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ALEC’s War on Clean Government

I walked into my sixth American Legislative Exchange Council (ALEC) conference just in time to hear the queen of ALEC, state Senator Leah Vukmir, tell one of two familiar Wisconsin myths.

It wasn’t the one Governor Walker likes to repeat, where newly elected Tea Party politicians faced down thousands of school teachers, firefighters and high school kids (aka “the union bosses”) and took away workers’ right to organize.

It was the other, lesser known, but equally powerful myth the ALEC crowd adores: Wisconsin Republicans “shut down” a government investigation run amok that was suppressing the First Amendment rights of “free market supporters” (i.e., ALEC allies and supporters).

The “victims” in this story are people who run dark-money organizations like the Wisconsin Club for Growth, directed by Eric O’Keefe.

The investigation in Wisconsin focused on the previously illegal art of coordination between so-called independent groups and the campaigns of political candidates. That bipartisan criminal investigation examined the funneling of millions of dollars among groups whose activities were coordinated by Scott Walker’s right-hand man to aid the anti-recall campaign of the governor and several senators.

But the investigation was cut short because a majority on the Wisconsin state Supreme Court, which the Wisconsin Club for Growth and others in the investigation helped to elect, issued an edict attempting to legalize such activities under our Constitution. Then the Wisconsin legislature, stacked with ALEC members, changed state statutes to try to legalize activities including those Wisconsin Club for Growth was suspected of pursuing.

These efforts are nothing less than an attempt to keep the public in the dark about who is really financing elections.

This Wisconsin myth has helped embolden other efforts by ALEC state legislators to repeal and resist campaign finance regulations.

For example, the State Policy Network (SPN), a Koch-funded group that links together right-wing think tanks in every state, sponsored an ALEC workshop entitled “Protecting your constituents from harassment: How to stop bureaucrats from targeting and harassing people based on their First Amendment beliefs.”

SPN handed out a single “how-to” sheet that encouraged state lawmakers to resist ethics bills and dismantle government entities charged with enforcing ethics codes (like Wisconsin’s independent, nonpartisan Government Accountability Board). SPN also instructed legislators to defeat or repeal anti-corruption legislation, including donor disclosure laws and any regulation of phony “issue ads” that, while not using the magic words “vote for” or “vote against,” are clearly designed to influence who wins elections.

Appearing at ALEC to make the case that any attempt at clean, transparent and open government is a violation of individual First Amendment speech rights was none other than dark money’s front man himself, Wisconsin Club For Growth’s Eric O’Keefe.

As O’Keefe told it, the mischief started when the legislature created the “left-wing” Government Accountability Board (GAB). GAB was an independent watchdog governed by retired judges and tasked with monitoring ethics rules and campaign finance laws, and instituted after an explosive discovery of widespread corruption and on a strong bipartisan basis.

In O’Keefe’s distorted reality, special prosecutors were hired to specifically and illegally target conservatives who were running “effective” organizations (never mind that a court oversaw and sanctioned this investigation and that two of the district attorneys involved were Republicans).

Investigators uncovered a $700,000 “donation” to Wisconsin Club for Growth from Gogebic Taconite, a company that worked to rewrite Wisconsin’s mining laws.

As a result of such nefarious activities, the Wisconsin legislature “cleaned out” government and campaign finance standards. O’Keefe indicated he does not support any agency having any ability to regulate campaign or ethics activities. And the state’s Republican majority, aided by Wisconsin Club for Growth, ensured O’Keefe’s vision became reality by wiping out the GAB and returning to an ineffective Ethics and Elections Board structure paralyzed by partisanship.

O’Keefe got so carried away at the conference that he preemptively announced he would be launching yet another lawsuit against John Chisholm, one of the district attorneys involved with the John Doe investigation who actually has been doing what district attorneys do, investigating potentially criminal conduct by Wisconsin Club for Growth and others.

Were it not for a state Supreme Court majority in power—due to dark money spending by O’Keefe’s Wisconsin Club for Growth and its cronies,—prosecutors might have been able to bring charges. But the court shut down the investigation into its own powerful allies.

Four days later, the MacIver Institute, one of two right-wing think tanks in Wisconsin and a member of SPN, filed a lawsuit against the John Doe district attorneys.

On a related front, O’Keefe was also trying to get rid of Chisholm by aiding a Democratic primary challenge against him.

This type of excessive litigation to silence prosecutors comes on top of the GOP’s destruction of fair elections and accountable government: 1) Dismantling the GAB; 2) Gutting our once exemplary campaign finance laws and allowing more dark money to pour into our elections with less disclosure; and 3) Repealing Wisconsin’s “John Doe” investigations for political corruption but not for any other crimes.

