(Credit: Gage Skidmore)

In reaction to the scandal that the U.S. Justice Department seized the phone records of Associated Press journalists, a small bipartisan group of legislators is attempting to rein in some of the excesses of the Executive Branch.

Republican Reps. Justin Amash and Mick Mulvaney as well as Democratic Reps. Zoe Lofgren and Jared Polis are all co-sponsors of the Telephone Records Protection Act. Introduced last Thursday, the main aim of the bill is to require the government to obtain a court order before seizing phone records.

According to the press release:

“HR 2014, the Telephone Records Protection Act, requires court approval when the government demands telephone records from service providers. . . .

“The Justice Department’s seizure of the AP’s phone records – likely without the sign-off of a single judge – raises serious First and Fourth Amendment concerns. . . .

“The Telephone Records Protection Act strikes 18 USC § 2703(c)(2)(C), which includes telephone records on the list of basic subscriber information that can be accessed by administrative subpoena. If enacted, the bill would require the government to state ‘specific and articulable facts’ that can prove to a court that the information sought is ‘relevant and material to an ongoing criminal investigation.”

This legislation came forth even before the revelation that journalist James Rosen was targeted under the auspices of the Espionage Act of 1917, a World War I era law. The Fox News chief Washington correspondent, Rosen’s private e-mails were read after he reported information relayed to him by former State Department official Stephen Kim, who himself is under indictment under the Espionage Act. Rosen is not charged, but he was listed as “an aider and abettor and/or co-conspirator.”

When President Obama entered office, he promised an open and transparent administration. However, the Obama administration has compiled a long record of prosecuting whistleblowers.

Columnist Glenn Greenwald, a long-time liberal critic of the president, asserted that the recently-revealed actions of the administration represent an attack on the freedom of the press itself:

“The Obama Justice Department has prosecuted more government leakers under the 1917 Espionage Act than all prior administrations combined – in fact, double the number of all such prior prosecutions. But as last week’s controversy of the DOJ’s pursuit of the phone records of AP reporters illustrated, this obsessive fixation in defense of secrecy also targets, and severely damages, journalists specifically and the newsgathering process in general.”

Last week, Obama adviser David Axelrod inadvertently provided fodder for his conservative critics when he told MSNBC, “Part of being president is there’s so much beneath you that you can’t know because the government is so vast.”

At the Daily Caller, W. James Antle suggests the problem is that a government that is too big is bound to overreach:

“When we give the federal government the power to look at our private financial transactions, listen to our phone calls and regulate political speech, we shouldn’t be surprised when those powers are abused. Neither should we be surprised when those powers expand, with the government even inserting itself into Americans’ prayers.”

It remains to be seen how far the Telephone Records Protection Act will go in Congress. However, it does emerge at a time when partisans on both sides are expressing discomfort with the secrecy of the Obama administration. It also comes at a time when more of the American people are paying attention to what surveillance powers the government claims.

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California Superintendent of Public Instruction Tom Torlakson, photo credit: Lara Cooper / Noozhawk.com

Complicated relations between California and the federal government on a state waiver for No Child Left Behind (NCLB) reached its conclusion. Seeing the effort as futile, the California Department of Education (CDE) announced it will no longer seek a waiver from the federal law. Schools continuing to under-perform based on NCLB may face federal sanctions in the near future.

The CDE is prioritizing Governor Jerry Brown’s local control funding formula (LCFF) proposal over the possibility of obtaining a waiver. LCFF includes a new delegation of school funds based on the proportion of disadvantaged students in a district. However, the spending autonomy given to local districts in Brown’s plan is said to be the complicating factor when state and federal officials discussed NCLB waiver requirements.

California Superintendent of Public Instruction Tom Torlakson and President of the State Board of Education Michael Kirst released a joint statement on Monday:

“While California’s efforts to improve its education system continue to move forward, including implementation of the Common Core State Standards and the modernization of our assessment and accountability systems, the standards for obtaining a federal waiver remain difficult to meet for a state committed to local flexibility and decision-making”

In the May revision of the 2013-2014 state budget proposal by Brown, the local control component of the plan:

“[LCFF] fundamentally shifts accountability from a system focused on state control of local spending to a system of local planning and goal setting to improve outcomes for students.”

