Friday, October 18, 2013

Senate Women Win for All Citizens

11 Things You Don’t Know About The Senate Sisterhood

And other stuff I learned reporting the Senate women’s story
I have a story in this week’s magazine about the 20 Senate women and their growing—and positive—influence on the Upper Chamber. You can credit the tight, bipartisan bonds that these women have formed for not only seeding the compromise that reopened the government, but the vast majority of the legislation passed this session.

Senate Appropriations Committee Chair Mikulski pushed through a government funding bill in January that avoided both a government shutdown and a default on U.S. debt; Budget Committee Chair Patty Murray passed the first Democratic budget in four years; Environment and Public Works Committee Chair Barbara Boxer saw through a $105 billion transportation bill and a $12.5 billion water resources bill; Agriculture Committee Chair Debbie Stabenow got the  $955 billion farm bill passed; and all 20 women banded together to see the Violence Against Women Act signed into law. Except for immigration reform, every major bill passed this session has been authored by a woman.

I spent nearly six months reporting this story, interviewing 14 of the senators, some of them multiple times, as well as all 20 of the women’s staffs. So, of course, much of my reporting didn’t make it into the story. Here are 10 things—facts, anecdotes, stories—that didn’t make it into the print piece.

1) Women did not begin to maintain a multiple presence in the Senate until 1992. Most of the women elected that cycle—Democrats Patty Murray of Washington, Illinois’ Carol Mosley Braun and Californians Dianne Feinstein and Barbara Boxer— ran to change Congress after watching male senators beat up on Anita Hill during Supreme Court Justice Clarence Thomas’s confirmation hearings.

2) Until 1992 almost all the women elected to the Senate were filling seats for a relation. But in the last 20 years, more and more women are getting elected in their own right. These days Alaska’s Lisa Murkowski, a Republican, is the only woman who filled a seat for a family member—her father, long time Alaska senator Frank Murkowski. Of course, that doesn’t count members of political dynasties like Mary Landrieu, a Louisiana Democrat, and Hillary Clinton, who represented New York, who may not have had direct relatives serve in the Senate, but they did get a boost from their families.

3) Democrats have a natural advantage with women, a fact which Republicans are working to change. Emily’s List was started in 1986 to help elect Democratic women after Democratic men refused to give “Give ‘Em Hell” Harriet Woods money for her senatorial campaign in Missouri. She lost by 2% of the vote. Democrats have funded a lot of Mikulski’s so-called “macaroni and cheese” issues from breast cancer and other women’s health research to head start, Planned Parenthood, school lunches, maternity leave, equal pay for women, etc. Abortion is also a big issue for Democrats. It puts Republicans in a tough spot—half of the four GOP women in the Senate are pro-choice. So, for example, a Republican woman has never served on the Senate Judiciary Committee because most of the judicial confirmations revolve around abortion and the other issues are mostly hyper-partisan, whereas women generally seek to have less strident personas. Republicans have been slower to focus on electing women but congressional GOP groups this year announced a push to recruit women in 2014. Of the 20 Senate women, four are Republican.

4) Women may look sweet, but don’t assume they don’t know anything about guns and violence. The Senate was debating a ban on assault weapons a few years back and Feinstein was speaking on the floor. Former Idaho Senator Larry Craig interrupted her and patronizingly offered to tutor her about guns. Feinstein patiently explained to him that her predecessor as mayor of San Francisco had been assassinated by gun, along with a member of the a Board of Supervisors. Feinstein then offered to instruct Craig on what life in an inner city is like with guns.

5) They are pretty good camel traders. When Democrats were having trouble getting a Washington building named after former President Bill Clinton, Boxer took the lead. She offered Republicans a trade: naming a courthouse in Midland, TX for George H. W. Bush and George W. Bush. A few other members asked for small items and suddenly they had a deal. Clinton called Boxer up incredulous, “You have to tell me how you did it.”

6) Women believe in the power of food. Almost all of the chairs and ranking members have regular meals with their top counterparts. Barbara Boxer goes so far as to spend her own money catering mark ups and hearings for the staffs on both sides of the aisle. When a big bill passes, she springs for lobster rolls. “Food was an important part of my upbringing,” Boxer says. “I try to take particular staff out on both sides of the aisle.”

