Arizona Eagletarian

Arizona Eagletarian

Wednesday, December 23, 2015

What's really so bad about the TransPacific Partnership?

The Conservative Tribune, a publication I was not familiar with until seeing a post on Monday, presents the problem as allowing
foreign investors the rights to acquire American land, businesses, ports, natural resources, infrastructure and other property.
Even more significantly,
... foreign investors the ability to work around U.S. courts and sue the United States before a dispute tribunal if they feel U.S. law violated their “rights” under the deal.
Of course, from the right-wing perspective, this is "Obama's fault," as if the President's entire administration and agenda has been to undermine the sovereignty of the United States. Unfortunately, that's not really the story.

Here's the headline,

DEVELOPING: Obama Set to Sign Deal Allowing Foreign Takeover of America’s Land and Resources

To understand, we have to grasp the concept of Free Trade and its context in American History. That goes back more than a century and traces its roots directly to the Constitution.


Morris makes the case that the Commerce Clause in the Constitution has been interpreted by SCOTUS since the 1800s in very much the same way that Free Trade agreements like the TransPacific Partnership (and before that NAFTA and pretty much every other international trade agreement) are designed -- to circumvent lawful mechanisms by which local and state governments (and now the Congress/federal government) can protect citizens. From Amazon.com (about Morris' book),
In Gaveling Down the Rabble, author/activist Jane Anne Morris explores a century and a half of efforts by corporations and the courts to undermine local democracy in the United States by using a "free trade" model. It was that very nineteenth-century model that was later adopted globally by corporations to subvert local attempts at protecting the environment and citizen and worker health.
Gaveling Down the Rabble is essential reading for understanding the background of the current struggle for U.S. democracy — local, state and national — against growing corporate power and how we can challenge it.
In chapter two of Gaveling, Morris gives us the example of Big Oleomargarine.
After the Civil War, the burgeoning U.S. livestock industry provisioned military excursions carrying on the "Indian Wars," and brought meat to city dwellers who no longer kept food on the hoof in their yards. It also produced enormous quantities of "byproducts," many then unusable.
One person's byproduct is another's feed stock (and gold mine): more than one inventor around the world sought to turn slaughterhouse offal into something that people could be convinced to eat. If it had a long shelf life and was cheap to make, all the better. [...]
Quoting from Mark Twain's Life On the Mississippi, Morris includes a conversation between two businessmen on a riverboat,

You can't tell it from butter; by George, even an expert can't!... We're going to have that entire trade. Yes, and the hotel trade, too. You are going to see the day, pretty soon, when you can't find an ounce of butter to bless yourself with, in any hotel in the Mississippi and Ohio valleys, outside of the biggest cities... we can sell it so dirt-cheap that the whole country has got to take it.... There's more money in oleomargarine than -- why, you can't imagine the business we do.
As Morris further explains,
The "Oleo Wars" that ensued pitted state legislators against the growing power of meatpacking corporations. Corporate efforts to put oleomargarine in the nation's pantries tell the archetypal story; at issue was whether state and local governments would determine their own laws, or have terms dictated to them by distant corporations.
The original oleomargarine was made not from vegetable oils (as it is today), but from slaughterhouse byproducts subjected to industrial processes in a factory. Mere inspection of a firkin of manufactured oleomargarine could not determine whether it had been made from inferior, doctored, or even dangerous ingredients. To add insult to possible injury, sometimes this easily adulterated industrial food product was fraudulently sold as real dairy butter. In addition, many feared that competition from oleomargarine would threaten the growing dairy industry. Health, consumer protection, and economic concerns were closely intertwined.
Responding to citizen concerns, state legislatures passed laws against oleomargarine. Morris describes how a Pennsylvania state law was challenged by Big Oleo and upheld in state courts. In 1893, an agent for a Rhode Island oleomargarine-manufacturing corporation sold a 40-pound tub of oleo in Pennsylvania. While violating the Pennsylvania law, the agent followed all provisions of a federal law.  Pennsylvania's Supreme Court upheld the ban but the interstate commerce case was appealed to the U.S. Supreme Court which ruled in 1898 that the Commerce Clause held precedence.

Ten years earlier, Morris explained, SCOTUS had upheld an oleo ban as a legitimate use of a state's police power. In the case brought by the Rhode Island corporation, Big Oleo's "lawyers argued that the Pennsylvania oleomargarine ban was what today the WTO tribunals would call an illegal trade barrier."

From the World Trade Organization's dot org website,
Dispute settlement is the central pillar of the multilateral trading system, and the WTO’s unique contribution to the stability of the global economy. Without a means of settling disputes, the rules-based system would be less effective because the rules could not be enforced. The WTO’s procedure underscores the rule of law, and it makes the trading system more secure and predictable. The system is based on clearly-defined rules, with timetables for completing a case. First rulings are made by a panel and endorsed (or rejected) by the WTO’s full membership. Appeals based on points of law are possible.
However, the point is not to pass judgement. The priority is to settle disputes, through consultations if possible. By January 2008, only about 136 of the nearly 369 cases had reached the full panel process. Most of the rest have either been notified as settled “out of court” or remain in a prolonged consultation phase — some since 1995.
There's some mighty fine euphemistic bullshit in that WTO explanation. But they leave out any effort to help readers understand that the WTO enforces trade agreements that supersede constitutional and other laws of member nation-states. Hence, the RABBLE -- you and me -- are gaveled down.

So, is the Conservative Tribune correct in its interpretation of the TPP and casting aspersions on President Obama? Well, I haven't looked at the fine print or detail of the TPP. Frankly, because of the clarity with which Morris exposes what Free Trade really means, I don't need to. It's abundantly clear that the TPP is an egregious betrayal of the sovereignty of American citizens.

Is it "Obama's fault?" Well, Obama, despite doing some very good things as POTUS, did push this trade deal pretty hard. THIS is a classic neoliberal strategy.

Because in the 2008 and 2012 presidential election cycles there really was not an alternative to neoliberalism, we got what we asked for, kinda. But in 2016, there IS a pseudo and a genuine alternative. Briefly, about neoliberalism,
The thrust of international policy behind the phenomenon of economic globalization is neoliberal in nature. Being hugely profitable to corporations and the wealthy elite, neoliberal polices are propagated through the IMF, World Bank and WTO. Neoliberalism favours the free-market as the most efficient method of global resource allocation. Consequently it favours large-scale, corporate commerce and the privatization of resources.
Donald Trump is as gross of a caricature of ridiculousness as they come in American politics. But there's a reason he's leading the GOP pack. In between his outrageous outbursts, he speaks the language of populist economics. But he is SOOOOOO wrong in so many ways for the job of president.

Some people (like Jeb Bush) have posited a conspiracy theory that Trump is in cahoots with Hillary Clinton. I find that notion to be a bit far-fetched, even though based on the fictional House of Cards television series, it seems plausible.

Under such a scenario, a Trump GOP nomination, in a general election match up with Hillary makes Hillary more palatable to people who know in their heart of hearts that a President Trump would be disastrous.

But Hillary Clinton IS a neoliberal. From Harpers.org December 2014,
Is it inevitable that we swallow the nomination of the neo-liberal Clinton, whose support of Bush’s Iraq madness (not to mention Obama’s Afghan and Libyan stupidity) and her husband’s recklessly pro-“free trade,” pro-banker, pro-deregulation politics ought to send reasonable liberals fleeing?
From The Guardian in 2013, Nancy Fraser wrote,
As a feminist, I've always assumed that by fighting to emancipate women I was building a better world – more egalitarian, just and free. But lately I've begun to worry that ideals pioneered by feminists are serving quite different ends. I worry, specifically, that our critique of sexism is now supplying the justification for new forms of inequality and exploitation.
In a cruel twist of fate, I fear that the movement for women's liberation has become entangled in a dangerous liaison with neoliberal efforts to build a free-market society.
In the Democratic debate last Saturday, Hillary did nothing to dispel the notion -- though she did try to hide her view -- that she's is firmly on the side of Free Trade. From AP coverage of the earlier October debate,
The former secretary of state has also faced criticism that she’s shifted her positions on trade, gay marriage and other issues to match the mood of voters — a charge she denied Tuesday.
“Like most human beings, I do absorb new information, I do look at what’s happening in the world,” Clinton said. Pressed specifically on her newly announced opposition to a Pacific Rim trade deal she touted while serving in the Obama administration, Clinton said she had hoped to support it but ultimately decided it did not meet her standards.
Has Clinton expounded publicly on what exactly is in the TPP that doesn't "meet her standards? That she had hoped to support it tells us all we can and need to know to expose her as an unabashed neoliberal.

Do you now understand what's really so bad about the TPP? If so, you should also have a clear understanding of why Bernie Sanders is the only viable alternative to sending the country further down the rabbit hole of Free Trade.


Monday, December 21, 2015

Redistricting -- Leach lawsuit

Yes, last Monday the Arizona Independent Redistricting Commission met and voted to take certain legal actions as recommended by counsel during an executive session. But I suspect that regarding the three and a half year old allegations that sat without this case moving forward, not many people know what Leach is about.

