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The Latest – Wednesday, October 28

General Discussion
#1

:zap: A community space for breaking news :zap:

A daily community thread to collect updates and events pertinent to the daily shock and awe, this is The Latest.

:warning: This thread has ended. The discussion continues: The Latest – Thursday, October 29

What we’re talking about

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:information_source: Voter Guides: FiveThirtyEight / Washington Post / NBC News / Wall Street Journal

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Previously

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The Latest – Thursday, October 29
#2

A Newly Sworn In Justice Barrett Faces A Motion To Recuse Herself In Election Case

Amy Coney Barrett became the 115th Supreme Court Justice Tuesday when Chief Justice John Roberts administered the judicial oath of office in a private ceremony at the court. Barrett immediately was faced with an unusual motion seeking her recusal in an election procedures case currently pending before the court from Pennsylvania.

The motion to recuse was filed by the Luzerne County Board of Elections in an 11th-hour case brought by the Republican Party and Republican state legislators. Citing federal ethics laws that require a judge to recuse herself if her impartiality might reasonably be questioned, the elections board contends that the nomination and confirmation of a Supreme Court justice right before a presidential election is not only “unprecedented,” but “even more troubling” is President Trump’s own statements linking Barrett’s nomination “directly to … his own current re-election,” should the results of the election be challenged in court.

In an indication of what a red-hot controversy this is, the county board rescinded the motion after an emotional debate Tuesday by the county council. But it is likely that similar motions will be filed in future cases.

The motion to recuse came on a hectic day for Barrett when the last chip fell into place for her ascension to the high court-- Roberts administering the judicial oath.

All of the other members of the court attended the private ceremony, except for Justice Stephen Breyer, who listened in by phone from his home in Massachusetts. Also present were retired Justice Anthony Kennedy and Barrett’s husband, Jesse, but not their children. All wore masks, according to the court’s press office, and Barrett used the family Bible for the occasion.

The recusal question added yet another question before Barrett, who is now ensconced in her new chambers, the very chambers previously occupied by the late Justice Ruth Bader Ginsburg.

It arises in an effort by Pennsylvania state Republicans to get a second bite at the apple in an election case decided by the court last week by a tie vote. The issue last week: whether to allow absentee ballots to be counted up to three days after the election, as long as the ballots were postmarked by election day. Chief Justice Roberts sided with the court’s three liberals in the case based on his view that in a situation like this, close to the election, state courts should be able to interpret state law. The court’s other conservatives wanted to block the state court ruling, but a tie vote means the state court ruling remains in place.

Once Barrett’s nomination was reported to the Senate floor last Friday, however, the Pennsylvania Republican Party went back to the Supreme Court seeking for a second time to block the state court ruling, but using a new legal maneuver. And it is that case that Barrett, now officially a sitting justice, could participate in unless she recuses herself.

Ultimately, when dealing with recusals at the U.S. Supreme Court, each justice decides for himself or herself whether to recuse from a case. Most recusals involve a justice’s financial interest in a case — for instance, if a case involves a company or a subsidiary in which the justice owns stock, or a case involving a relative, or if a justice or a relative of the justice has been involved in the actual case before the court. And on rare occasion, a justice may recuse if he or she has made extrajudicial comments about one of the parties involved in the case.

But as Case Western Reserve law professor Jonathan Adler observes, “as odd as it may seem, federal judges are under no obligation to recuse in cases involving a prior benefactor, and there is no precedent for judges or justices recusing because the case implicates the interests of the president who nominated them.”

Technically, Supreme Court justices are not bound by the code of conduct in federal law, but they do try to abide by those rules. And as Adler, a conservative scholar, wrote this week, based on these criteria, Barrett may not be required to recuse. And yet, as he observed, there is another ground for recusal, namely, when a justice’s “impartiality might reasonably be questioned.” That, he suggests, may be why it would be “prudent” for Barrett to recuse. As he put it in a piece written for the Volokh Conspiracy blog:

“Trump’s own norm-breaking behavior may justify a departure from the traditional norms of recusal. His repeated comments about the role of courts in the election—and the Supreme Court and his nominee in particular—are [so] high-profile that they might create the sort of appearance problem that the recusal rules are designed to address. Simple prudence may counsel recusal in a special case like this. After all, we’ve never had a justice confirmed in the midst of an election before.”

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#3

WTF… :crying_cat_face:

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#4

Here’s Anonymous…Miles Taylor, ex HHS Chief-of-staff aide wrote the NYT Op Ed.

His statement

Why I’m no longer “Anonymous”

More than two years ago, I published an anonymous opinion piece in The New York Times about Donald Trump’s perilous presidency, while I was serving under him. He responded with a short but telling tweet: “TREASON?”

Trump sees personal criticism as subversive.