7)   Women have an outsized influence. According to Michele Swers, author of Women in the Club, Gender and Policy Making in the Senate, 30% of legislation between 2000-2004 was on so-called “macaroni and cheese” issues, showing that women—who only made up 9% of the chamber at the time—were batting well above average.

8) They don’t go for the kill, especially amongst themselves. The 20 Senate women gathered in the U.S. Capitol’s ceremonial Appropriations Committee hearing room in June at a deadlock over the problem of sexual assault in the military. Missouri Democrat Claire McCaskill made an impassioned plea for her amendment that would leave dealing with such incidents within the chain of command. It fell flat, with 16 of the 20 supporting New York Democrat Kirsten Gillibrand’s competing bill, which would refer sexual assault cases to outside lawyers. Suddenly McCaskill’s long career championing of victims of sexual assault was being called into question by people she had expected to back her. But the next thing that happened was even more remarkable. The women all agreed that they would not air their differences in public, but rather emphasize the fact that the bills are 95% identical and that whichever one passes, it would represent the most significant overhaul of the issue in Congressional history. And this was the message that all 20 women stuck to in events at home or traveling abroad for the entire five-week summer recess. “There’s a list of 12 major reforms,” McCaskill said in an August interview. “Eleven of those, Kirsten and I worked on together and they are in the bill. They are huge historic reforms. But all of that work and the nature of that work unfortunately has been overshadowed by one point where we disagree.”

9) They personalize issues in highly effective ways. In Washington Democrat Patty Murray’s first year in office in 1993, the Senate was debating the Family Medical Leave Act. She took to the floor and spoke about how a dear friend’s son’s sickness and death had cost him his job and nearly bankrupted their family. On her way out of the chamber, an older male senator stopped her. “We don’t tell personal stories here,” he admonished. “It’s inappropriate.” Murray replied that she had every intention of talking about personal stories and she felt it was more than appropriate. “Years later he apologized and thanked me,” Murray recalls. “He realized that highlighting the real impact, that that’s how we help people understand what we’re doing.”

10) The club is diverse. Some women are single. Some are childless. Some ran for office when their children were grown. Many are grandmothers. Age is one commonality; life experience is another, as are geography and politics. Murkowski and Hawaii Democrat Mazie Hirono have bonded over the special needs of representing non-contiguous states. And it doesn’t hurt that Murkowski’s mother-in-law lives in Maui. Democrats Tammy Baldwin of Wisconsin, the first openly gay senator, and Heitkamp hail from the same region and were brought together traveling the country in 2012, when they were both elected, as part of a Democratic push to showcase female candidates. Hurricane Katrina veteran Landrieu, who chairs of the Small Business Committee, helped Gillibrand navigate the 9/11 First Responders Fund and Hurricane Sandy relief bills through the Senate. Boxer has taken a special interest in Massachusetts Democrat Elizabeth Warren—both are liberal firebrands.

11) Almost every woman elected to the Senate has stories of sexism. Three months after taking office in 2007, when the number of female senators rose from 14 to 16, Klobuchar was on a Senators only elevator. The doors opened to admit an older male senator, whom she won’t name. He looked at her and barked: “This elevator is for Senators only!” Her staffer replied, “She is a Senator.” The man went bright red, and stepped back. As the doors closed without him, Klobuchar sweetly quipped, “And who are you?” On McCaskill’s first day, she was stopped by a Senate chamber doormen. Assuming she was staff, he told there’d be no floor passes that day. “I said, ‘I think I earned my floor pass,’” McCaskill recalls. “He was mortified.” During Ayotte’s first week as the only woman elected in 2010, she was in the Capitol with Florida Republican Marco Rubio. An orientation aide approached and reminded Rubio that he needed to get an ID, as did his wife, the staffer said, gesturing to Ayotte. “I think Marco was more embarrassed than I was,” Ayotte laughs.