In the name of free speech, ALEC and Wisconsin are leading national efforts to shut down free speech for most people by making it harder to hear through the tidal wave of dark money and corporate cash.

It’s a dream come true for the Koch brothers and Eric O’Keefe, but it is a nightmare for the people of our state and our once-proud tradition of clean government.


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The Obscure Jim Crow Tactic Keeping Latinos Out Of Politics

Voting rights advocates are celebrating after a series of court rulings struck down discriminatory voter ID laws that make it harder for minorities to cast a ballot. But they’re not declaring victory just yet. Now, civil rights groups are turning their attention to districts where majority white legislatures are using an even more insidious way to dilute the influence of voters of color.

Latino voters, now one-third of the national electorate, will play a key part in choosing the next president. But just how much of a role they will be allowed to play in local elections is still uncertain.

Two new lawsuits are highlighting the battle over this role. On Monday, the Lawyers’ Committee for Civil Rights Under Law filed a suit against Gwinnett County, Georgia — the most racially diverse county in the southeastern United States — claiming the district’s combined 53.5 percent Latino, black, and Asian population is underrepresented on the board of commissioners. And last week, the American Civil Liberties Union sued Pasco, Washington, alleging the dearth of Latinos on the city council violates the Voting Rights Act.

As the Latino share of the population expands in many districts, their presence on city councils, county commissions, and other local bodies should grow as well. But that representation is lagging in many places where Latinos make up pluralities or even majorities. In order to maintain white control of local governing bodies, cities and counties have deployed an old Jim Crow-era tactic: at-large voting districts.

In an at-large system, every city resident votes for each member of the governing body and the city does not divide voters into districts. Instead of allowing each district to elect its own representative, an at-large system means that unless Latino populations reach a majority in the entire city or county, they will have no influence in electing their local members of government.

“Right now we’re at a moment where there’s great focus on the presidency and who will occupy the White House come January, but the reality is that these electoral positions have tremendous impact on people’s day-to-day lives,” Kristen Clarke, president and executive director of the Lawyers’ Committee, told ThinkProgress.

No Latino, black, or Asian-American candidate has ever been elected to Gwinnett County’s board of commissioners, board of election, or any other county office, according to the Lawyers’ Committee’s lawsuit. The chair of the board of commissioners is elected at-large, and because of racially-polarized voting, white voters form a bloc to vote against minority candidates.

According to the lawsuit, white voters only make up 55.7 percent of the electorate in against Gwinnett County, so their candidates of choice should not make up 100 percent of local bodies.

“Right now we’re at a moment where there’s great focus on the presidency, but the reality is that these electoral positions have tremendous impact on people’s day-to-day lives.”

“You have a situation in which minority voters, their candidates of choice never prevail,” Clarke said. “We’ve made it a priority to mount challenges to electoral systems that unfairly deny minority voters equal access to the political process.”

The disparity is on full display in Pasco, where a Latino candidate has never won a contested seat, even though a Latino has run for city council in nearly every election since 1990, according to the ACLU. That suit also asks the city to employ a different type of election system that doesn’t discriminate against Latinos.

At-large voting systems have been around since the Jim Crow era, when Southern towns invented ways to disenfranchise their sizable African American populations. But recent challenges have successfully undercut these tactics.

In August 2014, a court in Washington struck down the city of Yakima, Washington’s at-large voting system, ruling that it was discriminatory and violated Section 2 of the VRA. Last year, Laughlin McDonald, director of the ACLU’s Voting Rights Project, told ThinkProgress the decision in Yakima would have a “very important impact” on future litigation against at-large districts.

Lawsuits have sprung up more frequently in areas with rapidly growing Latino populations, like Santa Barbara, California and Pasadena, Texas.

Though the lawsuits in Gwinnett County and Pasco are seeking immediate relief — potentially before November — Clarke says she expects to see more of these challenges to voting systems in the coming years after the upcoming general election, especially in 2020 when lawmakers will redrawcongressional and state legislative districts all over the country based on the new census.

“There will be more focus on some of these problematic redistricting plans and electoral systems that unfairly deny minority voters access to the political process,” she said.

Clarke noted that as the minority population grows in Gwinnett County, the stakes get higher and higher.

“With the demographic shifts we’ve seen in the last several years… it’s imperative that we bring this case now.”


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Ohio Politics Now: Still plenty of unanswered questions for marijuana legalization in Ohio

The state has released the first information about how it will implement the medical marijuana law that takes effect Sept. 8.

So far, questions outnumber answers.