I take a different view. As Theodore Roosevelt wrote, “To announce that there must be no criticism of the President, or that we are to stand by the President, right or wrong, is not only unpatriotic and servile, but is morally treasonable to the American public. Nothing but the truth should be spoken about him or anyone else. But it is even more important to tell the truth, pleasant or unpleasant, about him than about anyone else.”

We do not owe the President our silence. We owe him and the American people the truth.

Make no mistake: I am a Republican, and I wanted this President to succeed. That’s why I came into the Administration with John Kelly, and it’s why I stayed on as Chief of Staff at the Department of Homeland Security. But too often in times of crisis, I saw Donald Trump prove he is a man without character, and his personal defects have resulted in leadership failures so significant that they can be measured in lost American lives. I witnessed Trump’s inability to do his job over the course of two-and-a-half years. Everyone saw it, though most were hesitant to speak up for fear of reprisals.

So when I left the Administration I wrote A Warning , a character study of the current Commander in Chief and a caution to voters that it wasn’t as bad as it looked inside the Trump Administration — it was worse. While I claim sole authorship of the work, the sentiments expressed within it were widely held among officials at the highest levels of the federal government. In other words, Trump’s own lieutenants were alarmed by his instability.

Much has been made of the fact that these writings were published anonymously. The decision wasn’t easy, I wrestled with it, and I understand why some people consider it questionable to levy such serious charges against a sitting President under the cover of anonymity. But my reasoning was straightforward, and I stand by it. Issuing my critiques without attribution forced the President to answer them directly on their merits or not at all, rather than creating distractions through petty insults and name-calling. I wanted the attention to be on the arguments themselves. At the time I asked, “What will he do when there is no person to attack, only an idea?” We got the answer. He became unhinged. And the ideas stood on their own two feet.

To be clear, writing those works was not about eminence (they were published without attribution), not about money (I declined a hefty monetary advance and pledged to donate the bulk of the proceeds), and not about crafting a score-settling “tell all” (my focus was on the President himself and his character, not denigrating former colleagues).

Nevertheless, I made clear I wasn’t afraid to criticize the President under my name. In fact, I pledged to do so. That is why I’ve already been vocal throughout the general election. I’ve tried to convey as best I can — based on my own experience — how Donald Trump has made America less safe, less certain of its identity and destiny, and less united. He has responded predictably, with personal attacks meant to obscure the underlying message that he is unfit for the office he holds.

Yet Trump has failed to bury the truth.

Why? Because since the op-ed was published, I’ve been joined by an unprecedented number of former colleagues who’ve chosen to speak out against the man they once served. Donald Trump’s character and record have now been challenged in myriad ways by his own former Chief of Staff, National Security Advisor, Communications Director, Secretary of State, Secretary of Defense, Director of National Intelligence, Vice Chairman of the Joint Chiefs of Staff, and others he personally appointed.

History will also record the names of those souls who had everything to lose but stood up anyway, including Trump officials Fiona Hill, Michael McKinley, John Mitnick, Elizabeth Neumann, Bob Shanks, Olivia Troye, Josh Venable, Alexander Vindman, and many more. I applaud their courage. These are not “Deep Staters” who conspired to thwart their boss. Many of them were Trump supporters, and all of them are patriots who accepted great personal risks to speak candidly about a man they’ve seen retaliate and even incite violence against his opponents. (I’ve likewise experienced the cost of condemning the President, as doing so has taken a considerable toll on my job, daily life, marriage, finances, and personal safety.)

These public servants were not intimidated. And you shouldn’t be either. As descendants of revolutionaries, honest dissent is part of our American character, and we must reject the culture of political intimidation that’s been cultivated by this President. That’s why I’m writing this note — to urge you to speak out if you haven’t. While I hope a few more Trump officials will quickly find their consciences, your words are now more important than theirs. It’s time to come forward and shine a light on the discord that’s infected our public discourse. You can speak loudest with your vote and persuade others with your voice. Don’t be afraid of open debate. As I’ve said before, there is no better screen test for truth than to see it audition next to delusion.

This election is a two-part referendum: first, on the character of a man, and second, on the character of our nation. That’s why I’m also urging fellow Republicans to put country over party, even if that means supporting Trump’s Democratic opponent. Although former Vice President Joe Biden is likely to pursue progressive reforms that conservatives oppose (and rest assured, we will challenge them in the loyal opposition), his policy agenda cannot equal the damage done by the current President to the fabric of our Republic. I believe Joe Biden’s decency will bring us back together where Donald Trump’s dishonesty has torn us apart.

Trump has been exactly what we conservatives always said government should NOT be: expansive, wasteful, arbitrary, unpredictable, and prone to abuses of power. Worse still, as I’ve noted previously, he’s waged an all-out assault on reason, preferring to enthrone emotion and impulse in the seat of government. The consequences have been calamitous, and if given four more years, he will push the limits of his power further than the “high crimes and misdemeanors” for which he was already impeached.