So, here's the latest. In October, state Rep. Vince Leach* (through AZ law firm Snell & Wilmer) filed a Third Amended Complaint. The 23-page document lists eight plaintiffs, with House Appropriations Committee vice-chair Vince Leach in the lead role. But he's not the only state lawmaker conspicuously seeking what amounts to relitigating several issues that have already been decided in favor of the Commission. Senate Appropriations chair Don "Shoot 'em up" Shooter is also on the list.

The allegations of wrongdoing by the AIRC include violations of Open Meeting Law, failure to start with a proper Grid Map, "abandoning" the Grid Map that they did adopt, failure to deliberate properly, not properly considering the recommendations of the legislature, failure to properly advertise the Draft Maps and improperly selecting mapping consultant Strategic Telemetry. More specifics on the previous OML ruling may be reviewed here.

More than 400 posts to the Arizona Eagletarian from December 2010 through 2012 (when the adopted maps were first used for elections) and into 2013 (when Republican tantrums/lawsuits began to be heard) document the deliberation that the AIRC did. Allegations to the contrary in Leach are unfounded and designed to try to undermine the will of Arizona voters.

Additionally, those allegations and lawsuits have the effect of squandering taxpayer funds for frivolous partisan whining. The significance of that squandering is partly hidden by the recent filings by Leach plaintiffs and by Commissioner Rick Stertz. Stertz apparently at least partly swayed Judge Brodman into taking the Leach claims about the OML seriously.

Further, in the TAC, Vince Leach complains that allegations which were dismissed from the Second Amended Complaint are going to be appealed. So, our "good friends" Leach and Shooter, and some of their Republican co-conspirators are now declaring their intent to further waste taxpayer funds regardless of the disposition of claims in the TAC.

Vince Leach and Don Shooter want, as a gift from taxpayers, and from Judge Brodman, declaration that the Congressional map currently in use is invalid and unenforceable. They also want all business conducted by the AIRC "in violation of the OML" to be declared null and void. Gosh, how much of what the voters enacted does that mean they want overturned?

They ALSO want the court to demand taxpayers pay for ALL of the legal costs (attorneys fees). Talk about a ballsy demand!

Now, I realize that all of the things listed in the TAC are standard/boilerplate lawsuit language. They may not expect to actually complete their Hail Mary pass, but the fact that they are even suing is a gross insult to the taxpayers of Arizona.

That two sitting Republican lawmakers -- both directly tied to determining on what taxpayer funds may be spent -- are demanding taxpayers pay for this dubious effort -- in almost certain violation of the Arizona Constitution's gift clause -- is unconscionable. Voters should be outraged.

Perhaps Leach and Shooter are counting on outrage fatigue to provide them adequate cover in this case.

Anyway, reflecting back to the recent post about Leach, where I quoted the YS and the next day the YS included a correction, I obtained updated information.

Since then, the AIRC did file a motion to disqualify Secretary of State Reagan from functioning as a plaintiff and joined in Commissioner Mathis' motion to disqualify Attorney General Brnovich from representing Reagan.

The motion to disqualify Reagan spells out the reasons the SOS was a nominal defendant as well as setting forth reasons why she cannot function as a plaintiff. The bottom line is she has no standing to make a political case against the AIRC.

Let me also point out that Commissioners Freeman and Stertz by waiving legislative privilege clearly are trying to make it look like the other commissioners are hiding something. The fact of the matter is that the alleged OML violations were already litigated and the court determined NO violation occurred.

So, why are the two Republican commissioners trying to undermine the work of the commission? We can only speculate that it's for partisan reasons. Of course, if either of them would like to issue a rebuttal to my inference, I'd be happy to publish it.

Ultimately, this case boils down to frivolous claims, plaintiffs (including two sitting lawmakers) trying to personally benefit from gifts provided by taxpayers, and two redistricting commissioners trying to undermine the work of the entire AIRC.

Amicus briefs filed in support of the AIRC in the recent Harris SCOTUS oral arguments may provide necessary illumination. One, filed by Princeton Prof. Samuel Wang said,
Amicus Samuel S. Wang, Ph.D., operates the Princeton Election Consortium blog, which since 2004 has been devoted to statistical analysis of election processes and predictions (see http://election.princeton.edu/). He is Professor of Neuroscience and Faculty Associate of the Program in Law and Public Affairs, both at Princeton University. [...]
In sum, because the results of Arizona’s elections are inconsistent with the existence of an effective anti-Republican partisan gerrymander, this Court should reject appellants’ argument insofar as it relies on any such intention by the Commission to disadvantage Republicans.
Why else would Republicans seek to undermine the will of Arizona voters, if not to try to gain a partisan advantage? They aren't likely to get a victory in Harris based on direct claims of gerrymandering, so now they have to launch the Hail Mary in hopes of getting a do over on claims of improper procedure.

It IS time for the people to demand this litigation be dismissed altogether, by the plaintiffs.

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*Vince Leach says it's an HONOR to represent you and, he says, 
I already serve as the Vice-Chairman of the House Appropriations Committee where I get to look after your tax dollars.
Isn't it peculiar that the Senate Approps chair and the House Approps vice-chair are now wanting to gift themselves taxpayer funds to pay for their aggressive efforts to undermine the will of the voters?

Merry Christmas, you silly LD 8 and LD 13 voters, you're treating ALL Arizona taxpayers to a ride on Santa's open sleigh!




Friday, December 18, 2015

Today's big ARIZONA political news story -- Corp Comm vacancy speculation

No, I'm not going to expound in this space about the brouhaha over the security breach in information systems provided by not-at-all impartial third party data vendor NGP VAN -- for Democratic campaigns (including Sanders and Clinton) -- in the news today. Enough said about that.

However, speculation has already ramped up dramatically on the question of who Ducey will appoint to fill the impending Corporation Commission vacancy.

Yesterday, Tom Ryan made a clear statement of his preference,
"I’m calling upon Gov. Ducey to appoint a former retired judge from either the Supreme or appellate court, who has no connection to any of industries regulated at the ACC, and who will agree not to run for re-election in 2016," Ryan said. "We need to reestablish trust in the ACC and re-establish integrity at the ACC, and appointing a partisan to fill this position will undermine that process."
Understandably, many of my friends have expressed little hope that Ducey will take that course of action.

To them, and to you, I point out however, that last Spring, when the legislature passed SB1445, which would have prohibited disclosure of the identity of police officers who use deadly force on the job, the public was outraged.

As a result, Ducey vetoed SB1445.

Susan Bitter Smith's resignation is the result of the people of Arizona speaking out in disgust with her obvious conflict of interest. She brazenly ran for a seat on the Corporation Commission in direct violation of ARS § 40-101. Further, during the three years she served on the ACC, she failed to recuse herself on several votes, which now presents prima facie evidence of that conflict.

The Arizona Republic defended Bitter Smith repeatedly but still had to provide some coverage of the controversy. The bottom line is that the people are and have been outraged.

Conservative Republic columnist Bob Robb today called on the governor to appoint a "technocrat" to serve a caretaker role, rather than give a partisan, such as Cap'n Al Melvin, the opportunity to get a head start on the 2016 election.
When state Republican Party chief Robert Graham reportedly urged Corporation Commissioner Susan Bitter Smith to resign, one of the reasons was so Gov. Doug Ducey could appoint a Republican successor and give the appointee a leg up in running for the seat in 2016.
Now that Bitter Smith has resigned, I hope Ducey spoils Graham’s political calculation by appointing a qualified technocrat who will be a caretaker and not run for the seat.
When an elected official resigns, the appointment of a caretaker, someone who won’t run for the office, is generally the best practice. Other politicians, whoever has the appointment power, shouldn’t use the occasion to tilt the electoral playing field for a favored candidate. Candidates shouldn’t obtain the power of incumbency through cronyism. They should have to earn it at the ballot box.
This is particularly a best practice when it comes to the Corporation Commission, and at this point in troubled time for the commission. The commission is drowning in politics. The last thing this commission needs is another politician on the make.
Robb's right on the money on this point.

The Yellow Sheet today includes several related points worthy of consideration.
Among the names that have been bandied about by the chattering class are Ted Vogt, Ducey’s former chief of operations; Andy Tobin; Al Melvin, who is already running for the Corp Comm; and Frank Riggs, the former California congressman turned 2014 gubernatorial candidate... Daily Star columnist Tim Steller offered four other names from Southern Arizona: Lea Marquez Peterson, president and CEO of the Tucson Hispanic Chamber of Commerce; former lawmaker Jonathan Paton; Juan Ciscomani, Ducey’s Southern Arizona director; and former Pima County supervisor Mike Boyd. [...]
Melvin said he thinks he’s the best person for the job opening at the Corp Comm. He said he would like the appointment from Ducey, but hasn’t been contacted by anyone yet. “I have to admit, I would like to be [appointed]. After all, I’ve been campaigning to get on the commission for the past five months. There now is an opening. I would welcome an appointment to fill out her last year,” he said. [...]
Meanwhile, solar industry attorney Court Rich said Bitter Smith’s resignation means APS will “no doubt be angling to hand-pick” Ducey’s appointee. It’s critical that Ducey try to find an “independent actor to fill this seat while tuning out the multitude of utility lobbyists that will be passing him the names of their buddies,” he said. Solar industry spokesman Jason Rose echoed the same sentiment. “The hope is that we get a fair and impartial appointment, and not an APS stooge,” he said. 
Of course, everybody and her brother already realizes that APS will be angling to hand-pick Susan's successor. One friend even went so far as to (tongue-in-cheek, of course) predict the seat would go to Donald Brandt.

