Donald Trump, Clinton, Walker, Bush, election 2016

Donald Trump and Everything You Missed in the Weekend of Politics

Family, work, friends, fantasy football..I mean, who has the time to keep up with all the political happenings? Who would blame you for prioritizing your family with the election more than 400 days away? Lucky for you, dear reader, I quit fantasy football years ago, so I was able to allocate the time usually applied in mock drafts to keep tabs on the presidential, political goings-on. Did something happen over the weekend that you will forever regret not witnessing in real time??

Of course not. The election is more than a year away. But a few noteworthy1)by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation events took place. And because we love our readers, we aggregated all the info you need (and perhaps a little extra).

 

Donald Trump shows Charlie Sheen what “Winning” really means

The2)The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1 candidates attended the Iowa State Fair this past weekend; a fun event where technocrats pretend they understand regular folks by trying to eat fried food without grimacing3)The fair seriously is a whole lot of fun, highly recommended, especially in campaign season. With a quick perusal of the news from the weekend, you will find photos of Gov. Bush, Sec. Clinton, and Donald Trump eating a pork chop on a stick. In a normal election cycle, the story would be about Gov. Walker being interrupted by union protesters as he attempted to answer questions from his soapbox, as opposed to this peculiar explanation of his hair line:

 

Per usual, Mr. Trump has no interest in ceding any free media to his fellow candiddates, so he brought his helicopter and offered free rides from the state fair parking lot to interested children.

 

To ensure that no other candidate would pick up any media coverage this weekend, Mr. Trump joined his press equivalent4)please draw what conclusions you like on Meet the Press, and it was as fabulous5)if you write politics for a living/horrible6)if you care for America’s image at home and abroad as you are assuming it was.  Luckily, Chris Cillizza7)Read the piece here, it is pretty great. (of The Fix. Follow him on Twitter at @thefix) annotated the Donald Trump/Chuck Todd conversation from Meet the Press. The written transcript is as great as the video footage. Please allow me excerpt two of my favorite exchanges. Don’t worry, the context is irrelevant.

 

CHUCK TODD:
We do have a running theme here. You believe the U.S. should– you’re okay with the U.S. being the world’s police–

DONALD TRUMP:
We should at least–

(OVERTALK)

DONALD TRUMP:
–be reimbursed–

CHUCK TODD:
–if we get paid–

DONALD TRUMP:
–by these extremely wealthy countries, yes–

CHUCK TODD:
So essentially you want–

DONALD TRUMP:
Chuck, we–

(OVERTALK)

CHUCK TODD:
It turns our–

DONALD TRUMP:
We have–

CHUCK TODD:
–military into a mercenary force.

 

Oh yes, it happened again.

 

CHUCK TODD:
I understand that. But–

DONALD TRUMP:
They moved to–

CHUCK TODD:
–Mexico–

DONALD TRUMP:
–Mexico–

CHUCK TODD:
They’re not doing–

DONALD TRUMP:
I don’t care how they’re–

CHUCK TODD:
–better.

DONALD TRUMP:
I don’t care how they’re doing as a country–

CHUCK TODD:
They’re doing worse.

DONALD TRUMP:
I’m just saying they’re killing us. Because everybody’s moving into Mexico.

CHUCK TODD:
There are people that argue NAFTA was terrible for them.

DONALD TRUMP:
Mexico is doing an unbelievable job. Mexico is taking our business. Mexico is the new China, okay? Look at the–

CHUCK TODD:
Where is the evidence of this?

DONALD TRUMP:
It’s all over the place. Chuck–

CHUCK TODD:
Their GDP is smaller–

DONALD TRUMP:
Chuck.

CHUCK TODD:
This is–

DONALD TRUMP:
They’re moving companies–

CHUCK TODD:
The peso, it is–

DONALD TRUMP:
That is true–

CHUCK TODD:
–worth less today. I mean–

DONALD TRUMP:
And you know what?

CHUCK TODD:
That’s not the sign of–

DONALD TRUMP:
And, Chuck–

CHUCK TODD:
–a strong economy.

 

So8)there is not anything I can add to the above exchanges. They are perfect, as is. you probably heard that Megyn Kelly took a previously unannounced, 2 week respite from her nightly show, upon a secret conversation between Mr. Trump and Mr. Ailes9)who runs the Fox News. Given all this negative media attention, particularly since the debate, you would think Mr. Trump’s poll numbers would be deflated?

