Update: Senate Republicans have blocked Nina Pillard, making her the third woman nominated to the D.C. Circuit to be blocked this year. Melanie L. Campbell, president and CEO of the National Coalition on Black Civic Participation, says, "We see this as an abuse of power by a group of Republican Senators when there no legitimate issues have been presented, and these candidates are highly qualified."
Senate Majority Leader Harry Reid (D-Nev.) is expected to hold a confirmation vote today for Cornelia "Nina" Pillard, who was nominated by President Obama to sit on the second-highest court in the United States: the DC Circuit Court of Appeals. Pillard is a Georgetown University law professor and a magna cum laude graduate from Harvard Law School who has argued and filed briefs on dozens of cases that have come before the Supreme Court. She is also unabashedly feminist and pro-choice and supports access to contraception and comprehensive sexual education. As a result, she's attracting a wave of attacks from Republicans, who are waging a battle to make sure she never gets to join the conservative-dominated court.
"I have concerns about your nomination…[Your academic] writing, to me, suggest that your views may well be considerably outside of the mainstream," Sen. Ted Cruz (R-Texas) said during Pillard's July hearing before the Senate Judiciary Committee, which in September voted to advance her confirmation to the full Senate. Conservative think tanks have been less diplomatic with their views: Tony Perkins, president of the Family Research Council, wrote that Pillard promotes "militant feminism," and "America can't afford to give a lifetime appointment to a radical ideologue."
The two biggest Supreme Court cases that Pillard worked on helped affirm rights for both men and women in the United States. In 1996, her brief helped persuade the US Supreme Court to end the Virginia Military Institute's decades-old men-only policy. And in 2003, her argument led the Supreme Court to uphold the inclusion of men in the Family and Medical Leave Act. It's not these cases, but rather Pillard's academic writings on reproductive rights, that have sparked Republican fears of her "militant feminism."
At a September Senate Judiciary Committee hearing, Sen. Chuck Grassley (R-Iowa) went so far as to read Pillard's writings to another DC Circuit judicial nominee to see if he disagreed—without revealing that Pillard wrote them. A Democratic Senate aid told the Huffington Post he found the exchange "super weird." The writings Grassley quoted came from a 2007 Georgetown University Law Center paper, in which Pillard noted that "reproductive rights, including the rights to contraception and abortion, play a central role in freeing women from historically routine conscription into maternity." That insurance plans were not required to cover women's contraceptives was, she wrote, "emblematic of a much broader failure," and she expressed support for more comprehensive sex education in schools.
In a 2006 entry for the Encyclopedia of American Civil Liberties, Pillardwrote that"accurate health education can help to make abortion less necessary by teaching teens about reproduction and birth control." Republicans aggressively attacked this viewpoint. "You [have argued] that if a state decides to teach abstinence-only, that that decision…in your judgment, may be unconstitutional. Is that indeed what you were arguing?" Cruz asked at the July hearing.
Pillard replied: "I'm a mother. I have two teenage children, one boy and one girl…I want both of my children to be taught to say no, not just my daughter. I want my son to be taught that too. The article was very explicit. I don't see any constitutional objection [to] abstinence-only education that does not rely on sex-role stereotypes."
Cruz said that he found that to be "an extraordinary position," and Ed Whelan, writing in the National Review, accused Pillard of "false testimony" on the abstinence education issue. "No one who seeks to use the Constitution to impose and advance her own dogmatic belief…should be trusted with judicial power," he wrote. Pillard has said repeatedly that her personal views will have no place in her judicial decision-making, and Media Matters has called the National Review's attacks on Pillard "sexist, hypocritical, and flawed."
Sen. Mike Lee (R-Utah) also brought up Pillard's writings at the July hearing, accusing Pillard of comparing anti-abortion protesters to white supremacists. "Do you believe that pro-life protesters are fairly analogous to Klu Klux Klan members who lynched African Americans?" he asked. Pillard disagreed, noting that the brief in question referred to why protesters shouldn't interfere with law enforcement, and, at the time, there wasn't a more relevant statute to cite. She said that after that case, Congress passed the Freedom of Access to Clinics Entrances Act in 1994, which made it illegal for protesters to obstruct people going to health clinics.