TPP Trade Deals Allow Corps to Cancel US Law

Corporations Now Using Foreign Tribunals to Attack Domestic Court Rulings

Should an international tribunal of three private attorneys, sitting outside of any domestic legal system, have the power to overrule domestic courts?
That’s the question addressed in the recent analysis, “Investment Agreements versus the Rule of Law?,” published on UNCTAD’s Investment Policy Hub by Todd Tucker, Gates Scholar at the University of Cambridge’s Centre of Development Studies.  The piece highlights the little-known but creeping practice of corporations asking foreign tribunals to second-guess domestic court decisions not in their favor and to order taxpayer payment as compensation. 
These tribunals are the product of the “investor-state” system, a little-known creation of “trade” and investment deals that empowers foreign corporations to skirt domestic courts and directly challenge governments before extrajudicial tribunals for policies and decisions that they claim as undermining “future expected profits.”  Under this extreme system, foreign corporations have challenged toxics bans, land-use rules, regulatory permits, water and timber policies, medicine patent policies, pollution clean ups, climate and energy laws, and other public interest polices. 
As if undermining a government’s public interest laws and regulations was not enough, foreign investors are increasingly using the investor-state system to challenge court judgments, undermining the principles of legal certainty, state sovereignty, and rule of law more generally.  While domestic courts often employ safeguards, such as the principle of judicial review, judicial independence and transparency in their decision-making, these safeguards are notably absent in investor-state arbitrations, where lawyers who represent the investors take turns as ostensibly “impartial” arbitrators, interpretations of international law are regularly inconsistent and erroneous, and decisions often cannot be appealed.
In his compelling piece, Mr. Tucker cites examples from three investor-state case decisions issued in the last several years, Mr. Franck Charles Arif v. Republic of Moldova and two iterations of Chevron v. Ecuador, in which the tribunals found Moldova’s and Ecuador’s domestic court decisions to be in violation of these countries’ obligations to foreign investors under Bilateral Investment Treaties (BITs).
In the Moldovan case, Moldovan airport officials gave Franck Arif, a French national, an exclusive concession to operate tax-free shops at an airport.  When his competitors challenged this in court, Moldovan courts found that the non-competitive concession was illegal.  In response, Franck Arif launched an investor-state case against Moldova under the France-Moldova BIT, arguing that the courts’ ruling violated the “fair and equitable treatment” provision in the BIT – the vague obligation that inventive tribunals have interpreted as corporations’ “right” to a legal framework that conforms to their “expectations.” The tribunal first conceded that the Moldovan courts had “…applied Moldovan law legitimately and in good faith in the proceedings commenced by Claimant’s competitors.” Nevertheless, the tribunal still decided that the Moldovan courts’ rulings conflicted with the airport officials’ granting of the non-competitive concession, and therefore constituted a violation of the vague “fair and equitable treatment” obligation as a “breach” of Mr. Arif’s “expectations.”
In one of the Chevron v. Ecuador cases, a three-person tribunal last year ordered Ecuador’s government to interfere in the operations of its independent court system on behalf of Chevron by suspending enforcement of a historic $18 billion judgment against the oil corporation for mass contamination of the Amazonian rain forest.  The ruling against Chevron, rendered by Ecuador’s courts, was the result of 18 years of litigation in both the U.S. and Ecuadorian legal systems.  Ecuador had explained to the panel that compliance with any order to suspend enforcement of the ruling would violate the separation of powers enshrined in the country’s Constitution – as in the United States, Ecuador’s executive branch is constitutionally prohibited from interfering with the independent judiciary.  Undeterred, the tribunal proceeded to order Ecuador “to take all measures at its disposal to suspend or cause to be suspended the enforcement or recognition within and without Ecuador of any judgment [against Chevron].”
This dangerous trend of private three-person tribunals assuming the authority to contravene domestic court decisions at the behest of multinational corporations should raise the ire of those who support the independence of courts, the sovereignty of nations, the rule of law, or even the core democratic notion that a system of legal decision-making should be accountable to those who will live with the decisions.  Now the Trans-Atlantic Free Trade Agreement (TAFTA) and the Trans-Pacific Partnership (TPP) threaten to expand the investor-state system across two oceans, subjecting domestic court decisions to a new wave of second-guessing by unaccountable tribunals.  Now is the time to halt the advance of this extreme system – to restore the authority of our courts and the principles of our democracy.