There are 37 states that have successfully obtained a NCLB waiver. Each waiver process has been an exchange of potential sanctions set by NCLB for federal reform measures. In California’s case, the state is not submitting to federally implemented reforms and is sticking to its own reform plans.

The U.S. Department of Education has taken heat from House Republicans. The GOP says the department has been exercising too much authority by essentially bypassing Congress to form its own education policy, state-by-state, with the NCLB waiver system.

This is not the first time California attempted to obtain a waiver from the No Child Left Behind Act. The state was denied a waiver in its past two efforts in September 2011 and December 2012.

California’s waiver process was already complicated by a group of 10 school districts, known as CORE, which seeks to establish its own waiver agreement with the federal education authorities. The California Office to Reform Education (CORE) is still being considered for the waiver.

California may be exercising its rights as a state in standing firm with its plan to reform education funding and accountability. The U.S. Department of Education may be overzealous in its efforts to reform state education systems. Both sides were unable to reconcile their visions for future education policy.

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Announced last month by Ron Wyden (D-Oregon) and Lisa Murkowski (R-Alaska), the Follow the Money Act was received with much acclaim from citizens and nonpartisan organizations. Groups like the League of Women Voters, the American Bar Association, and the Sunlight Foundation praised the proposed campaign finance reform package.

Currently referred to the Senate Finance Committee, S. 791 proposes to amend the Federal Election Campaign Act of 1971 and the Tax Code to broaden disclosure and reporting requirements for Super PACs and 501(c) organizations that engage in electioneering or as the bill calls it, ‘independent federal election related activity.’

Alongside a ‘stand by your ad’ provision and instant disclosure for campaign donations, the act also raises the minimum disclosure threshold up from $200 to $1,000.

In the few weeks since its introduction, the Follow the Money Act has garnered some opposition as well. The Chamber of Commerce and the Center for Competitive Politics (CCP) have come out against the act, claiming ‘speech-chilling’ and overly union-sympathetic language would disadvantage business interests. The CCP is a tax-exempt 501(c)(3) organization and was founded by Bradley Smith, a former Republican Federal Elections Commission Chairman.

Citing the Supreme Court’s decision in Citizens United v FEC, David Keating, President of the Center for Competitive Politics, and Eric Wang, senior CCP fellow, opined in a POLITICO op-ed earlier this week:

“Wyden-Murkowski ignores a series of landmark Supreme Court cases that struck down vague and over-broad requirements in earlier laws that bear a remarkable resemblance to their proposal.”

Critics of the proposed legislation argue the bill, in its current form, could be interpreted to force organizations that have not customarily been ‘political players’ to disclose donors — like the well-known American Crossroads or Priorities USA. This would also include groups like the Sierra Club, the ACLU, or even the Center for Competitive Politics or the League of Women Voters.

Still, criticism of the bipartisan proposal hasn’t remained confined to one pole of the political globe. Others, like Fred Wertheimer of Democracy 21, contend that S. 791 doesn’t go far enough to ensure proper disclosure of political donations. Similar to CCP’s criticism, he argues the subjectivity of determining ‘independent federal election related activity’ should not be left up to a dysfunctional and ineffective FEC.

No matter the critique, the Follow the Money Act is the only campaign finance reform package with bipartisan support and remains the only proposal before Congress. Similar attempts through the Disclose Act, sponsored by Sheldon Whitehouse (D-Rhode Island), were filibustered by Senate Republicans led by Mitch McConnell (R-Kentucky).

This has left campaign finance reformers in a difficult position as they are faced with ineffectual enforcement institutions like the FEC, reluctant lawmakers touting First Amendment protections, and ever-adamant transparency hawks pushing for stronger rules — a precarious situation for reducing the influence of money in politics.

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Credit: forums.cannabisculture.com

Following the California Supreme Court’s decision allowing cities to use zoning ordinances to ban medical marijuana dispensaries, several municipalities have become very vocal regarding the issue of medical cannabis.

The Civil Grand Jury of Marin County issued a report last week, titled “Medical Marijuana: Up in Smoke.” In its report, the grand jury calls on county officials and lawmakers to better represent the interest of those they govern. The report also references the fact that seventy-three percent of county residents voted in favor of the Compassionate Use Act back in 1996.

