A New Twist

After last week’s debate, Trump’s Gish Gallop (click for a reference), and all the twisted takes from the talking heads and media, Michael Tomasky’s post in a June 14th New Republic email injected, for me, a welcome note of sanity. If you have even the faintest doubt as to whether the Republican extremism of which Mr. Tomasky writes applies to our local Spokane County GOP, I urge you to click and read Issue 36 of the SpokaneGOP’s newsletter. “Yes, the Democrat communists are pure evil” is just one of the whack-o statements you’ll find there. A close reading of the article in which that quote appears, “The Constitutional Corner,” contains not a single word about actual contents of the U.S. Constitution, only a fact-free diatribe for the already converted. It’s a remarkable document of a party gone off the rails. 

Enjoy Michael Tomasky’s remarkable opinion piece. It rings true to me.

Keep to the high ground,

Jerry

Ever since Richard Nixon used the phrase, it’s been a Republican thing. But the Republicans are the extremists now, and the Silent Majority isn’t what it was in 1969.

By: Michael Tomasky

Those of you of a certain age will recall the phrase “the Silent Majority,” made popular by Richard Nixon—and his crooked, cash-thirsty Vice President Spiro Agnew—in 1969 to refer to those middle-class Americans who weren’t out in the streets making noise about Vietnam or civil rights but sitting quietly at home seeking normalcy, law and order, and someone to save the country from extremism. Pat Buchanan, the old Nazi war criminal defender, has claimed that he placed the phrase before Nixon in a memo and the president seized on it.

Republicans have used it ever since. It was used by Ronald Reagan. It was employed by Rudy Giuliani and Mike Bloomberg (when he was running, as a Republican, for mayor of New York). Donald Trump gave it a spin in 2016. Overseas, Tory David Cameron and rightist leaders in Italy and Portugal have taken it up.

No candidate on the broad left has ever, to my knowledge, invoked the phrase. It’s high time that changed.

Earlier this week, you may have noticed, there was a special election in Ohio’s 6th congressional district, which runs from Youngstown to the West Virginia border. The Cook Political Report rates that district R+16, meaning a Democrat wins it about as often as Trump emits an untangled sentence. In 2020, Trump carried it by 29 points.

And Tuesday? The Republican still beat the Democrat—but by single digits. Michael Rulli, the Republican state senator who won the seat, spent $570,000. The Democratic candidate, an Air Force veteran who most recently worked as a waiter, spent $7,000.

What’s this have to do with the Silent Majority? I suspect maybe a lot.

If an amateur Democrat who couldn’t put two metaphorical nickels together can come within nine points of an experienced pol Republican in a district as scarlet-red as the Buckeyes’ jerseys, something is up. And this result is not an outlier. As Aaron Blake pointed out in The Washington Post, there have been six special congressional elections this cycle, and the Democrat has outperformed in four of them, the Republican in just one. In the sixth race, Blake notes, the results (the Democrat won) closely mirrored the 2020 results, but “Democrats swung the results by double digits from the 2022 race for the same seat and flipped the seat blue.”

Simon Rosenberg, the high priest of Democratic optimism with his Hopium Chronicles Substack, constantly preaches: Don’t look at the polls; look at election results. We do not of course know whether his optimism about this November will be validated. We do, however, know that he (and pretty much he alone) was correct that the Democrats would hold their own in the 2022 midterms. He was right then, and he’s been right about most of these elections ever since.

So, a theory for you: Maybe, just maybe, there is an army of Americans out there who may not call themselves liberal or progressive but who are anywhere from sort of turned off to massively repulsed by MAGA. And while Trump and Fox News and Steve Bannon and Marjorie Taylor Greene and all the rest of them spend their days fulminating about America dying and hyping the authoritarian tsunami coming—talk that the mainstream media picks up and that dominates our discourse—there are in fact millions of Americans sitting quietly at home who detest these histrionic harbingers of hatemongering (a Safire-esque turn of phrase for you, since I mentioned Agnew).

They are out there. And they, I submit, are your new Silent Majority.

They’re not all liberal. But they definitely support abortion rights. They’re not rushing to join trans rights groups. But they want people to be treated with empathy and tolerance. They’re not reading gender-bending young adult fiction. But they recoil against censorship. They’re not socialists. But they want the government to do more for working- and middle-class people. They’re not Earth Firsters. But they believe climate change is real. They may still tell pollsters they’re wary of “big government.” But new interstates and bridges, and airport expansions, and new light-rail tracks, and expanded broadband access? They’re great with all that.

And most of all: They, just like Nixon’s old Silent Majority, seek normalcy, law and order, and someone to save the country from extremism. But in Nixon’s time, the extremism came from the left, while today it comes from the right. It’s the Trump right that attacks normalcy, on a daily and sometimes hourly basis. It’s the Trump right that is lawless, as evidenced most obviously by the fact that all these Republicans are tripping over themselves to support a convicted felon to be the president of the United States. And it’s the Trump right that is extremist on just about every issue, from health care to foreign policy.

So they sit at home, probably not watching much cable news, not marching in any marches, but just waiting until Election Day to register their opposition to MAGA. And in case you were wondering—yes, Michael Rulli, the Republican in that Ohio district, was MAGA all the way. He ran an ad in which the voiceover said: “On June 11, vote pro-gun. Pro-life. And pro-Trump.”