Trust me. We spent years trying to ameliorate Trump’s poor decisions (often unsuccessfully), many of which will be back with a vengeance in a second term. Recall, this is the man who told us, “When somebody’s president of the United States, the authority is total.” I believe more than ever that Trump unbound will mean a nation undone — a continued downward slide into social acrimony, with the United States fading into the background of a world stage it once commanded, to say nothing of the damage to our democratic institutions.

I was wrong, however, about one major assertion in my original op-ed. The country cannot rely on well-intentioned, unelected bureaucrats around the President to steer him toward what’s right. He has purged most of them anyway. Nor can they rely on Congress to deliver us from Trump’s wayward whims. The people themselves are the ultimate check on the nation’s chief executive. We alone must determine whether his behavior warrants continuance in office, and we face a momentous decision, as our choice about Trump’s future will affect our future for years to come. With that in mind, he doesn’t deserve a second term in office, and we don’t deserve to live through it.

Removing Trump will not be the end of our woes, unfortunately. While on the road visiting swing states for the past month, it’s become clear to me how far apart Americans have grown from one another. We’ve perpetuated the seemingly endless hostility stoked by this divisive President, so if we really want to restore vibrance to our civic life, the change must begin with each of us, not just with the occupant of the Oval Office. Fortunately, past generations have lit the way toward national reconciliation in even harder times.

On the brink of a civil war that literally split our nation in two, Abraham Lincoln called on the people not to lose sight of one other. He said in his Inaugural Address:

We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

Heed Lincoln’s words. We must return to our founding principles. We must rediscover our better angels. And we must reconcile with each other, repairing the bonds of affection that make us fellow Americans.

Miles Taylor
October 2020

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#5

WTAF.

The STATE of Wyoming is using dark money to keep coal plants in other states going so it can keep supplying them. This is a first.

Are states now people too?

Wyoming Is Using Dark Money To Help Keep Coal Plants In Other States Open

Stephanie Kodish is used to opposition to her work. In her job with the National Parks Conservation Association, she pushes utilities to comply with environmental laws. That can mean installing expensive new anti-pollution technology on coal plants, or even closing them down.

Last year, though, she encountered a completely new kind of opposition that left her disconcerted.

After years of feuding and lawsuits, the utility Entergy Arkansas Inc. had agreed to shut down two coal plants over the next decade. Weeks later, the Arkansas Attorney General and a local coalition called the Arkansas Affordable Energy Coalition intervened, asking a judge to stop the settlement. They argued that other fuel sources would be more expensive and less reliable.

But emails obtained through public records requests show the coalition represents more than just coal, gas and steel businesses in Arkansas. In fact, it was created by a nonprofit — the Energy Policy Network — whose largest financial contributor most years is the state of Wyoming, home to the coal mines that feed the two Arkansas plants slated for shut down.

When told the coalition was backed by Wyoming Kodish first laughed in surprise, but then turned serious. “It’s disturbing to learn that those interests are disingenuous and people are being manipulated,” she says.

Several ethics and transparency experts say this is the first time they have heard of a U.S. state using so-called “dark money” in this way. They agree that it raises troubling questions about state officials backing a group that surreptitiously seeks to impact policy elsewhere.

"Something we needed to have in the arsenal"

Wyoming officials say the nonprofit Energy Policy Network is a critical piece of their efforts to preserve coal, long a foundation for the state’s economy. A Wyoming native who served in the state House and Senate during the 1980s founded the group in 2015.

“This is something we needed to have in the arsenal,” says Renny MacKay, the policy director for Wyoming Gov. Mark Gordon. “We are so beholden on what happens outside of Wyoming.”

Since 2010, the U.S. has seen dozens of coal-fired power plants retire. Last year, electricity generated from coal fell to a 42 year low according to the U.S. Energy Information Administration, in large part because it can’t compete with cheaper natural gas. The current pandemic has delivered another blow, and falling prices for wind and solar energy also pose a long term challenge to coal.

Jason Begger, deputy director of the Wyoming Energy Authority, a state entity, says the Energy Policy Network is an affordable way to boost Wyoming’s influence, and combat groups like the Sierra Club who actively fight for coal-plant closures.

“Wyoming certainly doesn’t have the resources or the expertise to go out there and fight every fight,” says Begger.

But it has weighed in on fights to keep coal plants open in nine states, as the Energy Policy Network has intervened in lawsuits, built local coalitions, and allied with local coal-friendly politicians, mostly behind the scenes.

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A playbook for success

The group’s first engagement on behalf of Wyoming was a 2016 showdown over a coal-fired power plant in Oklahoma. Oklahoma Gas & Electric wanted to put new pollution controls on the plant to keep it operating, at a cost of $500 million to Oklahoma ratepayers.

