Senate To Vote Tuesday On Surveillance Bill; Four Senators Try To Rally Others To Oppose

from the say-bye-to-the-4th-amendment dept

Following yesterday's bizarre vote in the House, in which many members who opposed President Donald Trump and warn about his abuses of office voted to give him much greater surveillance capabilities, the issue quickly moved to the Senate. Senate Majority Leader Mitch McConnell made a procedural move to ensure no amendments are added, and the bill the Senate will vote on will be basically the awful bill in the House.

On top of that he put out a misleading statement, playing up the usual fear mongering about Section 702 and even name-checking 9/11.

“Republicans and Democrats agree that we must not deprive the men and women who protect our country of this important tool. Five years ago, a reauthorization of Section 702 passed the Senate with overwhelming bipartisan support. Al Qaeda, ISIL and associated terror groups remain intent on striking our people, and those serving us overseas. I look forward to renewing the bipartisan consensus on this issue now that the time has come to approve a new extension.”

“With each day that passes since this nation was attacked on September 11th, 2001 it seems that the concern over terrorism has waned. That is in part due to the success of our defense and intelligence community in preventing another attack. And they rely upon section 702 to accomplish that mission. But as we know, Al Qaeda, ISIL and associated terror groups remain intent on striking our people, and those serving us overseas.”

Of course, this ignores that Section 702 didn't even show up until almost a decade after 9/11 -- so really wasn't responsible for most of the intelligence work that McConnell is giving it credit for. And, on top of that, it ignores the widespread abuse of Section 702 programs that we now know about. It also ignores that in some ways this new bill expands the power to conduct surveillance on Americans without a warrant and to use that surveillance for law enforcement, rather than intelligence purposes.

An intellectually honest debate about this would address these issues. But McConnell does not appear interested in an intellectually honest debate, preferring to scream "9/11!" and demand Senators vote to approve the plan. There is a group of four Senators pushing back against this: Senators Rand Paul, Ron Wyden, Mike Lee and Pat Leahy have sent a powerful letter to their colleagues, detailing the many problems with the bill.

This bill allows an end-run on the Constitution by permitting information collected without a warrant to be used against Americans in domestic criminal investigations. It endorses the possibility that the government will resume “about” collections on Americans, a practice that the government was actually forced to abandon last year due to significant non-compliance with privacy protections ordered by the FISA Court. And it does nothing to protect innocent Americans from expanding warrantless surveillance.

• Continuing the “backdoor” loophole: The bill does nothing for the thousands of Americans whose private communications are searched without a warrant every year, including those who are not even the subject of an investigation. Nor would it prevent unlimited searches for Americans’ information, even for non-national security purposes. The so-called “warrant requirement” reform in the bill applies only to criminal suspects, and then only to the government’s access to their information at the final stage of an investigation, a situation that, according to the most recent annual data from the Director of National Intelligence, has occurred once. This means that the bill actually treats those suspected of a crime better than innocent Americans.
• Restarting “About” collection: The bill, for the first time, would statutorily recognize the possibility of the government restarting “about” collection, essentially by default, which would necessarily include warrantless collection of communications to and from Americans for whom there is no suspicion at all. The government was forced to abandon this problematic form of collection last year due to extensive compliance problems, and should not be allowed to resume it without specific Congressional approval.
• Unreviewable end use: The bill grants new, unchecked powers to the Attorney General to allow data collected without a warrant to be used in domestic criminal prosecutions of Americans. The Attorney General merely has to determine that a criminal proceeding “affects, involves, or is related to the national security of the United States” or involves a “transnational crime.” Alarmingly, the bill explicitly prohibits any challenge to the Attorney General’s decision.

To be clear, FISA’s purpose is to collect foreign intelligence, but without additional meaningful constraints, Congress is allowing the government to use information collected without a warrant against Americans in domestic court proceedings. We have introduced two separate bills which preserve the government’s ability to pursue terrorists abroad and protect the country from foreign threats while also making the necessary reforms to protect the Fourth Amendment rights of Americans here at home.