I would love to see the Democrats run with this idea that they are the new Silent Majority. It would infuriate the Republicans, who have assumed for 50 years that it is they who represent “regular America.” But with their slavish embrace of a sexual assaulting, classified document stealing, insurrection leading, twice impeached, quadruply indicted, and once (so far) convicted felon, they have waved goodbye to all that. They’re a noisy minority, and they’re alienating Americans by the millions.

And an upcoming short vacation

Last Wednesday RANGE Media published “Al French’s PFAS pipe dream” written by Aaron Hedge. Hedge’s article is the definitive guide to Spokane County Commissioner Al French’s and Spokane International Airport’s role in the PFAS contamination of the West Plains aquifer. For seven years many residents of the West Plains continued to drink PFAS poisoned well water while Mr. French and the Airport ignored its own test well results, blocked money to investigate the extent of the contamination, and lobbied to continue to use PFAS-containing aqueous fire-fighting foam (AFFF). 

Rather than copy and paste “Al French’s PFAS pipe dream” here I urge you to click the title and read Hedge’s article on the RANGE website. Reading there is free, but RANGE stays afloat on voluntary paid subscriptions. If you can, please contribute. 

Vacation!

It is my intention to take next week off. I will be without reliable internet and short on time. I expect to publish again on Monday July 1. 

In the meantime,

Keep to the high ground,’

Jerry

And they just tried to use the law to keep you there

It was easy to miss. Last Sunday in the Northwest section of the Spokesman Jim Camden’s “Spin Control” unflashily presented “Judge: Voters deserve fiscal statement for 3 initiatives on the ballot.” Ho hum, more legal wrangling. Wrong. State Republicans tried to use the state courts to keep you in the dark—and the back story should make us voters hopping mad. 

Three “Initiatives to the Legislature” will appear on the November ballot. The Republicans backing them really don’t want you the voter to know what the effect would be of passing them. Why? I-2109, for example, would repeal the Washington State Capital Gains excise tax. The state Republican leadership doesn’t want you to know that the first $500,000,000 from that excise tax (that’s half a billion dollars!) is earmarked to support public schools. They just tried to use the Washington State courts to keep that information off the ballot. Undoubtedly, these same folks will try to convince you before November that the capital gains excise tax somehow threatens your wallet. Horse feathers.

None of these Republican initiatives arose from a grassroots effort. They were hatched and funded by two men, Washington State Senator and chairman of the Washington State Republican Party Jim Walsh, and Brian Heywood, a wealthy California transplant who stands to benefit financially from I-2109. Heywood put up six million dollars to pay signature gatherers. 

In 2022 Washington State passed a law requiring the addition of a “Public Investment Impact Disclosure statement” to ballot measures that have a fiscal impact. The statement is to be prepared by the state’s attorney general and appear in this form: “This measure would (increase or decrease) funding for (description of services).” What could be more reasonable? Sunlight is, after all, the best disinfectant. If, by voting for I-2109, you’re going to defund public schools it would certainly be a good thing to have that information.

As Camden’s Spokesman article details, providing information to the voter must have set off alarm bells with Washington State Republicans pushing these initiatives for partisan gain. Heavens! We wouldn’t want the voters to be informed! State GOP chairman Jim Walsh got right to work trying to convince Thurston County Superior Court Judge Allyson Zipp to issue a “writ of mandamus” to keep the legally required information off the ballot. Judge Zipp declined.

Below I have included a copy of my February 5th analysis of the “Republican Greed Initiatives.” It is worth reviewing—and talking over—well before the election.

The sordid back story of the three initiatives that will appear on the November ballot needs airing—tell a friend. Let’s make sure that voters see these initiatives for what they are.

Keep to the high ground,

Jerry

The Republican Greed Initiatives

And the wealthy man backing them

February 5, 2024

This November a package of six initiatives will likely appear on the presidential general election ballot in Washington State. They are “Initiatives to the Legislature” that might best be characterized as the Republican Greed Initiative package. Four of the six of them would overturn or outlaw taxes. The whole package will appear on the ballot thanks to the money and efforts of one über-wealthy migrant to Washington State, Mr. Brian Heywood, and Jim Walsh, the current chairman of the Washington State Republican Party. Initiative Measure No. 2109, “Concerns Taxes.” It is the mostly likely of the six initiatives to offer Mr. Heywood a return on his investment. Here’s the text:

This measure would repeal an excise tax imposed on the sale or exchange of certain long-term capital assets by individuals who have annual capital gains of over $250,000.

Quite a lot of background is in order here. Before this capital gains excise tax was instituted in 2022 Washington State funded its schools and roads and everything else it does with the most regressive tax system of all the fifty states. Now it as moved up to the second most regressive. A regressive system of taxation is one in which the least well off pay proportionally more in overall taxes than do the wealthy.

A progressive income tax, for example, the federal income tax, in which higher levels of income are taxed at a higher rate, is the classical antithesis of a regressive tax. However, in Washington State an income tax was deemed unconstitutional in 1933 by the State Supreme Court (see P.S. below).

