James.galbraith

The red-state drive to roll back civil rights is entering a new phase, perhaps best symbolized by Florida’s passage this week of the “Don’t Say ‘Gay’” bill censoring how schools discuss sexual orientation. President Joe Biden’s administration is leaning more heavily into the fight, even as business leaders are retreating from the battlefield.

In multiple states, prominent companies that regularly tout their commitment to diversity and inclusion have largely stood aside as GOP-controlled legislatures and governors have approved laws that restrict voting access, curtail abortion rights and LGBTQ freedoms, and limit how teachers can discuss race, gender, and sexual orientation in public schools. The refusal of the Walt Disney Company, one of Florida’s most powerful employers, to publicly criticize Florida’s “Don’t Say ‘Gay’” bill as it moved through the legislature has quickly come to symbolize a retreat from the loud public opposition that many companies expressed to earlier state initiatives restricting civil liberties, such as the “bathroom bill” North Carolina Republicans approved in 2016.

Across the broad range of socially conservative initiatives that Florida’s Republican governor, Ron DeSantis, and the GOP state legislature have advanced since 2021, business has been “silent, silent as fuck, they are so silent,” says Florida Democratic State Representative Anna Eskamani, echoing a complaint I heard across several states from Democrats and civil-rights advocates this week. “[Businesses] have other priorities, which impact their bottom line and their profits, and they view that as more important.”

The Biden administration is pointedly moving in the other direction. During 2021, many activists complained that the president was largely ignoring the red-state offensive while focusing on passing his Build Back Better economic plan and stressing his willingness to work with governors from both parties on the pandemic.

But in the past few months, the administration has notably sharpened its tone on many of these red-state efforts. The Justice Department is challenging a steadily growing list of state actions that it views as violating federal constitutional or statutory rights. In his State of the Union address last week, Biden singled out for criticism the new state laws on voting, abortion, and LGBTQ rights.

“The president is the first to say we want to work together and we want to work in bipartisanship for the American people but … we are also going to call out some of these really hateful bills that have gone after some of our most vulnerable communities,” Julie Chavez Rodriguez, the director of the White House Office of Intergovernmental Affairs, told me.

Since 2021, Republican-controlled states such as Florida, Georgia, Tennessee, Arizona, Texas, Missouri, Iowa, South Dakota, Idaho, and Montana have advanced a torrent of socially conservative legislation. This includes laws limiting access to abortion, restricting voting rights, banning transgender girls from participating in high-school or college sports, barring transition medical treatment for transgender minors, censoring how teachers can talk about current or historical racial and gender inequities, removing licensing requirements to publicly carry firearms, increasing penalties for public protesters, and immunizing drivers who hit and injure protesters.

[Read: Watch what’s happening in red states]

Florida alone has passed almost every item on that list, and this week added the “Don’t Say ‘Gay’” bill restricting classroom discussion of sexual orientation. Today the legislature passed DeSantis’s “Stop Woke” act, which restricts how not only schools but also private companies holding diversity training can discuss racial-equity issues. “The last two or three years has definitely been not even a wave; it’s an onslaught,” Eskamani told me. “It’s so intense, and every direction you turn, you have another culture war to fight back against.”

In many ways, the 23 states where Republicans now control both the governorship and state legislature are attempting to unravel “the rights revolution” of the past 60 years, in which both the Supreme Court and Congress have generally expanded the range of basic rights and liberties available nationwide. As I’ve written, the cumulative aim of these proposals is to return the U.S. to a pre-1960s world in which those basic rights and liberties vary much more from state to state.

In the process, the red states are enshrining the social priorities of a GOP coalition centered mostly on the experiences and preferences of older white Christian and nonurban voters over those of more demographically and culturally diverse younger generations. The contrast is sharpest with Generation Z, young Americans born after 1996: Almost half of the generation is nonwhite, about one-fifth of its members identify as LGBTQ, and more than one-third describe themselves as secular, unaffiliated with any religious tradition. Among the Millennial generation, born from 1980 to 1996, the numbers on each front are not quite as high, but still far above older generations.

In the first stages of the current struggle, business leaders appeared acutely conscious of staying on the sympathetic side of those rising generations, who represent most of their future employers and customers. Arguably the opening bell for the current round of socially conservative legislation was the 2016 passage of North Carolina’s “bathroom bill,” which required people to use the bathroom of the gender they were assigned at birth.

That drew a furious backlash from a wide array of business interests. Multiple companies, including PayPal, Adidas, and Deutsche Bank, rescinded plans to invest in the state. Artists such as Bruce Springsteen, Pearl Jam, and Ringo Starr canceled concerts there. Maybe most damaging of all, in a place that so reveres basketball, the NCAA announced it would not host championship tournaments in the state and the National Basketball Association pulled its all-star game from Charlotte. Almost 70 companies joined a lawsuit against the bill. In North Carolina, companies “stepped up … and it created a real spotlight that activists on our own could not bring,” Chad Griffin, who was then the president of the Human Rights Campaign, a leading LGBTQ-rights organization, told me.

The pressure worked: The state repealed the law in 2017. That same year, a broad coalition of business leaders in Texas blocked a similar bill pushed by staunchly conservative Republican Lieutenant Governor Dan Patrick.

Many large employers in Georgia fought a succession of socially conservative bills there through the second half of the last decade, including a six-week abortion ban and “religious freedom” bills that would have given businesses more discretion to refuse to serve customers or hire employees who are LGBTQ. Prominent in that resistance was Disney, which cast a long shadow over the Georgia economy through its filming of Marvel movies there.

Nothing comparable to that business opposition has emerged in response to the new wave of socially conservative laws. In some cases, individual companies have spoken out against specific legislation, as Delta Air Lines, another powerful Georgia presence, did on the restrictive voting law that state Republicans passed last year. In other cases, business groups have sent letters opposing some of these initiatives. Prominent Tennessee employers, including Nissan, Dell, Amazon, and Vanderbilt University, sent a letter last year opposing a suite of bills targeting LGBTQ rights, and a similarly gilded group of Texas’s business leaders declared their opposition to Governor Greg Abbott’s recent directive to investigate parents and others who provide transition treatment for transgender minors.

But in this round of conflict, companies have not backed up their words with equivalent actions. After Tennessee last year passed all of the bills that targeted LGBTQ rights—including measures restricting classroom discussion, barring transgender girls from high-school sports, and its own version of a bathroom bill—it faced nothing like the North Carolina boycotts. Companies “really did make an example of North Carolina, and that started with one company saying ‘We’re not coming here,’ and then there was a pile-on effect,” Joe Woolley, the CEO of the Nashville LGBT Chamber of Commerce, told me. “You just don’t see that right now.”

Rashad Robinson, the president of Color of Change, a racial-equity organization, similarly says that the record of companies in resisting either the restrictive voting bills or legislation censoring how K–12 schools and even public universities can talk about race has “been absolutely abysmal.” Although many big corporations touted their commitment to Black History Month in February, he notes, they “are not willing to put their hand on the scale to stop the removal of Martin Luther King and Rosa Parks from our public schools” or to stand up unequivocally for voting rights.

The corporate response was even more muted to the “Don’t Say ‘Gay’” legislation Florida passed Tuesday. The bill provoked a series of walk-out protests from high-school students around the state. They were joined by “educators, child-welfare advocates, parents at the PTA” who have all “been on the very front line of pushing back against this,” Nadine Smith, the executive director of Equality Florida, a prominent LGBTQ-rights group in the state, told me. All of that activism, she said, underscored “the overwhelming silence of the business community.”

Especially frustrating for activists was Disney’s refusal to publicly criticize the bill as it moved through the legislature. Disney World, outside Orlando, is an enormous economic force in Florida: The company’s website says it is both the most visited vacation resort on Earth and, with nearly 70,000 employees, or “cast members,” the nation’s largest single-site employer. Disney’s reticence on the “Don’t Say ‘Gay’” bill contrasted with its activist role against other conservative legislation under its former chairman and CEO Robert Iger. Bob Chapek, Iger’s successor as CEO, has tried to sidestep these culturally polarizing political fights. In a Monday memo to Disney staff disclosed by The Hollywood Reporter, Chapek argued that the company can do more to promote tolerance “through the inspiring content we produce, the welcoming culture we create, and the diverse community organizations we support.”

That argument did not quiet a chorus of internal critics. Griffin, now a political and public-relations strategist in Los Angeles, predicted to me on Monday that Chapek’s position of dodging fights over equality would prove “unsustainable” because it “horrified” so many of the workers and creative talent the company relies upon. “I’ve heard from many folks internally at Disney at all levels, and I get the sense that the anger and unrest is at a fever pitch,” Griffin said. “The view is: Bob Chapek is either getting really, really bad advice or he is forging a path at Disney that abandons years of goodwill that company’s worked to build with LGBTQ employees and customers and talent.” Yesterday, Chapek suddenly reversed course and told a shareholders’ meeting that the company had privately opposed the bill and that he had called DeSantis that morning to condemn it. But even after the switch, Chapek is still facing continued pressure from employees and activist groups for more concrete actions against the legislation.

To many critics of this corporate behavior, the most visible manifestation of the waning commitment is companies’ refusal to cut off donations for political officials pushing the ideas that they claim to oppose. The independent journalist and activist Judd Legum has chronicled a long list of businesses that assert their support for LGBTQ rights but have contributed to officeholders in Florida and Texas who are pushing to retrench those rights.

Why have so many companies backed away from these fights? Some corporate lobbyists I spoke with said one reason is they believe public opposition is counterproductive because more Republican elected officials in the Donald Trump era find it politically valuable to be seen fighting big companies. Businesses also frequently complain that the widening gulf between the parties leaves them in a lose-lose position of alienating an important block of potential customers wherever they come down in policy debates. (Activists, though, point out that businesses often try to have it both ways by rhetorically identifying with causes such as inclusion and diversity without taking tangible steps to defend them.)

But another factor probably looms larger than any of those considerations: However much they want to publicly align with the values of younger consumers and workers, big companies want to go only so far in fighting these proposals, because they still mostly prefer Republicans to control state governments and deliver the low-tax, light-regulation policies they favor. State Republicans in turn have grown more overt about threatening those benefits when business leaders raise objections to the culture-war components of their agenda. When American Airlines criticized the restrictive voting bill Texas passed last year, Lieutenant Governor Patrick openly threatened to kill other legislation the company cared about.

As business steps back, the Biden administration, after a slow start, is leaning in. “We are looking at where we can be a critical voice of support—from the president lending his voice and making sure folks know he has their back … [to] working with our agencies to see what they can do to continue to uphold some of the basic rights for these communities,” Chavez Rodriguez said.