Guess again.

Mr. Trump is blowing out the competition. At some point, we will need to try to figure out how/why this is happening. Fellow billionaire/egomaniac10)I say that with peace and love Mark Cuban stated why he feels, not only why Mr. Trump is doing so well, but why Mr. Trump is “probably the best thing to happen in politics in a long long time.”

“I don’t care what his actual positions are,” Cuban wrote. “I don’t care if he says the wrong thing. He says what’s on his mind. He gives honest answers rather than prepared answers. This is more important than anything any candidate has done in years.”

Indeed, the outspoken investor said Trump “changed the game.”

“Up until Trump announced his candidacy the conventional wisdom was that you had to be a professional politician in order to run,” Cuban continued. “You had to have a background that was politically scrubbed. In other words, smart people who didn’t live perfect lives could never run. Smart people who didn’t want their families put under the media spotlight wouldn’t run. The Donald is changing all of that. He has changed the game and for that he deserves a lot of credit.”11)source.

 

Please read that first sentence again. Has this always been true of voters? Or has something happened in our politics where a strong plurality of voters care less for political positions than supposed authenticity? We will need to put a pin in that inquiry for now.

Of course, New York City summoned Mr. Trump for jury duty today. He, obviously, did not want to take attention away from the judicial process, so he arrived early, entering quietly through a side entrance. Oh wait, that would be absurd.

https://twitter.com/ABCPolitics/status/633305371520724993/photo/1

 

Wait, are you saying we have two political parties??

As much as the lamestream media would like to pretend, the winner of the Republican nomination will not be automatically anointed President. S/he will have to run a general election campaign against the Democratic nominee12)from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views..

In the backdrop of Gov. Jeb13)Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates! Bush’s visit to North Las Vegas last week in which “Black Lives Matter” protesters interrupted the end of his presentation, Secretary Clinton will be in North Las Vegas tomorrow (around noon). Will she be interrupted as well? Sen. Booker was in Las Vegas yesterday as a surrogate speaker for Secretary Clinton. At the event, he addressed the concerns of a few questioners regarding institutional racism, but will that be sufficient? The event opened with an one-act play, so clearly, we all missed out. Read more about it here.

The AFL-CIO hosts their convention from the Luxor/Excalibur Tuesday and Wednesday. Secretary Clinton, Gov. O’Malley, and Sen. Sanders are scheduled to speak tomorrow, Tuesday. The event is less likely to be interrupted by protesters, as not even media members are permitted to attend14)Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear.

For some reason, the only lamestream press Sen. Sanders receives regards the couple of instances his events have been interrupted by “Black Lives Matter” protesters15)asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else. Charles Blow wrote a nice analysis of awkwardness between Bernie supporters and the “Black Lives Matter” folks, if you desire some well-thought-out concepts on the issues, as opposed to the usual name-calling on the twitter. Also, in case you were worried, Sen. Sanders knows all about #BernieSoBlack

 

Before we go, a little political humor from Dana Gould16)Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!

Footnotes   [ + ]

1. by noteworthy, I mean campaign fodder that could help you look clever in your next politico-water cooler conversation
2. The Clear Counsel Law Blog remains your go-to source for dated pop-culture references…well second to the VH1
3. The fair seriously is a whole lot of fun, highly recommended, especially in campaign season
4. please draw what conclusions you like
5. if you write politics for a living
6. if you care for America’s image at home and abroad
7. Read the piece here, it is pretty great.
8. there is not anything I can add to the above exchanges. They are perfect, as is.
9. who runs the Fox News
10. I say that with peace and love
11. source
12. from their stances of ‘deport all immigrants, including all children, relatives, and attenuated friends’ to promulgating that ‘vaccines cause autism’ to ‘abortion is unacceptable, even to for a 10 year old girl that was raped,’ I am not convinced the republican candidates are aware that their primary is not the final round of voting. By the way, I only made up one of those three positions. Not that I particularly care about their policy stances, but one must assume that the political machine that turned Mitt Romney into Gordon Gecko last election cycle will have a field day with these less-than-mainstream political views.
13. Did you know that JEB is an acronym for John Ellis Bush?!? How did I just learn of this? He is the ATM Machine of presidential candidates!
14. Obviously, so that they can plan their Fall affront to everything Sean Hannity finds dear
15. asking my writer brothers and sisters to investigate why Sen. Sanders, as an independent-socialist, draws 10X (at least) the number of voters at his rallies, relative to anyone else running for president, must be too much to ask. Maybe these folks were duped into thinking there was going to be a flash-drum circle? There is no way to tell until someone actually asks the people why they arrive to see Sen. Sanders and no one else.
16. Hey, not a lot of Harvard Law grads look like a character from The Munsters; Sen. Cruz should be proud!
Trump debate, republican presidential debate, fox news