In a nod toward instituting a hint of progressive taxation, in 2021 the Washington State legislature passed, and the governor signed, a law imposing an excise tax (“a tax levied on certain goods and commodities produced or sold”) on “certain capital gains”. (Explore the raw details here in the Revised Code of Washington [RCW].)

The imposition of a new excise tax on “certain” capital gains might have escaped your notice, since it doesn’t kick in until the “certain” capital gains exceed $250,000 (in one year)—something over which very few of us need be concerned. Worried about tax on the capital gains from the sale of your home or your farm? They’re exempt—as are a host of other capital gains, like those from the sale of livestock, timber, or stocks in your Individual Retirement Account (IRA).

So what capital gains are taxed? We might characterize them as “abstract capital gains,” primarily capital gains made on the sale of stocks and bonds or other financial instruments, just exactly the sort of transactions that grow wealth for people who are already wealthy. One might point to Mr. Brian Heywood, a former (and perhaps current) hedge fund manager (see P.P.S. below for a basic biography) and the fellow fronting the money to pay signature gatherers to put the Greed Initiatives on the November ballot.

This excise tax was first imposed starting in tax year 2022 with the revenue first coming in with tax returns filed in 2023. Of course, Republicans representing the wealthy were not going to accept this without a fight. They immediately sought to characterize the excise tax as an income tax—and thereby have it declared unconstitutional. (Even U.S. Representative Dan Newhouse [R-central WA] weighed in as grievously opposed, strategically leaving out mention of the exclusions and exemptions, thereby allowing his entire audience to imagine that their own nest eggs might be threatened by the tax.)

Oh, and take note: The first $500,000,000 (that half a billion dollars!) is earmarked to support public schools with any excess dedicated to school construction. (Public schools are otherwise often funded primarily by local property taxes. Accordingly, public schools in areas with a lagging property tax base tend to be underfunded. The excise tax on capital gains is meant as a least a beginning of a correction.)

Republican whining that the excise tax on capital gains is unconstitutional based on the Washington State Constitution failed to impress the Washington State Supreme Court. In March of 2023 the Court struck down the challenge. Just last month (January 2024) the U.S. Supreme Court declined to review the State Supreme Court ruling—and set the stage for the Republican Greed Initiative effort to deceive the voters into repealing the tax.

For tax year 2022, the first year of the capital gains excise tax, “[t]he DOR [Washington State Department of Revenue] estimates $889 million [more that twice early estimates] was collected out of a total of 3,765 returns, according to an agency spokesperson.” Do the math. At the tax rate of 7% that implies that the individuals behind these 3,765 tax filings in Washington State scored capital gains totaling an eye-popping 12.7 billion dollars (and that’s just the amount above the $250,000 exemption). (See P.P.P.S. below) For reference, that 12.7 billion dollars would be 18 percent of Washington State’s whole two year operating budget—or more than a third of the State’s annual operating budget. Even if these 3,765 tax returns represent 10,000 individuals, those individuals would represent less than 1/5 of one percent (0.14%) of the population of Washington State—a small fraction even of the fabled wealthiest “1 percent.”

Brian Heywood, apparently resenting that some of his annual capital gains might be used to educate the children of Washington State, didn’t wait for the judgement of the courts. He was busy in 2023 funding “Let’s Go Washington” with 6 million dollars to pay signature gathers. The money spurred ahead the suite of Greed Initiatives filed by Jim Walsh, the chairman of the Washington State Republican Party earlier in the year.

Mr. Walsh, the Republican Party, and Mr. Heywood are counting on at least forty years of disingenuous Republican anti-tax rhetoric to convince voters to turn out and vote against the interests of their own children. Judging by the crowd listening to Mr. Heywood in this video, you might wonder if he’s right. Don’t let it happen. Get people talking about the Washington State Republican Greed Initiatives coming on the November ballot and the strategy behind them with your friends, relatives, and acquaintances.

Keep to the high ground,

Jerry

P.S. We often hear that an income tax is unconstitutional in Washington State. That statement hinges on Washington State Constitutional Amendment 14, dating from 1930, which states: “All taxes shall be uniform upon the same class of property within the territorial limits of the authority levying the tax…” (from Article VII, Section 1—See pdf page 27 here). Three years later in the early years of the Great Depression, in 1933, 70% of Washington voters approved a state income tax—but a wobbly majority of the Washington State Supreme Court struck down the tax as unconstitutional, basing their decision on the word “uniform” in the 1930 Amendment 14. (See an entertaining version of that story here. For more technical detail, read here.)

P.P.S. What follows is from my post The Perversion of the Initiative Process published last November:

Brian Heywood is a fifty-something year old man with means and motivation. He graduated from Harvard in East Asian Studies in 1991. Before “graduation he spent three years living in Japan as a [Mormon] missionary and as a student. He joined and later served on the board of JD Power and Associates,” a data analytics, software, and consumer intelligence company, with offices in California. In 2010 Mr. Heywood moved to Redmond, Washington, where he works as a hedge fund manager, now serving as the CEO of Taiyo Pacific Partners LP. His current level of involvement at Taiyo is unclear. His employment is variously self-described in Washington State Public Disclosure Commission reports as a horse boarder, artist, and as retired.

Speaking at a gathering at the Reset Church in Marysville in 2021 (why is it always a Fundamentalist, non-denominational church?) he said, “I came from ‘the people’s republic of California’. I am an economic refugee. I came here to make money and to be free.”

