Voting Rights and Wrongs: How to End Gerrymandering

*This piece was originally posted on Crooks & Liars.

The midterm Congressional elections approach. Meanwhile, results generally favorable to Democrats accumulate in special and regular state and federal elections.

As a result, gerrymandering is again in the news - and in the courts. Having nullified North Carolina's racially gerrymandered map in 2017 (without ordering a specific remedy for the 2018 midterm election), the Supreme Court is considering two more cases challenging gerrymandering: one from Maryland, where the gerrymander at issue is a single Congressional district favoring Democrats; and one from Wisconsin, where Democrats challenge the entire state legislative map, which favors Republicans.

Recent legal challenges to gerrymanders in Pennsylvania and Wisconsin provoked defensive responses from Republican leadership in those states: Pennsylvania's Republican-dominated state legislature is considering impeaching state supreme court justices who voted to void Pennsylvania's state legislative map on the ground that it violates the state constitution. (Federal courts, including the Supreme Court, rejected Republican attempts to review and overturn the state supreme court's decision). In Wisconsin, Governor Scott Walker and his Republican allies in the state legislature, fearing losses in special elections in districts constructed to favor Republicans, agreed to hold special elections for vacant seats only after three state-court judges serially entered orders compelling special elections.

The sections below discuss the form of gerrymandering at issue today, the tactics and tools used in gerrymandering, and short-term and long-term solutions to the antidemocratic effects of gerrymandering.

Realistically, unless and until gerrymandering is prohibited and replaced by maps with no partisan tilt, the only short-term way to defeat it is to register voters and get them to the polls in numbers larger than the super-majority safety margins built into gerrymandered maps. The long-term solutions are electing legislators who reject partisan gerrymandering and/or establishing non-partisan commissions to create maps without partisan gerrymandering, as is already done in several states.

The Current Conflict Over "Partisan Gerrymandering"

The species of gerrymandering at issue in Wisconsin, Pennsylvania, and Maryland is "partisan gerrymandering,": a state legislature configures its legislative maps to empower and entrench one political party and weaken its competitors.

However, it's important to remember that partisan gerrymandering also can function indirectly as gerrymandering for other purposes. For example, African-Americans are still predominantly Democratic voters. In any state where they constitute significant percentages of voters, a partisan gerrymander hostile to Democrats also can dilute African-American voting power in the state.

Partisan gerrymandering is most significantly expressed in states' maps for their state legislatures and their Congressional districts. (Note: partisan gerrymandering within a State cannot affect statewide elections, e.g., state governor, state attorney general, and secretary of state, U.S. Senator, President, or House elections in states with only one Congressional district, like Montana. These officers are not elected by or to represent a legislative district smaller than the entire state. Other tactics must be deployed to diminish voting power of targeted groups, such as voter-Id laws, which can reduce turnout among, for example, low-income voters and people of color.)

In most states, the state legislature creates the legislative maps for both its state legislature and for districts for U.S. Representatives. A series of voting-rights cases in the early 1960s, coupled with passage and implementation of the Voting Rights Act, requires states to construct their state and Congressional legislative maps on the basis of total state population divided as equally as is feasible into some number of state-legislative and Congressional seats - the "One Person/One Vote" rule.

Each state legislator represents approximately the same number of people, as does each U.S. House member, though on a larger population base. Legislative and Congressional districts may not, with fewer voters, have legislative power equal to, or larger than, districts with larger numbers of voters.

Article 1, Section 2 of the Constitution requires the state-by-state allocation of U.S House members to be reviewed and adjusted every ten years on the basis of population data elicited in the U.S. Census (amounts and distributions within and across States). States lose and gain members of Congress based on Census results, so their numerical power in Congress can diminish or increase as they lose or gain seats. And, the House map for any given state has to be re-drawn if the Census shows that population has significantly relocated within the state.

So long as the number of House seats is fixed at 435, changing House allocations from State to State or within a State is a zero-sum game. These population-representation issues illuminate new litigation by state attorneys-general about whether the 2020 Census will include a citizenship question. State-by-state apportionment of a fixed number of House seats rides on the methodology of the Census and the methodology's effects on state-by-state population data.

The same effects happen at the state level of government. Within any given State, state-legislative districts have to be reviewed and, if necessary, redrawn periodically, to keep populations per district relatively equivalent to comply with the One-Person/One-Vote standard.

The Tactics of Gerrymandering: "Packing" and "Cracking"

The strategy of gerrymandering translates into two primary tactics: "packing" and "cracking." "Packing" is the concentration of a voting bloc targeted on the basis of party-affiliation, race, geography, or other variables. "Cracking" is the dispersion of the targeted bloc(s). The goal of both tactics is to minimize the overall voting power of the targeted voting bloc(s).

Three simple examples show how packing and cracking can give a political party disproportionate and durable political control of a state's legislature and its delegation to the U.S. House of Representatives. The examples below show hypothetical maps for state legislative districts, but the same logic and basic arithmetic - on a larger population scale - apply to House maps in multi-district states.