Really, the bottom line is that it is up to you and me to speak up assertively and emphatically calling on the governor to take heed to advice along the lines of what Robb or Ryan have suggested.

You can do that by calling (after hours leave a voice mail message) 602-542-4331 and sending him a note on his website's contact form. It is critical that as many people as possible make their voice heard at the State Capitol.

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In a related consideration about Bitter Smith's resignation, the Capitol Times and Yellow Sheet reported today, regarding SBS's stated desire for the Supreme Court to hear and rule on the conflict of interest issues she claims to not have violated,
Brnovich said he plans to ask for a conditional motion to withdraw his motion seeking Bitter Smith’s removal from office, effectively ending the proceeding. The Supreme Court had asked the AG to file any response to Bitter Smith’s counter-argument by Dec. 23, and Brnovich said he will submit the withdrawal motion at the time. His filing will ask the court to no longer hear the case, provided that Bitter Smith follows through on her resignation, which makes his petition to the court moot, on Jan. 4. He called Bitter Smith’s declaration that she wants the court case to continue a political maneuver. “Sometimes, doing the right thing is not always the easy thing to do. I would commend her for stepping down, quite frankly, but it did seem like she didn’t want to take full responsibility for the conflict of interest,” he told our reporter this afternoon.
Brnovich noted that Bitter Smith’s lawyer wrote a lengthy response expounding on her innocence, but she resigned anyway. And yet, he added, she’s seeking the court to still weigh in, knowing the justices are unlikely to hear it now that she’s stepping down. “If she truly believed that what she was doing was right, that the law was on her side, at this point, after filing a response, then she should let the court hear it” instead of resigning, Brnovich said. He insisted that his office is on the right side of the law: “If this isn’t a conflict of interest as she claims, then I don’t know what is. If I didn’t think that this was a blatant violation of the state statutes, we would not have moved forward.”

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There is still information regarding Leach v Arizona Independent Redistricting Commission I need to fill you in on. Look for that in a blog post soon. 

Let's revisit Machiavellian Democracy

Ultimately, what Machiavelli teaches us is that the essence of politics does not reside in universal value systems but in the constitutive role that political struggle engenders... The purpose of democratic politics is not to arrive at universal “truths” but rather to foster a system where competing hegemonies emerge through political struggle and conflict. - Giulio Caperchi (From the blog Genealogy of Consent, essay/post titled, What can Machiavelli teach us about Democracy?

Ms. Bitter Smith's blustery rhetoric, along with the faux erudite pretentiousness of Trash Burner Bob Stump brought us those "ruling elites'" knee jerk reactions to the latest People's Struggle, that of government accountable to the people of Arizona, rather than to those who control the halls of power and the corporate media. Namely, "green mccarthyism," "bully journalism" (that one from Stephanie Grisham, Speaker Gowan's flack), and "solar mafia."

Those expressions are stark reactions to the fact that social media is open and democratic and that somebody is actually using them for legitimate political struggle in Arizona.

Yes, Facebook is a corporation and is owned by stockholders. But access to it is free and open.

Yes, Blogger (blogspot.com) is owned by Google, which is owned by stockholders. But access to it is also free and open. Same for Twitter. There are other platforms similarly free and open. (I know, we are the product, but that's not the salient point here)

We have seen that elections have consequences. Arizona Gov. Doug Ducey is doing his best to put his brand on our state government. Much of that is not good for the people or the future of the state, like his goal of eliminating the state income tax. His plan for sweeping billions of dollars out of the state land trust fund is also highly problematic. But those are subjects for another day.

But now, we fight on. Republican ruling class (members of Congress in particular) will still target Net Neutrality, the free and open access to the communication media we need for the political struggle.

But I digress.

The Arizona Corporation Commission is a unique agency, understood by many to be a fourth branch of government. When its balancing partisan tension was eliminated with installation of five commissioners all of the same political party (after the 2012 general election), it was easy to foresee that corruption issues would eventually emerge.

In 2014, I learned about Machiavellian Democracy.
Machiavelli's analysis asks readers to ponder whether expansive, formal checking by one political actor (the people) on another political actor's (the nobility's) governing does not itself entail a form of governing; whether it is not, in itself, a substantive form of participation in rule.
Machiavellian Democracy then capitalizes on ever-present moments of aristocratic oppression by seeking and putting in place institutional arrangements through which the people vigorously and effectively respond to the grandi's* oppressive schemes and actions; it empowers the people to halt the grandi's insolent behavior, punish those who are especially guilty of it, and establish new laws that reset the grandi's institutional boundaries for future action. [...]
* Grandi, literally the Great. As used by Machiavelli, it wasn't the size of a latte at Starbucks, but rather one of the terms he used in referring to the aristocracy. Or, "The grandi 'who wish to command and dominate the people' and the popolo 'who desire only not to be commanded or oppressed by the grandi.'"
If imposing obscenely high "grid access charges" for homeowners with rooftop solar distributed generation isn't oppressive in our contemporary (first world) times, what is (I know, there are plenty of things more oppressive, but this is one salient example)?

So, corporate media emphasizes, as much as they can get away with, the perspective of the elite ruling class. In this case, Bitter Smith and Stump. But Bitter Smith and Stump have been caught taking advantage of their power when they thought they could get away with it.

Now they moan and cry and complain about green mccarthyism, bully journalism and the solar mafia.

But what they've encountered is a situation that they don't control and they don't like being held accountable. So I would tell Susan and Bob to ask Bette Midler what she would say to people "who can't take a joke?"

Thursday, December 17, 2015

Despite her protestations, Susan Bitter Smith DID see the handwriting on the wall



The public drama began around the start of September, roughly three and a half months ago.

On November 30, for Susan Bitter Smith, soon to be former chair of the Arizona Corporation Commission, things got very real. That's when Attorney General Mark Brnovich filed the petition for special action in the Arizona Supreme Court for a writ of quo warranto, asking the court to remove her from office.

On Wednesday, December 16, Bitter Smith's attorney filed a response (with an extensive appendix) to Brnovich's petition. From early September until today, Bitter Smith never wavered (publicly) in her claim that she does not now nor has she ever had any conflict of interest that would disqualify her from office.

Then, earlier today, she announced her resignation effective January 4, 2016. December 16 apparently was the deadline to file the response. The Supreme Court is (was?) scheduled to first review the petition and decide what to do next, on January 5.

Republic columnist EJ Montini immediately assessed the scenario,
Corporation Commissioner Susan Bitter Smith talked a good game. She talked tough. She wasn’t going to be intimidated.
Then, boom, she resigns.
She’s the Ronda Rousey of politicians, a blustery fighter knocked out in the early rounds.
Regular Arizona Eagletarian readers know the story. But what happens now? Gov. Ducey, after Bitter Smith vacates the office, will have to appoint a Republican to serve the rest of her term, though 2016. The seat would have been subject to election next year anyway. That will still be the case.

Chandler attorney and political activist Tom Ryan told the Republic (and said essentially the same thing when I spoke with him),
"I’m calling upon Gov. Ducey to appoint a former retired judge from either the Supreme or appellate court, who has no connection to any of industries regulated at the ACC, and who will agree not to run for re-election in 2016," Ryan said. "We need to reestablish trust in the ACC and re-establish integrity at the ACC, and appointing a partisan to fill this position will undermine that process."
Though many Arizonans are skeptical of Ducey and expect him to make a hyper-partisan selection for Bitter Smith's successor, he did demonstrate willingness to step away from such a posture during the spring legislative session. So, if the public makes a concerted effort to express sentiments similar to Ryan's, we could be pleasantly surprised. Readers can get word to the governor by calling 602-542-4331.

Bitter Smith claims to want to have the Supreme Court rule on the petition and her response anyway. Ryan says that's not going to happen because once she's out, the petition is entirely moot.

In the meantime, you can expect that I will continue to keep my eye on the ACC and my fingers close to the keyboard to let you know what's going on. That IS, after all, the essence of Machiavellian Democracy.

Yes, Bob Stump, that means I'm not going to let up on you.


Wednesday, December 16, 2015

Hey Trash Burner Bob, I hope this relieves your dyspepsia, or is it just giddiness?

So, earlier today, Trash Burner Bob Stump tweeted at me (perhaps projecting),
Earlier, he tweeted this,
Given that he was projecting his discomfort onto me, might he have really meant to suggest Santa read the Arizona Eagletarian?

This afternoon and evening, Bob's been all giddy because the Yellow Sheet has (apparently) been "investigating" Checks and Balances Project.