Not only were state lawmakers targeted for their lack of opposition to the decision, but city councils were as well. The grand jury placed blame on city councils, for “bowing to the complaints of the minority of folks who live near the medical marijuana dispensaries,” which they refer to as “the NIMBY effect.”

Through moratoriums, enacting bans on the dispensaries, and using zoning regulations to prohibit their operation, the grand jury felt lawmakers were overstepping the constitutional rights of medical marijuana cardholders.

The grand jury cites three studies in their report, one conducted by the National Institute of Health in particular, which ultimately concludes “that there is no increase in crime in neighborhoods around dispensaries.” This seems to remain the number one preoccupation of those favoring dispensary closure.

They further cite cases in Mill Valley, San Rafael, Larkspur, and Novato municipalities; all of them passed bans on dispensaries. Currently, Marin Holistic Solutions is the only dispensary operational within Marin County. An agreement with the town allows its doors to remain open until spring 2014.

How are other counties approaching this issue?

In Los Angeles county, which has been struggling with this issue for the last five years, voters will head to the polls on Tuesday to decide how the county deals with medical marijuana.

This is in response to an 11-1 city council vote that instructed lawyers to draw up ballot measures restricting the number of dispensaries allowed in the city. One of these ballot measures, Proposition D, would close dispensary doors opened after the city’s 2007 moratorium (roughly 135). The proposition would also entail a slight increase in taxes.

Two other ballot measures, propositions E and F, also address the issues of how to tax this business. Proposition E is similar to Prop. D, but wouldn’t create any new laws. Though Proposition F would raise new taxes on dispensaries, it would require strict background checks and audits on dispensary employees.

The Los Angeles City Council approved a dispensary ban last summer, but then repealed it after enough signatures were collected for a ballot measure. The proposition with the majority of votes collected will be put into effect, but if none receive at least fifty percent of the vote, it will go back to city council.

Overall, the main concern regarding dispensary operations is the fear of crime associated with a substance that is illegal federally, but is legal in California for medical purposes.

“There’s been absolutely no control, and that’s what has hurt the city,” said Brennan Thicke, who runs the Venice Beach Care Center. “At this point, voters need to finally decide this issue. There’s been an overwhelming belief in this city that medical marijuana should not go away.”

There are arguments to be made on both sides of the spectrum. Though the Marin County Civil Grand Jury has been on the offensive, fighting to keep medical marijuana dispensaries up for a clear majority of licensed users, Los Angeles seems to be taking a laissez faire approach. Ultimately voter turnout will determine the fate of dispensaries in the second largest city in the U.S.

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On May 15, 2013, the consumer group, Consumer Watchdog, sent a letter to Attorney General Kamala Harris accusing Google of violating California’s Online Privacy Protection Act (“OPPA”). According to the group, the Google privacy policy is in violation of OPPA because Google does not directly link to it on its homepage.

The OPPA, codified at Business and Professions Code § 22575-22579, became effective on July 1, 2004. It applies to commercial websites that collect “personally identifiable information,” which includes users’ names, physical addresses, email addresses, telephone numbers, social security numbers, or any other relevant information that can be used to identify users. OPPA requires such websites to “conspicuously post” their privacy policies.

Under Section 22577(b) “conspicuously post,” requires the site to provide a link to the policy “on the homepage or the first significant page after entering the Web site.” The link must contain the word “privacy” and must be displayed in a manner that would be obvious to the “reasonable person.”

In 2004, law firm Cooley Godward Kronish said the bill required the policy to appear either on the homepage itself, or on a page linked to directly from the home page. That same year, the California Office of Privacy Protection (“COPP”) issued a best practices guide, recommending that companies “use a conspicuous link on your home page containing the word ‘privacy,’” in “larger type than the surrounding text, contrasting color, or symbols that call attention to it.”

Until recently, Google had a link on its homepage directing users to a page displaying the company’s privacy policy. Now, users are taken to a page that describes how Google helps them “stay safe and secure online,” ensuring users that Google “work[s] continuously to ensure strong security, protect your privacy, and make Google even more useful and efficient for you.”

According to Consumer Watchdog, this misrepresents the motivation for Google’s data collection, which enables the company to generate higher revenues from advertising sales. The group accuses Google of “burying its privacy policy and offering distractions to users.”