Mr. Trump Goes to Washington?

***Disclaimer: Clear Counsel Law Group has not endorsed a candidate for President from any political party. Although we reserve the right to do so, we cover politics on the legal blog because we believe political participation is an essential element of a healthy democracy. God Bless America.***

 

“Never pick a fight with people who buy ink by the barrel.” –Mark Twain

Given how high the ratings were for last night’s debate1)According to Ben Jacobs of The Guardian, the debate ratings were higher than any Sunday Night Football game last season, it is very possible you, as well, sat through the two hour spectacle. Boy did it not fail to deliver in terms of entertainment value! A couple of non-Trump highlights before we attempt to unpack what is happening today.

 

The non-Trump participants

Mr. Christie vs. Mr. Paul: There has been some chatter2)Source Check out that last paragraph, hat tip to David Sirota as to when Mr. Christie actually started working as an U.S. Attorney3)Why let the facts get in the way for a good campaign anecdote?.

That got a bit contentious, eh? Mr. Paul should watch some old tape of his father debating from the past two Presiential election cycles. Ron Paul, while expressing views not in the Republican mainstream4)isolationist foreign policy/auditing the federal reserve, etc. he did so with a affable tone that did not turn people off, as if he was aware that most people watching did not agree with stances but that was still ok5)Mr. Saunders running in the Democratic primary is similar.

Mr. Paul needs to be more clear/careful when he says he is a “different kind of Republian.” That statement implies 1)There is something wrong with Republicans yet 2) Does not sufficiently clarify what he means. The snarky twitter folks last night mocked him ceaselessly for citing that he has been to Chicago/Detroit/Ferguson. What did he do while he was there? Anything of note?

Mr. Rubio: The consenus winner from the talking-heads. If you recall that silly moment he had during the Response to the State-of-the-Union6)with the water bottle. No link, sorry, it is time for all of us to let that go a few years ago, you could not come away as anything but impressed by the hard work he has clearly put in. This field is similar to the Democrat field in 2008 with a deep bench of quality candidates. One wonders if Mr. Rubio will play the part of Mr. Obama as the first term senator, more than a decade younger than most of the field, not willing to ‘wait his turn’ so to speak. He has made significant inroads with the non-Rand Paul-supporting Republicans in Nevada. If he is organizing with the same vigor in Iowa, New Hampshire, South Carolina he will have a real good shot at this thing.

Mr. Kasich: Now that is how you use a homefield advantage7)The debate took place in Clevlend, OH. Mr. Kasich is currently serving his second term as governor of Ohio! The crowd loved him as much as they disliked Mr. Trump. His brand of egalitarian Christianity played well on television; he is one of the few who remembers the type of compassionate conservatism that helped President Bush win two terms. When prompted to comment on Mr. Trump, he demonstrated to the rest of the field how to take the question with grace, a la “Mr. Trump has tapped into the frustration of voters.” He showed himself to be a serious contender; now the question remains if he can overcome his associations with the aspects of President Bush’s administration that people dislike. One could contend that he is more intertwined with President Bush than Jeb.

Mr. Huckabee: “The purpose of the military is to kill people and break things.” OOhhh. I am glad that is finally resolved. Somebody call Paul Bremer!

Mr. Carson: Still seems uncomfortable discussing foreign policy, a great finish though with his last two answers. You can see why he has polled well so far.

Mr. Walker: It is a bit surprising to see him at the bottom of post-debate polls, as he did not commit any gaffes. But in this post-Trump era of politics, playing it safe may not be good enough anymore.