The first question — When will marijuana be available? — is the easiest to answer: no later than September 2018, but possibly earlier.

Tons of rules and standards remain to be written, staff must be hired and licenses approved before the first patient recommendation for legal pot can be written. Plus, marijuana has to be grown, processed, tested and sent to dispensaries before it gets in the hands of patients.

One thing we know from the Ohio Medical Marijuana Control Program’s new website is that the state is looking for expert help. The state will pay $50,000 to a contractor “with specialized industry knowledge to assist with the development of the rules and regulations impacting cultivators of medical marijuana.” The job will involve “researching cultivation techniques and processes utilized in other states” and “establishing cultivation standards for business operating in Ohio.”

The new law stems from House Bill 523, legislation hurriedly pushed through the General Assembly and signed into law this year by Gov. John Kasich to cut off a more liberal ballot issue backed by the Marijuana Policy Project. The group dropped its ballot issue after the bill was signed.

The law sets up a highly regulated “seed-to-sale” system for growing, processing, testing and dispensing marijuana for people with any of 20 specified medical diseases and conditions. Ohio will be the 25th state, plus the District of Columbia, to allow medical marijuana. Patients will be able to get a recommendation from a physician for a 90-day supply of marijuana edibles, patches, oils, tinctures and plant material. Vaporizing marijuana (vaping) will be permitted, but smoking will not.

Home growing and recreational use of marijuana will not be allowed.

The Ohio Department of Commerce, Ohio Board of Pharmacy, State Medical Board and an appointed advisory committee will be involved in rule-making, some of which will be rolled out this fall, according to the state website. The program must by operational by September 2018.

Facts from the website:

  • The Department of Commerce will develop rules for growers, processors, and testing laboratories.
  • The Board of Pharmacy will create rules, applications and fees for dispensaries; it will also establish the number of dispensaries permissible statewide.
  • Physicians won’t be able to prescribe marijuana because of federal law. However, they will be allowed to “recommend” medical marijuana for patients, following certification by the State Medical Board.
  • Marijuana will be available to people with the following diseases and conditions: AIDS, amyotrophic lateral sclerosis, Alzheimer’s disease, cancer, chronic traumatic encephalopathy, Crohn’s disease, epilepsy or another seizure disorder, fibromyalgia, glaucoma, hepatitis C, inflammatory bowel disease, multiple sclerosis, pain that is either chronic and severe or intractable, Parkinson’s disease, positive status for HIV, post-traumatic stress disorder, sickle cell anemia, spinal cord disease or injury, Tourette’s syndrome, traumatic brain injury, and ulcerative colitis. Patients and caregivers will have to register with the state.



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Politics Still Prevalent In The Pulpit, Survey Shows

Churchgoing Americans say their preachers often speak out on hot social and political issues and occasionally back or oppose particular candidates in defiance of U.S. law prohibiting such endorsements.

The findings from a new survey by the Pew Research Center suggest that the 1954 “Johnson Amendment” regulating political activity by churches and other charitable organizations has had limited impact in restricting such speech.

The 2016 Republican platform calls for a repeal of the Johnson Amendment, and GOP presidential nominee Donald Trump has promised that if elected he would work to have the law overturned.

The law, which applies to any tax-exempt charitable organization, bars such groups “from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” Organizations that violate the ban could lose their tax-exempt status.

Some church groups have vigorously opposed the restriction as an infringement on freedom of speech. The Alliance Defending Freedom (ADF), a conservative Christian advocacy group, has encouraged pastors to deliberately preach politically oriented sermons on specified “Pulpit Freedom Sundays” in an effort to protest the law and provoke a court challenge.

In practice, the IRS has made minimal efforts to endorse the statute, in part because the wording of the law is somewhat vague. According to the ADF, no church has yet been punished under the terms of the law.

The new Pew survey reports that nearly two out of three churchgoing Americans have heard their clergy speak out on at least one social or political issue, from same sex marriage to economic inequality and immigration. That type of advocacy is generally not restricted by the Johnson Amendment.

A much smaller share of churchgoers, 14 percent, say they have heard their pastors endorse or oppose a presidential candidate in the months leading up to the survey.

Black Protestants were most likely to report such statements, with 29 percent saying they heard pulpit endorsements, mostly of Democratic nominee Hillary Clinton, or specific denunciations, mostly of Trump. Only about one in 10 Catholics, white evangelical Protestants and mainline Protestants say their clergy have opposed or supported particular candidates.


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Donald Trump Pitches Tax Breaks, Moratorium on New Regulations

GOP nominee proposes deductions for child-care expenses, renegotiated trade agreements in Detroit speech

Republican presidential nominee Donald Trump aimed to put his campaign back on track Monday with an economic-policy speech that unveiled few new policy proposals but cast himself as the only candidate who could deliver change.