Assume a State with a total population of 2000 evenly dispersed across the state. The legislature wants to divide the state into 10 legislative districts. Each district thus will include 200 people. Suppose further that past election data shows that the State has 500 Democratic voters and 500 Republican voters and no Independent voters or voters with any other party affiliation. (Of course, this is an unrealistic situation in any actual State, but the assumptions simplify the examples.)

In Figure 1, the state legislature draws its map to equalize population and party affiliation across all districts. The state configures its districts so that each 200-person district includes 100 voters (50 Democratic voters and 50 Republican voters).

Numerically, each party is equally represented in each district. Each voter will be as potentially powerful as any other voter, within any given district and across all districts. The results in any given election thus will turn on which issues animate voters and which party gets its voters to the polls.

Figure 2 shows extreme partisan gerrymandering using the same population and voter facts from Figure 1: 2000 citizens and 1000 eligible voters divided equally and only between Democrats and Republicans.

Here, however, assume the Republican party controls the legislature and wants to put its thumb on the scales. The legislature shapes legislative-district boundaries to pack super-majorities of Democrats into relatively few districts and cracks the rest of them among the larger number of remaining districts.

Figure 2 shows the legislature has created two 90-10 Democratic-majority districts and eight 60-40 Republican-majority districts.

As in Figure 1, the legislature has allocated 200 persons and 100 voters to each state legislative district. There is no unconstitutional One Person/One Vote defect. However, Republicans enjoy an 8-2 super-majority in the state legislature. Assuming the State also has 10 House seats, the State can similarly pack and crack House districts to send eight Republicans and two Democrats to Congress. Power in the state legislature and in the state's delegation to the U.S. House thus heavily favors Republicans.

An especially antidemocratic form of gerrymandering occurs when a minority party configures its state and federal legislative maps so it has a super-majority of the seats in the legislature and Congressional delegation.

For this last example, assume a State has 520 Democratic voters and 480 Republican voters in its population of 2000. In each of three 200-person districts, the legislature packs 80 Democratic voters with only 20 Republican voters. In the other seven districts, the legislature cracks 40 Democratic voters with 60 Republican voters.

Figure 3 thus shows how the state legislature can construct a map where a minority party nevertheless has a 7-3 super-majority of legislative and House seats.

These examples are simple configurations, plotted with an ancient pocket calculator, scratch-paper, and pen. Even in states with non-uniform dispersions of voters who frequently move into, out of, and around the state between elections, mapping can be precise, using comprehensive voter databases with software tools for mapping and statistical analysis, including sensitivity-testing to predict how durable majorities will be under different voting scenarios.

Indeed, these 90-10, 80-20, and 60-40 majorities in Figures 2 and 3 are large enough to be very durable, except - perhaps - in the kind of "wave"/landslide elections that pollsters and political demographers are arguing might or might not occur in the 2018 midterm elections. These arguments arise in the wake of state-election results in the gerrymandered Virginia state legislature and elsewhere in 2017 elections, and in more recent special elections in Alabama and Pennsylvania.

Republicans in states with extremely gerrymandered maps for their state legislatures and Congressional delegations are worried about the durability of their representational majorities, especially in the wake of Conor Lamb's victory in Pennsylvania's 18th Congressional district. Wisconsin's Governor Walker described the special election of a Democrat in a northern Wisconsin legislative seat previously held by a Republican as a "wake up" call. Republicans in Wisconsin and elsewhere might be feeling even more insecure about their maps and majorities in the wake of the victory last week of a Democrat in the race for an open seat on the Wisconsin Supreme Court by more than 12 percentage points in a state that Trump won by less than one point.

The Solutions to Partisan Gerrymandering

The volatile political climate - a relatively unpopular, intensely disapproved President, an aroused Democratic voting base, and a Republican-controlled Congress with few, if any popular accomplishments - arguably has put these carefully gerrymandered legislative maps at risk of failing to serve their partisan goals.

The Supreme Court's consideration of two partisan gerrymandering cases further clouds the political horizon. The Court might condemn the State maps before it, but it's impossible to predict whether that will happen.

The litigation challenging partisan gerrymandering is important and worthwhile and might end partisan gerrymandering, but it might fail. In light of the Court's history with partisan gerrymandering, failure might be the most likely outcome.

For a variety of reasons (a topic to be addressed in Part 2 of this series), the Court has never held that a partisan gerrymander is illegal and/or unconstitutional solely because it is partisan. The Court, therefore, might upheld the maps as drawn.

Even if the Court threw out one or another of these maps, there is no guarantee that less partisan maps would be in place before the 2018 midterms. The Court might or might not require redistricting by the midterms in 2018. Or, the Court might send the cases back to the trial courts, with no deadlines, to develop more evidence with parties and the legislatures on how maps should be drawn. The process of re-mapping might move so slowly through the lower courts and the legislatures that existing maps will remain in place through 2018.