Mr. Bush: It has been quite a while since he has been on stage in a debate setting, and he showed a little rust. Similar to when President Obama was in the primiaries in 2008, Mr. Bush struggled to put his views into a clean, easily-digestible soundbites. It might be time to use all the money he has acquired through fundraising for a large television ad-buy. He will want to prevent Mr. Kasich from gaining serious momentum from this debate, as they are chasing the same type of republican voter.

Mr. Cruz: He was clearly the most comfortable of the bunch on that stage. The post-debate polls have shown that the people liked his performance; speaking in a slow, clear way certainly helped. If Mr. Bush and Mr. Kasich are chasing one type of republican voter, Mr. Cruz and Mr. Trump are chasing the other. So long as Mr. Trump stays popular, it will be difficult for Mr. Cruz to rise above the pack.

 

Mr. Trump needs his own heading

Here is a little secret about political debates. You can only lose or not lose; there is no winning. Everyone watches in the modern era for the biggest gafffe, then mocks the poor candidate into political submission. But have we found the first gaffe-proof candidate? Here are a few clips of Mr. Trump from the debate, in case you missed the fun.

 

Wow, right? Mr. Trump, in the spin-room after the debate8)of course he does his own spin-room work attacked the moderators as asking him too tough of questions. However, they were tough on everyone, asking Mr. Bush to comment on his changing views of the Iraq invasion, asking Mr. Walker/Kasich/Christie about their states under-performing economy. It just came off like Mr. Trump is not used to answer argumentative quieries. Yet, if they are going to ask Mr. Bush about common core9)his business venture since leaving office in 2002, then they should have asked Mr. Walker about defeating organized labor, Mr. Paul about civil liberties, Mr. Cruz about cooking bacon with automatic weapons10)I kid Mr. Cruz, but that video was silly, and Mr. Trump about foreign trade. Overall, I thought the debate was moderated as well as it could be, compliments to Ms. Kelly, Mr. Baer and Mr. Wallace.

If you were watching the post-game show on any of the cable news channels, you would think that Mr. Trump’s campaign ended as soon as he finished his closing remarks. The technocrats responded like this:

Mr. Luntz’s focus group, broadcasted on the Fox News soon after the debate ended, was very harsh toward Mr. Trump.

Mr. Cohen, Mr.Trump’s lawyer11)whom you may remember for his interesting definitions of rape from a week ago said:

In the pre-internet era, there would no other conclusion to draw but that Mr. Trump is ruined politically. Yet, the internet remains the true, democratic political force. The people no longer need to talking-heads to speak for them, they go online and speak for themselves. According to the babbling heads on the TV, no matter what channel, the winners of the debate were Mr. Rubio, Mr. Kasich and maybe Mr. Huckabee. Now look at these polls:

Drudge Poll

Time Poll

Poll from The Right Scoop

Palm Beach Post Poll

They all look like that! Mr. Trump won by at least 3 touchdowns, mostly certainly, he covered the spread. The television plutocrats may need to take a hard look at themselves; just because they want Mr. Trump to lose, does not mean that he is losing. They are not on the television to tell us who they think should win, but who won! These are different concepts.

 

How is this happening?

I do not know for sure, but I am happy to do a little guessing:

  1. The plutocrats are out of touch with republican primary voters. The party is more broad than the country-club types that watch CNBC religiously. Your salt-of-the-earth primary voter cares less about GDP and national budgets than immigration, guns, abortion, trade etc.. Mr. Trump speaks to these issues with a clarity12)there are many options for the correct word here in a way that is rare in modern American politics.
  2. People like strong leadership. The populace, regardless of party, wants boldness from our leadership. From the looks of the polling, people value strength much more than sensitivity, seemingly to the extent that they do not care how insensitive that boldness is. There is a growing irritation with the voting public over politicians saying things in campaign season, then reneging once they come into office13)if your only goal is to stay in office, this makes plenty of sense. Maybe it is that the republican voters see Mr. Trump as a man of his word.
  3. Expectations of politicans have changed. With the growth of social media, we are all in each other’s business to an extent never-before-seen. We expect everyone, from our celebrities to business people to live their lives publically and transparently. Politican double-speak, aloofness, and detachment may not be viable anymore. People may want their politicans to be as accessible as their reality TV stars.