Mr. Trump hammered sharp contrasts with Democratic nomineeHillary Clinton’s policies, which he said amounted to more wealth redistribution and government regulation. He also called for aggressive sanctions against U.S. trading partners, a rollback of environmental regulations and large tax cuts for individuals and businesses.

“There will be no change under Hillary Clinton, only four more years of weakness and President Obama, but we are going to look boldly into the future,” he said in Detroit.

Still, the speech showed areas of overlap with Mrs. Clinton. He promised to unveil a big infrastructure-spending plan, embracing a signature goal of Democrats, as well as a new proposal to help families facing rising child-care costs by allowing households to deduct those expenses from their income taxes.

It wasn’t clear how such a tax break might be structured and whether it would be available to tens of millions of families that don’t pay income taxes because they have lower incomes. Making child-care expenses fully deductible would provide much larger benefits to the wealthiest families that have larger tax bills.

Mr. Trump’s economic message has long promised to boost job growth, but it has included fewer appeals to voters on pocketbook issues such as child care and college tuition—a focus of Mrs. Clinton’s.

Mr. Trump delivered his hourlong speech at the Detroit Economic Club, a venue that has played host to several presidential candidates, and read from a teleprompter with few of the impromptu riffs that have been a staple on the stump. The address was interrupted numerous times by protesters, with Mr. Trump quietly pausing until each protester was removed.

On Monday, Mr. Trump also called for a temporary moratorium on all new regulations from federal agencies and would seek to roll back rules that reduce employment. The campaign said the review could target a series of environmental rules issued by the Environmental Protection Agency to curb carbon-dioxide emissions from power plants and to bring more waterways and wetlands under federal protection.

It isn’t clear how such a moratorium would apply to financial regulators, whose agencies enjoy greater independence from the executive branch, and Mr. Trump’s speech made no mention of past calls to repeal or replace parts of the Dodd-Frank financial-regulatory overhaul law.

At the same time, Mr. Trump promised to aggressively use executive power to renegotiate trade agreements, to label foreign countries as currency manipulators, and to apply tariffs and other penalties to trading partners.

He gave the speech at a critical moment in his campaign. Last week, Mr. Trump faced a hailstorm from fellow Republicans for questioning the motives of the parents of a Muslim soldier killed in Iraq who appeared at the Democratic convention and for initially balking at endorsing the re-elections of three top Republican lawmakers. Mr. Trump came around to backing House Speaker Paul Ryan, Arizona Sen. John McCain and New Hampshire Sen. Kelly Ayotte on Friday and has been stressing party unity in recent days.

Monday’s speech continues his newly trained focus on lines of attack against Mrs. Clinton that many Republicans have been pushing.

In lamenting the economic struggles of Detroit in recent decades, Mr. Trump made no mention of the federal bailout of the auto industry, which was begun by former President George W. Bush, a Republican, in late 2008 and continued by Mr. Obama.

Before the bailout, Mr. Trump gave television interviews indicating support for a government-led rescue of the crucial industry. But during the 2012 election, Mr. Trump criticized the bailout by noting that Chrysler was making Jeeps in China, though the company was also expanding production in the U.S.

“Obama is a terrible negotiator,” Mr. Trump said at the time. “He bails out Chrysler, and now Chrysler wants to send all Jeep manufacturing to China—and will!”

Mr. Trump recently announced an all-male economic advisory teamof wealthy real estate and private-equity executives that drew criticism for lacking the economic-policy experts who traditionally advise candidates.

Informal advisers to Mr. Trump have for weeks said the nominee would unveil a revamped tax-cut proposal. Mr. Trump indicated Monday he would embrace core elements of a plan unveiled this summer by House Republicans, which includes three income-tax brackets, instead of four as Mr. Trump unveiled in a proposal last fall.

That proposal, which was removed from his website before Monday’s speech, would sharply lower income-tax rates on individuals and businesses. The Tax Policy Center, a nonpartisan project of the Urban Institute and Brookings Institution, has said the plan would reduce federal revenue by $9.5 trillion over a decade, making it far larger than the tax cuts enacted last decade by Mr. Bush.

The GOP nominee has also called for a big increase in infrastructure spending that would be financed by taking on new debt, but he hasn’t fleshed out the details of that plan.

Budget experts say that even with a boost in economic growth, the combination of higher government spending on infrastructure—as well as other priorities that include a veterans’ health-care expansion and a ramp-up in border security—and large tax cuts could send deficits soaring.