The FISA Amendments Reauthorization Act, however, further expands the risks of unconstitutional spying on innocent Americans, and we encourage you to join us in opposition to this bill. We believe that a clean, short-term extension would be markedly preferable to this legislation. Section 702 was last extended for the length of the Continuing Resolution; if Leadership does not allow any amendments to the FISA Amendments Reauthorization Act and it does not pass this coming week, then Section 702 authorities can be extended again on the next Continuing Resolution to allow the Senate to fully debate how to appropriately reform this powerful surveillance tool.

It would be nice if other Senators actually paid attention and listened to these four... but the fact that it is just these four (and they tend to be the most reliable four Senators talking about protecting the 4th Amendment) suggests that McConnell knows that he has enough votes to pass the bill and allow the NSA and domestic law enforcement to increase their warrantless surveillance of Americans. This also means that it might be a good time to call your own two Senators and make sure they're voting against this. Fight for the Future is crowdfunding to buy billboards advertising against some Senators who vote for the bill, but the more these Senators hear from constituents saying that this bill obliterates our 4th Amendment rights, the better.

Filed Under: mike lee, mitch mcconnell, nsa surveillance, patrick leahy, rand paul, ron wyden, section 702, senate

GOP Senate Streisands Elizabeth Warren And Coretta King In Attempt To Silence Her

from the oops dept

We've covered all kinds of stories about the Streisand Effect here at Techdirt, for the obvious reason that our overlord originally coined the term. From individuals to professional sports leagues to celebrities, there is something of a pantheon in these pages of those that attempt to silence speech or coverage they don't like which instead results in much wider coverage of that speech or coverage. But I can't seem to find an instance where we've had the opportunity to ding an entire wing of a congressional body for failing to understand how all of this works before.

And so it is with great pride that I am able to bring you the story of how the Senate silenced Elizabeth Warren as she read a letter authored by Martin Luther King Jr.'s widow during the debate over confirming fellow Senator Jeff Sessions as Trump's Attorney General.

The rebuke of Warren came after the Massachusetts Democrat read a letter written 30 years ago by Coretta Scott King, the widow of Martin Luther King Jr., opposing the nomination of Jeff Sessions for a federal judgeship. Warren cited the letter during a debate on the nomination of Sessions -- now an Alabama senator -- as Donald Trump's attorney general. Reading from King's letter to members of the Senate Judiciary Committee in 1986, Warren said: "Mr. Sessions has used the awesome power of his office to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge."

Republicans cried foul -- charging that Warren violated Senate rules against impugning another senator. A vote along party lines upheld that decision, turning what could have been an ordinary late-night partisan floor speech for political devotees into a national story.

We'll get to that last bit in just a moment, but let's not fail to point out how silly the application of this rule is and what it means for the prospect of sitting Senators filling cabinet positions. If Senate rules prohibit another Senator form impugning a cabinet appointee during the debate over that appointee's cabinet nomination, what would be the point of the debate? And keep in mind that Warren was not going on some self-authored tirade. She was reading a letter from the widow of the single most recognized civil rights leader, which was sent to Congress in the past -- though Senator Strom Thurmond refused to put it into the Congressional record. That letter still had a hand in defeating a previous nomination of Sessions to judgeship. In February, which is Black History Month. This is banal as it gets.

Separately, Senators complained about Warren quoting former Senator Ted Kennedy on his opposition to Sessions back in 1986. So, apparently the rule is that even if you're quoting former Senators and people closely associated with the civil rights movement, you can't say anything that might upset a sitting Senator, even if it was discussed previously in the Senate and now as part of the debate over his own nomination to be Attorney General.

Of course, by invoking this rarely used Senate rule, one which has previously been ignored, Senator Warren and King's letter is splashing headlines all over the place. On top of that, Warren and others rushed to social media circles to make sure the letter was heard by everyone who would listen. Which, given the way all of this is trending on social media, was a great many people.