It is very possible that none of those reasons are why, but we will not know for sure until if/when Mr. Trump drops in the polls.

As it turns out, Mr. Trump has no interest in backing down from the Fox News Machine:

Not that I have a dog in the fight, but Mr. Trump would be advised to adhere by the Mark Twain quote above.

Before we go, for entertainment purposes only, Jimmy Vaccaro (The oddsmaker of Vegas oddsmakers) published odds of winning the republican nomination before the debate:

  • Jeb Bush — 2/1
  • Scott Walker — 3/1
  • John Kasich — 7/1
  • Mike Huckabee — 12/1
  • Marco Rubio — 20/1
  • Chris Christie — 20/1
  • Donald Trump — 20/1
  • Bobby Jindal — 30/1
  • Ben Carson — 30/1
  • Ted Cruz — 30/1
  • Rand Paul — 30/1
  • Lindsey Graham — 50/1
  • Rick Santorum — 50/1
  • Rick Perry — 75/1
  • George Pataki — 100/1
  • Carly Fiorina — 100/1
  • Jim Gilmore — 250/1
  • Mark Everson — 500/1

14)Source: LV Sun . If I was a betting person, I would buy a ticket for Ms. Fiorina at 100/1; talk about a live dog!15)betting term for a underdog with a good chance of winning, calm yourself. She put on a clinic during the first debate, even if she was foiled by Mr. Perry16)I kid Mr. Perry; he did much better than four years ago. Come the next debate, I expect her to give the front-runners all they can handle.

Do you think the debate changed these odds? Leave a comment telling us why. And show your work!

 

In case you were wondering what Ms. Clinton was up to last night..

 

More debate coverage!

Bloomberg News

Yahoo News

Washington Post

The Week

Fox News

The National Journal

Washington Examiner

CNN

The Blaze

Wall St. Journal

Business Insider

Footnotes   [ + ]

1. According to Ben Jacobs of The Guardian, the debate ratings were higher than any Sunday Night Football game last season
2. Source Check out that last paragraph, hat tip to David Sirota
3. Why let the facts get in the way for a good campaign anecdote?
4. isolationist foreign policy/auditing the federal reserve, etc.
5. Mr. Saunders running in the Democratic primary is similar
6. with the water bottle. No link, sorry, it is time for all of us to let that go
7. The debate took place in Clevlend, OH. Mr. Kasich is currently serving his second term as governor of Ohio
8. of course he does his own spin-room work
9. his business venture since leaving office in 2002
10. I kid Mr. Cruz, but that video was silly
11. whom you may remember for his interesting definitions of rape from a week ago
12. there are many options for the correct word here
13. if your only goal is to stay in office, this makes plenty of sense
14. Source: LV Sun 
15. betting term for a underdog with a good chance of winning, calm yourself
16. I kid Mr. Perry; he did much better than four years ago
Nevada corporation, LLC

Converting a Nevada Corporation to an LLC

Earlier this year, Nevada’s Republican-controlled Senate, Republican-controlled Assembly, and Republican Governor passed into law the largest tax increase in Nevada history1)Source. Among many other tax increases, the tax package significantly affects Nevada corporations, while largely leaving other Nevada business types (such as LLCs) alone. Because of the significant financial hit on corporations, many, and possibly most, Nevada corporations should now convert their business entity from a corporation to an LLC. First, we will analyze the cost to do business as a corporation and how the new tax package affects your bottom line. Second, I will provide you with the process to convert a Nevada corporation to an LLC.

 

The New Nevada Corporation Taxes and Fees

All Nevada business entities, whether a corporation or an LLC or a partnership, etc., are required to file an Annual List with the Secretary of State that includes the names and addresses of the entity’s management. The Annual List is due every year on the anniversary of the incorporation or organization of the entity. Failure to file the Annual List will eventually lead to the Secretary of State revoking the entity’s Charter to do business in Nevada. Prior to the new tax package, the filing fee for the Annual List was $125 for all business entities that are NOT for-profit corporations (such as LLCs, partnerships, etc.). For corporations, however, the annual filing fee ranged from as low as $125 to a maximum of $11,125 depending on the value of the total authorized stock of the corporation.