The availability of sophisticated districting tools might refute arguments for delay, but primaries have yet to occur in a number of states for 2018. If their maps are gerrymandered now, will the maps be replaced and, if so, when and on what terms? Conor Lamb's special election victory in Pennsylvania's 18th Congressional District occurred within a map that won't exist for the 2018 midterm elections, because the Pennsylvania Supreme Court replaced it over the objections of the Republican-controlled legislature.

In short, remapping is clearly feasible, but its timing might vary from state to state. However, unless and until partisan gerrymandering is replaced by maps with no partisan tilt, the only short-term way to defeat it is to register voters and get them to the polls in numbers larger than the super-majority safety margins built into gerrymandered maps.

The long-term solutions are electing legislators who reject partisan gerrymandering and/or establishing non-partisan commissions to create maps without partisan gerrymandering, as is already done in several states.

Regardless, registering voters and planning to get out the vote can proceed now - whenever or however redistricting happens, by legislatures, commissions, or the courts.

Supreme Court Narrows Whistleblower Rights at a Time of Increased Retaliation

*This is part of ACSblog's Symposium on Whistleblowers.

Last month, the Ethics & Compliance Initiative released a Global Business Ethics Survey revealing that employees feel increased pressure to compromise organizational standards and that in the private sector, more than one in three employees reporting misconduct experienced retaliation.  At a time when whistleblower retaliation is on the rise, the U.S. Supreme Court held in Digital Realty Trust, Inc. v. Somers that the Dodd-Frank Act’s (Dodd-Frank) whistleblower protections apply only where the whistleblower disclosed potential securities law violations to the SEC.  In other words, Dodd-Frank does not protect internal whistleblowing, including disclosures made to a corporate ethics or compliance program.

Corporate Whistleblowers Have Limited Protection

The anti-retaliation provision of the Sarbanes-Oxley Act (SOX) will continue to provide some degree of protection for corporate whistleblowers, but post-Somers, most corporate whistleblowers will not be protected under Dodd-Frank because most whistleblowers report internally.  Indeed, the most recent annual report of the SEC Office of the Whistleblowerstates that approximately 83 percent of whistleblowers who reported wrongdoing to the SEC disclosed their concerns internally to their supervisors, compliance personnel, or through internal reporting mechanisms before reporting to the SEC.  Similarly, an Ethics Resource Center survey found that whistleblowers “almost always make some effort to root out wrongdoing internally before going outside the organization with their concerns.”

Therefore, post-Somers, an employee disclosing fraud solely to their employer can no longer avail themselves of the following advantages of Dodd-Frank whistleblower protection:

  • Broader scope of coverage:  SOX whistleblower protection applies primarily to employees of public companies and contractors of public companies.  The Dodd-Frank prohibition against whistleblower retaliation applies to “any employer,” not just public companies.  Accordingly, post-Somers, an employee at a private company that suffers retaliation for disclosing potential securities violations generally lacks any federal remedy.  For example, a hedge fund employee opposing or trying to stop insider trading is not protected until the employee discloses the insider trading to the SEC.
  • Longer statute of limitations:  Whereas the statute of limitations for a SOX retaliation claim is just 180 days, the statute of limitations for a Dodd-Frank retaliation claim is six years.
  •   Double back pay:  Dodd-Frank authorizes an award of double back pay (double lost wages), but SOX merely authorizes “make whole relief” in the form of lost wages, reinstatement, special damages, and attorney fees.  SOX does not authorize an award of punitive damages.  The limited make whole relief available under SOX provides minimal deterrence against whistleblower retaliation.

Post-Somers, Whistleblowers More Likely to Report Fraud Directly to the SEC Rather than to Their Employers, But Regulators Ill-Equipped to Respond to Disclosures

Diminished protection for internal whistleblower disclosures will likely spur corporate whistleblowers to report fraud directly to the SEC, rather than first reporting to management or to a corporate ethics and compliance program.  But in an era of deregulation, budget cuts, and hiring freezes, most whistleblower tips to regulators will go unheeded.

In FY 2017, the SEC received more than 16,000 tips, including 4,400 tips submitted to the SEC Office of the Whistleblower, and brought 446 standalone enforcement actions.  Many of those actions were brought following multi-year investigations, during which time violators continued to profit from their misconduct and defraud investors.  Lean budgets have forced the SEC to impose a hiring freeze as it grapples with significant new challenges, including cryptocurrency fraud and increasingly sophisticated market manipulation schemes.  While the SEC whistleblower program has demonstrated success in protecting investors, the SEC cannot investigate most whistleblower tips due to a lack of resources.

During FY 2017, the Commodity Futures Trading Commission (CFTC) brought just 49 enforcement-related actions.  The CFTC’s mission includes regulating the approximately $600 trillion dollar over-the-counter swaps markets and derivatives, the “weapons of mass destruction” that caused the financial crisis.  Last month, Congress cut the CFTC’s meager budget, thereby leaving the “critically important derivatives market and the general public increasingly vulnerable to systemic (and other) risk, and susceptible to fraud and manipulation,” according to Commissioner Benham.

