both large cities and small towns.

We asked each police department a few simple questions: Who were the officers in the video, were they under investigation and have they been disciplined?

The departments mostly declined to give any specific information.

We learned that officers from eight videos have been disciplined so far. Officers from eight others will not be disciplined. And for two videos, police departments still insist they’re unsure of whether the officers involved are their own.

While officers have the right to use force if their own or others’ lives are in danger, the widespread violence against protesters has been unwarranted, said Chris Burbank, the former chief of the Salt Lake City Police Department.

“When you have a peaceful protest, people sitting on the ground, does that justify the use of tear gas or pepper spray on them? It absolutely does not,” said Burbank, who is now the vice president of law enforcement strategy at the Center for Policing Equity. “I see that as a violation of policy, violation of state and city ordinance and as a violation of common decency and what is good about policing.”

The LAPD told us it has moved 10 unnamed officers to non-field duties while it investigates incidents related to the recent protests. The department declined to say whether the officer who struck Fortson is on that list. Fortson has filed a claim for damages with the city and has retained a lawyer instead of filing a complaint with the Police Department.

Here’s what we learned while looking into these videos:

Officers Remain Anonymous — Even When They’re Caught on Camera

Departments have only named officers in 17 of the cases we examined as of publication. A name can allow the public to learn more about the disciplinary history of an officer and to see any patterns in prior allegations. It also could allow us to see if officers appear in multiple videos involving use of force.

Minneapolis has a public database of officers’ complaint histories. Still, the police department declined to identify the officers in videos we compiled, making it impossible to check their records in the database.

As protests have continued across the country, many states are struggling with how far to go in revealing officers’ disciplinary records.

In June, New Jersey’s attorney general directed the state’s law enforcement agencies to name officers who have been cited for serious disciplinary violations. In his directive, he noted that prematurely naming those accused of misconduct can be unfair if allegations are not ultimately proven. But, he argued, the likelihood of officers misbehaving increases when they “believe they can act with impunity; it decreases when officers know that their misconduct will be subject to public scrutiny and not protected.”

In some states, there are union contracts and laws preventing the disclosure of officer names, said Phil Stinson, a former officer and now a professor at Bowling Green State University. In other instances, though, Stinson said, departments may just be “stonewalling” or trying to get rid of problem officers before things become public.

“They just try to ride it out and hope it quiets down,” Stinson said.

In Florida, Miami-Dade Police Department spokeswoman Sgt. Erin Alfonso at first declined to provide the names of officers from a May 31 incident we examined. The video shows police abruptly arresting a man who was talking to them but not doing anything aggressive before an officer appears to grab him by his shirt. An internal report obtained by ProPublica through a public records request identified the officers as Roberto De la Nuez and Jorge Encinosa. Encinosa declined to comment on the arrest to ProPublica and De la Nuez did not respond to a request for comment. The department’s Professional Compliance Bureau is investigating the case, Alfonso said.

In San Jose, California, anti-bias trainer Derrick Sanderlin was shot in the groin with a rubber bullet after trying to talk to officers with his arms raised.

The incident, which took place May 29 and was reviewed by ProPublica, remains under investigation by the San Jose Police Department. Shivaun Nurre, the Independent Police Auditor for the city, confirmed that her office has received multiple complaints related to the incident. The office does not release the names of officers to complainants. According to a civil rights lawsuit filed by Sanderlin on July 18, three officers fired at him, but as of the initial filing, he had been unable to determine exactly who hit him and he was too far away to have caught badge names. “If someone else who wasn’t a police officer did the same thing, they would be held accountable,” Sanderlin said.

“All allegations, complaints, or concerns of the public will be taken seriously,” the San Jose Police Department said in a statement. The department said all videos provided by ProPublica are “part of an extensive Internal Affairs investigation. As such, this is a personnel investigation and [we] cannot communicate further.”

And in another instance, ProPublica requested the incident report related to a man’s arrest in Kansas City, Missouri. We were told that wouldn’t be possible to obtain because the charges against him and other protesters were dismissed and vacated by a city ordinance, meaning it was “as though it never happened,” a Police Department spokesperson said. The actions of the arresting officer remain under investigation, but without the report ProPublica is unable to obtain the officer’s name or see the rationale for the arrest. “We are not saying we don’t care and it isn’t a big deal,” the spokesperson said.