The White House recently convened Florida activists and elected officials to discuss the state’s newly passed 15-week abortion ban, and has held similar sessions with LGBTQ advocates from Florida, Texas, and Tennessee. When Abbott issued his directive labeling transition care for minors “child abuse,” Biden issued a pointed statement declaring that “the Governor’s actions callously threaten to harm children and their families just to score political points.” Health and Human Services Secretary Xavier Becerra called the action “discriminatory and unconscionable” and promised to “use every tool at our disposal to keep Texans safe.”

Biden also tweeted stern opposition to Florida’s “Don’t Say ‘Gay’” bill, and when it passed on Tuesday, Education Secretary Miguel Cardona issued a stronger statement of condemnation than he’s offered on any of the earlier state-level bills targeting curriculum. Cardona hinted that the Florida law might violate Title IX, which bars sex discrimination in education (defined last year by the department as including sexual orientation), and could trigger a civil-rights investigation.

Month by month, the Justice Department has joined, or initiated, a much broader range of legal actions against these state moves than is commonly recognized. It has filed lawsuits against voting restrictions passed in Georgia and Texas and the Texas abortion law, and sued to overturn a Missouri law barring local officials from enforcing federal gun legislation. It has also joined litigation against an Arkansas law restricting transition care for transgender youth, a West Virginia statute barring transgender girls from school sports, and a Florida school district requiring a transgender student to use the bathroom of his gender identity at birth. It joined a Texas case arguing that Governor Abbott’s ban on school mask mandates violated the Americans With Disabilities Act (as well as a similar lawsuit in South Carolina) and sued Texas directly to block another Abbott order requiring state troopers to stop vehicles transporting undocumented migrants through the state. The department has also joined a lawsuit against a Florida statute DeSantis signed making it easier to charge protesters as rioters, and the litigation against the Mississippi 15-week abortion ban that the Republican-appointed Supreme Court justices may use to overturn Roe v. Wade. The common theme, as Attorney General Merrick Garland declared when he announced the lawsuit against the Texas abortion law, is that “the United States has the authority and responsibility to ensure that no state can deprive individuals of their constitutional rights.”

[Joshua Prager: Sarah Weddington’s unexpected path to Roe]

This record is winning praise even from some civil-rights activists who questioned the administration’s early commitment to these fights. “I do see an effort to engage, an effort to use the bully pulpit and to highlight their willingness to fight,” Nsé Ufot, the chief executive officer of the New Georgia Project, a community organizing group founded by Stacey Abrams, told me.

Although activists welcome the White House’s increased political and legal attention, how much the administration can practically do to slow the red-state advance is unclear. Biden has backed federal legislation that would largely undo the red-state actions on voting, LGBTQ rights, and abortion, but each of those bills, after passing the House, has been blocked by Senate Republican filibusters. All legal challenges from the administration or civil-rights groups ultimately face the steep wall of the six Republican-appointed Supreme Court justices; far from limiting these laws, the Court has already opened the door for states to roll back voting access and is expected to do the same on abortion rights later this year. Indeed, some officials in the Biden administration believe that signals of sympathy from the six justices are one of the principal reasons for the explosion of state laws crimping civil rights and liberties.

Robinson, from Color of Change, said that the most important thing Biden can do now is mobilize more public opposition by better defining the stakes and contours of the struggle unfolding on so many fronts across so many states. “You are in the middle of a deep fight with people who want to take us backwards … and he is not treating opponents like we are in that kind of fight,” Robinson said. “As a result, he is not welcoming people into the fight.” Although Robinson welcomes the administration’s legal challenges to many of the red-state laws, “if all of the fight is happening with lawyers at the Department of Justice, it’s not a mobilizing force.”

One priority that’s clear to the civil-rights activists confronting the red-state cultural offensive is that mobilization on these issues can’t be confined solely to the political arena. Each person I talked with said they believe that companies have engaged in fights to protect civil rights and civil liberties not out of altruism but because of pressure from their employees and consumers—more and more of whom are drawn from the kaleidoscopically diverse younger generations. More of that pressure to organize workers and consumers, they maintain, will be necessary to compel business back into the ring as these struggles rage on.

“As more stories come out about how these bills are being [implemented],” Robinson said, these companies “are going to be held accountable for their role in this in ways that will only become more challenging and more intense for them.”

Republicans have developed a strategy to try to play both sides of the ban on Russian oil and imports. They want to pretend they oppose Russian dictator Vladimir Putin and are on Ukraine’s side, while at the same time attacking President Joe Biden at home over gas prices. If Democrats respond forcefully to oil company price gouging, they can expose the lie and put Republicans on defense.

House Minority Leader Kevin McCarthy was at it again Wednesday morning ahead of a scheduled House vote to codify Biden’s import ban. “These aren’t Putin prices, they’re President Biden prices.” That was in response, in part, to Rep. Jim McGovern, who said on the floor Wednesday morning “we also ought to understand that part of these price hikes, in addition to the Putin price hike, is the oil company price hike.” The oil companies are using this crisis to jack up oil prices, he argued. “I love the fact that we can’t even get anybody to express the slightest bit of outrage over the fact that oil companies are gouging us, making record profits,” he continued.

He meant anybody on the Republican side, of course. Because Democrats have been all over it, and are looking at a potential solution: a windfall profit tax on oil companies gouging Americans with high gas prices.

Campaign Action

Sen. Bernie Sanders (I-VT) also raised the issue at the beginning of the invasion of Ukraine. “We can no longer allow big oil companies, huge corporations and the billionaire class to use the murderous Russian invasion of Ukraine and the ongoing pandemic as an excuse to price gouge consumers,” he tweeted. “It is time to enact a windfall profits tax and reasonable price controls.”

The soaring gas prices for U.S. consumers are the result of the sanctions on Russia from the U.S. and European Union (EU), gas companies keep saying. To be sure, one of the reasons the Biden administration and the EU hesitated on the move was because it would come back to hit consumers, particularly in Europe.

The reality in the U.S. is that only about 3% of our supply of oil comes from Russia—there are other sources for us. In fact, oil prices fell Wednesday when U.S. efforts to encourage more oil production in other sources looked to be succeeding. But the fact remains, war in Ukraine or not, oil company profits are at seven- and eight-year highs and they want to keep them rising by exploiting this crisis.

Oil supply isn’t the problem behind high prices. Big Oil is.

Republicans will, of course, oppose any effort by Democrats to force the Big Oil profiteers to keep prices in check, just like they’ll fight all efforts by Democrats to use this crisis to promote homegrown alternative energy, and end our dependence on rogue states for our energy needs.

The reality is Republicans want to do everything in their power to keep Americans feeling pain at the gas pump, because they think that helps them politically in the midterms. Which is downright unpatriotic. McGovern gives Democrats another talking point when it comes to the issue: “We have friends on the other side who spend all their time criticizing President Biden and very little mention of Putin. I think that says it all.”

Related stories

Headlines start to catch up to the Republicans’ cynical strategy on Russia and gas prices

This week on The Brief: The geopolitical dangers of relying on rogue states for our energy needs

A New York defense attorney and legal analyst noticed something interesting about how the arrest of teen rapper Camrin “C Blu” Williams was handled. "You'll remember earlier this year, (New York City Mayor) Eric Adams lionizing two cops who arrested a teenager after one was accidentally shot during the scuffle," attorney Rebecca Kavanagh tweeted on Tuesday. "Well, today a judge found they had no reason to stop or search him and that they lied on the witness stand."

Kavanagh added: "Interesting to see that after all that outrage, today's ruling that the shooting was literally the cops' fault is so far only being reported by one outlet." The attorney shared a New York Daily News article about Bronx Judge Naita Semaj lambasting Bronx police officer Taulant Gjonbalaj and his peers after confronting Williams for "no apparent reason." 

“There was absolutely zero reason for any of those officers to approach this individual,” Semaj said on Tuesday in Bronx Supreme Court. “They approached him. They detained him. They searched him, and no officer even bothered to come up with a halfway legitimate reason for any of that.”

Police claimed Williams was part of a "disorderly crowd" and disobeyed police orders to remove his hands from his pockets before firing a gun in an incident that injured Officer Kaseem Pennant. “At the time, Adams, (union leader) Pat Lynch, and much of the media completely misrepresented this case as an intentional police shooting, when in fact the gun discharged accidentally and went through the teenager's leg before hitting the cop,” Kavanagh said in another tweet.

Semaj said in proceedings New York Daily News covered: “While there is no disputing the fact that Mr. Williams had a gun on him that night... He literally does everything you tell your child to do when they’re approached by cops. He literally kept his hands up. He literally tried to record to make sure there was proof. He answered questions he had no obligation to answer.”

The judge called Gjonbalaj’s testimony "absolutely incredible.”

"It was inconsistent with the video. It was inconsistent with his fellow officer’s testimony,” Semaj said. "It was self-serving. It had no value."

Williams pleaded not guilty after being charged as an adult with criminal possession, and second-degree assault, among other charges related to the weapon and he was released from a juvenile facility after posting $250,000 bond on Jan. 27, 2022. After Semaj’s remarks, Williams' case will be moved to family court, Daily News reported.

“I just want to say I’m innocent,” the teen told Daily News on Tuesday.

The New York City mayor has been heavily criticized by bail reform activists for his response to the teen rapper’s case. Williams pleaded guilty as a 14-year-old to possessing a gun, Daily News reported.

So when he recently posted bail, Adams said in a statement Fox 5 obtained: "New Yorkers should all be outraged that a repeat offender, accused of shooting at a police officer, is today walking free on bond because judges are precluded from even considering danger to the community, like every other state and our federal courts. It is further proof that our current system is failing us. Today of all days, with the city in mourning over the deaths of Detective First-Grade Jason Rivera and Police Officer Wilbert Mora, we all must come together and agree that changes are needed. We cannot allow those who carry guns to walk free – we can pursue safety and justice at the same time, and we must, for the safety of all of us."

New York Communities for Change, a nonprofit advocating for social, political, and economic justice, asked the mayor in a tweet on Wednesday if he would apologize for his statement on the case. "Will you call for this police officer to be fired?” the nonprofit asked. “Or when #CopsLie will you support a cop whose testimony, according to the Bronx court judge,  ‘was inconsistent with the video,’ ‘self-serving’ and ‘had no value’?”

The organization added: ". @NYCMayor 's toxic mischaracterization of cases to publicly undermine #BailReform ‘will reinvigorate a system of mass incarceration of Black & Brown NYers by rolling back reforms that have helped to equalize the administration of justice in NYC.’