Congress could increase funding for market regulators without using taxpayer funds, such as by authorizing the CFTC to assess user fees.  But instead Congress has made a deliberate decision to weaken investor protection.  It is a curious decision to make shortly after a financial crisis that cost nearly $30 trillion.

The likely increase in whistleblower tips to the SEC and CFTC post-Somers will likely hamper the regulators’ ability to promptly investigate and halt fraud, and whistleblower disclosures.

Congress Should Enact Comprehensive Whistleblower Protection Legislation

Currently, a patchwork of industry-specific whistleblower laws provides limited protection with fairly weak remedies (primarily lost wages), but no comprehensive federal whistleblower protection law exists.  Accordingly, many disclosures about threats to public health and safety are not protected under federal whistleblower laws.

Indeed, there is no private right of action for a whistleblower who suffers retaliation for reporting unsafe work conditions.  Every day millions of workers face the unacceptable choice of violating workplace safety regulations or losing their jobs.  As approximately 5,200 workers died on the job from work injuries in 2016, failing to protect workers who oppose or report OSHA violations has serious consequences.

In sum, Somers exacerbates the weak state of whistleblower protection and warrants prompt congressional action to provide long overdue protection to courageous truth-tellers.

Jason Zuckerman is a Principal at Zuckerman Law, a firm that represents corporate whistleblowers in whistleblower rewards and whistleblower retaliation cases.

Michael Cohen Tests The Limits Of Attorney-Client Privilege

*This piece was originally posted on Crooks & Liars.

Michael Cohen is challenging the seizure of his files, computers, phones, and other materials by federal criminal investigators in Manhattan. Mr. Cohen is asserting his materials are protected from seizure and disclosure by attorney-client privilege and should be returned to him, unexamined by federal investigators or prosecutors.

Over the next few days or weeks, Judge Kimba Wood of the District Court of the Southern District of New York will hear arguments from Cohen's attorneys and federal prosecutors on this issue of privilege. It's foreseeable that, during her consideration of arguments, Judge Wood will inspect some or all of the purportedly privileged materials before she decides which, if any, are privileged. Judge Wood then will rule for the prosecutors or Mr. Cohen as to all or some of the seized materials.

Mr. Cohen will have to surmount multiple legal hurdles to earn privileged status for his communications and other information. His claims of privilege as to certain materials seem weak at best.

There are varying state and federal formulations of the legal test used to determine whether an attorney's communications and/or other information is protected by attorney-client privilege. However, the tests share key common elements that are pertinent to Mr. Cohen's claim.

As a general matter, the privilege protects:

(A) a communication,

(B) made between privileged persons (i.e., attorney, client or agent [of the client or attorney, such as a paralegal]),

(C) in confidence,

(D) for the purpose of obtaining or providing legal assistance for the client.

Here is a more detailed version of the test, with a couple of bracketed clarifications:

(1) Where legal advice of any kind is sought
(2) from a professional legal advisor in his capacity as such,
(3) the communications relating to that purpose,
(4) made in confidence
(5) by the client,
(6) are at [the client's] instance permanently protected
(7) from disclosure by himself or by the legal advisor,
(8) except the protection can be waived [by the client].

No matter what specific formulation of the test is used in any given case, the attorney-client privilege is grounded in two fundamental assumptions:

(1) good legal assistance requires full disclosure of a client’s legal problems; and
(2) a client will only reveal the details required for proper representation if her confidences are protected.

In other words, lawyers must know fully their clients' facts to give clients the best possible legal advice, and clients are more likely to share their facts with their lawyers when the clients know they can disclose their facts in confidence.

An earlier discussion here detailed several arguments Special Counsel Mueller might make to defeat claims of privilege made by targets, subjects, and other witnesses in his investigations: these responses require proving that the person invoking the privilege can't enjoy its protection because the person waived the privilege or the materials at issue fall under an exception to the privilege. These were the “crime-fraud exception”; the non-confidential-communication waiver”; the "at-issue waiver"; and the “Bill Clinton/Ken Starr Exception.”

As in the earlier discussion here, others have also observed that the crime-fraud exception to the privilege might apply to Cohen's information: the exception "allows the government to read, review, compel production of and compel testimony of an attorney and his or her records. It arises if, and only if, the client uses the attorney’s services to commit a crime." For example, if Cohen tries to protect communications with Mr. Trump that show Mr. Trump communicated with Mr. Cohen to plan or execute a crime, the court will probably rule that the communication is not privileged.

However, before Judge Wood reaches the question of the applicability of waivers or exceptions to communications between Mr. Cohen and his clients, Mr. Cohen faces even more basic problems invoking the privilege.

Judge Wood will doubtless be asking herself and the parties some version of this overarching question: Are Mr. Cohen's records at issue communications with clients who consulted him in his capacity as an attorney for legal advice?

To answer this question, it is important to understand, first, that the privilege belongs to the client, not the attorney, and the client alone has the power to waive it. The client decides whether to invoke the privilege or waive its protection. An attorney can't invoke the privilege over a client's objection or waiver.