Warren went straight from the Senate floor to a call-in appearance on Rachel Maddow's MSNBC show, a favorite of progressives. "I've been red-carded on Sen. Sessions. I'm out of the game of the Senate floor," she told Maddow.

She also read King's letter outside the Senate floor in a Facebook live video.

That Facebook live video now has over 7.5 million views. That seems like approximately 7.5 million more people than would have watched Warren's hour-long speech on C-SPAN.

We can leave politics aside completely and still shake our heads at how badly this attempt to silence Warren and the reading of the letter has gone for those that attempted the silencing. This is pure Streisand Effect at work, and it's being supercharged by those that raised the objection to the letter's reading, who don't seem to understand how easily this situation and their own words will be used against them.

Senate Majority Leader Mitch McConnell defended evoking Rule 19, a rarely evoked chamber regulation that prohibits senators from impugning each other.

"She was warned. She was given an explanation. Nevertheless, she persisted," the Kentucky Republican said on the Senate floor, delivering an instantly classic line -- the kind liberals imagine being replayed ad nauseum in TV ads in a future presidential campaign.

Again, this isn't about political teams. If you're in favor of Sessions, if you're a Republican, if you're a Trump voter, you should still be able to understand how bungled this whole thing was. Had there been no attempt to silence Warren, coverage of the letter being read likely would have registered as a curiosity at most. Instead, this thing is everywhere. Including below.

Filed Under: coretta scott king, elizabeth warren, jeff sessions, mitch mcconnell, rule xix, senate, streisand effect, ted kennedy

Senator Wyden Puts A Hold On Intelligence Authorization Bill To Block FBI Warrantless Surveillance

from the there-goes-that-wyden-guy-again dept

As we've discussed, some surveillance/law enforcement hawks have tried to rush through a law to expand the power of national security letters (NSLs) to paper over the long standing abuse of NSLs, by saying that they can use those documents (which have basically no oversight and don't require a warrant) to collect a ton of private info, including email info and web browsing histories. The rushed vote on this -- stupidly citing the Orlando attacks, despite the fact it would have done nothing to stop that -- failed but just barely. Basically, if Senator Dianne Feinstein were able to attend the vote, it likely would have passed. The support for it was one vote shy, and then Sen. Mitch McConnell changed his vote for procedural reasons to be able to bring it back for a quick follow up vote.

Now, as Congress rushes towards that vote, Senator Ron Wyden stepped up today to use his power as a Senator to put a hold on the entire Intelligence Authorization bill. He gave a short floor speech explaining his reasons.

I certainly appreciate the FBI’s interest in obtaining records about potential suspects quickly. But Foreign Intelligence Surveillance Court judges are very capable of reviewing and approving requests for court orders in a timely fashion. And section 102 of the recently-passed USA FREEDOM Act gives the FBI new authority to obtain records immediately in emergency situations, and then seek court review after the fact. I strongly supported the passage of that provision, which I first proposed in 2013. By contrast, I do not believe it is appropriate to give the government broad new surveillance authorities just because FBI officials do not like doing paperwork. If the FBI’s own process for requesting court orders is too slow, then the appropriate solution is bureaucratic reforms, not a major expansion of government surveillance authorities.

The fact of the matter is that ‘electronic communication transaction records’ can reveal a great deal of personal information about individual Americans. If government officials know that an individual routinely emails a mental health professional, or sends texts to a substance abuse support group, or visits a particular dating website, or the website of a particular political group, then the government knows a lot about that individual. Our Founding Fathers rightly argued that such intrusive searches should be approved by independent judges.

It is worth noting that President George W. Bush’s administration reached the same conclusion. In November 2008, the Justice Department’s Office of Legal Counsel advised the FBI that National Security Letters could only be used to obtain certain types of records, and this list did not include electronic communication transaction records. The FBI has unfortunately not adhered to this guidance, and has at times continued to issue National Security Letters for electronic communications records. A number of companies that have received these overly broad National Security Letters have rightly challenged them as improper. Broadening the National Security Letter law to include electronic communication transaction records would be a significant expansion of the FBI’s statutory authority.