However, to help the dyspeptic Corporation Commissioner chill, I submit this note that the Governator, Republican former California Gov. Arnold Schwarzenegger posted to his Facebook page last week.
I see your questions.
Each and every time I post on my Facebook page or tweet about my crusade for a clean energy future, I see them.
There are always a few of you, asking why we should care about the temperature rising, or questioning the science of climate change.
I want you to know that I hear you. Even those of you who say renewable energy is a conspiracy. Even those who say climate change is a hoax. Even those of you who use four letter words.
I've heard all of your questions, and now I have three questions for you.
Let's put climate change aside for a minute. In fact, let's assume you're right.
First - do you believe it is acceptable that 7 million people die every year from pollution? That's more than murders, suicides, and car accidents - combined.
Every day, 19,000 people die from pollution from fossil fuels. Do you accept those deaths? Do you accept that children all over the world have to grow up breathing with inhalers?
Now, my second question: do you believe coal and oil will be the fuels of the future?
Besides the fact that fossil fuels destroy our lungs, everyone agrees that eventually they will run out. What's your plan then?
I, personally, want a plan. I don't want to be like the last horse and buggy salesman who was holding out as cars took over the roads. I don't want to be the last investor in Blockbuster as Netflix emerged. That's exactly what is going to happen to fossil fuels.
A clean energy future is a wise investment, and anyone who tells you otherwise is either wrong, or lying. Either way, I wouldn't take their investment advice.
Renewable energy is great for the economy, and you don't have to take my word for it. California has some of the most revolutionary environmental laws in the United States, we get 40% of our power from renewables, and we are 40% more energy efficient than the rest of the country. We were an early-adopter of a clean energy future.
Our economy has not suffered. In fact, our economy in California is growing faster than the U.S. economy. We lead the nation in manufacturing, agriculture, tourism, entertainment, high tech, biotech, and, of course, green tech.
I have a final question, and it will take some imagination.
There are two doors. Behind Door Number One is a completely sealed room, with a regular, gasoline-fueled car. Behind Door Number Two is an identical, completely sealed room, with an electric car. Both engines are running full blast.
I want you to pick a door to open, and enter the room and shut the door behind you. You have to stay in the room you choose for one hour. You cannot turn off the engine. You do not get a gas mask.
I'm guessing you chose the Door Number Two, with the electric car, right? Door number one is a fatal choice - who would ever want to breathe those fumes?
This is the choice the world is making right now.
To use one of the four-letter words all of you commenters love, I don't give a damn if you believe in climate change. I couldn’t care less if you're concerned about temperatures rising or melting glaciers. It doesn't matter to me which of us is right about the science.
I just hope that you'll join me in opening Door Number Two, to a smarter, cleaner, healthier, more profitable energy future.
Oh Bob, you claim to be a proponent of solar, right? But what about that Trash Burner project, the Corp Comm hasn't killed that project, has it?

What about the immense burden you have tried to impose on homeowners with rooftop solar?

What about your all but overt advocacy for the interest of Arizona's largest Investor-Owned Utility, which is intent on killing rooftop solar and net metering?

What about the millions of Arizonans directly or indirectly suffering respiratory distress or disease already? Are you proud that your actions amount to locking Arizonans up in the room behind Door Number One?

Are you still giddy, Bob?

I am. Today PinWest declared a quarterly dividend. I earned $.625 (sixty-two and a half cents) payable on March 1, 2016 for my investment.

Merry Christmas.


Tuesday, December 15, 2015

Redistricting -- Leach case developments -- UPDATED 12-16-15 10:05 pm MST

The Arizona Independent Redistricting Commission did, indeed, meet on Monday, spending most of the time in executive session. When they emerged from behind closed doors (figuratively speaking, since it was a telephonic meeting), they voted on two action items related to guidance from legal counsel about the Leach case.

The Yellow Sheet wrote it up thus,
The IRC met yesterday evening to move forward on its legal defense in the last remaining case against the 2012 maps, Leach v. AIRC, which alleges that the commission violated a requirement in the Arizona Constitution that it use “grid maps” as the starting point of the remapping process. [My understanding is that the grid maps allegation is but one of several process allegations Leach makes.]
The commission took two votes. It voted 4-1, with Republican Commissioner Scott Freeman as the lone opposition vote, to move forward with a legal strategy discussed in executive session. IRC counsel Joe Kanefield said he couldn’t discuss the strategy, “but those actions will become apparent... as the litigation continues.” 
The second vote, which was unanimous, authorized counsel to defend the IRC against the open meeting law violations alleged in the most recent iteration of the Leach complaint. Kanefield explained that statutory open meeting law – not the constitutional open meeting law requirement that’s specific to the IRC – requires express authorization to defend against an alleged violation of the statute.
Maricopa County Superior Court Judge Roger Brodman recently settled, or at least partially settled, a dispute over whether the redistricting commissioners can invoke legislative privilege in the depositions requested by the plaintiffs, as commissioners Colleen Mathis and Linda McNulty have done. (Freeman and fellow Republican Rick Stertz voluntarily waived that privilege.)
In a Dec. 7 minute entry, Brodman said there’s no doubt that commissioners have legislative privilege, but that the privilege does not extend to administrative acts, such as the hiring of consultants. “In the event the non-waiving Commissioners refuse to testify on the grounds of privilege and plaintiffs contest the claim, the parties can submit disputes to the Court after a record is developed,” the judge wrote.
In a separate minute entry, Brodman also scheduled a Jan. 4 hearing to settle another issue that will sound familiar to longtime IRC watchers. Mathis and McNulty want Brodman to disqualify the AG as Reagan’s counsel in the case because the office advised the commission on open meeting law issues in the early days of the redistricting process. The courts disqualified then-AG Tom Horne from an open meeting law complaint in 2011 for the same reason.
Kanefield said the issue is important because Reagan, who is listed as a defendant – she replaced Ken Bennett in January – is now siding with the plaintiffs. Now that Reagan, formerly a nominal party, is taking a position in the case, the two commissioners believe it would be inappropriate for the AG to represent her, Kanefield said. Furthermore, Kanefield said the two commissioners will challenge Reagan’s right to take on a greater role in the case. “We have stated on the record that we believe her decision to change her status from a nominal party is inappropriate, and we have made it known that we plan to object,” he said after Monday’s meeting.
[ed. -- in the December 16 edition, the YS included a correction. "Yesterday’s report inaccurately stated that redistricting Commissioners Colleen Mathis and Linda McNulty will challenge Reagan’s new role in support of the plaintiffs in Leach v. AIRC. It should have stated that the Independent Redistricting Commission, as an entity, is challenging Reagan." The correction still doesn't seem to entirely clear things up, as the Dec 15 edition, quoted above, states they were indirectly quoting AIRC counsel Joe Kanefield. Since the AIRC did not authorize disclosure of its (the commission's) legal strategy immediately after the meeting, I will seek more specific clarification, from the AIRC, in the morning. It is true that from the motions filed (links embedded below) by the two commissioners, they are only seeking to intervene for the purpose of asserting attorney-client privilege and to have the court disqualify the Attorney General from representing Reagan.] 

The December 7 minute entry sets forth the court's decisions, rationale and orders regarding the motions and cross-motions that argue various points about upcoming depositions both by the commissioners waiving privilege (Freeman and Stertz) and those of the commissioners (Mathis, McNulty and former Commissioner Herrera) who are not waiving privilege.

Rather than explaining those parsed out rulings and orders, interested readers will likely find the minute entries themselves very interesting. They are linked above (I embedded the links in the text quoted from the Yellow Sheet... YS  had declined to do so).

Additionally, counsel for Commissioners Mathis and McNulty have filed motions to intervene and joinder respectively. Those filings hope to disqualify the Attorney General from representing Secretary of State Michele Reagan, seeking to intervene for the purpose of asserting attorney client privilege. The Attorney General previously represented and advised the AIRC on issues related to Open Meeting Law.

As quoted from YS above, former Attorney General Tom Horne was disqualified for this very reason. From Mathis' motion,
This motion is brought on an emergency basis because depositions in this case of Commissioners Freeman and Stertz are set to take place this Thursday, December 10, 2015 and Friday, December 11, 2015. The Attorney General is expected to participate in those depositions. The full extent to which the Attorney General was adverse to Intervenor became patent at a hearing before this Court on Friday, December 4, 2015, at which time the Attorney General took a position materially adverse to Intervenor. For that reason. Intervenor respectfully requests that the Court hold a telephone conference on this Motion and rule upon it prior to the depositions of Commissioners Freeman and Stertz, which the Attorney General plans to attend. [...]
Multiple attorneys from the Attorney General 's office participated in the Commission 's meetings and provided legal advice to the Commission in executive sessions regarding these redistricting issues. In addition, multiple attorneys from the Attorney General provided advice and training to the Commission regarding compliance with redistricting laws and the OML. Further, the Attorney General provided legal advice to individual Commissioners, including Intervenor, in numerous non-public communications related to the redistricting process, including in emails stamped by tile Attorney General's office with the "attorney-client privilege" designation. [...]
Not surprisingly, the Attorney General's file consequent to its representation of the Commission is voluminous, comprised in part of hundreds of non-public, privileged email communications between the Commission and the Attorney General regarding compliance with redistricting laws and the OML.
To review and get a sense of what was going on in the redistricting process when Horne was disqualified from the lawsuit, you may want to start here, (September 7, 2011) reading about Horne going to court to force Mathis, McNulty and Herrera to cooperate with his witch hunt. Then, on October 27, Horne was disqualified from that investigation because of the same conflict of interest that now will have to disqualify Brnovich. At that time, I cited the ethics rule at issue.
Ethical Rule 1.9(a), as set forth in Supreme Court Rule 42, states, “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.”
Part of the argument set forth in Mathis' motion to intervene states,
III. The Attorney General's Representation Implicates the Gift Clause as It Has Clearly Benefited Plaintiffs.
As set forth in Article 9, Section 7 of the Arizona Constitution, the State and its subdivisions are prohibited from giving or lending "to any individual, association, or corporation." Ariz. Const. art. 9, § 7. "The gift clause was adopted 'to prevent governmental bodies from depleting the public treasury by giving advantages to special interests .. . or by engaging in non-public enterprises." State ex rel. Winkleman v. Ariz.Navigable Stream Adjudication Com 'n, 224 Ariz. 230, 235 n. 5, 229 P.3d 242, 247 (App.2010) (quoting Wistuber v. Paradise Valley Unified Sch. Dist., 141 Ariz. 346, 349, 687 P.2d 354, 357 (1984)).
Again, especially reflecting on the Arizona Constitution's Gift Clause, I have to wonder about the propriety of a member of the Arizona House of Representatives (Vince Leach) -- after several court rulings, including last summer's SCOTUS decision upholding independent redistricting -- being the lead plaintiff in a case that continues to bleed the General Fund.