"’The safest communities aren't the ones w/ the highest jail populations. They're the ones with the best crime prevention programs, safe affordable housing, good jobs, access to mental healthcare & drug treatments.’ We must protect #BailReform."

RELATED: Cops lie. Look no further than initial press release following George Floyd's death as proof

RELATED: It's not cops beating Black people to death. It's the sickle cell trait, medical examiners allege

Read 3 remaining paragraphs | Comments

Anti-trans measures in Texas are going from bad to worse. Republican Gov. Greg Abbott is no ally to LGBTQ+ people, but his decision to essentially make a nonbinding opinion from Attorney General Ken Paxton the word of law is decidedly cruel. As Daily Kos covered at the time, the Republican Texas attorney general wrote an opinion—which is essentially an analysis based on his interpretation of existing law—that categorizes gender-affirming health care for trans youth as child abuse. This goes against standard science and medicine from a number of major medical groups, mind you.

Abbott then directed state agencies to abide by this opinion and investigate families who seek gender-affirming care for trans youth, like hormone therapy and puberty blockers. One hospital in Texas has already paused its treatments out of concern for physicians facing legal ramifications. And one family in Texas says they’ve already been investigated by the Texas Department of Family and Protective Services (DFPS). What makes this particularly stunning, truly, is that Paxton had dinner with this very family, in this very home, just six years ago, as reported by The Texas Tribune. And now they’re having to prove to the state that their home is safe for their two kids.

Paxton and his wife, Angela, joined the Briggle family for dinner in their home six years ago in the Dallas, Texas, area. Why? Because at the time, anti-trans measures were seeking to bar trans folks from using the bathroom that aligns with their gender identity. The Briggle family decided to invite Paxton over to dinner to meet their openly trans son—a unique and inspiring way of trying to change someone’s mind. At the time, they thought it worked.

Now thanks to Paxton’s opinion, the parents of two say they’re under investigation and could lose custody of their children.

As mom Amber Briggle told The 19th, she found out about the investigation on Feb. 28 when she returned a missed phone call to her business. Upon returning the call, she was told a Child Protective Services worker was on their way to their home per an investigation. Briggle said she had about half an hour before the worker was due to arrive at their home, and at that time, she contacted her husband and their family attorney. The attorney was able to schedule a meeting for another day. 

(It’s worth pointing out here that the Briggle family absolutely has certain privileges others won’t—their whiteness, their relative wealth, and their ability to contact an attorney, for example, are all things low-income parents or parents of color may lack in these circumstances.)

Ultimately, the investigator arrived at their home a few days later on March 2. Briggle said their attorney told them they technically had the right to refuse to answer questions, though they did show the worker their backyard, including a trampoline and room for the kids to play, as well as a kitchen stocked with food and plenty of games, books, and children’s artwork around the house.

Briggle says the investigator told the parents they were doing something right. What’s enough? What’s “right” enough to be safe, and whose opinion is shaped by their own societal and structural norms and biases? That’s just part of what makes this process so deeply unfair and terrifying. 

In terms of the kids, the Briggle parents wrote in a statement that they advised their children they didn’t have to answer questions. “We told them that the government is trying to spy on us even though we have done nothing wrong,” the statement reads in part, according to The 19th. 

This isn’t the only family who says they’ve been contacted by the DFPS. At least a handful have spoken out, and as reported by NBC News, apparently the department opened an investigation into the family of one of its own investigators because they have a trans child.

In the big picture, it’s deeply worrisome that families who have become involved in activism or spoken out may be targeted now. Think about the brave trans youth who testified before committees in defense of their own basic rights and humanity. They were praised for their bravery, and now they might be taken from their families. That’s beyond sick.

Measures like these from the state level could easily lead to people staying quiet and closeted in order to stay (relatively) safe at home with their families. This could lead to people not wanting to “publicly” transition while at school or in sports, such as sticking with their name or pronouns assigned at birth, which could absolutely add to mental distress and feelings of gender dysphoria. It’s unfair, unsafe, and frankly, downright unethical.

It’s unclear how this situation will play out. Thanks to the Biden administration, we know people in high places of power in the federal government don’t agree with Abbott’s directive and that they don't support it. But arguing that something is unconstitutional doesn’t mean it goes away—just look at ongoing attacks on abortion access, for example. We need to keep up the fight, and we need to play the long game.

Next time Republicans stir hysteria about little kids playing sports, remember that what they’re really trying to do is get the public comfortable with the idea that trans people are somehow different, and therefore, discrimination is “okay.”

From shocking anti-abortion regulations to laws targeting trans kids and their families, state-level GOP radicalism only gets worse.

At the stroke of midnight, while Georgians were sleeping, the Republican state Senate introduced a dangerous and bigoted piece of legislation targeting LGBTQ young people in private schools. 

Georgia SB 613 mimics the discriminatory Florida “Don’t Say Gay” bill, but instead targets K-8 private school students who don’t have the same protections as public school students. 

The Florida Senate passed the hateful bill on Tuesday, March 8, with a vote of 22-17, almost but not entirely along party lines. Daily Kos staffer Marissa Higgins writes, “The bill pretends to be about ‘parental rights’ but is actually about stamping out LGBTQ+ identities, people, and histories from public school classrooms. There is no benefit to the bill. It will only push students (as well as teachers and other school staff) into the closet. It will only lead to increased shame, anxiety, and internalized queerphobia.”

“The [Georgia] bill is a full-frontal assault on the rights of kids in Georgia just before the GOP primary,” Anthony Michael Kreis, an assistant law professor at Georgia State University, told Daily Kos. 

Kreis says that this bill in many ways is “inconsistent” with the Georgia legislature, which rarely attacks private actors, such as private institutions or curricula. 

Georgia Democratic Rep. Mathew Wilson, one of the six openly LGBTQ House representatives in the state, told Daily Kos the new bill is the latest pile-on of cruelty against LGBTQ Georgians. "The GOP looked at its polls and clambered for the most anti-LGBTQ bill they could get away with." He added that although he doesn't think SB 613 speaks to the true nature of the state, it's still "hateful and harmful," and "we have to stop it." 

Both Wilson and Kreis are doubtful the bill will pass in its present state. It could be stripped and/or replaced, but it's not dead until the gavel falls. 

According to The Georgia Voice, a study done by the Williams Institute in 2019 found that the South had the largest LGBTQ population of all the regions in America, with Georgia having the second-highest LGBTQ percentage in the South. The Atlanta Journal-Constitution found that 4.2% of metro Atlanta’s population identifies as LGBTQ, according to a Gallup poll. 

Among Georgia’s LGBTQ population, 27% are raising children compared to the 29% nationwide. Twenty-six percent have income over $24,000, while only 16% of non-LGBTQ Georgians do.

Kreis says it’s high time Republicans begin to take a long, hard look at themselves. 

“We have a lot of people in legislation and Republicans in the state railing against authoritarian and Russia but are using lines from Putin's playbook,” Kreis says.

He added:

“Republicans are using the same ugly phrases about LGBTQ such as ‘groomers,’ and ‘petophiles’ and these are the exact same lines Putin uses in his anti-LGBTQ legislation. It’s not tenable to take this abroad but then to xerox their propaganda here at home. This moment is a reflection point to what it means to support liberal and democratic ideas here at home.” 

Wilson says that preventing these anti-LGBTQ bills from becoming law isn’t the entire victory.  ”Just introducing these bills has a chilling effect on our community and our on our kids it’s immeasurable. We need to stand up and say this is not Georgia. This is not humane and to call on our allies to stand up and publicly shun this behavior, otherwise, it will happen every election year.” 

News coverage may be starting to catch up to the reality of the Republican strategy on Russian energy imports and gas prices. Hopeful signs come in headlines from ABC News—"GOP blames Biden for gas prices after pushing for Russian oil ban"—and NBC News—"Republicans cheer Russian oil ban and jeer Biden for rising gas prices." But this turn comes late, and it doesn’t look like the media coverage will consistently call out the cynical Republican approach of pushing for a policy that would increase gas prices while attacking President Joe Biden over gas prices.

The Washington Post, for instance, made the situation all about Democrats and the political threat they face from moving forward with the bipartisan policy of banning Russian energy imports in response to Russia’s invasion of Ukraine. Only in the fourth paragraph do Republicans even enter the story, in a way that downplays the level of partisan hypocrisy on display.

Both Greg Sargent and Eric Boehlert have taken on the media’s willingness to ignore or seriously downplay what Republicans are doing, while endlessly reporting on concerns about high gas prices. As Sargent notes in recent stories in The Wall Street Journal and The New York Times, “The mere fact that Republicans are using something as political ammunition justifies treating their claim about it like a newsworthy and thus respectable argument, regardless of how painfully ridiculous it is.” The Post is repeating that way of reporting on exactly the same issue.

When Senate Minority Leader Mitch McConnell says, “Don’t be fooled. This was more than a year in the making,” he is in fact trying to fool people. Yes, gas prices have risen from early pandemic lows, and as people are going out more. But that is a separate issue from how much gas prices have risen as a direct result of Vladimir Putin’s invasion of Ukraine, which has spurred a recent and sharp increase that is likely to go up even more given the new ban.

Meanwhile, coverage of people legitimately concerned about what rising gas prices will mean for them (and people less legitimately concerned, like the ones complaining about gas prices as they fill the tanks on their extremely expensive gas-guzzlers) is totally swamping coverage of polls showing that people think the Russian energy ban is worth higher prices.

And while coverage of gas prices may feel like a constant in life, the fever pitch now is not the way things have always been. Boehlert reports, “The last time gas in the U.S. climbed above $4 per-gallon was in 2008. But we know news coverage then wasn’t as incessant and breathless as it is today because at the time President George W. Bush had no idea prices were heading towards $4 a gallon — that’s how little coverage there was.”

The reality is right in front of us: Republicans pressing for Biden to do something at the exact same time as they are attacking him for its consequences. That needs to be in the headlines, something ABC News and NBC News have showed is entirely possible. Unfortunately, much of the high-profile traditional media is still portraying this as a political problem for Democrats without being upfront about why that is, and airing Republican attacks as if they were anything other than a political ploy.

‘

Just listen to the rhetorical gymnastics Republicans in the Florida Legislature have employed to defend what opponents call the“Don’t say gay” bill. We have nothing against LGBTQ kids, they argued. We’re just protecting parental rights, they said, trying — and failing — to defend themselves against charges that they are homophobic. But it took a debate on the Florida Senate floor on Monday for the true views of at least one of the politicians behind House Bill 1557 to emerge: There are just too many gay kids nowadays. That, apparently, is why bill sponsor Sen. Dennis Baxley, a Republican from …

Read More

Read 8 remaining paragraphs | Comments

Consider supporting my work so I can continue creating it: Patreon, Nick Anderson, or another option

The meat industry largely defines what’s animal cruelty and what isn’t; a recent court ruling in Pennsylvania could offer a new legal route for activists.