The focus on child-care costs is relatively new for Mr. Trump. The federal tax code has long provided two primary means for families to receive breaks for child-care costs—a dependent-care spending account that allows workers to put aside as much as $5,000 in pretax income and a dependent-care tax credit. Mr. Obama last year proposed to triple the maximum credit to $3,000 per child.



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Obama in tough spot with Russia

Pressure is growing on the White House to respond to Russia’s apparent hack of the Democratic National Committee (DNC), placing President Obama in a delicate political position.

Evidence has mounted that the Russian government was behind the theft of tens of thousands of damaging internal emails from the DNC, leading prominent lawmakers from both sides of aisle to call for some form of response.

The ranking members of the House and Senate Intelligence committees and the chairman and ranking member of the Senate Judiciary Committee have all issued calls for Obama to “seek justice” for the alleged attack.

But should Obama publicly point the finger at the Kremlin, it could expose covert intelligence capabilities and damage already touchy discussions over Russia’s behavior in Syria and Ukraine, experts say.

That dynamic reflects one the central challenges the White House faces in responding to cyberattacks. Without any international rules of engagement, officials must weigh a response to each attack individually.

The FBI has opened an investigation into the hack, but because of the risks, experts say, the public is unlikely to ever know the results, even if it is able to prove Russia’s guilt beyond a shadow of a doubt.

Obama has a slate of possible responses at his disposal, but each carries its own set of problems.

“They are really in between a rock and a hard place. Everything they do has a downside,” said Herb Lin, a senior research scholar who studies cyber policy and security at Stanford.

Here are some of the options.

“Name and shame”

The president could publicly denounce Russia for its involvement in the hack.

But it is next to impossible to attribute any cyberattack with absolute certainty, security experts say, and the White House may be unwilling to go that far without definitive proof.

“If you’re going to name Russia, you have to really be willing to go to the mat with them,” Lin said. “You don’t get the last move. There’s no such thing as a one-move chess game.”

Even if officials had a smoking gun, it would be difficult to show it without exposing embedded operatives or drawing attention to U.S. intelligence capabilities overseas.

And like many of the options whose punitive value is largely symbolic, naming Russia risks damaging other diplomatic goals that the White House might consider more important, such as the fragile peace deal between Ukrainian forces and pro-Moscow separatists in eastern Ukraine.

Naming Russia could also undermine U.S. attempts to secure Moscow’s support in the fight against the Islamic State in Syria.

Use of offensive cyber weapons

The U.S. could hack back at Russia.

That action could take the form of a tit-for-tat cyber theft, the exposure of information important to the Russians or disrupting the command-and-control systems that the Russian hackers used to infiltrate the DNC, among other things.

But taking any offensive action against Russia in cyberspace risks escalating the conflict.

There are no formal “rules of war” governing acceptable behavior in cyberspace, making it difficult to predict how Russia will respond.

Russia is one of a handful of nations believed to be capable of causing a massive power grid blackout in the U.S.

If the U.S.’s counter strike were seen as a sufficient threat, President Vladimir Putin could decide to retaliate. Although it’s an extreme scenario, Lin notes, Russia still has a significant arsenal of nuclear weapons that could be turned on the United States.

Another consideration Obama has with a cyberattack is that it would likely be done in secret, meaning he would continue to face pressure to respond to Russia.


In April, Obama issued an executive order giving the Treasury Department the authority to impose sanctions on individuals or entities behind malicious cyberattacks and cyber espionage.

The order has yet to be used, but during negotiations over an anti-hacking pledge signed with China in September, Obama repeatedly reminded Beijing that it was at his disposal. Some policy experts credit that pressure with the successful signing of the agreement.

The White House could employ a similar tactic with Russia — either imposing sanctions or leveraging the threat of sanctions — but experts note that the U.S.’s financial ties with Russia are far shallower than its ties with China.

Because there are many sanctions already in place, the impact of such a tactic would be limited. It could anger Putin without exacting any meaningful punishment.


The U.S. could also treat the attack as a law enforcement issue.

In 2014, the U.S. issued indictments for five People’s Liberation Army officers on hacking charges.

Although the charges prevented those individuals from traveling to the U.S., they never led to extradition or arrest in China.

But the move did prompt China to walk away from cybersecurity discussions with the U.S. Beijing eventually came back to the table, but not until a year later.

Much like sanctions, indictments could simply risk Russian retaliation rather than act as a meaningful deterrent for future hacks.

Public messaging

One thing that Obama could do is put out a general public statement drawing a red line at attacks on the electoral system.

This would allow the administration to “deliver the message” that the hack of the DNC was unacceptable without directly calling Russia out in a public forum, some say.