And unfortunately, the FBI’s track record with its existing National Security Letter authorities includes a substantial amount of abuse and misuse. These problems have been extensively documented in reports by the Justice Department Inspector General from 2007, 2008, 2010 and 2014. As one of these reports noted, “the FBI [has] used NSLs in violation of applicable statutes, Attorney General guidelines, and internal FBI policies.” No one in the Senate should be surprised by this pattern of abuse and misuse, because this is unfortunately what happens when federal agencies are given broad surveillance powers with no judicial oversight. In my judgment, it would be reckless to expand this particular surveillance authority when the FBI has so frequently failed to use its existing authorities responsibly.

Of course, to some extent, this is little more than show. It's pretty clear that McConnell has the votes to get this passed, which is why Wyden has now taken the dramatic step of putting a hold on the bill. But the 60 votes here are usually what is necessary to break a hold (which remains a widely used, but informal, Senate rule). So in the end this won't mean much, but we've been here before again and again and again. And by now it should be clear: When Ron Wyden says that the government is abusing laws to spy on Americans, he's not lying. We shouldn't then paper over that abuse and give the FBI or the NSA or anyone else greater powers to spy on Americans. Because they use that power and they don't tend to use it wisely and judiciously.

Can anyone explain, seriously, why the emergency powers that allow the FBI to do the search in an emergency and then get the warrant after are somehow too problematic? Or why the FBI can't go and get a warrant at all? It's a petty quick process for them these days. This whole effort seems designed solely to wipe out what little oversight there is of the FBI and its use of national security letters.

Filed Under: 4th amendment, hold, intelligence authorization, mitch mcconnell, national security letters, nsls, ron wyden, warrants

Senate Just Barely Rejects Plan To Expand FBI Surveillance Powers

from the two-votes dept

Just yesterday we wrote about how the Senate was, somewhat ridiculously, rapidly pushing forward plans on a vote for an amendment to the laws concerning what information the FBI can gather using National Security Letters (NSLs). Despite the fact that the big push for this bill began a few weeks ago, and the fact that it had absolutely nothing whatsoever to do with the Orlando shooting, cynical Senators including John McCain and Mitch McConnell pointed to the shootings in Orlando as a reason that this expansion of FBI surveillance powers was needed. Of course, the reality is that it wasn't needed, and the law is really there to paper over the fact that the FBI has already been widely abusing its NSL powers to get information it's not allowed to request.

After a vocal debate this morning, the measure (somewhat surprisingly) failed to pass, but by just two votes. It need 60 votes to move forward (it was a vote for "cloture" on debate, which requires 60 votes), and it only received 58. But McConnell already made it clear that the amendment will be reconsidered soon, which means he's likely going to be pushing strongly to get those two remaining votes.

In other words, this particular debate is far from over, and thus it's important to make sure your Senator knows not to support this. You can see the roll call on the votes here to see what your Senators voted. Somewhat surprisingly, neither of my Senators in California voted for it. Feinstein didn't vote or wasn't present and Boxer voted against. I'm guessing that Feinstein would likely vote for it in a revote, given her willingness to support greater surveillance, so it's possible that McConnell really only needs one more vote, unless people can convince some of the "Yea" voters to change their mind.

Filed Under: 4th amendment, doj, fbi, john mccain, mitch mcconnell, national security letters, nsls, politics, warrants

Seeing Opportunity, Congress Tries To Rush Through Its Plan To Legalize FBI Abuses Citing 'Orlando!'

from the let-no-crisis-go-unwasted dept

Just a few weeks ago, we wrote about the FBI pushing strongly for an update to the law that covers National Security Letters (NSLs) to cover up the fact that the FBI has been using them to get electronic communications records. The current law on NSLs doesn't cover that information, though the FBI insists that it's just a "typo" in the law, and still frequently asks for them in its NSLs, because NSL recipients often don't know the law themselves and will still turn over the info. Of course, it helps that the NSLs often come with gag orders. Reports going back a decade have shown that the FBI has a serious problem with abusing its NSL powers to get lots of information it's not supposed to have. And rather than do something to stop such abuses, the FBI's friends in Congress have, instead, been trying to legalize such abusive practices to allow the FBI to do even more.