So, at the threshold, Judge Wood will determine whether Cohen's communications and the records at issue are to and from - and for - a client. If the judge can't find a client for purportedly privileged materials, there is no client who may invoke the privilege.

This isn't a metaphysical question. For example, the search of Mr. Cohen's office and residence sought materials relating to the Stormy Daniels negotiations, contract, and payment in which Mr. Cohen was involved, presumably to determine whether bank-fraud or campaign-finance crimes occurred.

Mr. Cohen has claimed that he made the payment from his own funds. And Mr. Trump has never addressed whether he had an adulterous relationship with Ms. Daniels and has personally denied knowledge of any payment to her ensuing from any contract with Ms. Daniels.

If Mr. Cohen can't prove that Mr. Trump (or another person or entity) is his client for his communications and other records relating to Ms. Daniels, then he has no client who can invoke attorney-client privilege to protect them. More generally, if Mr. Cohen has other records for which he has no discernible client, those will not be afforded the protection of the privilege.

In short, no client, no attorney-client privilege.

Two additional problems cascade directly from the absence of a client. First, if Cohen has no client, he isn't communicating for the purpose of providing legal advice or assistance to a client to which the privilege might apply. Second, if he is not communicating to a person or entity in order to provide legal advice, then it is arguable that he is not acting in his capacity as an attorney.

In other words, Cohen's claim of privilege as to the Daniels materials could fail on at least three different grounds: (1) there is no client that can invoke the privilege; (2) there is no communication with a client for the purpose of providing legal advice; and, therefore, (3) Mr. Cohen did not communicate as an attorney with a client.

Mr. Cohen faces at least one more obstacle with respect to the seized records. The attorney-client privilege protects communications between an attorney and client, but only so the attorney may give legal advice to the client. The privilege does not extend to communications on subjects other than legal advice.

For example, suppose Mr. Trump sought information from Mr. Cohen about whether to borrow money for a project from Lender A or Lender B. However, assume that Mr. Trump only asks Mr. Cohen to find out which Lender has more funds available for a loan, rather than asking Mr. Cohen, for example, how to write the loan agreement to make it most legally advantageous to Mr. Trump. Mr. Cohen contacts both Lenders and asks them how much they would have available for Mr. Trump's project. Mr. Cohen gets numbers from the Lenders and communicates the numbers to Mr. Trump.

That's not legal advice. It's not even business advice. It's merely business information. It's probably not privileged.

Thus, Mr Cohen's privilege claims will probably fail where Mr. Cohen can't identify a client for the court who can invoke the privilege, or can't show that his communication occurred for the purpose of giving legal advice to a client, or can't show that advice or information he gave to a client is legal advice.

Finally, Mr. Trump certainly can pardon Mr. Cohen for any federal crimes he might have committed or might commit, but he can't protect Cohen by a presidential pardon from state criminal prosecutions and convictions. If federal prosecutors' path to conviction is blocked (or criminally obstructed) by Mr. Trump, they can hand off all unprivileged incriminating information they have obtained from Mr. Cohen to, for example, New York Attorney General Schneiderman, for prosecution under any applicable state criminal laws.

Mr. Cohen's legal jeopardy has just begun. Specious claims of privilege might be the least of his legal problems.

Leaking v. Whistleblowing: Using Rhetoric to Erode Rights

*This is part of ACSblog's Symposium on Whistleblowers.

On March 28, 2018, FBI agent Terry Albury was charged under the Espionage Act with leaking classified FBI policy manuals to The Intercept that describe the FBI’s use of race and religion to decide who to investigate and surveillance tactics used to obtain journalists’ phone records without a judge-issued warrant or subpoena. Albury is the Trump Administration’s most recent target in their mission to prosecute so-called leakers. Reality Winner, an NSA contractor and the first person charged by the Trump administration with leaking classified information to the press (again The Intercept), is in jail awaiting trial for sharing a classified report about Russian cyberattacks executed to interfere with the 2016 presidential election.

But we should not call Winner and Albury leakers. They are whistleblowers.[1]

The term leaker, when used by those in political power, is often used to imply any person releasing unauthorized information is doing something wrong and possibly criminal. Referring to legitimate whistleblowing as leaking gives cover to actions that support the rhetorical implication that such speech is something unlawful rather than protected.

In Albury and Winner’s cases, as members of the intelligence community, things are more complicated.

Whistleblower protection laws, though an imperfect patchwork of protections, seek to encourage disclosures of evidence of wrongdoing by offering protections from retaliation (and in some cases, to those who would disclose financial fraud, a potential financial reward for reporting violations). The whistleblower patchwork is overwhelmingly an employment law scheme, reflecting the fact that employees are in the best position to witness problems, promote compliance, and facilitate enforcement.