Clearly, Mr. Heywood knows his way around using money to make money. Now he wishes to use that money and his expertise to change the politics of the State of Washington to suit his own pecuniary and political interests. His donation to the Loren Culp campaign for governor of Washington in 2020 (see page 12 [at that link]) offers a window on his political leanings. In the Facebook video of his Reset Church talk in 2021 [the year before the excise tax on capital gains was first applied] he says, “I and some of my friends have begun to fund” various efforts, including the Washington chapter of the right wing news outlet, The Center Square. He “will be starting” Unleash.com. In his speech, Mr. Heywood likens building back the Republican Party in Washington State to the many years of planning and groundwork in re-building a corporation.

P.P.P.S Even if these folks behind these 3,765 capital gain excise tax returns had zero income in earned wages (on a Form W-2) I posit they were still be able to live very well on that 250K—even after paying around 30K in federal capital gains tax. (Note that the marginal federal tax rate of 15% on capital gains is, for no reason I can justify, universally less than the marginal tax rates for earned income reported on a W-2, which, at comparable levels of earned income, were 22% and in 2022 ramped up to a maximum marginal rate of 37%.)

Dobbs was just the beginning

The Dobbs decision in 2022, reversing Roe v. Wade, opened the flood gates for Republican led efforts to restrict women’s bodily autonomy. Dobbs was the culmination of a half century of Republican paternalistic culture war legislative and judicial efforts to assert that a woman’s right to bodily autonomy is subservient to the “rights” of a fertilized ovum. In Republican-dominated states trigger laws were passed over decades, laws which, as long as Roeremained as legal precedent, could be viewed as political posturing to attract votes to the Republican Party. Since 2022, when Dobbs stripped away the protections of Roe, it is open season to attack women’s rights by enforcing laws already on the books in the states—and by passing more. 

Meanwhile, at a federal level, Republicans worked ceaselessly to put in place a reactionary majority on the U.S. Supreme Court. The reactionary majority is now in place on the court thanks to the Mitch McConnell’s underhanded maneuvering and the appointments for which Donald Trump is proud to take credit.

Last week, if you weren’t paying careful attention, the media headlines seemed to interpret a new, unanimous U.S. Supreme Court ruling in FDA v.Alliance for Hippocratic Medicine as evidence that the Court granted a big win for women and doctors by protecting access to mifepristone, a safe and effective FDA-approved drug used in the management of miscarriage and in medical abortions (the predominant method of early term abortion). If that were the impression readers came away with, it would be grossly wrong. 

The only thing established by last week’s ruling in FDA v. Alliance for Hippocratic Medicine is that the Alliance had suffered no injury as a result of the availability of mifepristone and, therefore, the Alliance lacked “standing” to bring the lawsuit. This ruling is no more than a pause while those seeking to curtail women’s bodily autonomy seek a better plaintiff. 

Take note: On the Alliance for Hippocratic Medicine’s website their first stated “value” is “Sanctity of life which is defined as beginning at fertilization and ending in natural death.” Sound familiar? It should. From the Washington State Republican 2024 Party Platform (p. 7): “We recognize and defend the unalienable right of human life, from conception to natural death.” In other words the Republican Party and, presumably, all those who appear on our ballots as “Prefers Republican Party” are wholly aligned with the group that seeks to overrule a woman’s right to make personal medical decisions.

Dobbs wasn’t the end of these efforts, it was just the beginning. Last week’s U.S. Supreme Court decision in FDA v. Alliance for Hippocratic Medicinerepresents no more than a brief pause for these reactionary male chauvinists and meddlers to re-group. Remember that any time you are tempted to vote for anyone identifying as “Prefers Republican Party”.

Keep to the high ground,

Jerry

P.S. Thom Hartmann’s analysis of FDA v. Alliance for Hippocratic Medicine is long, but it is the best I’ve seen after a lot of reading. It is copied below. I encourage you to sign up for Hartmann’s email. 

The GOP’s Unrelenting Attacks on Women’s Rights: This is Just the Beginning

There’s way too much celebrating around the unanimous SCOTUS decision yesterday which The NYT characterized with the headline, “Supreme Court Maintains Broad Access to Abortion pill.” It didn’t…

THOM HARTMANN, June 14th

There’s way too much celebrating going on around the unanimous Supreme Court decision yesterday that The New York Timescharacterized with the headline, “Supreme Court Maintains Broad Access to Abortion Pill” and The Washington Post headlined, “Supreme Court upholds broad access to key abortion pill mifepristone.”

In fact, the Supreme Court took no such stand with regard to mifepristone, abortion, Plan B, or even contraception. They merely said that the doctors who brought the case had not yet suffered any actual harm themselves, and therefore had no basis to sue in the first place.

Turning the case down was also a quick-and-easy way for the Republican justices on the Court to get out from under the spotlight glaring on personal corruption, bribe-taking, and their other anti-woman decisions, causing people to think that maybe they can be reasonable, Sam Alito arguing otherwise notwithstanding.

As Justice Kavanaugh wrote in the unanimous opinion:

“Article III of the Constitution confines the jurisdiction of federal courts to ‘Cases’ and ‘Controversies.’ … As Justice Scalia memorably said, Article III requires a plaintiff to first answer a basic question: ‘What’s it to you?’” … In sum, to sue in federal court, a plaintiff must show that he or she has suffered or likely will suffer an injury in fact.”