If Pillard's confirmation is blocked by Republicans, it will be because they can't handle an openly feminist, pro-choice federal judge—or because, as Reid has pointed out, they are stonewalling all of the Obama administration's nominees, no matter their background. Obama has nominated two others to the DC Circuit, one of whom has already been filibustered by Republicans. "While Senate Republicans are blocking President Obama's nominees to this vital court, they were happy to confirm several judges to the DC Circuit when Presidents Reagan and Bush were in office…Pillard is incredibly qualified and dedicated," Reid said.
At least one conservative legal scholar agrees: "I know well Professor Pillard's intellect, integrity, and temperament…I know her to be a straight shooter when it comes to the law and legal interpretation," wrote Viet D. Dinh, who served as the assistant attorney general for legal policy under President George W. Bush. "I am confident that she would approach the judicial task of applying law to facts in a fair and meticulous manner."
Most Americans assume that Silicon Valley, a shining beacon of US economic growth, will give a lot of dough back to Uncle Sam over the next few years. But thanks to a controversial loophole in US tax code, 12 tech companies—including Facebook, Twitter and Linkedin—are poised to avoid paying income taxes on their next $11.4 billion in earnings, netting the companies a collective savings of $4 billion, according to a report put out this week by the Citizens for Tax Justice (CTJ).
The way the law stands now, US companies get big tax deductions when they pay their employees in stock options. For example, if an executive is given the option to buy a million shares of a company at five cents a share and later cashes those options in when they're selling for $20 a share, the company can deduct the price difference in tax breaks, even though they never actually paid that higher salary. This is especially profitable to emerging industries, like tech, where companies give stock options to young executives when they're still coding out of their parents' basements. These tech employees have an incentive to stay with the company over the long-term, and then cash in once the company is profitable. That means that companies get to store these tax breaks until—ta-da!—they're not paying income taxes for years. Here's how much these 12 companies have saved:
Twitter is the latest company that stands to profit from this, since it just went public.But in this latest report, CTJ determined that Facebook still has the highest amount of stock deductions to cash in—about $6.2 billion worth, allowing it to avoid income taxes for almost five years. And it's not just tech companies. In April, CTJ found that 280 Fortune 500 companies have benefited from this break in the last three years alone.
Tony Nitti from Forbes argues that even with this loophole, Uncle Sam isn't losing money, since as Facebook deducts $5 billion in taxes from Mark Zuckerberg's stock, Zuckerberg is taxed on $5 billion in income, and the individual rate is higher than the corporate rate. Facebook did not immediately respond to comment on the report, but a spokesperson told the Huffington Post earlier this year that "it's a mistake to look at only the corporate tax revenue while ignoring the billions of taxes paid from initial shareholders."
But Matt Gardner, executive director of the Institute on Taxation and Economic Policy, tells Mother Jones that the IRS is still losing money, since Zuckerberg would be taxed on his income no matter where it came from, and under the loophole, the company is able to write off his income without corporate income taxes. "If Facebook buys Zuckerberg a lottery ticket for a buck, and then he wins a million dollars, should the company be able the write off that million? That's absurd, but that gives you a sense of what's going on here," says Gardner.
Bipartisan lawmakers have recently started to denounce this loophole, and in February of 2013, Senator Carl Levin (D-MI)proposed a bill that would limit how high companies could go with their stock-option tax breaks.
"People recognize that these loopholes are not fair. They are wrong in every sense that a policy can be wrong—wrong fiscally, wrong economically, wrong ethically," said Levin in a statement.
"One party in one house of Congress should not stand in the way of millions of Americans who want to go to work each day and simply be judged by the job they do," President Barack Obama said in a statement. "I urge the House Republican leadership to bring this bill to the floor for a vote and send it to my desk so I can sign it into law."