These issues have already been litigated. The GOP has lost at every point thus far. When will the people of Arizona demand that the GOP stop running up the taxpayer costs for frivolous lawsuits?

Enough already.

Monday, December 14, 2015

Shame on the corporate media in Arizona for not devoting investigative resources to exposing the corruption at the Corporation Commission

This weekend, the Republic's so-called utility reporter wrote another pathetic story about Trash Burner Bob Stump's public records controversy. Only the scribe didn't call it that. He instead tried to expand the definition of Dark Money. Randazzo's lede goes like this,
SolarCity Corp. confirmed funding a group that has taken actions over the past year to discredit Arizona utility regulators, often related to their decisions about solar power.
The news angered regulators, including Bob Stump, who has been a target of an extensive public-records battle.
On azcentral, the story features this pull quote, attributed to Stump,
“I think anyone who deplores the alleged involvement of APS in a dark-money scheme and then later admits to spending dark money is in a precarious spot. I don't know how you argue one thing and then do another.”
Let's refer back to last week when former Republic opinions editor Robert Leger made a snarky claim that I "don't want news, don't want to be challenged," etc. I reveal, he said, why hyper-partisanship is paralyzing the country. Well, I took Randazzo's bullshit story (and it does fit an academic's explanation of what constitutes bullshit*) as a challenge. I actually looked up what Dark Money is. I found several references, not just one that I might like.

There's BillMoyers.comOpenSecrets.org, and About.com and no doubt many more places where Dark Money is defined. From wikipedia,
In the politics of the United States, dark money is a term that describes funds given to nonprofit organizations—primarily 501(c)(4) (social welfare) and 501(c)(6) (trade association) groups—that can receive unlimited donations from corporations, individuals, and unions, and spend funds to influence elections, but are not required to disclose their donors.
If there are places where the definition of Dark Money actually does include spending to investigate government corruption, I didn't find any. And from Randazzo's story, it doesn't look like he did either.

What else did Randazzo do or not do with that story? Well, did he answer the basic Journalism 101 questions of Who, What, When, Where, Why and How?

Again, it doesn't look like it. He got the WHAT all wrong. Disappointingly, corporate media these days too frequently fails to investigate and report on the WHY and HOW. That is, they act like shills, simply writing down what two sides say without even applying any critical analysis to it. You know, the actual "challenge" of committing legitimate journalism.

In this case, Randazzo is playing the role of stenographer for Stump.
“I just find it astonishing that the biggest U.S. provider of rooftop solar power is funding the effort to harass regulators whose decisions affect their bottom lines,” Stump said. “They have pursued me with particular vehemence. That is payback for my criticism of (rooftop solar group) TUSK and it's, frankly, dishonest campaign tactics.”
Stump asserted that Solar City, Checks and Balances, and TUSK seek accountability in his case "as payback." Then, in a worthless and apparently insincere effort to prove Stump's case for him, Randazzo simply states,

The rooftop solar industry also has been deeply critical of Arizona Public Service Co. for its funding of political groups.
That takes the form of supporting Stump's argument, without challenging Stump to prove his assertion his own damn self. A valid argument would require exploring the motives of those who seek (reasonable, legitimate, lawful) access to the public records Stump vehemently refuses to disclose.
Stump and Bitter Smith have complained that Checks and Balances is on a “fishing expedition” that has no purpose other than to intimidate regulators when they address solar policies.
Stump said he suspects SolarCity made the disclosure only to bring up a potential bias conflict. He said SolarCity might try to argue that if Stump knows that SolarCity funded the ongoing campaign against him, the company might claim he can’t objectively decide regulatory issues involving it, such as the coming APS rate case that will address solar fees.
Solar advocates already have tried to force Stump to recuse himself from that matter because of personal bias.
Stump said he can remain objective despite the revelation.
Stump said he can remain objective? Yeah, that's what Randazzo wrote. Hey Leger, tell me again who it is that doesn't want to be challenged? After reading (and Randazzo knows about this) Stump's published short story, it sure makes Randazzo look lazy for taking Stump at his word about his ability to remain objective.

By the way, the "utility reporter" isn't the first or only Republic staffer who has made the specious claim about Checks and Balances Project being a dark money operator. Laurie Roberts has also, along with (thankfully, former) editorial writer Doug MacEachern. A linked page provided earlier in this post includes this quote,
I keep six honest serving-men, (They taught me all I knew); Their names are What and Why and When, And How and Where and Who” – Rudyard Kipling
Really, that should be all that's necessary to impeach the credibility of the Republic's coverage of the corruption at the Corporation Commission. But there's plenty more. Of course, the Republic is not the only culprit in this caper.

This week the Yellow Sheet went after Checks and Balances as well as Solar City, pretty much saying the same thing, even if it didn't ascribe Dark Money to investigative journalism.

So, Trash Burner Bob has taken to calling Checks and Balances Project names, apparently with some success, in getting local corporate media to take his side.

No doubt, he's emboldened by Randazzo and former chief state House spinmeister Barrett Marson. Marson, when Brnovich filed his petition with the Arizona Supreme Court to oust Bitter Smith, spun it as the solar industry having attacked one of its own.
This week, the Yellow Sheet (December 9) quoted Stump,
Stump told our reporter this afternoon that he was astonished that SolarCity admitted it is funding Checks and Balances Project through a nonprofit. Checks and Balances Project maintains that SolarCity is only one of its contributors. “It certainly highlights what I’ve been noting from the very beginning, that this is anything but a virtuous watchdog group out to seek the truth for the sake of upholding the public interest. I can’t think of any rational person that would argue that Checks and Balances [Project] has a scintilla of independence,” he said. Stump said CBP’s ties to SolarCity show that it is “more akin to enforcers who are not out to serve as watchdogs but are interested in breaking kneecaps.” He added: “It feels like the solar mafia, quite frankly.”
Again, from Wednesday's YS, perhaps hoping to validate the Corp Comm's resident drama queen and his specious claim that C&BP is a Dark Money organization said,
Stump also scoffed at Scott Peterson’s rejection of the label “dark money” as applied to Checks and Balances Project. Peterson yesterday argued that the label doesn’t apply because SolarCity is only one of the group’s funders and CBP doesn’t engage in electioneering activities.
Let's speculate here that local corporate media is looking for a scapegoat to distract readers and keep them from realizing that Checks and Balances is only doing what it does because there's a huge gap between what passes for journalism in Arizona and what we should be able to expect from news gathering enterprises.

-----

The day before Thanksgiving this year, the movie SPOTLIGHT was released nationwide. I went to see it Sunday evening. It has already been nominated for numerous awards and has already won some.

Telling the story of the Boston Globe's investigative unit and the uncovering of the Catholic Church pedophile scandal, the movie shames every newspaper that has had the resources to do legitimate investigations but failed to do so. The Arizona Republic, which does have some very talented investigators, KNOWS there is deep corruption in Arizona state government.

Publishing editorials saying that Susan Bitter Smith isn't corrupt, but just made miscalculations, makes it even harder for voters to know what's really going on in state government that's not really in our best interests.

The SPOTLIGHT story got told because the victims are easy to recognize, now that they have been identified. And it's a lot easier to relate to children being preyed upon by adults than ratepayers being gouged by incumbent monopoly utilities.

-----

* Note: the definition of "bullshit" includes, "2. Something worthless, deceptive, or insincere." Randazzo's story is -- at minimum -- deceptive, in that it is clearly intended to expand the definition of Dark Money far beyond what is generally understood.

Saturday, December 12, 2015

Redistricting -- Oral Arguments audio; IRC meeting on Monday

Friday afternoon, the Arizona Independent Redistricting Commission issued notice that it will meet on Monday, December 14 at 5:15 pm. The AIRC new office location (and the meeting place for this event) is 4000 N. Central Ave, Suite 1150, Phoenix. Google maps pinpoints the building, but Mapquest does not. AIRC staff sent this map to assist with locating the office AND parking. It is also roughly a block away from the Indian School Rd Light Rail terminal.