The Whistleblower Protection Act (WPA) of 1989 (amended by the Whistleblower Protection Enhancement Act (WPEA) of 2012) is the primary law that gives non-intelligence federal workers the right to report serious wrongdoing. The WPA extends protection from retaliation to employees for disclosing information both internally, such as to co-workers, managers, an agency Inspector General, etc., as well as externally, such as to Congress, regulators, watchdog organizations, and the press. That both internal and external disclosures are protected recognizes that to promote the normative and instrumental value of encouraging employee disclosures, laws should address the two (unfortunately legitimate) reasons employees stay silent in the face of wrongdoing: fear of reprisal and fear of futility, or that nothing will come from speaking out. Though most employees raise concerns internally first—over 95%—they will go outside of the organization if they feel the issue must be addressed and that internal disclosures will be ineffective and/or be met with reprisal.

The WPA and WPEA (which were, like all federal whistleblower laws, passed with bipartisan, unanimous congressional support) articulate a useful standard to evaluate the content that would rise to the level of a protected whistleblowing disclosure: information an employee reasonably believes evidences a violation of law, rule or regulation; gross mismanagement; gross waste of funds; abuse of authority; a substantial and specific danger to public health or safety; or scientific censorship that would result in these forms of misconduct.

All of the disclosures by the “leakers” prosecuted above would likely meet the standard of wrongdoing categorized in the WPA deemed essential to protecting the public’s interest in accountable government— FBI investigation practices that could violate civil rights and liberties; foreign interference with U.S. elections; unconstitutional electronic surveillance of American citizens; and illegal torture. In other words, the leaking also constituted whistleblowing.

Whistleblower protections for intelligence community employees are notoriously weak, and even weaker for intelligence contractors. Avenues for disclosure too are limited, often only to the agency responsible for the alleged wrongdoing, with evidence that sometimes with those charged with investigating concerns instead investigating and retaliating against the whistleblower. Penalties are severe and there is no public interest defense available to whistleblowers charged with releasing classified information (in contrast to many other democratic countries).

But the absence of meaningful legal protections or safe, effective avenues for disclosure reveals a hole in the legal patchwork of whistleblower protections, not that the disclosure itself is not the kind that is essential to ensuring that democratic institutions—Congress, the courts, executive branch agencies, the press, civil society, and a concerned electorate—promote accountability.

This is why Albury, Winner, Snowden, Drake and Kiriakou should be considered whistleblowers.

The aggressive prosecutions of intelligence whistleblowers using the rhetoric of “leakers” feeds into the narrative that whistleblowing is a crime, or a threat to national security, even though most leaks of information, and most whistleblowing, have nothing to do with national security or intelligence matters and do not involve classified information.

Whistleblowers by the very nature of raising a concern are making “unauthorized” disclosures, but this is a legally protected right. Further, in a dysfunctional political environment hostile to truth and truth-tellers, many federal employees will raise concerns externally, often attempting to keep their identity anonymous to try to avoid reprisal while seeking effective reform through the media or an advocacy group. But to call this activity “leaking” rather than “whistleblowing” may give pause to the career civil servant who has witnessed serious misconduct but may feel both confused and chilled by the frightening rhetoric. By conflating “leaking” with “whistleblowing,” those who stand the most to lose by having their abuses disclosed are deliberately undermining both the normative value of whistleblower protection laws and policies as well as their practical effectiveness by chilling rather than encouraging disclosure.

The rhetorical move legitimizes illegitimate tactics being used to silence employees, such as anti-leak training being ordered for all federal employees, not just those in the intelligence agencies; directives ordering employees to seek pre-approval by legal affairs or public information offices before speaking with any outside parties; nondisclosure agreementssigned by white house staff barring lifetime release of “confidential” information; posters hung in the Department of Energy reminding employees that “Every Leak Makes Us Weak;”environmental agencies barring employees from speaking at conferences referencing climate change; heightened review of FOIA requests submitted by journalists or public interest watchdogs, possibly to ferret out potential internal sources (the tactic used by the FBI to identify agent Albury through The Intercept’s FOIA request); and Secretary of Education Betsy DeVos seeking guidance on her suggestion to prosecute employees who release unclassified budget documents to the press.

Most of these moves are illegal and unenforceable on a range of grounds. But in the aggregate, they create a powerful chilling effect on speech of public interest concern—protected whistleblowing—under the guise of combatting “leaks.”

Admittedly, the leaking v. whistleblowing distinction is indeed complicated in the national security context, and there has been substantial and excellent analysis on the issue by many terrific legal scholars, including Heidi Kitrosser, Mary-Rose Papandrea, David Pozen and others. However, weaknesses in legal protections and effective avenues for disclosure of classified matters of serious public concern (not to mention the well-documented problem of over classification that exacerbates the issue) have created the conditions that allow those in political power to exploit the few but graphic examples of national security whistleblowing as “illegal leaking” to chill whistleblowing in other contexts.

In a political climate where corruption and secrecy rather than honesty and transparency are the norm, whistleblowers are needed more than ever. Efforts to undermine our flawed but nonetheless essential laws that encourage whistleblowing must be exposed and confronted for the deliberately disparaging and dishonest rhetoric, indeed propaganda, that they are.