It's already illegal for companies to discriminate against Americans on the basis of age, disability, gender, race and religion. ENDA would add sexual orientation and gender identity to the list, protecting LGBT workers from being fired or denied benefits and promotions based on their sexual identity. (Anamendment pushed by Sen. Rob Portman (R-Ohio) and Kelly Ayotte (R-N.H.) makes it so that religious entities that don't comply can't be penalized.) Various incarnations of this non-discrimination bill have been brought forward since the 1970s, but this is the first time the Senate has passed one. In 1996, it missed the mark by one vote, and in 2009 and 2010, the bill was held up over the inclusion of transgender employees.
Even though Boehner has opposed the bill, citing that it would lead to "frivolous litigation"—the Government Accountability Office found there's no evidence that would happen—there are still some Republicans who'd like to see it brought for a House vote, including Rep. Charlie Dent (R-Pa.), who told The Washington Post that he expected it would get the support of at least three dozen House Republicans, which was enough to pass the bill in the House in 2007. He noted, "Younger voters would be much more accepting of the Republican Party if we were to adopt legislation of this type."
That's a sentiment that GOP Senators Mark Kirk (R-Ill.), Lisa Murkowski (R-Alaska), Jeff Flake (R-Ariz.), Susan Collins (R-Maine), Dean Heller (R-Nev.), John McCain (R-Ariz.), Kelly Ayotte (R-N.H.), Orrin Hatch (R-Utah), Rob Portman (R-Ohio), and Patrick Toomey (R-Pa.)—all of whom voted for the bill—got behind. Thirty-two Republican Senators did not agree (three others didn't vote). Here's a list of everyone who voted against it:
Republicans Who Voted Against the Employment Non Discrimination Act: Sen. Lamar Alexander (R-Tenn.)
Internet privacy relies heavily on the ability of tech companies to hide user content—such as your emails and bank information—behind a secure wall. But the Department of Justice is waging an unprecedented battle in court to win the power to seize the keys of US companies whenever the US government wants. Edward Snowden has shown that the government is already doing a great job at getting companies to hand over information, breaking down weak doors, and scooping up unlocked material. But if the Justice Department succeeds in this case, it will be far easier for it to do so, and—poof!—there will no longer be any guarantee of internet privacy.
The case started this summer, when Lavabit—an alternative email provider that promised highly secure email—was handed a subpoena by the Department of Justice. The subpoena required that Lavabit supply the billing and subscriber information for one of its users, widely believed to be Edward Snowden. Lavabit supplied this information. Then, the government asked to install a device on Lavabit's servers that would allow it to monitor all of the metadata (time and email addresses) of the individual's account. But Lavabit encrypted all of this information, and the only way for the government to view it was to use Lavabit's private keys to break the encryption. Those keys weren't set up to access an individual account. Instead, they broke the encryption of 400,000 Lavabit email users and would allow the government to rifle through all of that content.
Lavabit offered to record the individual's information that the government requested and hand it over on a regular basis, for a fee of at least $2,000—but it refused to give up its keys. As Ladar Levison, Lavabit's 32-year-old founder, told Mother Jones in August,"What I'm against, at least on a philosophical level…is the bulk collection of information, or the violation of the privacy of an entire user base just to conduct the investigation into a handful of individuals."
The government obtained a warrant demanding that Lavabit give up the keys anyway. When the company refused (at one point, Levison turned over the keys in 11 pages of 4-point type that no one could read) it was held in contempt of court and slapped with a $5,000-a-day fine. The government prosecutor in that closed-door hearing argued that "there's no agents looking through the 400,000 other bits of information, customers, whatever…No one looks at that, no one stores it, no one has access to it." The judge presiding over the case said that sounded "reasonable."
Lavabit handed over the keys right before shutting down the entire company. On October 10, it filed its appeal of the contempt charge in the US Court of Appeals for the 4th Circuit, in a case that civil liberties groups say is the first of its kind. (A Justice Department spokesman says it does not comment on pending litigation. The department is scheduled to file a brief in response to Lavabit by November 12.)
Karl Manheim, a professor at the Loyola Law School in Los Angeles, says that that the government's demand for Lavabit's encryption keys appears "unconstitutional." The same argument is being made by the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union, both of which filed amicus briefs in the case last week. "This case could set a very dangerous precedent," says Brian Hauss, a legal fellow for the ACLU. "The government regularly reminds us how important cybersecurity is right now [in relation to protecting water plants and electrical grids from hackers, for example], so for them to say that and then execute these legal orders that undermine a critical layer of that security, is somewhat paradoxical."