The agenda is as follows,
The Commission may [certainly will, in this case... this is my interpretation] vote to go into executive session, which will not be open to the public, for any item listed on the agenda, for the purpose of obtaining legal advice (A.R.S. §38-431.03(A)(3) and (4)). One or more of the members may participate via telephone or video conferencing. 
All matters on the agenda may be discussed, considered and are subject to action by the Commission. 
The agenda for the meeting is as follows:
I. Call to Order.
II. Legal briefing, discussion and possible action relating to pending litigation in Leach v. Arizona Independent Redistricting Commission, No. CV 2012-007344, including authorization of expenditures pursuant to A.R.S. 38-431.07(B). The Commission may vote to go into executive session, which will not be open to the public, for the purpose of obtaining legal advice and providing direction to counsel. (A.R.S. §38-431.03(A) (3) and (4)). (Estimated Time 30 minutes)
III. Executive Director’s Report (Estimated Time 10 minutes)
IV.Public Comment (Estimated Time 15 minutes)
V.Adjournment
The meeting will not be live streamed online. All or most of the commissioners are likely to attend telephonically.

-----


Given that the Arizona Legislature has, from the start of this redistricting cycle, demonstrated substantial animus toward the IRC and since from that start it has been reluctant to provide taxpayer funds for necessary operation of the commission, especially regarding defending the maps in litigation, perhaps NOW is the time to call out the lead plaintiff in Leach.

That would be current state Rep. Vendon (Vince) Leach (R-LD11/Saddlebrooke). Mr. Leach touts his (meager?) political accomplishments on his House bio page, taking credit for passage of two pieces of legislation in 2011. He first became a member of the House in January 2015.

Nevertheless, shouldn't GOP legislative leadership tell him to end this unnecessary and divisive litigation? Perhaps it's time for us to call this matter to the attention of voters AND lawmakers concerned with frittering away taxpayer funds.

-----

You may now listen to or download the audio recording of the Harris oral arguments at SupremeCourt.gov.







Wednesday, December 9, 2015

Redistricting -- Harris oral arguments analysis

Remember from yesterday's post that news coverage of the hearing seemed to lean toward wondering how the Harris plaintiffs could even justify bringing this case to the Supreme Court? Therefore, as USA Today reported,
The Supreme Court on Tuesday appeared unlikely to toss out Arizona's state legislative districts because of population differences, but several justices expressed concern that an independent redistricting commission took politics, along with race and ethnicity, into consideration.
This evening I began reading the 74-page transcript. It didn't take long before I could see why Richard Wolf would be so bold as to make that his lede.

Plaintiffs' (Appellant, in this case) counsel goes first in the hearing. That was Thor Hearne. He began,
Thank you, Mr. Chief Justice, and may it please the Court: The one-­person, one-vote principle of the Equal Protection Clause requires an apportionment authority to make a good ­faith effort to equally apportion the population as practically as possible, and while deviations are tolerated, they are only minor deviations made for legitimate purposes of a rational State policy intended not to be discriminatory or arbitrary.
Here, the Arizona Redistricting Commission malapportioned Arizona State legislature by almost 10 percent, 8.8 percent, and the district court below found it did so for two reasons.
The first reason was to obtain a partisan advantage for the Democrat[ic] party.
The second reason was a perceived belief that malapportioned districts were necessary to obtain Justice Department preclearance approval. Neither of these reasons justifies a deviation from the constitutional principle of one person, one vote.
That, of course, was the essence of the entire case boiled down to the least common denominator. It was also as far as he was able to get before the first interruption for questions took place. Justices Kennedy and Ginsberg were both apparently champing at the bit to challenge Hearne. Kennedy asked,
...do you want us to overturn the factual finding that compliance with the Voting Rights Act, the preclearance procedures, was the real reason for the deviation? Do you want us to overturn that as a factual finding?
Hearne replied in the negative but tried to push ahead with his premise, which was,
...we have said, as we've noted in the briefing, it was not necessary to under­populate districts to obtain compliance with the Voting Rights Act.
Then Notorious RBG (Justice Ginsberg) volleys back with what shouldn't be surprising but may in fact have been the bottom-line coup de gras,
... it's odd that you're making this charge that there was an impermissible effort to increase the Democratic authority, power, in the legislature, but the end result was that the Arizona plan gave Republicans more than their proportionate share of seats in the State legislature. And I think the numbers are, in total, Republicans won 56.6 percent of the State Senate seats, 60 percent of the State House seats. And that exceeded the Republican party's Statewide registration share of 54.4 percent. So if there was an attempt to stack this in favor of Democrats, it certainly failed.
One would think that absent counsel making a compelling argument to rebut that fact, or perhaps a sympathetic justice coming up with a softball question to put something on the record to justify why these clowns had brought this suit in the first place, as Dandy Don Meredith used to sing on Monday Night Football, turn out the lights, the party's over. But I'm only on page 6 of 74.

The obvious overview for predicting the outcome of this case has to consider that at least four justices are likely -- before even considering the testimony of counsel yesterday -- to vote in favor of the Redistricting Commission. The second obvious point is that Justice Kennedy would be the most likely fifth vote.

From news reports posted yesterday, it seems Justice Alito may have been the only one to even give it the old college try to support the Republican case for killing the current map. Scalia quipped and got some laughs when asking Brnovich why this was the first he had weighed in on the case and why the Secretary of State only now was challenging the maps. But even he was skeptical of Hearne's argument (see pages 8 and 9 of the transcript).

Evan Wyloge's coverage addresses the back and forth with Alito (beginning on page 22 of the transcript) trying to see if there was something about the AIRC doing too much adjusting to meet requirements of the Voting Rights Act. Wyloge mentions Breyer's frustration with that issue. But Kennedy and Kagan also had trouble with Brnovich's claims on that question.

Those two justices tried to get at whether or not the incidental population variations, if they had been arrived at in efforts to protect county lines or communities of interest (other criteria necessary for the AIRC to weigh in drawing the maps) would also be unconstitutional. Brnovich answered, but his answer (to me) seemed pretty shallow.
I guess, you know, the road to hell is paved with good intentions. And so our position is, regardless of their intention, if they are doing it in a systematic way or intending to overpopulate certain districts, under­populate other districts, that is unconstitutional.
It's not like anyone could have expected Brno to give an answer that would have overtly betrayed his cause, but... doesn't it depend on whose ox is getting gored?

If the population deviations were a result of trying to protect counties or communities of interests, would we REALLY have been in that hearing at all?

Given that "communities of interest," that nefarious and undefined in law concept pushed especially by Republicans in Saddlebrooke, north of Tucson, would Wes Harris and Andy Biggshot's wife (and the other plaintiffs) really have been complaining? It seems to have been a salient, if rhetorical, question.

Then we get to the quote from Chief Justice Roberts, as reported by Richard Wolf at USA Today,
...justices on both sides of the ideological divide said the five-member panel tried to draw enough districts capable of electing minorities, and that was sufficient reason to have population variations approaching 10% -- even though the court later struck down the federal rule the commission was following.
"The pre-clearance process at the Department of Justice is famously opaque," Chief Justice John Roberts said in reference to the provision his ruling eviscerated in 2013. As for any political influence, he added, "Where is the district in which, ­­or the state in which, partisanship does not play a role in redistricting?"
Could this be "game, set, match?" Maybe.

Justice Kagan went further (on page 17),
... I thought, Mr. Hearne, that you were saying that the thing that you had presented had to do with an impermissible motive, and the impermissible motive was that they didn't have to do all this for Voting Rights Act compliance; is that right?
MR. HEARNE: I'd say there's two, the first impermissible motive or illegitimate justification is partisanship, to gain an advantage.
JUSTICE KAGAN: Right. But that's the very thing that you said, you weren't challenging the factual finding, that that was a subsidiary part of the redistricting.
MR. HEARNE: That was
JUSTICE KAGAN: The dominant part was the voting rights compliance, and I take it you want to undermine the voting rights compliance rationale. But then I'm stuck on the same question that Justice Scalia is stuck on, is what evidence did you present that there was an impermissible motive with respect to that, as opposed to different views as to what the Voting Rights Act compelled?
MR. HEARNE: Two quick answers to that, Justice Kagan. First is, legally the Voting Rights Act couldn't compel them to do what they did, so that justification legally is invalid. Secondly, we bring up that point about the burden shift with Arlington Heights and Mt. Healthy, where when we show an illegitimate motive partisanship, then the burden ­­ task falls to the Commission to justify that.
So, basically, Thor's argument boiled down to trying to psych the court into letting him get away without having to prove a negative (about compliance with the VRA/seeking preclearance) and to get them to buy into his demand that the IRC justify -- all over again -- what and why they did what they did. All over again meaning that the IRC was painstaking in its detailed record of the proceedings and that the March 2013 trial also went over it all in detail.

So, of course it would be foolish of me to declare victory just a day after the hearing, but I don't see where Harris and Reagan get five votes to undermine the work of the AIRC.