Dana Gold is an attorney and the Director of Education for the Government Accountability Project, a national non-profit law organization that promotes government and corporate accountability through litigating whistleblower cases, publicizing whistleblowers’ disclosures and developing legal reforms.

 

[1] Other famous intelligence whistleblowers similarly labeled as “leakers” include Edward Snowden, whose disclosures to The Guardian of the NSA’s mass surveillance of U.S. citizens’ electronic communications made him the most high profile “leaker” since Daniel Ellsberg’s “leak” of the Pentagon Papers to the New York Times; Thomas Drake, whose internal and external disclosures about unconstitutional mass surveillance (none of which, despite aggressive prosecution efforts, included unclassified disclosures to the press) preceded Edward Snowden’s and informed his decision to “leak” in the manner he did; and John Kiriakou, who, after revealing on ABC News that the CIA had an official torture programthat included waterboarding, was jailed for revealing the name of a covert agent to a reporter (no one who actually conducted torture, issued the policy, or destroyed evidence of the illegal practice was prosecuted).

The Census and the APA – Making Citizenship Arbitrary

When he administered America’s first census in 1790, then-Secretary of State Thomas Jefferson had to know it would be an important event for America. In its original role, it was designed to provide an “actual enumeration” of the American population every ten years so the correct number of congressional seats and presidential electors could be apportioned for each state. The modern census is also a matter of public policy, as it affects the distribution of hundreds of billions of dollars annually in funding for programs ranging from Medicare and Medicaid to local education programs.

The Secretary of Commerce is currently responsible for administering the census. On March 28, 2017, per statutory requirements, the Commerce Department submitted to Congress the subjects to be covered on the 2020 census. Citizenship was not among them. On December 17, 2017, however, the Administration changed course. The Department of Justice sent a formal letter request to the Commerce Department asking it to reinstate a citizenship question on the 2020 census. On March 29, 2018, the Department submitted its 2020 census questions to Congress, one of which asked, “Is this person a citizen of the United States?”

The last time the census asked about individual respondents’ citizenship was in 1950. A related question had been included since 1950 in the “long-form” census, which went out to one-sixth of the population, and more recently (since 2005) in the annual American Community Survey (ACS), which goes to an even smaller group (just over 1% of the population).

The Commerce Department’s last-minute decision to include a citizenship question has met with strong resistance, including two lawsuits: California v. Ross and New York v. Department of Commerce. Both suits raise constitutional and statutory challenges to the citizenship question. The crux of the constitutional challenges is that a significant undercount resulting from the citizenship question will prevent the census from being the “actual Enumeration” the Constitution requires.

Among the statutory questions raised is the claim that the agency’s decision to include the citizenship question violates the Administrative Procedure Act (APA). Under the APA, the “reviewing court shall . . . set aside agency action . . . found to be . . . arbitrary [and] capricious.” There are effectively two ways an agency can be arbitrary under the APA. They can be procedurally arbitrary, when their actions are not “reasonably explained,” or substantively arbitrary, when their conclusions are not reasonable, i.e. are not supported by their own arguments.

The inclusion of the citizenship question is arbitrary under both categories. Procedurally, the agency performed no testing to evaluate the question’s effectiveness. This is particularly damning because it is a departure from longstanding agency practice: the Census Bureau routinely tests questions for years before using them in the decennial census. The agency also failed to respond to concerns about underreporting. Commerce Secretary Ross, in his memo explaining the Department’s decision to reinstate the citizenship question, noted the “widespread belief among many parties that adding a citizenship question could reduce response rates,” but concluded that since there was no “definitive, empirical support for that belief,” it would not change his decision to include the question.

What Secretary Ross failed to explain was why the “widespread belief” that responsiveness could suffer did not merit more, rather than no, effort by the agency to investigate the question’s potential effect on responsiveness. Instead of taking the broad concern about responsiveness as a signal to follow established government guidelines for vetting census questions, Secretary Ross concluded that the best way to justify his position was to do nothing. By failing to follow its traditional approval process and respond to concerns—many from within the agency—about the negative consequences of the citizenship question, the agency acted arbitrarily under the APA.

The Bureau’s decision is also substantively arbitrary. In its letter advocating for the citizenship question, DOJ argued that the question will help it combat voter discrimination under Section 2 of the Voting Rights Act of 1965 by providing DOJ with “citizen voting-age population data.” Secretary Ross repeated that argument in his memo supporting inclusion.

There are at least two problems with this argument. The first is that census data is not likely to be helpful in combatting voting discrimination. Congress enacted the Voting Rights Act, and the DOJ has enforced it for decades, without access to the data the new census purports to collect. Moreover, DOJ already has access to the annually updated ACS data, which is more current and relevant than census data.