Investigations — if They Happen at All — Are Far From Transparent

In case after case, departments have cited ongoing investigations for not providing details such as whether officers captured in the videos remain on active duty; they also often can’t say how long the investigations might take. Sometimes, police union contracts prevent police departments from releasing such information.

In Portland, Oregon, the Bureau of Police would only say that all incidents of force were under investigation, including the two identified by ProPublica. Ross Caldwell, the director of the Independent Police Review, a civilian oversight office in the Portland auditor’s office, said that while he could confirm that both incidents were under investigation, he wasn’t “legally allowed to talk about these investigations.”

How long departments legally have to process complaints varies by jurisdiction. In at least 14 states, police officers have a “bills of rights” written into state law that provides special protections during investigations. There’s a one-year statute of limitations in California on police discipline cases. In Florida, investigations of police misconduct must conclude in 180 days. Both states have provisions to pause the clock if there’s a concurrent criminal investigation and California pauses for civil litigation, but otherwise, if a department can’t close out a case in time, officers cannot be disciplined, suspended, demoted or dismissed.

“They have gotten these protections, especially in state laws, through sheer political power and lobbying effort, and that’s a serious problem,” said Samuel Walker, a retired professor of criminal justice who has researched the bills of rights.

Officers Are Unlikely to Be Disciplined — at Least Publicly

Even in cases where victims are able to identify officers, they’re unlikely to see them face discipline.

Because there’s no federal mandate for police agencies to report details about the civilian complaints they receive, the most recent nationwide dataset about how many complaints are fully investigated and “sustained,” meaning the allegations of wrongdoing are confirmed, was published in 1993 by the Bureau of Justice Statistics, according to Carol Archbold, a police accountability expert and professor at North Dakota State University.

In New York City, where 10 of the videos we examined took place, the Civilian Complaint Review Board investigates allegations of excessive force against the police. The board investigated more than 3,000 allegations of misuse of force in 2018, but only 73 of them were substantiated. Los Angeles, which handles its complaints internally unless an officer asks for a review by a citizen Board of Rights, had 5% of complaints from the public sustained that same year.

In California, only investigations that result in sustained findings or those involving deadly force, discharge of a firearm or “great bodily injury” become public.

The picture is similar at smaller departments. Of the 206 citizen allegations against Omaha police officers in 2018, only 17% were sustained by the department’s internal review process. In Indianapolis, where a video from the protests captured officers beating a woman, that number was 7%.

When asked about a video showing officers kicking a protester who was backed up to a fence, the Omaha Police Department said all use of force incidents are being reviewed and that officers from other agencies were assisting. The department declined to comment further and said it is “bound by contractual language that prevents us from disclosing the contents of any personnel matter.”

Hundreds of Complaints Are Overwhelming the Oversight Agencies

Departments now face a mountain of work to sift through the events of the protests. There have been more than 750 complaints filed with New York City’s Civilian Complaint Review Board since protests began in late May, leading to over 200 open investigations. The LAPD has assigned 40 investigators to sift through protest complaints.

The Seattle Office of Police Accountability, an independent oversight body, has been contacted over 18,000 times about police actions at the protests and is aiming to increase transparency.

The agency’s new Demonstration Complaint Dashboard shows 28 ongoing investigations, but the department is continuing to work its way through complaints and plans to continue updating the tracker, said Anne Bettesworth, the deputy director of public affairs for OPA.

It typically takes 180 days for Seattle to investigate civilian allegations against officers, but Bettesworth said the agency is working to complete as many protest-related investigations as possible in under 90 days. It’s an “all hands on deck situation,” she said.

Tell Us About Police Misconduct

We want to hear from police officers, public employees and community members who can help us learn more about police misconduct and why it’s allowed to continue.

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The heat this month has kept coming and coming and now has set a record for its persistence. On Tuesday, Washington, D.C., notched its 26th day hitting at least 90 degrees, topping the previous record for the most such days in a month.