This is not the first time Google has faced scrutiny regarding its privacy policy. On May 30, 2008, New York Times journalist Saul Hansell posted a blog entry titled, “Is Google Violating a California Privacy Law,” suggesting that the company had violated OPPA by doing essentially the same thing. At the time, users accessed the policy by clicking a link called “About Google,” after which they had to click a second link to access the actual policy.

On June 3, 2008, a coalition of privacy groups, including the ACLU, the Center for Digital Democracy, and the Electronic Frontier Foundation, sent a letter to Google CEO Eric Schmidt urging the company to comply with the OPPA. On June 10, 2008, Assembly member Joel Anderson sent a letter to Schmidt expressing the same sentiment. Within days, Google added a hyperlink labeled, “Privacy,” linking users directly to the policy.

In 2012, the Department of Justice took over the work of the California Office for Privacy Protection, creating a new Office of Privacy Protection within the State Attorney General’s office. The new lineup includes Joanne McNabb, former chief of the COPP, as the Director of Privacy Education and Policy. The new division resides within the State’s eCrime unit.

According to Special Assistant Attorney General Travis LeBlanc, head of the new division, it will take proactive step in monitoring and regulating compliance with OPPA. The California Constitution guarantees the Right of Privacy in Article 1, Section 1, which says:

“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

It remains to be seen what actions privacy groups and the state Attorney General will take.

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A bill recently filed in California aims to close a loophole in state law that allows health insurers to give a financial kickback to pharmacists every time they decide to give customers cheaper, poorer quality drugs that are not chemically equivalent to those prescribed by the customer’s doctor.

AB 670, filed by California Assemblymember Toni Atkins, would “prohibit a pharmacist or pharmacy employer from receiving any payment or other compensation, in the form of money or otherwise to specifically recommend or replace a patient’s originally prescribed drug product with a drug product that does not have the same active ingredient as the originally prescribed drug product, unless the recommendation or replacement is the result of, and the payment is included in the reimbursement for, the pharmacist performing a comprehensive medication review, as specified.”

Unlike switching patients to chemically identical — and cheaper — generic drugs, the practice known as “therapeutic substitution” subjects patients to drugs with different ingredients, dosages, release mechanisms, side effects and compilations, often without patient or physician knowledge.

Doctor Samuel I. Fink, president of the Los Angeles County Medical Association, explains why therapeutic substitution is a dangerous practice with potentially grave consequences:

“Patient health often suffers when they are switched to therapeutically different medications. Although the medicines may treat the same conditions, the chemical ingredients are not the same. This often results in side effects or ineffective treatment. Patients who are stabilized on medications to treat epilepsy or mental health are particularly vulnerable.”

Current California law prohibits doctors from receiving financial benefits from insurers for prescribing specific drugs, but there are many instances in which a prescribing doctor will take advice from pharmacists on alternative medications.

A pharmacist may recognize potentially dangerous interactions with other prescribed medications or may realize the patient’s health plan doesn’t cover the medications prescribed by the physician.

Because of these legitimate reasons a pharmacist may have to switch medications, physicians are often left wondering if the switch is being done because it’s truly best for the patient, or if it’s due to the pharmacist potentially receiving kickbacks.

“Doctors are not permitted to accept payment to specifically switch their patients’ medications from one drug to another based solely on a financial incentive,” Atkins said. “AB 670 places similar restrictions on pharmacists and will ensure that science and patient well-being are the determining factors when choosing a drug and that consumers are protected.”

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On Monday, the Senate Appropriations Committee will vote on the “California Tobacco Tax Act of 2014,” a bill introduced by Senator Kevin de Leon that would increase taxes on cigarettes to pay for health care programs.

California has the 17th lowest cigarette tax in the country at 87 cents per pack. SB 768 would raise this tax to $2 per packs. The tobacco tax, which would bring in an estimated $1.2 billion in annual revenues, would be used to provide health services for tobacco-related illnesses, anti-smoking education, and smoking cessation programs.

The last time California raised taxes on cigarettes was in 1999 when proposition 99 was passed, which raised the tax by 25 cents.  Last June, proposition 29, which would have raised the tobacco tax by 1$ pack, was narrowly defeated as 50.3 percent of California voters rejected it.