In 2018, Erin Wing worked for two months at a 1,000-cow dairy farm in Chambersburg, a small Pennsylvania town about three hours west of Philadelphia, where she was one of 10 employees who milked and fed the cows. But something set her apart from the other workers: Wing wore a hidden camera, living a double life as an undercover investigator for Animal Outlook, an animal advocacy nonprofit.

During her stint, Wing captured a variety of horrors on film. Some were inhumane but legal and not uncommon in the dairy industry, like removing calves’ horns —which is done to prevent the horns from injuring workers — without pain mitigation like anesthesia or anti-inflammatory drugs.

But she also documented acts of cruelty that seemed wholly gratuitous, like employees beating, stomping on, and kicking cows, and many others I’ll omit for the sake of readers’ peace of mind.

“All told, we documented over 300 incidents that we believed violated Pennsylvania’s laws,” Will Lowrey, an attorney with Animal Outlook, told me.

The Pennsylvania State Police opened an investigation, and over a year later it announced that the district attorney of Franklin County in Pennsylvania, where Chambersburg is located, would not press charges against the farm as a corporation, the owner, and 14 current and former employees. The police also assured the public that the farm had taken steps to improve training and animal handling procedures. (The Pennsylvania State Police declined an interview, Martin Farms could not be reached for comment, and the Franklin County district attorney did not respond to requests for comment.)

The DA’s decision wasn’t surprising. Many undercover investigations that document cruelty to farmed animals don’t result in prosecution, and when they do, it’s usually over the more egregious, often one-off acts of cruelty conducted by stressed-out, low-paid workers. The routine yet inhumane practices instituted by the owner — and often pervasive throughout the industry — go unexamined, even though they account for much more animal suffering.

And with 9 billion animals churning through the meat, dairy, and egg industries each year and just a handful of undercover investigators documenting how they’re treated, consumers and policymakers are left in the dark. This system persists because farmed animals are largely invisible in the law.

But due to a quirk in Pennsylvania’s legal code — the ability of private citizens to challenge government officials’ decision not to prosecute — Animal Outlook was able to circumvent that invisibility and set a new precedent for animal law. But before I get to that, it helps to understand the legal system under which animals are farmed.

How the animal agriculture lobby erased farmed animals from the law

At the federal level, there are no laws that protect animals while they’re on the farm.

The Animal Welfare Act, which sets minimum standards for animals used in zoos or research or sold as pets, specifically exempts animals raised for food. The Humane Methods of Slaughter Act and the 28-Hour Law (the latter which covers farmed animals in transport) are weakly enforced, and both exempt poultry, which make up 98 percent of US land animals raised for food.

Every state has an anti-cruelty statute on the books, and a few exempt farmed animals altogether, while most exempt what are considered “customary farming practices” — or as Pennsylvania law puts it, “normal farming operations.” It doesn’t matter how inhumane those practices may appear as long as they are commonly used, year after year.

“In most of the United States, prosecutors, judges, and juries no longer have the power to determine whether or not farmed animals are treated in an acceptable manner,” wrote animal law professors Mariann Sullivan and David Wolfson in their seminal text on state and federal anti-cruelty exemptions. “The industry alone defines the criminality of its own conduct.”

As a result, only more extreme acts of cruelty — like some of the acts documented at Martin Farms — are potentially prosecutable under the law. But they’re typically only uncovered if a group like Animal Outlook sends an investigator onto one of America’s tens of thousands of factory farms, which leaves most abuse undocumented and unaddressed.

And even if an investigator can gain employment on a farm, political and cultural factors pose major barriers to seeking justice for the abuse they document. Factory farms tend to be located in rural areas, where they are woven deeply into the fabric of the region’s politics, economy, and culture, so sheriffs and district attorneys are often reluctant to take action. When they do, it’s usually against low-level employees who are disproportionately immigrants and are labeled as “bad apple” workers while (typically white) owners and management often get off scot-free.

“You see this syndrome where the owner says, ‘Oh, my god, I’m so shocked — this is terrible. We’re firing them right away and they should be prosecuted’,” Sullivan, who teaches animal law at Cornell Law School and hosts the Animal Law podcast, told me. “So the very low-level people get prosecuted for this gratuitous cruelty. … And they’re eligible for being thrown under the bus by the owners.”

This kind of outcome for undercover investigations happens frequently enough that it’s causing some in the animal protection movement to critically examine the carceral approach to investigative work.

By getting laws passed, animal advocates have been able to ban or restrict the use of some customary farming practices, mostly cages and crates for hens and pigs, in 14 states. But the legislative route is slow and difficult; to even get to a full vote, farmed animal welfare bills first have to make it through the statehouse’s agriculture committee, where they usually go to die, as they’re often chaired by industry-friendly lawmakers.

Advocates have found some success through putting the vote directly to the people via ballot measures, but those are costly, and fewer than half of US states allow such direct measures.

This challenging legal landscape, and the political and cultural factors that block the gaps that could overcome it, have long stymied animal lawyers and advocates who’ve amassed thousands of hours of footage of animal abuse through their undercover investigations. But due to the above-mentioned quirk in Pennsylvania law — the ability to petition a court to overturn the district attorney’s denial of prosecution — Animal Outlook shifted what practices can be deemed “normal” in the first place.

The organization’s initial petition was denied, so it appealed to Pennsylvania’s Superior Court. Last month, in a precedent-setting decision, the court’s three-judge panel ruled that the lower court was required to order the Franklin County district attorney to prosecute Martin Farms for animal cruelty, including over common practices like dehorning without pain mitigation.

“The most obvious evidence overlooked by the trial court was that concerning the dehorning of calves...” the decision reads. Citing Dr. Holly Cheever, a veterinarian who reviewed the investigative footage, the decision went on to state that “the technique used by Martin Farms as shown in the video caused the calves to be ‘in agonizing pain, shown by their violent thrashing and bellowing.’”

The judge characterized the district attorney’s position on exempting dehorning without pain mitigation as “absurd,” creating a crack in the meat industry’s ironclad legal armor.

Animal Outlook’s investigation could influence the future of animal law

“I can’t even describe the feeling I had,” Wing, the investigator, said about hearing of the ruling for the first time. “I have thought of Martin Farms and that investigation for years. ... I definitely have had nightmares about what I witnessed there.”

Jo-Anne McArthur/#unboundproject/We Animals Media

“I do think it’s an amazing and important case,” Sullivan told me. “Obviously it’s limited to Pennsylvania, but the fact that an appellate court looked at this situation and was clearly horrified … feels like a very big deal.”

The case would still be influential if it had merely centered on the more malicious acts of animal cruelty, but what makes it more important is that the court also questioned whether dehorning calves without pain mitigation should be considered “normal” in the first place (and if not, it could then be prosecutable). The court also deemed Martin Farms’ dehorning not normal because employees roughly handled the calves and performed dehorning at an age when the practice is more painful.

Since Pennsylvania’s anti-cruelty statute exempts “normal agricultural operations,” this decision could lead to advocates challenging other common farming practices in the courts.

Dehorning without pain mitigation exists in a “normality gray zone” because while some dairy industry organizations don’t like it, a lot of farmers still do it because they don’t think pain mitigation is necessary, they’re unfamiliar with the available drugs, or the drugs take too much time to administer. A 2021 survey of 217 dairy farmers in Wisconsin, which ranks second in dairy production, found that only half used pain relief for the procedure.

Does that make it a normal agricultural practice? When does a practice go from normal to abnormal, from legal to illegal? As battery cages for egg-laying hens get replaced by cage-free systems, what will the threshold be that tilts cages from normality to cruelty in the eyes of the law? Someday, a Pennsylvania judge may decide.

“How could this be a standard practice — to take a hot iron and press it into the skull of a young calf and burn their skin away, burn their horn tissue away, and especially to do that without some form of anesthetic?” Wing says. “To have that be recognized [by the court] is really incredible.”

The decision “sends a clear message that animals used in agriculture are protected by the law,” Lowrey said.

And even though the precedent is limited to Pennsylvania, it’s important in two other ways. First, Pennsylvania is a major agricultural state, ranking fourth in egg production, seventh in dairy, 10th in turkey, and 14th in chicken. All told, over 235 million animals are raised for food in the state each year. Those who advocate for them now have another tool in their legal toolbox.

Sullivan says it also sets a cultural precedent, which can’t be discounted — and it gives animal lawyers across the country a decision to reference when challenging other states’ exemptions.

It could be months or even years until the case is resolved, and anything could happen. The Franklin County district attorney could appeal and the case could be dismissed, washing away this new precedent in animal law. The case could move forward and the district attorney could fail in their case, or it could successfully prosecute Martin Farms, emphasizing that the practice of dehorning without pain mitigation was no longer “normal” in Pennsylvania farming, setting a cultural precedent in a major agricultural state.

But whatever the outcome, the Pennsylvania Superior Court decision illustrates what can happen when standard yet horrific farming practices are put under a microscope: The institutions that govern how America farms and eats might be forced to evolve.

In the sea of anti-trans, hateful legislation coming from Republicans, it becomes all too easy to miss bills that aren’t getting the same mainstream media attention. One example comes to us out of Idaho, where the House State Affairs Committee recently approved House Bill 675, as reported by LGBTQ+ outlet them. The bill aims to add gender-affirming health care to an existing law that bans female genital mutilation, and would make it a felony for physicians to provide puberty blockers and hormones to people under 18. (It would also ban gender-affirming surgery on people under 18, but that is not generally done, anyway.)

Republican state Rep. Bruce Skaug sponsored the bill. In speaking to Boise State Public Radio, Skaug compared gender-affirming health care to a number of dangerous decisions, like getting a tattoo, drinking alcohol, and smoking cigarettes. “Why would we allow them to go through these physical mutilations because of their feelings at the time,” he said. Mind you, actual physicians and medical experts have long agreed gender-affirming health care is life-saving care. He is wrong, but sadly, he is not without power.

Here’s how the bill would work. HB 675 would essentially update a law that bans female genital mutilation surgeries on people under 18. This update would include surgeries like orchiectomies, hysterectomies, metoidioplasties, and more, which are not generally done on youth anyway. The bill would technically expand the law to include these surgeries on someone of any gender, not just cisgender girls. Again, these surgeries are not routinely done or even considered on youth. But puberty blockers, for example, are—and this bill seeks to ban those, too.