But critics calling for outright retaliation are unlikely to be satisfied by an indirect response.


Perhaps the most likely response to the hack is that State Department officials will raise the issue with their Russian counterparts, something that Secretary of State John Kerry has already done.

“I raised the question, and we will continue to work to see precisely what those facts are,” Kerry said last month.

A more aggressive move would be to kick out the Russian ambassador or any Russian intelligence official that the U.S. knows is in the country.

Both the White House and the Kremlin have suggested that the hack — and whatever action the U.S. might take in response — would only be symptomatic of an already frayed diplomatic relationship.

“If, in fact, Russia engaged in this activity, it’s just one on a long list of issues that me and Mr. Putin talk about and that I’ve got a real problem with,” Obama told reporters earlier this week. “And so I don’t think that it wildly swings what is a tough, difficult relationship that we have with Russia right now.”

“We are at such a black spot in our relationship, it is unlikely that anything could make it worse,” Kremlin spokesman Demitry Peskov told The Washington Post.


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Clinton Admits She “May Have Short-Circuited” in Characterizing Emails

Facing criticism for failing to hold press conferences, the Democratic candidate took questions from black and Hispanic reporters.

Hillary Clinton admitted Friday that she may have “short-circuited” when claiming in a recent television interview that the director of the FBI had stated that her public comments about her private email server were “truthful.”

Speaking at a conference of the National Association of Black Journalists and National Association of Hispanic Journalists in Washington, DC, Clinton sought to smooth over an apparent contradiction between her statements and those of FBI director James Comey regarding her handling of classified emails on her server. Clinton explained that what she meant in an interview with Fox News’ Chris Wallace was that Comey had said that her statements to the FBI were truthful, and that what she said to the FBI was consistent with the statements she had made publicly.

“I may have short-circuited it and for that I, you know, will try to clarify because I think, you know, Chris Wallace and I were probably talking past each other because of course, he could only talk to what I had to the FBI and I appreciated that,” Clinton said. “But I do think, you know, having him say that my answers to the FBI were truthful and then I should quickly add, what I said was consistent with what I had said publicly. And that’s really sort of, in my view, trying to tie both ends together.”

Clinton has faced increasing criticism for not holding press conferences, unlike her publicity-hungry GOP rival Donald Trump. She took questions from reporters at Friday’s conference after laying out a number of policy proposals on criminal justice reform, federal spending in “underinvested” communities, and other issues. The reporters were quick to ask her about the subject where she’s faced the greatest scrutiny: her emails.

Clinton said that the three classified emails she sent on her private server were not physically marked as such, so she didn’t know they were classified when she sent them.

Watch Clinton’s full speech and Q&A session below.



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Justice Breyer Brings Back Courtesy—at a Cost

Stephen Breyer is the most dazzling and puzzling member of the current Supreme Court. Unquestionably brilliant, he once proudly proclaimed himself the “bringer of chaos”—meaning that, as a self-described judicial pragmatist, he did not and would never follow a “judicial philosophy” like “originalism,” preferring instead to balance legal principles and institutional interests in each individual case. At its best, that method can shed new light on intractable questions. At its worst, however, it can remind an observer of a comment made by Theodore Roosevelt about his own appointee, Justice Oliver Wendell Holmes Jr.: “I could carve a better judge out of a banana.”

The Breyer puzzle is illustrated vividly by his surprising vote Wednesday for a stay of a lower-court order inGloucester County School Board v. G.G.

Gavin Grimm, a transgender boy, is entering his senior year at Gloucester High School in Virginia. He identifies as male, and he has a medical diagnosis of gender dysphoria—a psychiatric term indicating that a person suffers significant distress at being forced to behave as a member of the sex to which he or she was assigned at birth by virtue of his or her genitals. Gavin’s birth certificate lists him as “female”; however, he experiences and presents himself as male.

Grimm had won an order from the Fourth Circuit requiring authorities at Gloucester High to permit him to use the boys’ bathroom. The school board has indicated that it will file a petition for review by the Supreme Court. On Wednesday, the Supreme Court entered a stay suspending the Fourth Circuit order. He will thus be barred from using the boys’ bathroom until the Court receives a petition and a response and decides at a future conference whether to grant review.

Under Supreme Court rules, it takes four justices to grant review of a case, but five to grant a stay of a lower-court ruling. The Court’s order makes clear the vote lineup—voting for the stay were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito—and, as the fifth vote, Justice Breyer.