Here's how that critical layer of security works: Any tech company that gives a damn about privacy and security employs Secure Sockets Layer (SSL) encryption, which protects communications from being intercepted by third parties. Companies use different length "keys" to protect their encryption. It can take a lot of time, money, and expertise to crack a company's private encryption keys, but if the company just hands them to you, it's possible to read most anything on its website, including message content. "You can also decrypt the information months or years after the fact," notes Matthew Green, a professor at John Hopkins University and an encryption expert. With Lavabit's key, the US government could read any email in a Lavabit user's inbox. "Once this precedent is set, what stops them from doing this to other companies? How far can this go?" asks Green.
Snowden has maintained that the NSA can break many keys and has exploited a backdoor to Google's and Yahoo's encryption layer—gaining access to the messages and content that flow through these firms without needing any keys. The government has also reportedly asked big tech companies for their master keys, but Google and Microsoft insist they have not provided them. So internet privacy may already be undermined by NSA activity. Yet Hauss argues that if the Justice Department gets its way in court, it will be "much easier" for the NSA to engage in privacy-busting operations because the agency will "just get the key from the company." Hauss adds, "On top of that, it would give [the NSA] more legal backing and make it easier for tech companies to be complicit in these surveillance schemes."
EFF contends that the Justice Department's demand is a violation of the Fourth Amendment. It notes that it is certainly appropriate for the government to demand specific information from an internet service provider as it relates to a warrant, but obtaining the keys would provide the government access to "thousands or perhaps millions of customers who aren't the target of any criminal investigation." In its brief, the ACLU calls the request "unduly burdensome," arguing that a company shouldn't have to blow up its entire business to comply with a government request.
If Lavabit loses its case, it will have the option of petitioning the Supreme Court. Should Lavabit not triumph in the end, tech companies will have to find a new way to protect information on the internet. And they're already looking ahead. Google has started using what's called "Perfect Forward Secrecy" on most of its communications. This system generates new keys each time someone logs in, so there isn't one master key to break all the communications. And Lavabit is working on a project called the Dark Mail Alliance with another secure provider, Silent Circle, which followed Lavabit's lead and shuttered its email service in August in an effort to resist the NSA. The new service will not rely on a master key and aims to make it impossible for the NSA to obtain even a user's metadata. There's no telling how the US government will respond if Lavabit and Silent Circle succeed in developing this service.
"Everyone was saying we have to abandon all hope. There's nothing we can do to protect ourselves," says Phil Zimmermann, the founder of Silent Circle. But he says that coming up with a new way of keeping email secure could change that. "If you just do it by fighting them in court, you might lose. But if you do it by changing the architecture, well, that gives you a big advantage."
When voters across America hit the polls yesterday, many eyes were on Texas, which has faced recent criticism that its new voter ID law could make it harder for women to vote. But plenty of other states have passed restrictive voter ID laws recently. Legislators claim the laws clamp down on voter fraud—there were only 13 credible cases of in-person voter impersonation between 2000 and 2010—by requiring voters to present various forms of identification. Poor, elderly, and minority voters, along with women, are hit particularly hard by these strict voting requirements, and voters of all stripes were feeling the effects as they tried to vote yesterday.