The case syllabus identifies the wacky, anti-abortion doctors group that had sued, noting:

“Plaintiffs are pro-life, oppose elective abortion, and have sincere legal, moral, ideological, and policy objections to mifepristone being prescribed and used by others. Because plaintiffs do not prescribe or use mifepristone, plaintiffs are unregulated parties who seek to challenge FDA’s regulation of others. Plaintiffs advance several complicated causation theories to connect FDA’s actions to the plaintiffs’ alleged injuries in fact. None of these theories suffices to establish Article III standing.” (emphasis in original)

Notice that there’s not a word in there about the Court ruling on any aspect of this case. That’s because they didn’t — media headlines notwithstanding — “uphold” or “maintain broad access” to mifepristone. They just said that because these doctors don’t use the drug, have never experienced a bad side effect from it, and have never had a patient harmed by it, that they don’t have a right to sue.

Therefore, the Supreme Court rejected this group’s argument that mifepristone should be criminalized not because they believe it should be available but because — and only because — it was the wrong group suing.

As Kavanaugh wrote in the decision, providing a clear and easily followed roadmap for the next group to bring a similar case before the Court but with standing:

“But the plaintiffs do not prescribe or use mifepristone. And FDA is not requiring them to do or refrain from doing anything. Rather, the plaintiffs want FDA to make mifepristone more difficult for other doctors to prescribe and for pregnant women to obtain. Under Article III of the Constitution, a plaintiff’s desire to make a drug less available for others does not establish standing to sue. Nor do the plaintiffs’ other standing theories suffice. Therefore, the plaintiffs lack standing to challenge FDA’s actions.” (emphasis Kavanaugh’s)

So, what’s next?

The anti-abortion freaks will now be scouring the country to find a person who was actually harmed by mifepristone, be it by a side-effect, an incomplete abortion, or maybe a husband who — like the man in Texas currently suing his ex-wife’s girlfriends who helped her get an abortion — they claim they’ve been “deprived of a child” they wanted that their wife took away with mifepristone. Or a doctor who prescribed it and now has regrets.

Once they have a case that will pass the standing test, then it’ll be full-tilt-boogie going forward. I’d be surprised if such a case isn’t successfully litigated at the district court level by the end of this year, perhaps getting it to the Supreme Court next spring so they can finally put an end to medication abortions (that are now nearly 60 percent of all abortions) all across the nation.

How will they do this?

Once standing is established, they’ll continue to argue that the Comstock Act — even though it hasn’t been enforced in decades — is still on the books and still outlaws sending anything having to do with abortion or birth control through the mail (including educational material).

Multiple Republican legislators have already made this argument, as did District Judge Matthew Kacsmaryk when he first ruled on the mifepristone case that the Court just threw out for lack of standing.

Twenty-six Republican senators filed an amicus brief with the Court in yesterday’s case specifically referring to the Comstock Act. It said:

“The FDA’s 2021 action sanctions the shipment of abortion drugs, including through mail-order pharmacies, which violates longstanding federal laws. Congress has barred the abortion industry from using the United States Postal Service to mail abortion-inducing drugs, including the chemical abortion regimen of mifepristone and misoprostol. See 18 U.S.C. § 1461. [Comstock Act]

“Congress has separately prohibited the abortion industry from shipping abortion-inducing drugs through common carriers. See 18 U.S.C. § 1462. [Comstock Act] These provisions have been federal policy for more than a century. … Congress has never removed the prohibition on mailing chemical abortion drugs.”

Nor has Congress repealed other aspects of the Comstock Act that are even more onerous. This will come back again, unless Congress eliminates the Comstock Act (Representative Cori Bush proposed such legislation, but it’s being blocked by Speaker Mike Johnson and other Republicans in the House).

After all, during the oral arguments in yesterday’s case, Justice Sam Alito said the quiet part out loud:

“This [Comstock Act] is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it.”

Erin Hawley (the attorney for the doctors and the wife of Republican Senator Josh Hawley) was emphatic:

“We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. The Comstock Act says that drugs should not be mailed … either through the mail or through common carriers.”

And Clarence Thomas laid out the possibility of future litigation when he essentially threatened the lawyer for Danco Laboratories, the manufacturer of Mifepristone:

“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He went onto note that the law “is fairly broad, and it specifically covers drugs such as yours.”

Former NY Postmaster and anti-pornography crusader Anthony Comstock lobbied for and shepherded through Congress his law; it passed on March 3, 1873 and was titled “An Act for the Suppression of Trade in, and Circulation of, obscene Literature and Articles of immoral Use.” Today we refer to it as the Comstock Act.

Its language with regard to abortion is not at all ambiguous:

“Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance … designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and

“Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

“Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

“Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

“Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

“Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” (emphasis mine)

The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion:

“[S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.” (emphasis mine)

Republican members of Congress want the Comstock Act enforced nationwide now. They point out that they don’t even need a ruling from the Supreme Court: they just need a Republican president who will direct his Department of Justice and FBI to root out all those women who are getting mifepristone through the mail and throw them in prison.