Breyer issued a special opinion to explain his vote:

In light of the facts that four Justices have voted to grant the application referred to the Court by the Chief Justice, that we are currently in recess, and that grant­ing a stay will preserve the status quo (as of the time the Court of Appeals made its decision) until the Court con­siders the forthcoming petition for certiorari, I vote to grant the application as a courtesy.

Breyer dropped in a citation to Medellin v. Texas, a 2008 case in which the justices allowed Texas to execute a Mexican national even though the International Court of Justice had ruled that his conviction violated an international treaty and even though Congress was considering legislation to bar executions that violated that treaty. The Court, 5-4, refused to halt the gurney—even though four of the justices had voted to ask the solicitor general for the federal government’s view of the case. In a plaintive dissent, Breyer wrote:

A sufficient number of Justices having voted to secure those views (four), it is particularly disappointing that no member of the majority has proved willing to provide a courtesy vote for a stay so that we can consider the Solicitor General’s view once received. As it is, the request will be mooted by petitioner’s execution, which execution, as I have said, will place this Nation in violation of international law.

In other words, Breyer’s vote in G.G. can be seen as a summons to the four remaining conservatives to reinstate a principle of comity that was lost during the scorched-earth rise of the conservative majority. As The New York Times’s Adam Liptak explained last year, the practice of the “courtesy fifth” arose when four justices voted to take a condemned prisoner’s appeal from an order setting an execution date. Four votes are all that is needed to grant review; but a stay requires five votes. Thus, a fifth justice might vote to grant a stay, even if dubious about or even firmly opposed to the prisoner’s claim; the deference to colleagues was designed to show internal respect.

That was then. The Court’s procedures are opaque, but it seems that in a number of cases, some justices have wanted to grant stays of execution pending full consideration of a condemned inmate’s petition but have not found a “courtesy fifth.” Permitting a death sentence to be carried out even when some judges wish to consider an appeal is one of the cruelest and most absurd results a human legal system can produce; only Dickens or Zola could frame words vivid enough to express its inhumanity.

As a collective institution, the new eight-member Court is rethinking the practices that led to such grotesque polarization when Justice Antonin Scalia was alive. Far be it for me to oppose any gesture, however frail, that might lead to a reduction in the take-no-prisoners language on the bench.

But Grimm’s case is a curious place to start. Contrary to Breyer’s airy assertion, the Court’s stay does not “preserve” anything. Instead, it decides the case once for all by taking away forever the victory that Grimm won in the court below. That’s because the filing of a petition and a response, the deliberations about whether to grant review, and the subsequent potential for briefing and argument will consume months. Grimm will graduate from high school long before that process can be completed.

Thus, having won below, he has now, through Breyer’s courtesy vote, essentially lost.

I recognize—and intend no disrespect to—the fact that some people find Grimm’s concerns less pressing than I do and believe students at Gloucester High to be the ones facing unneeded stress. The Court will, in time, have to resolve this conflict. But this week, it was weighing harm to an institution—a school district following political direction—against harm to a vulnerable individual. The stay awarded victory to the more powerful side before the less powerful one could even be heard.

Courtesy within a multimember court is a precious thing, and the Supreme Court needs more of it. I remain skeptical that the Court’s remaining conservatives will ever reciprocate in kind, but I understand the humane impulse behind Breyer’s vote. I would feel better about it, however, if his opinion showed any trace of awareness that his urbane gesture to placate his powerful colleagues had come at the expense of a vulnerable boy.


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Tax whistleblower duo get $17.8 million award

The U.S. Tax Court awarded $17.8 million to a pair of whistleblowers in a decision that significantly expands the scope of what can be claimed in such cases.

The ruling for the first time allowed the whistleblowers to get a portion of criminal fines and civil forfeitures in addition to part of the taxes the government recouped because of information they provided.

“This opens the door to much larger whistleblower payments in offshore-account cases,” said Bryan Skarlatos, a tax lawyer at Kostelanetz & Fink LLP in New York who wasn’t involved in the case.

The parties involved in the case weren’t disclosed, but it appears to stem from the prosecution of Wegelin & Co. The Swiss bank closed after it pleaded guilty in 2013 to conspiring with U.S. taxpayers to hide money from the Internal Revenue Service. The amounts and breakdown of the $74.1 million in fines, taxes and forfeitures in the partially redacted case match those in the Wegelin case.

Dean Zerbe, the lead lawyer for the whistleblowers, called the case a “pillar-to-post victory” for his clients and the IRS whistleblower program.

“My real hope is that the IRS and Treasury will take the opportunity with this court decision to swing the doors wide open for whistleblowers to come forward,” said Mr. Zerbe of Zerbe, Fingeret, Frank & Jadav.