There is also significant evidence suggesting that even if the citizenship question could theoretically yield useful voting data, it will still fail to do so because its inclusion will dilute the amount and accuracy of census data generally. Several decades of research and statements by the Census Bureau (at least prior to last December) show that citizenship questions will lead to lower response rates and accuracy in the census. According to Census Bureau officials, the Trump Administration’s anti-immigrant policies and rhetoric have only exacerbated the problem. The agency’s stated justifications fall far short of explaining how the citizenship question will advance, rather than frustrate, its stated goals. For that reason alone, it should be found arbitrary under the APA.

Teachers Across America are Striking Because Courts are Shrinking from School funding Fight

*Originally published in The Los Angeles Times.

Teacher strikes in West Virginia, Kentucky and Oklahoma manifested growing frustration with state disinvestment in public education over the past decade. But these protests and walkouts are not just a story about state budgets. Teachers are being forced to rise up in part because most state courts are shrinking from their duty to enforce the state constitutional right to education.

All 50 state constitutions entitle children to a quality education. (The U.S. Supreme Court declined to recognize a comparable federal right under the U.S. Constitution.) For decades, many state courts enforced that right, striking down school funding schemes as inequitable and inadequate. State legislatures and governors mostly dragged their feet in response, achieving partial compliance with court orders at best. Still, court interventions led to increased funding that studies showed improved educational achievement.

Then came the Great Recession. States used budget shortfalls to justify cuts to education spending. The devastating effects are still being felt today. General funding per student remains below pre-2008 levels in at least 12 states, down more than 11% in West Virginia, 15% in Kentucky, and a staggering 28% in Oklahoma, the largest percentage decline in the nation. In total, 29 states provided less overall state funding per student in 2015 than in 2008. California was in a similar situation in 2015 with state school funding down 11%. That was notably before the Local Control Funding Formula and Gov. Brown's latest budget proposing billions to fund it.

The recession also emboldened state legislators, and their foot dragging turned into foot-stomping defiance to court-directed increases in school funding. The New Jersey, Kansas and Washington supreme courts have held state legislators' feet to the fire, insisting on compliance despite, in some instances, being threatened with impeachment and efforts to unseat them in judicial elections.

Those three courts are the exception, however. The majority of state courts have opted to retreat. For instance, the California Supreme Court — the first state high court to strike down a school funding system as unconstitutional in 1971 — recently declined to review two cases invoking its right to education, one challenging teacher tenure statutes, the other alleging that school funding is constitutionally inadequate.

A number of courts retreat by deferring to their state legislatures to devise the remedy. The legislature predictably resists or returns with a modest plan, which then provokes successive rounds of litigation, and in the end judges usually throw up their hands. As one court put it, all but admitting defeat, getting the legislature to make a good faith effort is "the best we can do." State legislatures thus win by attrition.

Still other courts have waved the white flag before the first shot, claiming their constitutions vest the legislature with absolute authority over education and therefore courts cannot get involved. The Oklahoma Supreme Court is one of seven state high courts to have surrendered in this manner. The constitutional right to education in these states is thus unenforceable in a court of law.

Amid this crisis of judicial confidence, striking teachers have appealed directly to the court of last resort: the court of public opinion.

Born in desperation, the #55United movement in West Virginia unexpectedly matured into an empowering pro-education crusade that spread in wildcat fashion to Oklahoma, Kentucky, and likely beyond. There are rumblings of discontent in Tennessee and Arizona. California may not be immune: according to a 2018 study, it ranked just below West Virginia in teacher wage competitiveness.

Teachers need make no apologies about agitating for better wages and benefits. That's what the bulk of school funding is spent on after all — to pay teachers to educate our children. Decades of empirical research confirms that teacher quality is the most influential educational resource affecting student achievement within a school's control.

By that proper framing, these teacher-led demonstrations are attempts to vindicate the constitutional rights of children in perhaps the only viable forum left. The West Virginia teacher strike proves that strategy can work. The resolve of the Oklahoma teachers, who continue to strike despite a preemptive $6,000 pay increase passed by lawmakers, proves that teachers see the bigger picture in their demands for funding to address other school needs. What teachers in West Virginia and Oklahoma accomplished in a matter of days might have taken years of protracted litigation for a court to order, only then to be resisted at every turn by the legislature.

As inspiring as the teachers' movement has become, the dysfunction that helped create it is worrisome. If public opinion eventually turns on teachers, then the fate of public education will be decided exclusively in statehouses where entrenched forces remain hard at work for wealthy, politically powerful communities, not disadvantaged children. In fact, there is an effort underway in legislatures across the country to amend state constitutions to weaken education rights or strip courts of jurisdiction to enforce them.

Just such a bill recently cleared a legislative committee in Kansas. An amendment proposed in Wyoming would have permitted courts to declare that the legislature violated the constitution but disempower courts from ordering increases in school funding. A similar measure proposed in West Virginia would have given the legislature nearly unreviewable authority over education.

With no help forthcoming from the federal government, we need state courts to reengage and fulfill their constitutional duties. Then, we need teachers, parents and students to rise up and demand compliance with the state constitutional right to education.