And, in the spirit of "leave no crisis unexploited," Senator Mitch McConnell is pushing forward on the amendment put forth by Senators McCain and Cornyn to expand NSLs. And, cynically, they're citing the Orlando shootings as the reason why, despite the fact that this amendment was being pushed for before the shootings even occurred and the fact that this would have done absolutely nothing to stop the shootings.

“In the wake of the tragic massacre in Orlando, it is important our law enforcement have the tools they need to conduct counterterrorism investigations,” Senator John McCain, an Arizona Republican and sponsor of the amendment, said in a statement.

The FBI and others in law enforcement already have plenty of tools to do counterterrorism investigations (and, again, it's not even clear that the Orlando shooting was a terrorist activity in the first place). Nothing in this amendment would change how the FBI was investigating the attack. This is just McCain, McConnell and others exploiting the shooting to help the FBI further abuse its surveillance powers.

Filed Under: john mccain, mitch mcconnell, national security letters, nsls

The Cable Industry Trots Out Mitch McConnell To Fight Against Cable Box Competition

from the nobody-believes-the-words-coming-out-of-your-mouth dept

We've been talking for weeks about how the cable industry has dramatically ramped up lobbying in an attempt to kill the FCC's plan to bring some competition to the set top box market. The cable industry opposes the idea for two reasons: competition would dramatically reduce the $21 billion the sector makes each year off of rental fees, but the flood of new, cheaper boxes would also likely direct users -- historically locked behind cable's walled gardens -- to a huge variety of streaming video alternatives.

But the cable industry can't just come out and admit that they're terrified of competition -- so they've been attacking the FCC's plan with a two pronged approach. One, pay for an absolute torrent of hysterically-misleading editorials that claim set top competition will hurt consumers, scare the children, ramp up piracy, and knock the planet off of its orbital axis. The other prong of their attack involves a lobbying mainstay: throwing money at politicians to take positions they don't have the slightest actual understanding of.

Case in point is Senate Majority Leader Mitch McConnell, who this week was nudged by the cable sector to jump into the fray with comments like this one:

"Rather than applying a light regulatory touch," Senator McConnell wrote in a letter to FCC Chairman Tom Wheeler, "the FCC would require existing programming distributors to provide the copyrighted programming they have licensed from content providers to third party manufacturers and app developers, none of whom would be bound by the agreements to protect the content."

This is a line that the cable sector and its marionettes have been repeating, but it's simply not true. As the FCC's proposal outline notes (pdf), all the plan does is require that cable operators deliver the same expensive programming they do now -- using the same copy protection and business arrangements -- without requiring a CableCARD. A set top vendor can't just claim cable broadcasts as their own and ignore existing programming agreements, but that's one of several misleading arguments being put forth by the sector to kill the initiative.

Advertisers looking to protect legacy cash cow relationships have also been trying to derail the FCC's effort, claiming that the reform plan will somehow hurt consumers, violate copyright (as the EFF did a great job detailing that's not true either), and thrust the entire pay TV advertising ecosystem into "chaos":

"The current market structure for television advertising supports advertisers' ability to place their ads based on national, regional or local distribution; the type of programming or specific content; the audience composition; and the time of day or night that the ads appear," the ANA wrote. The proposed regulations could tilt that system toward chaos, it suggested."

Perhaps the ANA hadn't noticed, but the legacy pay TV advertising ecosystem already faces a wholesale revolution in terms of how consumers are served TV programming and the ads attached to them. If the existing "market structure" can't adapt behavioral and location advertising to consumers viewing TV content on a myriad of devices and hardware, they may want to change professions. In reality, advertiser opposition is based on little more than fear; fear that they may have to share revenues with new economy companies, and fear that these companies may actually give consumers what they want -- like the ability to skip ads.