The bill makes it explicitly clear it’s intended to block care for youth experiencing gender dysphoria. In its statement of purpose, it reads in part: “This legislation would amend the existing state ban on female genital mutilation to also include puberty blockers, cross-sex hormones, and sex reassignment surgeries when administered to children struggling with gender dysphoria.”

For the curious, the bill allows for these surgeries to be done on intersex children regardless of whether or not the child consents to it. So, there’s an exception written in to perform these operations on children even if they don’t want it, with the goal of getting them to conform to societal norms … but young people who do want care that is far, far less invasive and permanent can’t get it. Got it.

“By voting yes on House Bill 675, you are voting to kill me and other kids just like me.” 16-year-old Eve Devitt, an openly trans girl, testified during the debate on the bill, as reported by The Advocate. Devitt shared that she lived with suicidal ideation and gender dysphoria.

College student Calvin Udall testified that the years before he received gender-affirming care “were the worst years” of his life. 

And for providers who are allies? They face some serious penalties if they go ahead and provide this care anyway. How serious? Felony charge serious. Health care professionals who provide gender-affirming care to youth could face a lifelong prison sentence. 

The bill heads to Idaho’s House of Representatives, where it is likely to pass.

Sign the petition: Demand the Senate pass the Equality Act and protect the LGBTQ community from discrimination.

Wendy Rogers claims she speaks for the people, yet she’s released just three paltry letters of support on her website, all of which slam the Arizona senate for censuring her in a historic 24-3 vote over her speech at a Nazi conference, plus her exhaustingly divisive social media presence. The folks who aren’t her constituents are somehow eating up her extremism, having donated nearly $2 million to a candidate they can’t even cast a ballot for. The censuring only emboldened Rogers to seek further donations via email, according to The Washington Post, and she hasn’t exactly backed down from any of her incendiary statements. Prior to being censured, Rogers had a chance to speak at the Nick Fuentes-run (yes, that Nick Fuentes) America First Political Action Conference (AFPAC). She took it as an opportunity to openly endorse the far right, slam fellow lawmakers like Tulsi Gabbard and Dan Crenshaw, and really make her feelings for Robert E. Lee known despite the racist and incompetent joke of a general having died more than 150 years ago.

Rogers proudly boasted of being on the wrong side of history for her antisemitism, wearing the designation of being called an extremist by the Anti-Defamation League as a badge of honor. She then decided disgracing her lineage was the next best move when it comes to showing just how dedicated she is to her Nazi grift. “My ancestry from Maine fought on the side of the union and knew Joshua Chamberlain but I still respect Robert E Lee,” Rogers said to cheers, “because the revisionist left is trying to destroy him. And he can't be here to defend himself. He was an honorable man.” Also during her speech, Rogers called for traitors to be “hanged” and “use a newly built set of gallows.” This isn’t a great look for anyone, much less a sitting lawmaker, but Rogers hasn’t exactly apologized for her comments or accepting an invitation to speak at AFPAC.

She refused to condemn the event itself or Fuentes, and even took pains in her speech to lament his deplatforming and “de-banking.” A former Rogers campaign worker was somewhat shocked that this is what the retired Air Force veteran had turned into since running five unsuccessful conservative campaigns that were far more traditional than her present fascination with nonexistent election fraud, discriminating against undocumented migrants, and pushing bullshit antisemitic theories. “She was not one to make the kind of polarizing statements she makes now. There were no alarms bells,” Bert Coleman, a political consultant who worked with Rogers years and years ago, told the Post. Those who first supported her are now embarrassed to have even been associated with her. “My wife gives me hell to this day for having supported her,” former Maricopa County attorney Rick Romley also told the Post.

Rogers serves an area spread across portions of four counties, three of which went for Trump during the 2020 presidential election. So far, no one has emerged to challenge her in the midterms. With redistricting, the sixth district that Rogers represents will now include sections of three more counties—two of which went for Trump—and the dropping of sections of the pro-Trump Yavapai County. It’s anyone’s guess who will emerge to challenge Rogers. It’s not like she’s garnered additional political support for her recent actions, though their silence is deafening. Gov. Doug Doucey has refused to take a stand against Rogers, and the Rogers-endorsed Kari Lake has yet to issue a statement about her colleague’s conduct. There are ways to ensure lawmakers like Rogers don’t remain in positions of power in Arizona. Donate to ActBlue to help make Arizona’s future a more progressive one.

Today, Mitch McConnell wants to take food out of kids' mouths. Just wait until Republicans actually take power.

Read 11 remaining paragraphs | Comments

It’s Tuesday, so that means Congress is scrambling to figure out both how to keep government from shutting down in three days and how to keep plans for getting out of town midweek. The House is going to try to get the omnibus spending bill that will fund the remainder of this fiscal year and provide $12 billion in aid to Ukraine to the floor by Wednesday morning, and that’s not out of the question. The bigger problem is, as usual, on the Senate side, where Republican leader Mitch McConnell is raising a last-minute hissy fit over school children being fed.

Appropriations Chair Rep. Rosa DeLauro (D-CT) told reporters Tuesday morning that the bill is “close” to being done, with “a few more things to work out but we’re gonna get there.” Her “intention” is to have a bill wrapped up by Wednesday, when House Democrats are scheduled to decamp to Philadelphia for a retreat.

Majority Leader Steny Hoyer said he is “hoping” that “we will have the paperwork done today, rule done today and we’ll have it on the floor tomorrow morning.” That leaves Tuesday to wrap up the outstanding issues. Hoyer is also advising members that they will likely have to return to D.C. on Friday to deal with whatever the Senate might send back to them and get the funding bill on President Joe Biden’s desk before the midnight deadline.

There’s a big wrinkle in all that on the Senate side coming from Republicans—specifically coming from Minority Leader McConnell, who is having a hissy fit over a provision in the bill that extends pandemic relief to allow schools to serve universal free meals.

He won’t say why he wants to make children go hungry, but he “is not budging,” one person involved in ongoing negotiations told Politico. “It hurts everybody in every state. These are things Republicans want.”

That’s while, as of now, the Ukraine aid is linked to the spending bill, so you could rightly argue that McConnell is standing in the way of crucial aid to Ukraine in pursuit of making kids go hungry. He might have just picked this one provision to object to in order to get something else he might want to have happen: decouple the Ukraine aid from the spending bill and pass it. That would shield Republicans from blowback for delaying that aid. And it would force Democrats to pass another continuing resolution to keep government funded and eat up more time.

Hoyer told reporters that they might end up “dividing the question” and split up the various parts of the spending bill, like separating Ukraine aid and probably Pentagon spending from the rest. House progressives would like to have Ukraine aid as a standalone vote, and to be able to vote against the defense budget. So that’s a possibility.

The Biden administration bumped up its initial $10 billion to $12 billion on Monday for humanitarian, military, and economic assistance. As of now, that’s tied to the omnibus spending bill, which could also include $15 billion in pandemic funding. That’s down substantially from the $22.5 billion the administration requested to shore up public health programs to combat the next variants and to provide more vaccines internationally. About a dozen Senate Republican have threatened a shutdown over this and other COVID-19 issues.

In addition to trying to fund government and help Ukraine, lawmakers are pushing to punish Russia, including some kind of action on oil imports above and beyond what Biden plans, allowing the administration to impose tariffs on other Russian imports, suspending Russia from the World Trade Organization, and ending its status as a normal trading partner—what used to be called “most favored nation” status.

These measures might be voted on this week in the House as well, but what with trying to pass government funding and go on retreat, that looks iffy. Particularly with the ongoing Republican games in the Senate.

On the good news front (because there is some), the Senate finally passed the Emmett Till Antilynching Act, a process that only took a century and 200 attempts. It also moved one step closer to passing the Postal Service Reform Act, with final passage expected Tuesday. There’re still some problematic amendments lurking out there, including one from Sen. Pat Toomey that would ban the Postal Service from providing banking services, including the current service of providing money orders. The bill is pending in the Senate, pending that amendment negotiation process.

Related stories

Emmett Till Antilynching Act passes Senate

Senate Republicans threaten a government shutdown and delay in aid to Ukraine

Zelle, the payments platform used by millions of customers, is a popular target of scammers. But banks have been reluctant to make fraud victims whole -- despite owning the system. From a report: Consumers love payment apps like Zelle because they're free, fast and convenient. Created in 2017 by America's largest banks to enable instant digital money transfers, Zelle comes embedded in banking apps and is now by far the country's most widely used money transfer service. Last year, people sent $490 billion through Zelle, compared with $230 billion through Venmo, its closest rival. Zelle's immediacy has also made it a favorite of fraudsters. Other types of bank transfers or transactions involving payment cards typically take at least a day to clear. But once crooks scare or trick victims into handing over money via Zelle, they can siphon away thousands of dollars in seconds. There's no way for customers -- and in many cases, the banks themselves -- to retrieve the money. Nearly 18 million Americans were defrauded through scams involving digital wallets and person-to-person payment apps in 2020, according to Javelin Strategy & Research, an industry consultant. "Organized crime is rampant," said John Buzzard, Javelin's lead fraud analyst. "A couple years ago, we were just starting to talk about it" on apps like Zelle and Venmo, Mr. Buzzard said. "Now, it's common and everywhere." The banks are aware of the widespread fraud on Zelle. When Mr. Faunce called Wells Fargo to report the crime, the customer service representative told him, "A lot of people are getting scammed on Zelle this way." Getting ripped off for $500 was "actually really good," Mr. Faunce said the rep told him, because "many people were getting hit for thousands of dollars."

Read more of this story at Slashdot.

8/10 would be a CPA job

Click here to go see the bonus panel!

Hovertext:
I'm ready to start this cult if anyone wants to join me.

Today's News:

Thomas Homan served as an acting director of Immigration and Customs Enforcement (ICE) under the previous administration. He was in fact just one of nine acting directors under the insurrectionist president, but certainly among the most notorious, falsely defending family separation as “law,” melting down in front of Congress, and warning undocumented families to “be afraid.” What a swell guy.

So it’s not surprising—but nevertheless still disgusting—that Homan showed up to the recent white supremacist America First Political Action Conference also attended by Reps. Majorie Taylor Greene and Paul Gosar. But unlike them, he really wants to you to believe that his appearance there was all just a big misunderstanding. Sorta. 