Environmental groups, wind energy and natural gas companies all opposed that move and wanted to see the plant shut down in favor of renewables, which an advocate says would have been cheaper for ratepayers.

The Energy Policy Network formed a coalition to support the utility. It included corporations like Michelin Tire and American Airlines, along with railroad companies and rural electric co-ops. EPN argued that keeping the plant open would improve reliability of the electrical grid, and that wind energy would reduce it. Following that intervention, state regulators voted in favor of coal power with pollution controls.

The win meant OG&E would continue to burn 2.6 million tons of Wyoming coal a year, according to Randy Eminger, executive director of the Energy Policy Network.

Environmentalists, however, were dismayed.

“OG&E’s decision to keep the Sooner plant operational and take $500 million from the families and small businesses of Oklahoma… is an insult to the hardworking people of the state,” says Al Armendariz, who worked to try and close the plant as deputy regional director for the Sierra Club’s Beyond Coal campaign.

Like Kodish in Arkansas, Armendariz wasn’t aware of Wyoming’s involvement.

Neither was one of EPN’s allies, the Arkansas Attorney General. When asked if the AG knew Wyoming funds were behind the effort to keep open two coal plants there, an agency spokesperson responded simply, “No.”

Ethical questions

Energy Policy Network is registered as a 501©(4) nonprofit, and such organizations aren’t required to disclose their financial backers. In modern politics the designation is often derided as “dark money.” Corporations, foundations and wealthy individuals like the Koch brothers have used 501©(4)s to cloak involvement in political and regulatory affairs.

The classification’s association with a state government, however, is more novel.

Wyoming Public Media and the nonprofit news site WyoFile used public records requests to gain an understanding of the organization’s finances through internal communications, state financial documents, and tax filings. Local and national transparency advocates express concern at the idea of taxpayer dollars funding such political maneuvering.

“It is a little bit troubling that one state might use the subterfuge of dark money to compete with its sister states in a way that is not above board,” says Ciara Torres-Spelliscy, an expert on money and politics at Stetson University.

Even the most well known dark money advocates might agree.

“Transparency is meant for the government, not for private individuals,” Philip Ellender, the head lobbyist for Koch Industries, told the New York Times in 2018.

Joe Smyth, a researcher with the clean energy advocate Energy and Policy Institute, has tracked EPN’s work, and says if Wyoming wants its voice heard in other states it should be transparent about it.

“Anyone is able to make an argument in these proceedings,” he says. “The problem is that they’re hiding their role in all this through these series of front groups. And so, I think that’s what is deserving of scrutiny.”

While the state’s role has not been widely disclosed elsewhere, it has not been kept secret in Wyoming.

EPN Director Eminger has appeared in front of state legislative committees, and the group was even highlighted at a recent press conference. There, Wyoming Energy Authority’s Begger was asked about the nonprofit’s lack of transparency.

“Wyoming has never been shy about its involvement,” he said, while admitting the state has never encouraged EPN to discuss its relationship with Wyoming. “Due to [EPN’s] classification, I don’t believe they do need to disclose their donors. So, they don’t.”

Big savings?

Energy Policy Network’s supporters say the group’s actions in other states are critical to Wyoming’s revenue. In presentations to state officials, the nonprofit highlights four coal plants it claims a key role in keeping open and consuming Wyoming coal.

Begger said at the recent press conference that this has saved Wyoming $38.5 million a year in preserved coal tax revenue, a pretty good return on the $250,000 the state gives EPN most years.

But lawyers and environmental activists in several states question whether EPN really had a substantive role in keeping those coal plants open.

“They threw some sand in the gears, but the gears are still moving,” says Kerwin Olson of Citizens Action Coalition in Indiana, where utilities continue to shut down coal plants despite EPN’s efforts.

In Arkansas, too, opponents say EPN took credit for events outside of its control, like stopping implementation of an environmental compliance plan that would have closed power plants there. The plan was actually halted by the coal-friendly Trump administration.

Federal coal data also casts doubt on the claims of $38.5 million a year in savings.

The figure assumes the four coal plants in question will continue to generate the same amount of power. But many plants are already running at lower capacity as cheap natural gas and increasing renewable energy dominate the nation’s electricity markets, and the pandemic has decreased demand.

Of the four coal plants Wyoming cites as success stories, coal consumption at three is down by about 70% compared with two years ago, according to data from the U.S. Energy Information Administration. Consumption at the fourth plant dropped by half in the same time. All of the plants exclusively use coal from Wyoming’s Powder River Basin.

Even so, Wyoming recently announced it’s committed another $500,000 to the nonprofit for another two years of work to help the coal industry.

" Is it unusual? Maybe so," says Randall Luthi, Chief Energy Advisor to Wyoming’s governor. “But these are certainly unusual times. And these are important times for Wyoming.”

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#6