But again it's not as if the FCC's proposal is even really that dramatic of an idea. It would simply act to accelerate a shift that -- thanks in large part to cable and broadcast lobbying power -- is already happening but could take another decade to fully materialize. The shift away from the traditional cable box and legacy TV is well underway, and it's hubris to think it can be stopped by pouting. Opposition to the set top box reform plan is little more than the dull creaking of yet another legacy sector behaving like a toddler because the uncompetitive markets they've built over a generation can't somehow, magically, live forever.

Filed Under: competition, copyright, fcc, mitch mcconnell, set top box

Senator Mitch McConnell To Obama: Please, Just Tell Us What Law You Need To Ban Encryption And You'll Get It

from the begging-to-undermine-american-security dept

Senate Majority Leader Mitch McConnell has always been a friend of the intelligence community, but he's using the attack in San Bernadino to ramp up the anti-encryption insanity to new levels, practically begging President Obama to tell him what law he wants to ban encryption, and McConnell will help make sure Congress delivers. McConnell's statement was laying out what he thought President Obama should do in response to ISIS, and includes this ridiculous line:

He should tell us what legal authorities he needs to defeat encrypted online communications, and what is needed to reestablish our capture, interrogation, and surveillance capabilities.

"Defeat encrypted online communications"? Is he crazy? We need encrypted online communications to better protect us, and yet McConnell is trying to undermine those communications. He's actively proposing to make us all less safe. And, of course, talking about "reestablishing" our "surveillance capabilities" is about giving the NSA more surveillance powers. McConnell was, of course, the key person who tried to block any attempt at rolling back the NSA's unconstitutional phone records collection program.

Now, we know that President Obama didn't go quite as far as McConnell asked, but he did still push for a more "voluntary" solution -- which may morph into Congress doing something if people don't speak out loudly about what an incredibly dumb idea this is.

Filed Under: congress, encryption, going dark, mitch mcconnell, president obama

The TPP And The Tobacco Carve-out Bring Together Strange Bedfellows... While Highlighting The Problems Of The TPP

from the not-a-good-idea dept

It's been rumored for years, but reports out of Atlanta suggest that it's now confirmed that in order to finalize the Trans Pacific Partnership (TPP) agreement, everyone agreed to carve tobacco out of the corporate sovereignty system, better known as ISDS (investor state dispute settlement). These systems allow companies to sue countries for passing regulations that the companies feel harm their ability to profit -- and tobacco companies have already filed ISDS complaints in a few countries that have pushed to put health warnings on cigarette packages.

While some health activists have cheered on this carve out -- it appears that almost everyone else is pissed off. Not because they think that Big Tobacco should be shaking down countries that pass anti-smoking laws (though, there may be some of that), but because they recognize the problems that occur when governments can start to set up trade deals that "carve out" certain industries. It's opening up a huge can of worms. Even some supporters of corporate sovereignty/ISDS are worried about what it means when one particular industry can just be excluded entirely from the process. Two of the biggest supporters of ISDS and TPP in Congress, Senators Mitch McConnell and Orrin Hatch, have both warned that the US should not carve out tobacco. Here's McConnell a few months ago, standing up for those poor, poor tobacco farmers:

“It is essential as you work to finalize the TPP, you allow Kentucky tobacco to realize the same economic benefits and export potential other U.S. agricultural commodities will enjoy with a successful agreement.”

And here's Hatch actually making a fairly salient point about the carve out:

“Although I don’t support tobacco at all, I still think it was essential,” Hatch said. “It’ll cost us some votes. And every vote is essential. And there are other things I am very concerned about. I’ve committed to read the bill, and I will read it, but right now I’m leaning against it.”

That doesn't bode well for the agreement, given that Hatch was a huge supporter of the TPP. Another Senator, Thom Tillis, has pointed out that carving out one industry opens up the possibility of carving out others:

“I’ll not only vote against it, I’ll work hard to have it defeated if it goes in the final agreement.... Once you carve out someone from dispute settlement agreements, then who’s next?”