Judge Julian Jacobs focused on the term “collected proceeds,” which refers to the amounts used to calculate the award, in his ruling.

“The term ‘collected proceeds’ means all proceeds collected by the Government from the taxpayer. The term is broad and sweeping; it is not limited to amounts assessed and collected under” the tax code, Judge Jacobs wrote.

The case removes a worry for potential whistleblowers that they would receive less of the proceeds if the IRS chose to pursue a criminal case than if the case were pursued purely to collect owed taxes.

“That was always a danger, but now that danger has been resolved in favor of the whistleblower,” said Scott Knott, a whistleblower lawyer at the Ferraro Law Firm in Miami.

Under the IRS whistleblower program, people who have knowledge of tax violations can file confidential claims with the IRS and get as much as 30% of what the government collects. In fiscal 2015, the IRS paid 99 awards totaling $103.5 million. The case decided on Wednesday is likely one of the five largest awards issued, Mr. Knott said.

The IRS can appeal the ruling. An agency spokesman declined to comment.


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5 Ways Hackers Could Influence The Election

When Republican presidential nominee Donald J. Trump said he hoped the Russian government had found Hillary Clinton’s 30,000 missing emails, he wasn’t just taking a swipe at his opponent. He highlighted a very real and present danger to our democracy.

While social media users were atwitter about whether or not The Donald had committed treason—for the record, he didn’t—I don’t know if his quasi-seditious braggadocio reveals anything about his loyalty to the country he hopes to represent at home and abroad. Personally, it made me wonder about his fitness to lead a nation daily engaged in cyber military operations that almost certainly make the Stuxnet attack on Iran’s nuclear program look like Day One.

And far more importantly, it made me question whether Trump understands just how serious the threat of hacking is — and that such a lack of understanding could cost him the election.

The Stakes Have Never Been Higher

We now have fresh evidence that suggests Russia (its leader, an apparent fan of the Republican nominee) hacked the DNC, and that another incursion into the computer systems used by Hillary Clinton’s presidential campaign (as well as the Democratic Congressional Campaign Committee) discovered days later also appeared to be the work of a Russian government agency, according to The New York Times.

If the idea of a foreign country influencing the outcome of the 2016 race is both slightly terrifying and gets your patriotic juices flowing, consider that WikiLeaks founder Julian Assange has also suggested he intends to harm Hillary Clinton’s candidacy, also according to the Times.

The problem of hacking with regard to this election, however, is far from contained to espionage for advantage and the caprices of self-proclaimed moral crusaders.

Here are five other ways hacking could influence the election.

1. Hacker Fraud

Currently 25 states accommodate voters who qualify to cast a ballot through either a website or via email. And then there’s online voter registration. Each of these conveniences carries with it the potential for subversion and exploitation.

It’s also worth noting that our most sacred right in this nation does not enjoy protection from Homeland Security. Each state runs its own voting, and cyber security competence is something that varies greatly from state to state.

2. Rigged Voting Machines

Not all states “airgap” their voting machines. Airgapping means the machines are never connected to the Internet, and thus are much harder to compromise.

While there isn’t anything precluding a hacker from attempting to rig a machine one way or another, an article on the left-leaning CounterPunch site, argued that the states where machines are most vulnerable to compromise lean anti-Clinton.

3. Registration Information

When Hollywood Presbyterian Medical Center earlier this year lost access to crucial files to hackers, they had to pay a ransom of $17,000. What happens if a similar attack on a state’s voter information is successful? Here too, Homeland Security has no oversight, and state cyber security protocols vary widely.

4. Campaign Data

As Julian Assange has clearly demonstrated, the incredibly rich, granular and varied personal information that political campaigns collect to better target potential voters is not sufficiently protected from outside malefactors.

5. Voter Suppression

One thing that hackers do particularly well is spam, and doubtless there are numerous email lists that target particular demographics in crucial voting districts. All that needs to happen here is a little misinformation: maybe the spam says your polling station is closed, or due to a terrorist threat there may be delays. It doesn’t take much to discourage potential voters.

Is This a Job for Homeland Security?

With both candidates receiving daily intelligence briefings, it seems like a good time to wonder out loud about the security of that information, since strategies and messaging based on it will almost certainly be emailed among campaign staff and stored on campaign servers.

While there is wisdom in the states controlling their own voting systems that finds its origins in our Constitution, there is also a new threat out there. And while I’m not sure it makes sense to put voting under the control of a federal entity, it might benefit from greater oversight.

As Stewart Baker, a former top guy at Homeland Security and the National Security Administration said recently regarding the cyber threat in this election: “It’s hanging chads weaponized.”