Tuesday, December 8, 2015

Redistricting -- Leach and Harris lawsuits -- UPDATED 6:40 pm MST 12-9-15

Last Friday in Maricopa County Superior Court, Judge Roger Brodman heard arguments on whether or not to issue protective orders preventing Redistricting Commissioners, staff and contractors from having to sit for fishing expedition depositions by the attorneys for LD11 state Rep. Vince Leach and his merry band of misfits.

The question was whether previous depositions (for the Harris trial in 2013) were adequate and whether or not Legislative Privilege would shield anyone from having to answer questions from opposition counsel. Reportedly, Brodman promised a ruling on the question by today (Tuesday).

Word has it (I haven't seen anything in writing yet) that the decision is to require the depositions and face the question of Legislative Privilege on a question by question basis.

Because the person I spoke with was on a plane getting ready for take off en route back home from DC, I wasn't able to ask additional questions. I expect to get more specific information on Wednesday.

UPDATE 6:40pm -- Judge Brodman issued minute entry on Monday to schedule a trial schedule setting teleconference for AUGUST 19, 2016 in Leach. No new details yet in writing about the fishing expedition the plaintiffs want to conduct.


-----

Finally, the Supreme Court heard arguments in the Harris case. As expected, several sources have reported on the OA.

Scotusblog's Amy Howe's analysis leads by quoting AIRC counsel Paul Smith,
“Where’s the beef?”  That was the question from Washington attorney Paul Smith, arguing at the Court today on behalf of the five-member independent commission charged with drawing new state legislative maps for Arizona.
The pop culture (or citation from an old fast food marketing campaign) reference put the Harris argument in perspective, as Princeton Professor Sam Wang had pointed out in an amicus brief that from a mathematical/statistical perspective, the Republican plaintiffs cannot demonstrate that their votes were diluted.

USA Today reporter Richard Wolf wrote, after opening by surmising the court is unlikely to rule against the IRC,
...justices on both sides of the ideological divide said the five-member panel tried to draw enough districts capable of electing minorities, and that was sufficient reason to have population variations approaching 10% -- even though the court later struck down the federal rule the commission was following.
"The pre-clearance process at the Department of Justice is famously opaque," Chief Justice John Roberts said in reference to the provision his ruling eviscerated in 2013. As for any political influence, he added, "Where is the district in which, ­­or the state in which, partisanship does not play a role in redistricting?"
Yellow Sheet today (12/8) reported,
While the plaintiffs in Harris v. AIRC have long argued that the population disparity among the IRC’s legislative districts was motivated by partisanship, the attorney for the Republican activists who challenged the map didn’t focus on that in today’s oral arguments before the US Supreme Court. Instead, attorney Mark Hearne focused almost exclusively on whether population deviation was justified by a desire to comply with the Voting Rights Act. Hearne conceded that the predominant reason for the population deviation was related to the VRA, which jibed with the 2014 ruling by two of three US District Court judges who ruled that, though partisanship played some role in the commission’s decisions, the primary motivating factor was a desire to get preclearance from the US Dept of Justice. 
But Hearne and Brnovich, who represented Reagan at the high court, argued that VRA compliance does not justify the kind of population deviation – a range of 8.8 percent deviation from average – that the IRC enshrined in its legislative district map. “That justification, even if it was [made] in good faith, does not excuse a constitutional violation of one-person, one-vote,” Hearne said. He described the case as a “mixed-motive case,” which he said places the burden on the IRC to defend its actions. “The first reason was to obtain a partisan advantage for the Democrat party. The second reason was a perceived belief that malapportioned districts were necessary to obtain Justice Department preclearance approval. Neither of these reasons justifies a deviation from the constitutional principle of one-person, one-vote,” he said. The IRC relied on faulty legal advice that underpopulating some districts was a permissible way to comply with the VRA, Hearne argued.
And that's only a small part of the detail from the hearing set forth in the YS.

Evan Wyloge, for the Arizona Center for Investigative Reporting, was there and filed a report. Here's an excerpt,
Arizona Attorney General Mark Brnovich, representing Secretary of State Michele Reagan, took the side of the plaintiffs in the case. He argued before the court that the population disparities are not random or incidental, and that even though Voting Rights Act compliance was a motivation for the commission, the disparities illegally pack Republicans into districts.
Justice Samuel Alito was receptive to Brnovich’s arguments, asking whether the court should rule that the commission went above and beyond what the Voting Rights Act required of the plan.
Brnovich responded by pointing out that earlier versions of the maps did not have such large disparities, and that they likely would have satisfied the Justice Department’s minority protection.
Justice Stephen Breyer expressed frustration over how the court would write a ruling in the case, if they side with the plaintiffs, because defining what partisan gerrymandering looks like is a thorny prospect.
“How do we write this? There are two areas that are difficult to write. One is, I know there is this 10 percent rule, but it doesn’t say we don’t look at it at all. We institutionally can’t review thousands of pages of record in every redistricting case. So what are the words there that describe the standard we should bring to this?” Breyer asked. “How can we say that partisanship can’t be used at all when you’re doing one ­person, one ­vote but the sky is the limit… how do we reconcile our institutional ability with the need to have some policing here?” [...]
A decision isn’t expected until mid-2016, which wouldn’t allow enough time to redraw the maps before the 2016 election. 
Wyloge also appeared on Arizona Horizon last night (the first segment, up until about seven and a half minutes into the show). Unfortunately, neither he nor host Ted Simons brought up Wang's analysis showing that the Republicans did not suffer any dilution of votes in any practical sense.

Honestly, as I was in March, I am reluctant to prognosticate in this case. However, I have told others that if the amicus briefs are any indication, the court will uphold the maps and deal a loss to convicted felon Wes Harris and company. Not one amicus brief was filed in support of Harris. Several supported the AIRC position.

Notable in those were two points. One, Princeton Professor Sam Wang demonstrated that from a mathematical analysis of the current map, which is the one Harris challenged, Republicans did NOT suffer any loss of the influence or impact or weight of their votes.

Additionally, if Harris prevails, thousands of redistricting plans (all levels of government in all 50 states) will certainly be subject to litigation. That will destabilize government all throughout the country.

But the nine justices are nothing if not clever. There may be a way to carve out a victory for Harris narrower than any yet foreseen. In which case, we could be very surprised.

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At 9:00 am Wednesday morning, the Maricopa County Board of Supervisors meets. The appointment to fill the LD26 vacancy in the House of Representatives is on the agenda. Reportedly, Celeste Plumlee has been told to be sure to attend. That's a likely indicator that She will be was appointed.

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The transcript from yesterday's SCOTUS oral argument hearing is available to read, all 74 pages of it.

Sunday, December 6, 2015

Handwriting on the wall for Bitter Smith, take two UPDATED 9:30 pm MST 12-9-15

The Arizona Republic's resident right-wing apologist, and sometimes thoughtful conservative columnist, Bob Robb said the other day,
The Susan Bitter Smith Corporation Commission saga is just odd.
But how odd can it be that a lobbyist, in the state which academic researchers last December deemed the most corrupt in the country, bullshitted the voters into electing her to regulate the very industry she gets paid to promote? Robb goes on,
Attorney General Mark Brnovich is probably right that she is legally ineligible to serve, but the case is not the slam dunk he has proclaimed.
How quaint. "Probably?"
"But here’s the thing. This isn’t some hidden scandal that has just been unearthed. Bitter Smith has been transparent and open about her representation of the cable television industry.
It was known when she ran for the office in 2012. Voters had other choices for the job. They chose Bitter Smith. And she served for nearly three years of a four-year term without anyone raising a stink about it.
It takes quite a bit of chutzpah for Robb to declare that this is simply no big deal. Why didn't he ask the salient question, "how did this NOT get brought to the attention of the voters in 2012?"

He glosses over so much in his quest to justify Bitter Smith's self-delusions that she's entitled to do what she does, simply because she's been open about it.

This is a classic case of hiding in plain sight.

American pop culture turned the concept into entertainment with a 1980s James Caan movie about a divorced father's loss of contact with his children because his ex-wife married a mobster who entered the federal witness protection program. And more recently into a television series about various WITSEC involved individuals.

But how many other things about life and crime in these United States do we not know about despite them existing without anyone taking any affirmative steps to hide?

Poverty? Sex trafficking? Underground economic factors that fuel illegal immigration? Adverse ramifications of the War on Drugs? Government corruption?

Oh, yeah. That's why God created investigative journalists, right? If only.

How and why do things happen right under our noses without anyone noticing? Information overload?
The first recorded use of the phrase “information overload” was used by the futurologist Alvin Toffler in 1970, when he predicted that the rapidly increasing amounts of information being produced would eventually cause people problems.
Although people talk about “living in the information age,” written information has been used for thousands of years. The invention of the Printing Press a few hundred years ago made it possible to distribute written information to large amounts of people. However, it is only with the advent of modern computers that the ability to create, duplicate and access vast amounts of information has created Information Overload amongst the general population.
The root of the problem is that, although computer processing and memory is increasing all the time, the humans that must use the information are not getting any faster. Effectively, the human mind acts as a bottleneck in the process.
Information Overload is an increasing problem both in the workplace, and in life in general. Those that learn to deal with it effectively will have a major advantage in the next few years.
Information Overload is when you are trying to deal with more information than you are able to process to make sensible decisions. The result is either that you either delay making decisions, or that you make the wrong decisions.
So, back to Bob Robb's apologetics for corruption in Arizona government, and the Corporation Commission in particular.