And the tobacco carve-out, believe it or not, seems to be one thing that both big business and big labor agree on, though for entirely different reasons. The US Chamber of Commerce and the National Association of Manufacturers are totally against it:

we ask all of the TPP governments to reject the exclusion of products from the coverage of the TPP and its enforcement mechanism.... Such exclusions are unnecessary and would be highly damaging to the international rules based trading system and the prospects for the TPP.

And here was the AFL-CIO opposing the entire ISDS mechanism, and noting that the tobacco carve-out just highlights the problems of ISDS. Whereas Senator Tillis worried about "who's next" to get carved out, the AFL-CIO is pointing out that maybe there should be a lot more.

Any industry-specific carve-out will not address the serious structural problems inherent in the system itself. Issues of broad public interest should not be viewed through the narrow lens of trade and investment at all, let alone decided by unaccountable private panels. Systems of justice should be transparent and accessible on an equal basis. ISDS is anything but: Only foreign investors can use it and there are no requirements that affected communities be allowed to participate or even have their view considered. In many cases, there often are not even requirements that hearings or decisions be made available to the public at all! Even in the case of clear legal error, it is almost impossible to reverse a decision.

Indeed, as Sean Flynn pointed out just last week, carving out tobacco really just enforces how dangerous corporate sovereignty really is:

The new exception validates, rather than assuages, the concerns of those who have been criticizing ISDS systems for many years. Without express carve outs, ISDS provisions do threaten common health and safety regulations.

The carve out does nothing to halt the disturbing recent trend of companies using ISDS provisions in trade agreements to enforce international intellectual property norms through ISDS tribunals. This is, indeed, the claim at the heart of the tobacco cases now being litigated in ISDS systems. The claim is that tobacco regulations requiring plain packaging violate the trademark rights of tobacco companies protected by the World Trade Organization agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The pharmaceutical company Eli Lilly has also claimed that the denial of a new use patent on an old (off-patent) medicine violates rights granted by TRIPS and the North Atlantic Free Trade Agreement (NAFTA).

Meanwhile, US trade officials are, of course, trying to tap dance around the fact that basically everyone absolutely hates this. The USTR has tried to pretend this isn't a big deal because tobacco is "unique."

The U.S. Government seeks to include this language because tobacco is a unique product – it is highly addictive, always harmful to human health, and the single most preventable cause of death in the world. Recognizing these facts about tobacco through the TPP will represent an important step forward for public health in the international trade community.

It's true that tobacco can be a serious health concern, but shouldn't we be raising questions about why this procedure is no good for tobacco companies, but just dandy for every other industry -- including some that produce harmful products? Or those like pharmaceutical companies who are jacking up prices to keep necessary medicines out of the hands of the poor?

Oh, and then there are those who are in complete denial, who are insisting that there really isn't a carve-out for tobacco, even though there almost certainly is (we can't say for sure, of course, because the documents are secret):

“TPP will not discriminate against any agricultural commodity nor will it exclude tobacco. On the contrary, TPP will provide protections to ensure that governments can implement tobacco control measures, while guaranteeing that tobacco has the same legal status as any other product,” a U.S. official told CQ Roll Call last week.

In short, the whole tobacco carve-out situation is a microcosm of the problems with the TPP. You have a terrible idea (corporate sovereignty) mixed with a weak attempt to appease health activists (carve out tobacco), that basically fixes nothing and satisfies no one. And, now, the same Senators in Congress who demanded the fast track authority be granted, which ties their own arms behind their backs in terms of changing the agreement, are threatening to force this change, even though they've already given up the power to do so.

Filed Under: carve-out, corporate sovereignty, exemption, isds, mitch mcconnell, orrin hatch, tobacco, tpp, trade, winners and losers

Your Tax Dollars At Work: 1,000-Page Funding Bill Dropped On Senate Floor One Hour Before Vote

from the instant-sausage dept

The legislative sausage-making process is apparently so streamlined that many sausage-makers are barely involved in the process. It's not that they don't want to be. It's that other sausage-makers want their product to be pushed out the door with a minimum of inspection.