The new tax package increases the Annual List filing fee to a minimum of $150 for all entities, including corporations and LLCs. However, the filing fee for corporations continues to increase, as previously, depending on the value of the stock. Thus, the tax package does not cause a huge change from the previous fee schedule; basically, an increase of $25 across the board on the bottom end.

However, the new tax package really smacks corporations with the filing fee for the Nevada State Business License. In addition to paying the filing fee for the Annual List, all Nevada business entities2)I say all, but really not all entities are implicated. For instance, non-profit corporations are not issued a State Business License and some other types of entities are exempted from the requirement. must also pay for the Nevada State Business License on an annual basis at the same time as the filing of the Annual List. Prior to the tax increase, the fee for the Business License was $200 across the board for all entities. Now, thanks to the tax hike, the filing fee for Nevada corporations was increased to $500. Meanwhile, the filing fee for LLCs (and other entities) remained at $200. The effect of the tax increases to the Annual List and the State Business License filing fees is that a corporation now must pay a minimum of $650 every year to the State of Nevada for the privilege of doing business in Nevada3)This amount does not include local business license fees charged by cities and counties.. Meanwhile, LLCs pay only $350 total every year.

Governor Sandoval’s new tax plan adds two new reasons4)there are many more to why forming an LLC is preferable to a corporation formation:

(1) the Annual List filing fee for corporations increases depending on the value of the stock of the corporation, while the filing fee for an LLC stays the same regardless of the value of the LLC; and (2) a corporation will pay $300 more for its annual State Business License than will an LLC. Over the course of several years, these differences will add up.

 

How to convert a Nevada Corporation to an LLC

As you can see above, converting your Nevada corporation to an LLC makes great business sense given the new law. In order to do so, a corporation must do the following:

First, the board of directors of the corporation must adopt a resolution adopting a plan of conversion and make a recommendation to the corporation’s shareholders to approve the plan of conversion.

Second, the shareholders of the corporation must vote to approve the plan of conversion.

Third, upon approval by the board and shareholders, the corporation files Articles of Conversion with the Nevada Secretary of State.

And Voila! Your Nevada corporation is now an LLC, and you are saving yourself at least $300 (and maybe more) each year in annual filing fees to the State of Nevada5)There is a filing fee of $325 for the Articles of Conversion, but saving one year’s worth of the increased State Business License fee makes this filing fee a wash in a short amount of time..

For nearly all businesses, the Nevada corporation is a dying dinosaur in the world of business entities. An LLC has many advantages over a corporation, while the advantages of a corporation over an LLC are quite few. If you are currently operating your business as corporation, you are not stuck! There is a plan of rescue to convert to an LLC with all of its advantages. Give me a call to talk about adopting a plan of conversion and change your entity to an LLC today.

 

Footnotes   [ + ]

1. Source
2. I say all, but really not all entities are implicated. For instance, non-profit corporations are not issued a State Business License and some other types of entities are exempted from the requirement.
3. This amount does not include local business license fees charged by cities and counties.
4. there are many more
5. There is a filing fee of $325 for the Articles of Conversion, but saving one year’s worth of the increased State Business License fee makes this filing fee a wash in a short amount of time.
gmo produce food america monsanto

The New GMO Law: Is It Constitutional?

The GMO labeling debate has gone national! Those of us that live out west have been hearing these rumblings for years, but since the Congress has taken up the issue, now we may debate it as a country.  It seems no one has a lukewarm opinion of GMOs; people either hate them passionately, or hate the people who hate them1)with an equal amount of passion.

There are currently three states2)Vermont, Connecticut and Maine that have passed laws requiring food companies to note on their label if the food product being sold was produced with a GMO. However, there are 85 more GMO related bills in 29 additional states addressing GMO labeling3)Source. The anti-GMO folks consistently cite poll numbers that say 90% of the public would prefer that food made with a GMO be labeled as such. We cannot count on our friends in the House of Representatives for much, but when a super majority of the populace agree on a matter, they most often will take a strong stand on that issue.

The opposite seems to be occurring with the GMO legislation.  Last week, the House passed the Safe and Accurate Food Labeling Act of 20154)the latest in ironic bill names from the House, the details of which we will go into in a moment.   For now, know that the environmentalist crowd is quite irritated with the bill. Before we take sides, point fingers and do a little name-calling, we will need a little background on what a GMO is and why everyone is so upset.