Senator de Leon believes California taxpayers should not be responsible for the health care costs associated with the tobacco-related illnesses, which are estimated at $3.1 billion a year. The bill has received the support of the American Cancer Society, the American Lung Association the American Heart Association and other health related organizations.

However, the bill has also received its share of critics. Cigarette taxes are opposed because they are regressive and adversely affect low-income earners. A 2012 study by RTI International shows that in the state of New York, which has the highest cigarette tax at $4.35 per pack, low-income smokers spend nearly a quarter of their income on cigarettes. Nationally, low-income earners spend approximately 14 percent of their incomes on smoking.

Critics are also concerned that the tax increase would encourage people to turn to black market cigarettes. Considering California’s proximity with Mexico, this could lead to an increase in smuggling activities and the issues that come with them.

Creating a new tax on cigarettes would also go against the pledge made by Governor Brown following the passage of Proposition 30 not to sign new taxes without a vote from the people. Despite the fact that tax would only affect smokers, it would follow the governor’s announcement of the first state surplus in years and would be seen as an attempt by the Democratic supermajority to ask for even more money.

Since its introduction, SB 768 has been on a fast track and has already been approved by the Senate Governance and Finance Committee and the Senate Health Committee. If approved on Monday by the Senate Appropriations Committee, the bill will make a major step toward becoming law.

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(Credit: Kwame Raoul Twitter page)

With a deadline approaching in the Illinois concealed carry debate, legislation was introduced in the State Senate late last week. However, each side in the gun debate continues to show signs of intransigence.

Sponsored by Sen. Kwame Raoul, a Chicago Democrat, a vote was expected on Friday, but was delayed. A vote could come on Monday.

Raoul’s legislation would give Chicago police the authority to award permits with the Illinois State Police making the judgments everywhere else. It is an attempt to harmonize the disparate gun factions within the state.

Sen. Dan Kotowski, another Chicago Democrat, also introduced legislation to ban the sale of magazines able to fire more than ten rounds. Governor Pat Quinn has long sought an assault weapons ban, but so far the ban on high-capacity magazines is the only such ban to emerge.

Rep. Brandon Phelps, the Democrat who introduced a previously-defeated “may issue” bill, says Raoul’s bill will never pass the House.

On Monday, the Senate is also expected to hear testimony from parents of victims from the Newtown, Connecticut shooting late last year. Senate President John Cullerton said:

“I want these three parents [to] come down to Springfield, Illinois, and I want them to make some of the senators very uncomfortable and that’s what’s going to make a difference.”

Meanwhile, Springfield Alderman Tim Griffin is encouraging home-rule legislation in communities of 25,000 or more. In Griffin’s proposal, out-of-state permits would be recognized in Springfield. Also, any business can opt out of allowing concealed weapons by registering online and displaying a sign outside the business specifying it.

The biggest objection to home-rule proposals is that they do not provide uniform regulations, thus creating a question about what happens when a concealed carry user crosses into another jurisdiction. Home-rule legislation would be regulations in addition to any that get passed in Springfield. They can also, theoretically, be more restrictive.

Phelps, who said his previously-defeated “may issue” law would have been the country’s most restrictive, opposes this avenue:

“There should be one, uniform law statewide . . . because if you allow municipalities and counties to do their own ordinances, from town to town to town, that law-abiding gun owner is not going to know between one town and another.”

Last December, a U.S. Federal Appeals Court ruled the concealed carry ban in Illinois was unconstitutional and gave the state six months to pass legislation regulating it.

The legislative session is scheduled to adjourn on May 31. If no legislation enacting regulations on Illinois concealed carry is reached by June 9, uninhibited concealed carry becomes reality in the state.

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Rick Perry during State of State address / Austin American-Statesman

On Friday, members of the Texas Legislature agreed to a deal on the Texas State Budget that includes more money for public schools in exchange for $1 billion in tax cuts and fee rebates. The agreement comes after a tumultuous round of negotiations that was nearly derailed Wednesday after Senate leaders held out for $300 million more for higher education, while House leaders sought more spending on public schools.

“This is a very good budget, and I don’t know how many member of the House or Senate could vote against this budget,” said Senate Finance Committee Chairman Tommy Williams to the Austin American-Statesman.