Senator Mike Lee posted a video to his Facebook page that contained a rather graphic depiction of expeditious sausage-making. As his printer whirred away behind him, Lee noted that a $47-billion, 1,033-page transportation funding bill was up for a vote. In less than an hour.

If I don't have time to read legislation before voting on it, my default vote is no. We received the highway bill today at 3:06 p.m., and it is over 1,000 pages long. Our first vote on this legislation is scheduled for 4:00 p.m.

The bill -- which failed to obtain the number of votes needed to open debate -- was a bipartisan effort (led by Barbara Boxer [D] and Mitch McConnell [R]). That's probably the best thing that can be said about it and the legislators behind it. Rather than prove lawmakers can occasionally put aside their differences and actually move forward with the business of legislating, this bill simply signals that both sides of the aisle are willing to resort to bullshit tactics.

The bill arrived at the last minute because the effort itself was last minute. Federal highway aid to states is up against a July 31st expiration deadline. Despite its length, the bill is still far from finished. It takes money from a variety of unrelated programs to fund federal aid for the next three years. The problem is the bill authorizes spending for the next six years. That's the other reason the bill's champions were hoping to shove this through with a minimum of debate: the bill leaves it up to the next Senate class to figure out where it's going to get the other $45-60 billion it will need to keep the federal aid flowing.

Fortunately, most senators were angered by this last-minute page dump.

Sen. Charles Schumer of New York, the No. 3 Democratic leader, said, "I can't remember a time where I have been asked in all my years in the Congress to vote yes ahead of time on a bill we haven't seen, and there are no amendments" allowed.

Sen. Richard Blumenthal, D-Conn., called the bill "a black hole." He said Democrats have been told changes have been made to auto, trucking and rail safety provisions that were agreed to last week on a party-line vote by the Senate commerce committee, but no details were provided before the vote. Some Democrats have described the provisions as giveaways to industry that would undermine safety.

Schumer is certainly exaggerating. While the very specific facts of this legislative effort may indeed be unique, shoving under-scrutinized bills past legislators is something of a tradition in Washington. PATRIOT Act, anyone? It took until June of 2014 before many lawmakers realized the extent of what they had authorized in 2001. The recording industry pushed through a favorable law change at literally midnight back in 1999. PoliceStateUSA points out that John Boehner dropped a gun control law on the floor when only 10 legislators (out of 435) were on hand to vote. Just recently, the aforementioned Mitch McConnell put a "no questions asked" Section 215 reauthorization bill up for a vote, using his powers as a majority leader to bypass all the hoops the USA Freedom Act was made to jump through.

Anything that might be debated heatedly often arrives at a moment when debate is least likely to occur. Thursday afternoons as legislators are all packing up to return to their homes. Late nights when few lawmakers are left in the building. Or -- like this one -- hundreds of pages of legalese released to voting members shortly before a scheduled vote.

And, in this case, the bill arrives with a bit of extortion attached. Senators who refuse to vote for something they haven't read face the prospect of dealing with angry locals whose federal aid has just expired. Far too often, legislators allow everything to reach the brink of collapse before making a move. There's not a person out there who thinks the best laws are made at the last minute. No one wants poorly-written funding programs that hobble other sectors in a short-sighted attempt to balance the books for the very immediate future. Even if this manages to make it out alive, it still only "fixes" everything for half of the time period authorized by the bill. So, in three years, there will be another last-minute attempt to secure funding, and it will be any other funding legislators feel is at least temporarily expendable that will be forced to patch up funding holes left by the last Senate session.

Sometimes, the sausage doesn't even get made. Instead, a bunch of random ingredients are shoved into a casing and passed off as a finished product. And it's the public that's forced to "eat" this sausage -- both in terms of the asking price, as well as any nasty side effects consumption of the poorly-made sausage may cause.

Filed Under: barbara boxer, chuck schumer, funding bill, highway funding, mike lee, mitch mcconnell, politics, senate, traffic, transparency