HuffPo reports that Homan, who served as acting ICE director from late January 2017 to mid-summer 2018, was set to speak to the crowd of white supremacists, but left early after supposedly Googling organizer Nick Fuentes’ name. Homan really wanted to get it out that he didn’t do the booking, it was an assistant, but he also wasn’t totally blaming the assistant, because “so many names of conservative groups sound the same,” he said. Okay.

Why Thomas Homan, who hasn’t held office since 2018, needs an assistant in the first place is itself questionable, but I digress. Homan claims that while he saw some news articles about Fuentes’ despicable views, he waved them away. “Homan said he himself has unfairly been called a bigot and a racist for ‘enforcing immigration laws,’” the report said. Lots of people think that family separation is a bad thing, Tom—and it was a policy created by the administration you worked for. 

But anyway, Homan claims it wasn’t any of Fuentes’ gross record that made him bolt: It was a recent remark he made in favor of Russia’s brutal invasion of the independent nation of Ukraine. So he left, adding that he never met Fuentes. But Homan also took pains to walk back his walk-out, HuffPo continued. “A few minutes later Homan called me back to make sure I understood something. ‘I’m not saying this is a bad group,’ he said of Fuentes and the groypers,” the report said. “’I’m saying I don’t know.’”

Oh, but it is a bad group, and not exactly helping Homan’s defense here is that he already has a history of associating with racist organizations (aside from the previous administration itself), including while on the job. Shortly before his retirement, Homan spoke at an event hosted by the Center for Immigration Studies, an anti-immigrant hate group founded by eugenist John Tanton. The group has been notorious for circulating swill from antisemites and Holocaust-deniers, one of whom called Jewish people “truly subversive,” “manipulative,” and “evil.”

Both Homan and the CIS “moderator” opened their “conversation” with complaints about people calling their racist organization “racist,” as well as making light of and dismissing a letter from a member of Congress urging him to pull out of the event. CIS’ website also shows appearances with Homan the following year, as well as in 2020 to hawk some book. Funny how associating with bigoted groups always turns into someone else apparently just not understanding things correctly, and not a reflection of the guy who keeps showing up to their events.

RELATED: Kevin McCarthy's failure to act on Gosar and Greene's white nationalist flirtation says it all

RELATED: White nationalists flaunt their traction within Republican Party at annual gathering in Florida

RELATED: ICE acting director Thomas Homan to speak at event hosted by anti-immigrant hate group

Republican Gov. Greg Abbott’s directive to have state agencies investigate parents for child abuse over gender-affirming health care is not the only instance of structural transphobia in action in the United States, but it’s certainly a chilling one. As Daily Kos covered at the time, Abbott directed state agencies to investigate parents (and health care providers) who seek or provide gender-affirming health care to trans youth—this could be, for example, puberty blockers or other forms of hormonal therapy. Abbott’s directive is based on an opinion from Republican Attorney General Ken Paxton. It is not a law. 

That said, trans people and allies are understandably frightened. According to a lawsuit filed by the American Civil Liberties Union (ACLU) and Lambda Legal last week, parents are already being investigated by Texas officials, as reported by Mother Jones. Mind you, all major medical associations, including the American Medical Association (AMA) and the American Academy of Pediatrics (AAP), support gender-affirming care for youth as age-appropriate, safe, life-saving care. There is nothing experimental or controversial about this except that conservatives want to stoke fear and outrage against a vulnerable group. And yet reports of “abuse” are already coming in.

In the lawsuit, the ACLU and Lambda are that Abbott’s order doesn’t have the necessary statutory or constitutional authority. There is also considerable concern that this order will lead to false accusations. The order is extremely broad and gives permission for fellow parents (as well as teachers, coaches, neighbors, and so on) to essentially monitor the behaviors and lives of trans (or possibly trans) youth in their communities.

What counts as gender affirmation? What if it’s not medical, but about names or pronouns? What about if it’s just about clothing? What is the burden of proof? This sort of scenario sets the stage for horrible, unfair paranoia for youth and families who do want to be supportive. It pushes people into the closet to stay safe, and that’s sick.

As reported by local outlet KHOU 11, on Friday, Texas Children’s Hospital announced it is pausing gender-affirming care services per Abbott’s directive. Why? Per the statement, they’re pausing hormone-related prescriptions for gender-affirming care as a step to “safeguard” health care professionals and families from “potential criminal legal ramifications.”

To be clear: They’re not stopping prescriptions because they’re dangerous medically, but criminally. Thanks to Abbott.

On Wednesday, Texas District Judge Amy Clark Meachum issued a temporary order stopping the Department of Family and Protective Services (DFPS) from investigating the parents of a 16-year-old receiving gender-affirming care. Meachum blocked the state from investigating these parents (after they sued) but for now, this halt applies only to this family, not other families being investigated. On March 11, Meachum will have an additional hearing to decide whether to issue a broader order, as reported by The Guardian. 

According to The 19th, a DFPS spokesperson told the outlet that the agency has received at least three reports so far alleging neglect or child abuse based on gender-affirming health care. 

Also on Wednesday, the U.S. Department of Health and Human Services (HHS) issued a guidance saying that physicians are not required to disclose private patient information—including gender-affirming care. HHS suggested that parents who are investigated in Texas because of the directive can go to the HHS civil rights office for help.

As reported by Axios, HHS Secretary Xavier Becerra described Abbott’s actions as “unconscionable” and pledged that at HHS, “we listen to medical experts and doctors, and they agree with us, that access to affirming care for transgender youth is essential and can be life-saving.”

Unsurprisingly, President Joe Biden spoke against Abbott’s directive during his State of the Union address on Tuesday. “The onslaught of state laws targeting transgender Americans and their families, it’s simply wrong,” he said in part, again stressing his support for a federal bill to protect LGBTQ+ people from discrimination.

Sign the petition: Demand the Senate pass the Equality Act and protect the LGBTQ community from discrimination.

We’ve long known that Republican Gov. Ron DeSantis is no ally to the LGBTQ+ community. This sad reality makes the steady progress of HB 1557 (also known as the “Don’t Say Gay” bill) all the more concerning. The bill—which seeks to eliminate discussions or acknowledgment of LGBTQ+ people in public school classrooms under the guise of parental consent and appropriateness—passed the Florida House already and is set to finish out in the Florida Senate this week. From there? The governor’s desk.

The bill permits parents to sue the school district if students are encouraged to discuss sexual orientation or gender identity in the classroom. They’d also be allowed to sue if they find out they were not informed about these topics coming up in the classroom. Of course, in such a sweeping declaration, teachers are likely to avoid these topics—even if it means staying closeted themselves—in order to keep their jobs and avoid being sued. Conservatives can have an easy win, and students (and families) alike will suffer deeply.

DeSantis recently doubled down on his support of the bill at a news conference in Jacksonville, Florida, saying, “How many parents want their kids to have transgenderism or something injected into classroom instruction?” Of course, this is a bad faith presentation of what’s happening—explaining how someone can use different pronouns or a different bathroom, for example, is not injecting “transgenderism” into kids. It’s just giving honest, age-appropriate, inclusive explanations. It’s fine! 

"It's basically saying for our younger students, do you really want them being taught about sex?” DeSantis continued at the press conference, as reported by CBS Miami. “And this is any sexual stuff. But I think clearly right now, we see a focus on transgenderism, telling kids they may be able to pick genders and all of that."

Again, there’s nothing inherently sexual about LGBTQ+ issues. Whether it’s about attraction or identity, it’s not rooted in sexuality or sexual acts any more than heterosexuality is. Conservatives have long framed queerness as overtly, ceaselessly sexual, but that’s just framing, not reality. And when applied to school or children, anything inherently sexual (of course) is a problem, inappropriate, and frankly, horrifying. Republicans want the average person—and maybe even some allies—to agree LGBTQ+ issues are innately sexual and therefore inappropriate. That’s erasure, not protecting kids. 

In the big picture, this framing ties in perfectly with the conservative angle that queer people are predatory, and that children (and adults, for that matter) need some kind of protection from knowing that LGBTQ+ people even exist. For LGBTQ+ youth (or teachers, counselors, janitorial staff, etc.), having to be “hidden” can be deeply harmful, confusing, and isolating. Add that on top of bullying, possibly having an unsupportive family at home, and worries about being outed, and it’s easy to see how deeply damaging this is on an emotional level. 

And this isn’t just intellectual hyperbole, either. Press Secretary Christina Pushaw, who works for DeSantis, fired off a tweet on Sunday that backs this analysis pretty neatly. 

“The bill that liberals inaccurately call 'Don’t Say Gay' would be more accurately described as an Anti-Grooming Bill,” Pushaw wrote. “If you’re against the Anti-Grooming Bill, you are probably a groomer or at least you don’t denounce the grooming of 4-8 year old children. Silence is complicity. This is how it works, Democrats, and I didn’t make the rules.”

And there it is: grooming. Conservatives present anyone who so much as discusses LGBTQ+ issues as being a predator and “grooming” children. It’s presented as child abuse, manipulation, and criminal. Meanwhile, teachers in heterosexual marriages can have framed photos of their wedding or reference their spouse without issue. It’s only grooming when it’s not cisgender and straight, apparently.

Youth shouldn’t have to protest to defend their basic rights, but they’re stepping up to the challenge. We saw a number of high schoolers in the state stage walkout protests against the bill. 

High school senior Jack Petocz, for example, told NBC News that he was removed from school grounds and suspended indefinitely after passing out Pride flags during a school-approved demonstration against the legislation.

Petocz told the outlet he feels it’s an attempt to “threaten” him. “You’re silencing a queer student standing up for what he believes in, in his rights, and you’re disciplining him for challenging you on the allowance of pride flags in a gay rally?” He told the outlet. “It’s ridiculous. It truly is.”

The 17-year-old is right: It is ridiculous. And every adult needs to do better to protect vulnerable youth, and that includes rallying, organizing, and voting whenever we can. 

It’s not yet clear when Kevin McCarthy will have his promised conversation with two divisive House conservatives who spoke at a white nationalist event — and whenever he does, the talk likely won’t amount to much.

The House minority leader called it “appalling” that Reps. Marjorie Taylor Greene (R-Ga.) and and Paul Gosar (R-Ariz.) would speak at a conference organized by far-right fringe figure Nick Fuentes, who before introducing Greene asked for a “round of applause for Russia.” McCarthy also said that he’d speak with the two about their decision to ally with the fringe group, though a long list of other huge events soon drowned out the furor.

There was Russia’s war on Ukraine, a State of the Union address and Texas primary elections where McCarthy’s candidate of choice in one race handily trounced Greene’s. McCarthy reiterated later last week that he still plans to speak with the two members, whose divisive rhetoric has already repeatedly bogged down a GOP that wants to spend its time unifying against President Joe Biden — not splintering over a far-right activist.