Along with the docs and nurses, clinics and hospitals, and even newspapers and magazines (and their writers and publishers) who may write about mifepristone in a way Republicans could construed as informing women about what mifepristone is and how to use it.

After all, the Comstock Act is still on the books. All it requires is an administration willing to enforce it.

In a threatening letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) that the Comstock Act is no longer in force is wrong.

They explicitly assert that the Comstock Act is still in effect and they want it enforced:

“We write to express our support and agreement with 21 [Republican] State Attorneys General,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461–1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”

The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), Senator Hide-Smith wrote:

“[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs … even for conduct that occurs today.”

Keep in mind, under the plain language of the Comstock Act this could also apply to birth control pills, IUDs, condoms, and other things used to prevent pregnancy. And, of course, pornography and sex toys.

Attorney Erin Hawley went so far as to assert before the Fifth Circuit Court of Appeals that even physicians and pharmacies shouldn’t be able to receive mifepristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:

“What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.”

Forget about having the drugs mailed to your house; when even a pharmacy can’t receive them through the mail or UPS/FedEx to resell to you, they will have effectively vanished from the American medical landscape.

If Hawley’s interpretation is ultimately adopted by the Supreme Court in another case more specifically tailored to it next year — which the anti-abortion movement is working on as you’re reading these words — all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.

Get ready. The GOP is not backing down one inch on their war against women’s rights and bodily autonomy.

This decision isn’t the end for these people; it’s just the beginning.

The Wildland Urban Interface–Its Unaddressed Risks

It’s not quite summer and wildfire season is  already upon us. Last Tuesday the Grove Fire, driven through a drying landscape by high winds, forced evacuations west and south of the dense housing of the Grandview/Thorpe and Latah/Hangman Neighborhoods of the City of Spokane (click for a map), sending plumes of smoke over Spokane. By Tuesday evening the wind had died down, evacuation orders were relaxed, and the fire was mostly contained, but the incident was a stark reminder of what we now face every summer:

“It went from a small size to increase in size very, very quickly,” DNR Public Information Officer Guy Gifford said. “This fire in August will be a different story. The key thing here is June, we still had a lot of green out there to help slow the fire down in spots.”

Welcome to the WUI, the Wildland-urban interface, the zone of transition between unoccupied land and land developed by human activity—an area where the built environment meets or intermingles with the natural environment. The entire Latah Valley, including the Grandview/Thorpe and Latah/Hangman Neighborhoods, is part of the Wildland-Urban Interface. One might blithely assume that an elected official representing such a region would diligently work to make sure that fire infrastructure and adequate evacuation routes were in place before pushing for development that will put more structures and families at risk for wildfire. 

Spokane County Commissioner Al French, arguably the most powerful elected official in Spokane County (something little recognized), is a tireless advocate for additional development, both commercial and residential, on the West Plains and in the Latah Valley, both within and outside the city limits of the City of Spokane. Infrastructure, including fire stations and staff, access and egress routes, and the health of his constituents (see PFAS and SIA) take a back seat to his advocacy for development (except in election years). He interjects at every opportunity his disdain for any moratorium on development in the Latah Valley, even as he claims, rather disingenuously, that additional Latah Valley development will provide “low income housing.” He fights building code changes, claiming added expense that will “hurt the poor.”

His election year awakening to the infrastructure inadequacies for those living west of Spokane seem a late epiphany for a man whole dominated the previously three person Spokane County Commission starting in 2011 and served on the City of Spokane City Council for nine years before that. He lives in Eagle Ridge in Latah Valley within the City limits and he is supposed to represent his neighbors to the county commission. Where was he in dealing with glaring infrastructure inadequacies for more than twenty years?

Development in Spokane’s western WUI is still profitable for the companies engaged. If there were not a high likelihood of turning a healthy profit by building and selling houses developers wouldn’t take part. But here’s the thing: once the houses are sold and the profit turned, developers can walk away. The folks who buy the houses have a reasonable (if, in this case, a bit naive) expectation that government has overseen the provision of fire protection, ample and safe ingress and egress, and efficient and clean water and sewer. Those same homeowners (and ultimately the rest of us, too) can wind up paying a steep price for infrastructure shortfalls. They pay in fleeing wildfires on inadequate road systems and in paying ever higher dwelling insurance costs on account of long fire response times, too few fire stations, inadequate water pressure, and less than robust building codes (the evil “regulations” that Republicans continually decry). Insurance companies make money by carefully assessing risk and charging accordingly. They are the canaries in the coal mine. They offer a soberly researched assessment of the risk of losses that would bankrupt them.

When houses burn and lives are lost in the next wildfire, it is then that community sympathy, goodwill, and tax dollars (local, regional, and national) will be deployed (over and above what insurance companies are on the hook to pay out) to help shore up the losses of the un- and under-insured. Developers and builders will have long since moved on with their profits to the next thing.

In August and November vote for Molly Marshall for County Commissionerfrom District 5. She is embedded in these communities on Spokane’s west border. She has the expertise and has been doing her homework for the people of the WUI. 

Keep to the high ground,

Jerry

P.S. It is a total misconception, a misconception under which I once labored, to imagine that county commissioners concern themselves only with those parts of the county that lie outside urban boundaries. In fact Mr. French is supposed to represent the considerable population that lives in City of Spokane neighborhoods as well as those living in the WUI on the West Plains outside the city boundaries. Many of the people of the West Plains have been drinking PFAS-laden well water for years longer than they needed to thanks to the silence of Spokane International Airport in which Al French played a role.