While some Americans headed to Twitter to express their support for the new voting regulations, others used the medium to complain about not having their votes counted or being forced to jump additional hurdles, such as signing a sworn affidavit. And to underscore the confusion that these laws have wrought across the country, some voters didn't know what kind of identification, if any, they needed. There are also reports of poll workers requiring IDs in states like New York and Iowa, which don't have voter ID laws on the books. Mother Jones is tracking voter complaints across the United States, through both Twitter and organizations that run help lines, to determine which states were having trouble. Here's what we've found:
Texashas one of the strictest voter ID laws in the country, requiring voters to prevent photo identification with a name that "substantially" matches the name on the voter registration list. High-profile Texans, including ex-House Speaker Jim Wright and Democratic state Sen. Wendy Davis, would have been unable to vote under the new law. But thanks to an amendment offered by Davis, voters whose names don't match—particularly women who've taken their husbands name—can sign an affidavit swearing under penalty of perjury that they are who say they are. While plenty of voters questioned why the law was such a big deal and said they had no trouble voting—others complained of having to sign affidavits:
Voted w/ wife, who had to sign affidavit to vote, TX no longer in America! Jim Crow law in TX! @GregAbbott_TX
And other voters were incorrectly denied the right to vote even though they had proper identification. "One Texas voter with a current voter registration card and multiple forms of ID was not allowed to vote because her driver's license was expired and her other state-issued ID card did not reflect her current address," says Stacie B. Royster, a spokesperson for Election Protection, a nonpartisan organization that tracks voter issues.
And Krissi Trumeter, who works for the Texas Observer, tells Mother Jones that her passport was denied despite being an accepted form of ID, and she was told she needed a Texas ID to vote. She says she was eventually allowed to vote after about 30 minutes but believes it may have been counted provisionally.
Virginia held a closely watched gubernatorial election, where Republican Ken Cuccinelli faced off against Democrat Terry McAullife (McAullife won). Although Virginia has passed one of the strictest photo voter ID laws in the country, the law isn't in effect yet, and voters are only required to bring in a nonphoto form of ID, such as a bank statement. Hope Amezquita, a legal staff attorney for the ACLU, tells Mother Jones that she received two reports of Virginians having trouble voting because of the current law, but noted that she anticipated a lot more reports next year, when the new law goes into effect.
Tram Nguyen, co-executive director of the Virginia New Majority, a progressive group, tells Mother Jones that her organization received "a few reports" out of Newport News from people who "believe they were improperly removed from the rolls due the voter purge" and had to cast provisional ballots. According to the Washington Post, more than 38,000 Virginian voters were purged recently from the voter rolls.
Lots of voters tweeted about having to show ID in Virginia —Teri Galvez, who has run for Republican National Committeewoman in DC, quipped that showing ID to vote "makes sense"—but other people said they had trouble casting ballots in Virginia, either because of the law or because of voter roll issues:
@dliebelson she filled out proper paperwork and turned it in. They didn't let her vote today. Said she wasn't on the list.
New Jersey doesn't require that people bring ID to vote unless they didn't provide identification when they registered, or the information they provided could not be verified. This voter says he ran into problems:
@FoxNews Edison NJ refused to let me vote until I showed an ID. They told me it is NJ law that I MUST show ID to vote. Since when?
Gavin Aronsen, a former Mother Jones reporter, had trouble voting because he was asked to produce two forms of ID, contrary to Iowa state law. The poll worker allegedly told Aronsen that even though the state didn't have a voter ID law as of November 5, "there will be [one], soon enough."
Even though New York City Mayor Michael Bloomberg said that New Yorkers had "no excuses" not to vote—and New York doesn't have a voter ID law—some people were scared off by reports of voter ID laws in other states and stayed home:
I wanted to vote but i cant find my passport :( and i lost my driving license :(
In Ohio, voters are required to bring in a nonphoto ID, such as a bank statement or utility bill. But some poll workers seemed to be dishing out provisional ballots or turning away people for not having adequate ID:
Fierce little voting tyrant telling a disabled 80 year old woman she can't vote without a drivers license.
Indiana Indiana also requires that the name on a voter's photo identification substantially match the voter registration. This voter was asked for an ID, but notes that he didn't mind going back home to get it "because having an ID is an important part of voting."
Forgot my ID to vote and the woman talked to me for like 3 mins explaining why I have to have one. Clearly didn't check my party designation
Pennsylvania's strict voter ID law is currently on hold until a pending lawsuit is resolved. But that didn't stop poll workers from allegedly asking voters for ID. Election Protection also reported that it received calls from voters concerned they would be required to show photo ID at the polls.
Voter 99 at my polling place this morning. Was (illegally) asked for ID. Go vote. #BucksVotes