But Greene and Gosar have little to lose. They were already stripped of their committees by Democrats last year, leaving McCarthy with few options to punish them even if he chose to. And some House Republicans argued that their leader has more pressing considerations.

“Dealing with dumb, stupid things people do in Congress should probably go down — and go pretty far down — on the list when you've got peacekeeping tanks rolling into a country that was not in conflict, when you've got record inflation, when you've got all of these things,” said Rep. Kelly Armstrong (R-N.D.).

“When Kevin figures out the time to deal with that, I'm sure he will,” Armstrong added. “But he's got significantly more important things for the American people to focus on at this point right now.”

McCarthy's office confirmed to POLITICO that he hasn't yet spoken to the two but still plans to.

At the end of last week, multiple House Republicans shrugged off questions about the timing of McCarthy’s meeting with Greene and Gosar. It was not because they didn’t detest the duo’s decision to associate with Fuentes, who attended 2017’s “Unite the Right” rally in Charlottesville, Va., has called for the U.S. to remain majority-white and compared Jews killed in concentration camps to cookies in an oven.

On the other hand, some have privately wondered if Democrats’ move to boot Greene and Gosar from committees was designed to create future headaches for Republicans by taking away their major recourse to punish two of their biggest conservative gadflies. A few Republicans privately even credit Speaker Nancy Pelosi — without evidence she acted that purposefully — for a smart political maneuver against Greene and Gosar.

One centrist Republican, who spoke about the flap on the condition of anonymity, lamented how few options the conference has to threaten Greene and Gosar now that Democrats have “fired all our shots” by stripping their panel assignments.

“I want them to shut up. Just stop it. What the hell is she thinking?” this Republican said. “[But] there’s nothing else. What else can Kevin do officially through the conference?”

While McCarthy could move to censure Greene and Gosar, the GOP conference doesn’t appear to have the appetite for it. Republicans argue Democrats have failed to punish some of their own members for incendiary remarks, with many pointing to Rep. Ilhan Omar’s (D-Minn.) past comments about Israel.

Even so, leadership’s lack of action marks a shift for House Republicans. Some in the GOP say former Speaker John Boehner would have told Greene and Gosar immediately to cut it out, as would former Speaker Paul Ryan. Back in 2019, McCarthy stripped then-Rep. Steve King (R-Iowa) of his committees after he questioned why the term “white nationalist” was considered offensive — though only after years of such rhetoric from King.

“There is a strategy of, ‘If we don't talk about it, it will go away, and it won’t get attention.’ And sometimes that works,” said another rank-and-file Republican, also addressing the handling of Greene and Gosar on condition of anonymity. “But in the long run, I've always found that backfires, so they're playing with fire by doing that.”

Still, the GOP alarm over Greene and Gosar’s alliance with a white nationalist went beyond leadership. House Freedom Caucus members, no strangers themselves to stirring up intraparty trouble, aired frustrations with Greene and Gosar during a private meeting last week, according to multiple people with knowledge of the discussion.

During the Freedom Caucus’ weekly sit-down, members talked about how to respond to press questions about Greene and Gosar’s participation in Fuentes’ America First Political Action Conference. Publicly, its members opted to broadly denounce racism when questioned about it, without condemning their two members.

Some group members were described as fuming that Greene had marred their embrace of former President Donald Trump’s America First platform by associating with Fuentes, who’s tied himself to its name. Fuentes has said that Trump was “awesome because he was racist” and “awesome because he was sexist.”

Freedom Caucus members such as Rep. Lauren Boebert (R-Colo.), as much as they steered clear of Greene or Gosar, didn't shrink from attacking Fuentes.

Fuentes is “corrupting” the politics of America First as coined by Trump, said Rep. Warren Davidson (R-Ohio), a member of the Freedom Caucus.

When Gosar attended Fuentes’ conference last year, he later tried to distance himself from the event in the face of political blowback. But he wouldn’t denounce Fuentes or say that he regretted attending, instead arguing that he was trying to speak to a new audience of voters.

Greene offered a similar response to the flap this year over her association with the white nationalist group, saying she would not “cancel others in the conservative movement,” even if she found their remarks “tasteless, misguided, or even repulsive at times.”

She did not cite Fuentes by name, which some colleagues saw as a stark contrast from her willingness to criticize fellow Republican lawmakers. The Georgian called out McCarthy by name while supporting Texas GOP candidate Christian Collins against Morgan Luttrell, backed by the minority leader, in last week's primary battle for a deep-red House seat. (Luttrell beat Collins easily.)

McCarthy and other GOP leaders followed a playbook last year when responding to questions about extremism in their ranks: They issued blanket statements condemning white supremacy and bigotry, but their statements were typically devoid of naming the members at fault and the people they chose to associate with.

If it was meant to deter members from attending again, it didn’t work. Gosar appeared at Fuentes’ conference again this year via video, while Greene attended in person. So McCarthy took his criticism further and vowed to talk to the two.

No matter what happens during that conversation, if it occurs, some of his members saw a potential upside for McCarthy thanks to outside calls for Greene and Gosar to be removed from the conference outright: less right-wing pressure to oust Reps. Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.) over their involvement in the Democratic-led Jan. 6 select committee.

Texas authorities continue finding new ways to harm LGBTQ youth. The eagle-eyed Jo Yurcaba at NBC News (who I used to work with at Bustle) found that the state’s Department of Health website quietly removed LGBTQ suicide prevention resources from its website. Instead of listing the phone number, website, and text line for the Trevor Project, as it did at the beginning of February, the website no longer includes any links for LGBTQ youth. Instead, information on the Trevor Project can only be found in a PDF for “Parent and Youth Suicide Prevention” but does not include information about the Trevor Project in the least bit. The prior language on the Health Department site stated that the nonprofit “is the leading national organization providing crisis intervention and suicide prevention services to lesbian, gay, bisexual, transgender, queer and questioning young people under 25.”

When reached by Yurcaba, Trevor Project director of advocacy and government affairs Sam Ames condemned the Texas Department of Health’s decision to remove the Trevor Project from its list of suicide prevention resources on its suicide prevention page. “[Removing the resource] because they are specific to LGBTQ youth is not only offensive and wrong, it’s dangerous,” Ames said. This isn’t the first time LGBTQ resources have been removed from Texas state government websites. According to NBC News, a resources portal for LGBTQ youth was removed from the Texas Department of Family and Protective Services website in August. Officials claim the webpage is under review but it has yet to come back online.

Be it explicitly or quietly, deliberately targeting the LGBTQ community is “a constant of authoritarian history,” notes historian Ruth Ben-Ghiat. Texas’ actions have precedent and that history sure is frightening. But so are the actions of Gov. Greg Abbott, who is so glaringly transphobic, he wanted the state to investigate any parents of transgender children. Luckily, investigations tied to gender-affirming health care were blocked by a judge. But just because Abbott and his ilk seem almost heavy-handed in their evils doesn’t mean they’re the exception to Republican lawmakers. Indiana is awaiting Gov. Eric Holcomb’s signature on an anti-trans athlete bill that passed the state Senate earlier this week. And Iowa most recently not only enacted an anti-trans athlete law but made it so that the discriminatory legislation goes into effect immediately.

With so much awful news for the LGBTQ community, it’s sometimes hard to remain hopeful. If you are struggling, the Trevor Project remains an amazing resources for LGBTQ youth. There is also the GLBT Hotline, and the Trans Lifeline helps those in the trans community who may be in crisis. These resources should not be hidden, nor should they somehow be demonized for existing.

Gov. Ron DeSantis is clearly continuing on his path of authoritarian leadership as he is likely to sign a 15-week abortion ban into law in Florida. 

It apparently isn’t enough for him to ban teaching the American history of slavery, racism, and Jim Crow, or to dismiss COVID-19 mitigations such as masks and vaccines in favor of unscientific treatments, or to ban books, or kill the rights of LGBTQ+ Floridians by forbidding his constituents to even say the word “gay,” but now he’s going after the rights of women over their own bodies. 

Republican senators sent the bill to DeSantis late Thursday night, ending a bitter debate in the statehouse as an imminent U.S. Supreme Court decision may soon limit abortion rights in America.

Democratic lawmakers were fast to react to DeSantis’ latest nonsense. 

Campaign Action

“Today is a dark day for women in Florida. This extreme abortion ban is not only cruel, immoral, and inhumane—it violates both the Florida and the U.S. constitutions. It’s an insult to the dignity of women and our ability to make decisions about our own lives. It will punish women and girls who have endured traumas that the privileged white men who pushed this bill could never even imagine, and every single member who voted for it should be ashamed,” Agriculture Commissioner Nikki Fried said. 

Fried, a Democrat, is running against DeSantis in the midterms. 

“Florida Republicans claim to be defenders of ‘freedom’—except when it comes to a woman’s freedom to choose what is right for herself, her body, and her future. At its core, this ban is nothing more than a control mechanism, and an affront to every woman’s individual freedom and independence—with NO exemption for rape, incest, or human trafficking,” Sen. Lauren Book wrote. 

Democratic Sen. Lori Berman said: "I want abortion to be legal, safe, and accessible, but I fear this bill moves us in the other direction, forcing women with means to travel out of state and those struggling economically to resort to potentially dangerous options."

The Florida bill contains exceptions if the abortion is necessary to save a mother's life, to prevent serious injury to the mother, or if the fetus has a fatal abnormality. The state currently allows abortions up to 24 weeks of pregnancy.

Sen. Janet Cruz said, “Stripping these freedoms will not reduce abortions, but it will make them less safe and result in more women in our state dying as a result. Not only does this bill politicize a woman’s basic right to make her own healthcare choices, it will also have a disproportionate effect on those who are in poverty, have health issues, and who are in domestic violence situations.”

Republicans argue that the bill is reasonable because it isn’t a total ban on abortion and gives women enough time to consider getting an abortion, even in cases of rape, incest, or trafficking.

"The only thing that we're asking in this bill is that whatever decision you make, you do it before the 15 weeks," said Republican Sen. Ileana Garcia.

Similar bills 15-week abortion bans have also been introduced by GOP lawmakers in West Virginia and Arizona, similar to the Mississippi law currently under review by the Supreme Court. Republicans were quick to jump on the Texas bandwagon after the state effectively banned abortions after six weeks.

A pair of cases on the Supreme Court’s “shadow docket” could eviscerate legal safeguards protecting free and fair elections.

A pair of cases are currently pending before the Supreme Court that could fundamentally rewrite the rules of US elections.