P.P.S. For a window on Molly Marshall’s plans to address the PFAS problem I recommend Tim Connor’s “Thursday’s postcard, and a push for action and accountability from Al French’s latest challenger” published June 13th. Thursday’s media coverage of Marshall’s press conference held Wednesday afternoon was absent. (I hope they wake up on Friday by the time you’re reading this.)

An important cross-post

A lot of import events happen in Spokane County that are not covered by the regular local media. If they are reported, the reportage is scattered and covered in terms of “this or that agency” did this or that. The PFAS poisoning of municipal and private wells on the West Plains—and the associated cover-up and slow walk—is one of those stories. Fortunately, we have the writing of local independent journalist, author, and nature photographer Tim Connor, who has chronicled this story from the beginning in his Substack publication, “Rhubarb Salon.” I urge you to click that link and sign up to receive Rhubarb Salon as an email. Better yet, click this link, “The Daily Rhubarb,” subscribe, and donate to receive the full breadth of Tim’s writing and photography. 

Below I have copied and pasted Tim Connor’s account of Spokane County Commissioner Al French’s reception Monday evening a week ago (June 3) at a meeting of the West Plains Water Coalition in Airway Heights. Read, absorb, and share. All of Tim’s posts on PFAS on the West Plains are assembled and available to read here.

Keep to the high ground,

Jerry

Tuesday’s postcard, and Al French in the lion’s den

June 4, 2024

TIMOTHY CONNOR

On the ropes of a toxic scandal

There are ordinary public relations disasters. Then there’s the sort that the Spokane International Airport is still a wing and a prayer from being able to escape. The troubling gravity consists of stubborn facts.

Put to story it happened this way. A bit more than seven years ago, Fairchild Air Force Base let it be known that it had a serious groundwater contamination problem. It had found variants of PFAS—the so-called “forever chemical” that, until recently, was used in aviation fire-fighting foam—in its monitoring wells. In short order, it also found that the dangerous chemicals (so dangerous it is regulated in parts per trillion) had migrated off the base and contaminated drinking water wells, including wells supplying water to approximately 10,000 people in the nearby City of Airway Heights. It made the newspapers. It aired on TV.

One of those who noticed, with alarm, was David Snipes. As the Seattle Times reported last fall, Snipes is a 70 year-old farmer who raises cattle not far from the runways of Spokane International Airport (SIA). He wanted to know if water he, his family, and their cows had been drinking for years had been contaminated. So on May 18, 2017 he sent an email to Larry Krauter, the CEO at SIA which, as a joint venture of the City of Spokane and Spokane County, is a public entity. Krauter wrote back assuring Snipes:

“Fortunately, we do not have any kind of a situation here at SIA that is similar to what is occurring over at the base and in Airway Heights…”

Perhaps as a result of Snipes’s query, SIA then decided to test its groundwater. And in three of the four wells it tested, it found high levels of PFAS. When SIA sampled again in 2019, it found levels as high as 5,200 parts per trillion (ppt), greatly in excess of the federal interim action level of 70 ppt. (In April of this year, the U.S. Environmental Protection Agency (EPA), finalized the federal drinking water standard for most PFAS variants at 4 parts per trillion).

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SIA never got back to Snipes with the new information-nor anybody else for that matter. The documentation of SIA’s PFAS problem only came to light last year as a result of a citizen activist’s public records request.

To be sure, there is a lot going on, now, to deal with PFAS on the West Plains. On the surface the vibe is American potluck grounded in what some would call “Spokane nice.” But barely beneath the surface there is an unmistakable edge of frustration and exasperation. At times, there are open flames of distrust. All three were present last night [June 3]shortly after County Commissioner Al French took to the podium.

County Commissioner and veteran Airport board member Al French taking questions before a restless audience Monday night.

These are a hard facts to ignore given the weight of national press about the looming PFAS in drinking water crisis not to mention the flurry of activity right next door, so to speak, when FAFB was (and still is) struggling to get clean water to those whose wells have been contaminated with PFAS emanating from the base. In November 2021, Washington’s Board of Health announced the state’s new “action levels” for PFAS in drinking water, setting the bar at 10 to 15 ppt for most PFAS variants. And, still, SIA failed to disclose the high levels of PFAS—exceeding the state’s new action levels by orders of magnitude—in its groundwater.

One of those who knows this history very well is Craig Volosing.

Volosing is the president of the Friends of Palisades, a neighborhood-based conservation organization rooted just to the northwest of SIA where scores of private wells have been contaminated with PFAS. He was in the audience last night at a meeting in Airway Heights where several speakers had been invited by the West Plains Water Coalition to address different facets of the PFAS problems. To be sure, there is a lot going on, now, to deal with PFAS on the West Plains. On the surface the vibe is American potluck grounded in what some would call “Spokane nice.” But barely beneath the surface there is an unmistakable edge of frustration and exasperation. At times, there are open flames of distrust. All three were present last night shortly after County Commissioner Al French took to the podium.