How did it get this way?

Shouldn't we expect the largest newspaper in Arizona to lead the way in obtaining, processing and prioritizing information so that citizens can have what we need to enable us to make sound decisions?

Well, as for the Arizona Republic, which has some wonderful and highly motivated reporters (for example, Craig Harris) doing their best along those lines, somebody at Gannett corporate HQ is responsible for massive downsizing over the course of the last two decades (since the advent of the internet).

Just like in pretty much every other workplace, reporters are charged with doing more with less. Besides editors having to prioritize, they are responding to capitalistic demands from corporate (Gannett) executives and local advertisers.

Mistakenly, local editors misprioritize based on fear. Fear that big advertising accounts (like -- for instance -- weekend multi-color automobile dealer or residential real estate developers) will take their business elsewhere.

But when the Republic is essentially the only game in town, why would the publishers be so fearful?

So, what we have in coverage of Arizona government is too few reporters attempting to cover too many beats. They cover the expected but sometimes miss important stories about what's beneath the surface.

Then there are industry shills like Ryan Randazzo and plutocratic apologists like Bob Robb, Robert Leger and Doug MacEachern.

Oh, by the way, MacEachern and Bob Leger recently took the Gannett early retirement buyouts. Thankfully, neither is still on the editorial board of the Republic. That might actually help. It was Mac and Leger who had their names on editorials demanding a change in mission for the VA Medical System and for increased privatization.

People like Randazzo, MacEachern and Leger seem to specialize in misdirection.

Speaking of Leger, he chimed in to respond to a comment I made on Facebook a day or so ago. I was commenting, maybe not as clear as I could, on my wish that the Republic would boldly challenge corruption in our state. I referenced the recent cover of the New York Daily News, which CHALLENGED the milquetoast response of Congressional Republicans to the San Bernardino shooting.

Here's Robert Leger's comment to me. I wholeheartedly THANK him for his candid response, which he presumably would NOT have been free to do if he still sat on the Republic's editorial board.


I also have no doubt that there ARE people besides Leger who think that about me, regardless of how feeble their attempts to read my mind or my intentions.

Leger says I "don't want" to be challenged. Well, here's a challenge for you, Robert Leger. I will post a guest blog entry by you, if you can compose a sound, valid argument demonstrating that I 1) don't want news; 2) don't want to be challenged; or "merely want" my opinions ratified.

Those points of challenge go directly to what he accused of me.

Additionally, I don't generally read NYDN (which isn't, despite what he seems to imply, a liberal/progressive news outlet) and I don't watch television. Occasionally, I'll find an interesting online clip with MSNBC journalists Rachel Maddow and/or Lawrence O'Donnell. But that's because they CHALLENGE people.

His last sentence, "It takes greater courage and talent to play it straight," seems like a complete non-sequitur, at least to the rest of his comment. Maybe he's calling me a no talent bum, maybe he's suggesting a rationalization for the Republic's unwillingness or inability to CHALLENGE the corruption at the Corporation Commission. I can only guess.

But I digress.

The Arizona Capitol Times and its Yellow Sheet Report, which would not fairly be characterized as publications that cater to my political leanings, have been more bold in challenging Bitter Smith. Last week, the YS noted the glaring absence, from Brnovich's Supreme Court petition to oust the Corp Comm chair, of any mention of Technical Solutions, BS's company which was involved in the golf course power line/substation realignment project.

Perhaps the Technical Solutions aspect of Tom Ryan's complaint is part of the ongoing criminal investigation Brnovich is conducting. Would we know that if left only to the coverage by the Republic? From the December 3 YS,
Bitter Smith’s ownership of Technical Solutions, a firm that offers lobbying services at many levels, including at the Corp Comm, and which specializes in land acquisition services for telecom sites, is another point of conflict. Additionally, Ryan had raised questions about the commissioner’s role in a golf course project in Scottsdale that involved the moving of an APS substation. Some are wondering if this omission means that, in addition to seeking Bitter Smith’s removal, the AG is also separately looking into a criminal violation on her part.
When asked about it this morning, AG spokeswoman Mia Garcia noted to our reporter that Ryan had alleged both civil and criminal violations against Bitter Smith. “Our office is thoroughly investigating all allegations,” she said. “We can’t discuss any evidence or allegations made in the complaint against her, other than the petition for special action, which alleges Bitter Smith’s relationships and financial interests make her ineligible to hold office.” Ryan speculated that the AG has started a criminal inquiry against Bitter Smith, although he quickly added he has no confirmation on this. Ryan added that if a public officer is “peddling” his or her influence, that’s a felony offense.
I wonder, was Doug MacEachern "playing it straight" when he wrote the following in an op-ed on October 2, a month after that damn partisan (registered Independent, former life-long Republican) Tom Ryan filed his original complaint against SBS? Mac was trying to show that SBS' situation was essentially the same as Mark Killian's. Killian, who had been a member of the Arizona Board of Regents, took a job in Ducey's cabinet as director of the Department of Agriculture.
Sure, there are differences. But would those differences matter if not for the bigger issue overlaying every controversy (as well as every “controversy”) involving the Corp Comm? That being: the death struggle going on now between the rooftop solar industry and regulated energy companies like Arizona Public Service?
Bitter Smith owns a public-relations company that once was hired by a developer to help work out a dispute with neighbors near his new development. It involved an unfinished substation owned by APS, the largest company regulated by the Corporation Commission. APS ended up moving the as-yet uncompleted substation.
Did Bitter Smith win the conflict for her developer-client by throwing her Corp Comm weight around with APS? She insists it was the neighbors who won, not the developer.
The broader issue, though, is:
Would the matter have merited much (if any) attention if not for the fact that solar-industry investigators are digging up as much dirt as they can on every utility regulator in America, and piling it up to make it appear to be a crisis?
Activists funded by – yes – special-interest "dark-money" aren’t stopping at the little ol’ Arizona Corporation Commission. From sea to shining sea they are wearing out bureaucrats handling Freedom of Information Act requests, searching for material that might compromise utility regulators who they think might rule favorably toward legacy utility companies.
A conservative Republican, Bitter Smith does not exactly strike a sympathetic pose among green-leaning voters. They automatically assume her guilt.
Was MacEachern "playing it straight up?" Or was he casting the situation in hyper-partisan terms? As to assuming her guilt, a complaint is a complaint. It's a statement of charges. It was presented to the top law enforcement official in Arizona. Brnovich's office took three months to investigate and filed 900 pages in its petition to the court. 

A similar but far less substantive complaint also was filed by a citizen against Corp Commissioner Bob Burns for being a lobbyist during his election campaign. Somebody probably assumed he was guilty also. But after investigation by Brnovich's office, the Burns complaint was dropped as the evidence only seemed to show a clerical error, rather than intent to conduct himself contrary to the law.

For his part, Ryan responded to Robb's column with this,
“But here’s the thing. This isn’t some hidden scandal that has just been unearthed. Bitter Smith has been transparent and open about her representation of the cable television industry.”
So let me get this straight Mr. Robb, as long as you are “transparent and open” about your graft and corruption, no one has the right to complain? What a bunch of moralizing hooey!! What about the fact that most citizens do not understand the complexities of marketplace monopolies, the regulation that has to occur, the fact that the ACC is judge-legislator-executive, etc? How would the average citizen know that??!! Let’s really drill down here: how many citizens were aware of ARS § 40-101’s strict anti-conflict of interest provisions for ACC commissioners? I am not going out on a limb to say less than 1/10 of 1% would have known that!
Robert Leger, who exactly was and is pushing the hyper-partisanship in this situation? Me? I laugh.

By the way, Scott Peterson, executive director of the Checks and Balances Project, had this to say about this week's developments,
"In our 6 years of work, we have worked on issues ranging from the conduct of fracking regulators, to oil company funding of universities, to fossil fuel junkets of county commissioners, to captured utility regulators. Our success has attracted a range of pro-clean energy donors, which is what we note at the bottom of every blog post. 
"Our research into regulators with weak ethical standards and their relationships with corporate lobbyists and managers is non-partisan. We have a growing body of officials throughout the nation on both sides of the aisle who wish we didn’t ask questions.
"In Arizona, when we found the initial evidence of Corporation Commission Chair Susan Bitter Smith’s malfeasance, frankly, we couldn’t believe it. It was so clearly outrageous and had been going on so long. It is her own behavior that has caused her current troubles.
"Whether or not Bitter Smith is a captured regulator may be open to debate. But her lack of ethics is not. That a courageous radio reporter recognized it, and an attorney with a record of fighting for the people of Arizona pursued it, is worthy of applause."
As for me, I revel in criticism of #BullyJournalism (whether or not directed at me, by Stephanie Grisham, chief flack for Arizona House Speaker David Gowan) and #GreenMcCarthyism (by Bob Stump) -- however specious those charges may or may not be.

UPDATE 12-9-15

The smart people at Gannett and the Arizona Republic have again struck a blow AGAINST open government by downsizing yet another reporter whose beat was at the State Capitol. I learned this evening that Alia Rau has been laid off. I misunderstood. Rau is still reporting for the Republic.