Both cases are redistricting cases. In Moore v. Harper, the North Carolina Supreme Court struck down gerrymandered congressional maps drawn by the state’s Republican legislature. In Toth v. Chapman, the Pennsylvania Supreme Court selected a congressional map for the state after its Republican legislature and Democratic governor deadlocked on what that map should look like.

In both cases, Republicans claim that state courts are not allowed to intervene in redistricting cases because something called the “independent state legislature doctrine” forbids them from doing so.

In the worst-case scenario for democracy, should the Court embrace this doctrine, state constitutions would cease to provide any constraint on state lawmakers who wish to skew federal elections in their party’s favor. State courts would also lose their power to strike down anti-democratic state laws. And state governors, who ordinarily have the power to veto new state election laws, would lose this veto power.

As Justice Neil Gorsuch described this approach in a 2020 concurring opinion, “the Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.”

This worst-case scenario isn’t a foregone conclusion, but it’s decidedly within the realm of possibility. The Court might also implement the doctrine selectively, holding, for example, that state supreme courts typically cannot toss out gerrymandered maps, but that state governors can veto these maps.

Four members of the Court have already endorsed this doctrine, despite the fact that the Supreme Court has repeatedly rejected it over the course of more than a century. Along with Gorsuch, Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh all embraced it in lawsuits seeking to alter which rules would govern the 2020 election.

Meanwhile, the three liberal justices plus Chief Justice John Roberts have all signaled that they will not overrule the more than 100 years’ worth of Supreme Court decisions rejecting the independent state legislature doctrine. So, unless Thomas, Alito, Gorsuch, or Kavanaugh has an unexpected change of heart, the fate of American democracy is now in Justice Amy Coney Barrett’s hands.

Barrett is a conservative appointed to the Court by former President Donald Trump. But her thoughts on the independent state legislature doctrine are not yet known. Indeed, when Sen. Amy Klobuchar (D-MN) asked Barrett about Smiley v. Holm, a 1932 Supreme Court decision rejecting the doctrine, during Barrett’s confirmation hearing, the future justice said that she wasn’t even aware of this case.

It also is possible that the Supreme Court will defer its decision on whether to implement this doctrine until a future case. As the parties defending the North Carolina Supreme Court’s decision in Moore explain in their briefs to the Supreme Court, a state law — one enacted by the state legislature — explicitly authorizes state courts to hear redistricting cases. So Moore is an especially poor vehicle for the Court to apply the independent state legislature doctrine.

Just last month in Merrill v. Milligan, Justice Brett Kavanaugh wrote an opinion suggesting that federal courts should not interfere with state election laws during an election year — 2022 is an election year and the Supreme Court is a federal court. So, in the event that Kavanaugh wants to act consistently with his opinion in Merrill, he should not touch North Carolina’s or Pennsylvania’s congressional maps until after the midterm elections have passed.

But even if Kavanaugh does come down with a bout of consistency in the Moore and Toth cases, the broader fight over the independent state legislature doctrine is not going away. Ultimately the Court — and Barrett in particular — will need to decide whether to toss out more than a century of settled law, and whether to make the United States a fundamentally less democratic nation in the process.

What is the independent state legislature doctrine?

The independent state legislature doctrine derives from a deceptively simple reading of the Constitution, which provides that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” A separate provision says that presidential elections shall also be conducted in a manner determined by the state “Legislature.”

Both clauses refer to state legislatures, not state courts or state governors, so the idea behind the independent state legislature doctrine is that the legislative branch of each state gets to decide how federal elections are conducted without any input whatsoever from the other branches.

But there are three very good reasons to reject this reading of the Constitution.

1. The Supreme Court has repeatedly rejected the independent state legislature doctrine

The first reason to reject the most conservative justices’ reading of the Constitution is that the Supreme Court has considered it several times over the course of more than 100 years. And it has rejected it every single time.

This issue first arose in Davis v. Hildebrant (1916), which asked whether state election laws can be altered by a popular referendum. In Davis, the Ohio legislature drew congressional maps, but those maps were later rejected under a provision of the state constitution that allows the people of Ohio to veto state laws via a referendum. The Court determined that Ohio’s referendum was valid in a unanimous opinion.

Davis established that the word “legislature,” as it is used by the relevant provisions of the federal Constitution, does not refer only to the body of elected representatives who form a state’s legislative branch. Instead, it refers to any individual or group of individuals who possess the power to make laws within a state — what the Court referred to as the “legislative power.”

Under the Ohio constitution, Davis explained, “the referendum was treated as part of the legislative power,” and thus “should be held and treated to be the state legislative power for the purpose of creating congressional districts by law.” That is, because the Ohio constitution gave the people of the state the power to veto laws by referendum, this power was part of the legislative power in that state. And so the voters who cast ballots in a referendum are part of the state “legislature” for purposes of the federal Constitution.

The Court reached a similar conclusion in Smiley v. Holm (1932), which asked whether a state governor is permitted to veto a bill impacting federal elections. Under the independent state legislature doctrine, the answer to this question is “no,” because the governor is not part of a state’s legislative branch. But Smiley rejected that reading of the Constitution, finding that state election laws should be enacted in exactly the same way that any other state law is enacted.

The Court’s most recent case rejecting the independent state legislature doctrine is Arizona State Legislature v. Arizona Independent Redistricting Commission (2015), which asked whether a state could use a bipartisan commission to draw congressional maps. Once again, the plaintiffs claimed that such a thing is not allowed — because a commission is not the state “legislature” — and once again, the Supreme Court rejected this argument.

Summarizing its past decisions, the Court explained that “our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may include the referendum and the Governor’s veto.” Arizona State Legislature held that the voters of a state could also enact, via a ballot initiative, a state law transferring the power to draw legislative maps to a commission.

As recently as 2019, all four of the current justices who later endorsed the independent state legislature doctrine (once that doctrine seemed likely to bolster Trump’s chances of winning the 2020 election) also appeared to reject it.

In Rucho v. Common Cause (2019), the Supreme Court held that federal courts may not hear lawsuits challenging partisan gerrymanders. But Rucho also said that states may place constraints on a state legislature’s power to draw congressional maps — that “provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply” in partisan gerrymandering cases. Rucho seemed to endorse “constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts.”

Thomas, Alito, Gorsuch, and Kavanaugh all joined the Court’s opinion in Rucho.

2. During America’s founding, people rejected the independent state legislature doctrine

There is also powerful evidence that the people who wrote our Constitution and their contemporaries rejected the idea that state legislatures have an unchecked power to write laws governing federal elections.

As legal scholars (and brothers) Vikram and Akhil Amar explain in a forthcoming paper, four states adopted state constitutional provisions during President George Washington’s first term that restricted the power of state legislatures to set the rules governing federal elections. Those states’ constitutional provisions, enacted in the very first days of the republic, wouldn’t have been allowed if the independent state legislature doctrine is actually mandated by the Constitution.

Similarly, the Amars write, “at least two early states that provided for vetoes for general legislative action employed such vetoes in the process by which federal election rules were made.” In Massachusetts, “bills regulating federal elections were not considered by the legislative houses alone but were presented to — and subject to disapproval by — the governor.” And in New York, “such bills were subjected to a council of review that included not only the governor, but also members of the state judiciary.”

So, as the Constitution was understood by early Americans, state legislatures did not have free rein over how federal elections would be conducted in their state. Rather, the state legislature’s power could be checked by the state constitution, the state governor’s veto, and the state judiciary.

3. The independent state legislature doctrine is unworkable

If the independent state legislature doctrine is correct, then the state judiciary is cut out of the process of determining how a state runs federal elections. But such a framework is unworkable because, after the state legislature passes a law, someone has to determine how to apply it to individual elections.

Imagine that North Carolina’s next US senatorial election is extremely close — say that initial counts show the Democratic candidate up by only 100 votes. Imagine, as well, that the Republican candidate identifies 500 ballots that arguably were cast in violation of state law. The outcome turns on whether these ballots were lawfully cast. If they are counted, the Democrat wins; if they are not counted, the Republican wins.

Someone has to decide whether to count these ballots, and in the American system of government, the institution that makes this decision is the state judiciary. Yes, the state legislature writes the statute governing which ballots are counted, but state courts have to determine how that statute applies to a particular case. As the Supreme Court held in Marbury v. Madison (1803), “it is emphatically the duty of the Judicial Department to say what the law is.”

Now consider the facts of the Moore case, the North Carolina redistricting case that is currently pending before the US Supreme Court.

In that case, a provision of the state constitution arguably forbade the maps drawn by state lawmakers. Moreover, as law professor and election law expert Rick Hasen points out, the state legislature itself proposed the provision of the state constitution that the state supreme court relied on to strike down North Carolina’s gerrymandered maps. So this isn’t even a case where the judiciary is overruling the state legislature. It’s a case where the courts must decide whether a congressional map enacted by the legislature conflicts with a state constitutional provision that was also endorsed by the legislature.

The Moore case, in other words, is similar to the hypothetical I raised involving a close election with contested ballots. In both cases, a valid law is already on the books governing how North Carolina should conduct elections. And, in both cases, it is the job of the judiciary to decide how that law applies to an individual case.

If the state judiciary does not have this power, then state election laws become meaningless. There will inevitably be disagreements over what the law means. And the only way to resolve those disagreements is for an adjudicative body to issue binding decisions announcing what the law actually says.

The independent state legislature doctrine is an attack on democracy

If the Court embraces this doctrine in the Moore and Toth cases, the immediate result is likely to be two significant victories for Republicans in redistricting cases. But the broader implications of such a decision would be much larger.

For one thing, it could mean that governors would lose their power to veto laws governing federal elections, including congressional redistricting bills. States like Wisconsin and Michigan, with Republican legislatures and Democratic governors, would almost certainly respond with a wave of unvetoable laws making it harder for Democrats to win elections.

And recall that the independent state legislature doctrine purportedly applies with equal force to congressional and presidential elections. So state lawmakers could potentially enact unvetoable laws giving an advantage to their party’s presidential candidate. They could close precincts in heavily Democratic cities, forcing many Democrats to wait hours to cast a ballot while rural and suburban Republicans breeze through their lines. They could even enact a Georgia-style law permitting the Republican Party to seize control of election administration in major cities.

Again, the idea behind the independent state legislature doctrine, at least in its strongest form, is that state constitutions may not constrain a state legislature’s power to write laws governing federal elections. A governor cannot veto these laws, and a state supreme court cannot strike them down. It’s not even clear if state supreme courts would be allowed to interpret those laws in ways that the US Supreme Court’s Republican majority disapproves of.

That’s not a recipe for free and fair elections.