At the start of the program, the coalition’s president, John Hancock, reported Krauter and another SIA executive had declined invitations to appear at last night’s event. But Hancock had also invited French, currently Spokane’s longest-serving elected official, and arguably its most influential politician. French is running for re-election this year. He accepted the invitation.

French has been a stalwart on the SIA board for many years, and a leader in “S3R3” Solutions, a non-profit formed to recruit and service business interests in the “West Plains Airport Area.” French is chairman of S3R3. SIA CEO Krauter is vice-chair. There is a paper trail of evidence, supported by on the record interviews, that French delayed and nearly succeeded in killing a key groundwater study crucial to securing a better understanding of the scale of the contamination, at and beyond the airport.

In retrospect, there’s little question the study would have uncovered the PFAS plume(s) from the airport. Indeed, in his 2017 email to Krauter, David Snipes noted that the wetlands on his property feed the Garden Springs creek that emerges near the Finch Arboretum in west Spokane. Sure enough, one of the delayed study’s first findings—made public just a couple weeks ago—is that David Snipes had every reason to be concerned: there is elevated PFAS in Garden Springs creek.

Tarmac at Spokane International Airport, looking north from main terminal

Last night and in other recent public appearances, French now presents himself as a champion of that same study. He asks his audiences to look forward and not backwards. That doesn’t sit well with those, like Volosing, who were alerted to French’s foot-dragging years ago and now demand accountability.

Questions were limited last night, but Volosing made sure his was one of the first hands to go up.

“I know you certainly don’t want us to be reliving any history,” Volosing told French. “But one really burning question would help us understand how we got here.”

He then walked French through the history and argued that French was in the best position—as County Commissioner—and board member on both the regional health district and airport board—to observe and influence the process.

“Will you please help us understand what guided keeping a lid on this?”[the airport’s PFAS contamination] “Keeping it from the public? Keeping it from downstream well owners?”

Volosing continued, referencing the delays in the groundwater study.

“What happened where we could have utilized this process and having it begun five, six years ago, and have a whole bunch of remediation underway by now? Why did you keep it under wraps for so long?”

A wave of applause rose and rippled through the audience.

French absorbed the question and the applause for Volosing. He then said, in essence, that he couldn’t remember very well, but that he was having staff—at both the airport and the county—investigate his conduct.

French put it this way:

“So in the last seven years, this has been a evolving topic. And we’ve learned a lot from the science and from a variety of different sorts of– so to answer that question, I now have staff that’s going back through the last seven years of my activity at the county and involvement with the airport as well as others. And so we are going to be coming forward with a record, with documents to back it up, so that we can answer that question. Because quite honestly, I don’t remember everything that happened seven years ago. But we do have records that can identify that. And we’re going to make it public so that you will know everything that I knew at the time.”

“And again,” he continued, “I’m one person on an airport board of seven. And the airport is located in the city. There are three other elected officials that have the same information that I did and also not coming forward. And there’s reasons for that. And so we will provide that for you. And what are those reasons that it has to go to this big investigative process that’s inside your own office? And there’s legal reasons for that that I cannot speak to at this point. And I’m working to try and get the freedom to be able to talk about those.”

Volosing then asked a followup, which was more of a statement than a question.

“Our investigation shows that the primary reason that you have kept a lid on this is financial. It has to do with all the wonderful big money deals going on in property development around the airport. And you didn’t want any bad news to screw up those deals and devalue the property. You have played to your constituents and those who fund your campaigns rather than consideration for the downstream people, knowing full well for years.”

To which French replied: “Well, you’re certainly entitled to your opinion. I think what you’ll find is the record doesn’t support that. And so we’ll be coming forward. And you’re all entitled to an opinion, but you’re not entitled to your own facts. And we’ll be coming forward with the facts.”

With that he left the podium, to a cordial smattering of applause.

As he began to dismount the stage, a woman from the audience shouted:

“You said you’re coming forward with this information. Can you give us a timeline on that?”

His reply: “Probably within the next two or three weeks.”

French asking the airport and county staff to help him investigate himself is noteworthy. It does look back at a crucial period of decision-making, but it is hardly independent, especially given French’s repeated excuse that answering questions about his and the airport’s decision-making on PFAS is curtailed for “legal” reasons.

As I’ve reported previously, quite apart from Ecology’s intervention under the state’s Model Toxics Control Act to compel and devise a cleanup plan for SIA, there is the short-term emergency to better identify and assist well owners whose water is presently contaminated with PFAS. In February, Ecology and EPA teamed up to in February to sample more than 300 wells in the zone north of SIA and east of Fairchild’s response area. These were residents who weren’t eligible for testing and remediation under the Fairchild program. The results—via EPA sampling and testing—were striking, with 172 wells found with PFAS above action levels. It has been the state’s role to deliver bottles of clean water to those whose wells are contaminated.

The agencies subsequently announced that funding is available to extend the program to another 125 well owners, beginning thus month. Last night Ecology’s Bri Brinkman made an added and urgent appeal to well owners who’ve had their wells tested to provide their data tables to the agency, as the data are vital to the science of better understanding where and how contaminated groundwater is moving through the highly complex West Plains aquifer system.

—tjc

Reporting on the West Plains “forever chemicals” saga is provided free as a public service. Please consider supporting this work with a paid subscription to The Daily Rhubarb by clicking on the tab below.

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