Previously, the Senate passed Senate Bill 1, a bill that would increase school funding, while the House passed House Bill 1025, a bill that would provide $200 million in education money and $2 billion for a new water fund.

On Thursday, Lieutenant Governor David Dewhurst claimed that a deal had been reached between the House and Senate. However, House Democrats, who are needed by the GOP to surpass the 100 vote threshold to pass the portion of the House bill that provides for the water fund, had not agreed to the Senate’s package and spent much of Friday discussing whether or not they would join in agreement.

Democrats ultimately got a $3.9 billion education package. The package includes $3.4 billion for public school and additional money for teacher pensions and other education programs.

“While it doesn’t restore the $5.4 billion in education cuts, it puts back $3.93 billion that was taken away, and you cannot let the perfect be the enemy of the good,” said Representative Trey Martinez Fischer.

However, the Democrats had to concede $631 million in utility fee rebates, which comes from a fund that helps low-income Texans pay their electrical bill, and a few million dollars in business tax cuts to be used for $1 billion in tax relief.

A minor issue that is still being discussed includes the amount necessary to take out of the $12 billion rainy day fund. Senator Tommy Williams claimed he would continue to fight to remove $2.9 billion dollars from the rainy day fund in order to pay off highway construction debt.

“I haven’t given up,” he said. “Texas is the fastest-growing state in the country, and we clearly have a shortfall in our highway funding. It’s undisputed that that’s the case.”

The bill will face a final vote in both chamber in approximately a week from now. If Governor Rick Perry signs the budget — as he is expected to — it will go into effect immediately.

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Credit: Level 3 Communications

Last week, the FCC again denied a request by wired telephone companies to shut down their networks. This request comes as more Americans are moving away from switched (wired) network telephone lines in favor of the integrated broadband from cable, fiber, and mobile providers. Many are also switching to programs such as Skype as well.

In fact, according to a National Health and Statistics report by the Center for Disease Control, in 2011, fewer than half of all American homes still had wired phone service. That number could drop to 25 percent in 2015, according to a statement by Hank Hultquist, vice president for Federal Regulatory Affairs at AT&T.

The FCC released a public notice late last year that explains its position on these wired networks. In the notice, the FCC touts the benefits of switching from wired phone lines. However, the commission is also trying to be cautious in its efforts, so that groups are not left in the dark.

Most notably, the FCC is looking to initiate “trials” by switching off the wired telephone service of entire geographic regions in favor of the other alternatives, such as voice over IP (VoIP). The delay comes from the FCC attempting to receive comments and recommendations from not just service providers, but the customers these trials would be affecting:

“At least one provider has proposed serving consumers with wireless service in place of wireline service in certain geographic areas,” The FCC said in their public notice. “We seek comment on a trial that would analyze the impact of doing so and, in particular, focus on the consumer experience and ensure that consumers have the ability to move back to a wireline product during the trial.”

Some aren’t buying this explanation by the FCC. Fred Campbell, former bureau chief at the FCC, said he thinks the steps the FCC are taking are inadequate and fail to address the proper issues:

“The proposed trials wouldn’t address the full range of issues raised by the IP transition. As proposed, the trials would address three limited issues: VoIP interconnection, next-generation 911, and wireless substitution,” Campbell said in his blog. “Though these issues are important, the FCC proposals omit the most important issue of all – the transition of the wireline network infrastructure itself.”

Not only is the FCC dragging its feet, it is also costing phone companies billions of dollars. According to a report by Bernstein Research, titled “The State of the Net: 2012,” return on investment (ROI) for wireline services has been on the decline for over a decade. In 2000, wireline service providers saw about a 12 percent ROI. In 2010, of the two companies still providing wireline service — AT&T and Verizon — AT&T saw a 7.2 percent ROI, while Verizon saw a mere 1.6 percent ROI.

The FCC has an unfortunate track record of delaying transitions from the old to the new. In 2009, the FCC continually delayed the switching of television from analog to digital.

As a result, viewership began sharply declining and today, according to Neilson surveys, fewer than 10 percent of Americans watch television on over-the-air signals. This crippled just about every industry invested in over-the-air television, particularly advertisers, to the point where over-the-air television is all, but completely obsolete.

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