 

What is a GMO and is it necessary to label them in our food?

A GMO is a “genetically modified organism” which means food that was grown from seeds that are manufactured5)the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes.  Currently, there are only eight GMO products that are permitted to be sold on the U.S. market:

  1. Corn
  2. Soy
  3. Alfalfa
  4. Canola
  5. Cotton
  6. Papaya
  7. Sugar Beets
  8. Zucchini and Yellow Summer Squash6)Source

You may be interested to know that the majority of processed food7)think food you buy in a box is also on this list because most corn syrup is made with GMO corn. Also, the majority of animals that we eat (cows, pigs, chickens) are fed with GMO produce. With that in mind, know that since GMO produce have been on the market since the 1980s. In turn, we all are one big case study of the effects of GMO produce on humans.

I do not have a strong opinion on this issue, one way or the other8)that should sufficiently upset everyone so please do not take the above statement as a GMO endorsement. The Europeans have done hundreds of tests on GMO products for years now and have yet to come back with any conclusive evidence that GMO food products are harmful for humans to consume. This does not mean that GMO foods are not harmful, only that there is no scientific evidence to suggest such. Everyone offended now? Good. Let us take a glance at the bill that passed the House.

 

How does the Safe and Accurate Food Labeling Act of 2015 affect GMO labeling?

The proposed bill states the following:

Section 424. Food derived from new plant varieties

(2)Labeling required

The Secretary may require that the labeling of a food produced from, containing, or consisting of a genetically engineered plant contain a statement to adequately inform consumers of a difference between the food so produced and its comparable food if the Secretary determines that—

(A)there is a material difference in the functional, nutritional, or compositional characteristics, allergenicity, or other attributes between the food so produced and its comparable food; and

(B)the disclosure of such material difference is necessary to protect public health and safety or to prevent the label or labeling of the food so produced from being false or misleading in any particular.

 

As I am sure you can tell, “material difference” is the key term here. Because American scientists have not found a difference in taste, nutritional value, or form of GMO crops, the federal government considers there to be no “material difference” between organic and GMO bread produce.  Until science discovers9)if there is one a “material difference,” Big Food10)tm pending? will not be required to label their GMO grown products.

Section 113. Preemption

Regardless of whether regulations have been promulgated under section 112, beginning on the date of the enactment of this Act, no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce any requirement with respect to the sale or offering for sale in interstate commerce of a genetically engineered plant for use or application in food that is not identical to the requirement of section 461 of the Plant Protection Act (as added by section 111 of this Act).

 

This language, as you will see below, explicitly states how federal and state laws interplay. If the Congress passes a law about a subject matter, then the states are not permitted to pass laws that regulate the legal area in a different manner. This is the Supremacy Clause (of the Constitution) in action.

Section 203. Effective date; preemption

(b)Prohibitions against mandatory labeling of food developed using genetic engineering

(1)In general

Subject to paragraph (2), no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any covered product (as defined in section 291 of the Agricultural Marketing Act of 1946, as added by section 201 of this Act) in interstate commerce, any requirement for the labeling of a covered product indicating the product as having been produced from, containing, or consisting of a genetically engineered plant, including any requirements for claims that a covered product is or contains an ingredient that was produced from, contains, or consists of a genetically engineered plant.(emphasis added)

 

If you have come across the Safe and Accurate Food Labeling Act of 2015 in a press account, this is the section of the law folks are most upset about.11)Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look The text above would make it illegal for the three states that have passed GMO labeling legislation to put it in effect and prevent any other states from taking similar action. Folks on both sides12)once they are finished with the ad hominems think the opposition is violating the Constitution. We will have to dig deeper to find out for sure.

 

There must be a Constitutional violation here somewhere; we may need to round up the usual suspects

Each side in this debate feels the other is violating the constitution. First, our libertarian/state’s rights friends claim that the federal government does not have the constitutional authority to dictate to a state government if it is permitted to require a GMO label on food sold in their state.13)Source.

It is time to get out our pocket Constitutions! To comprehend the constitutionality question, we need to understand the Commerce Clause. I call your attention to Article I, Section 8, Clause 3, which states that the Congress has the power:

“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

I bet you are wondering how broad the term “Commerce” is in that context. If so, you have latched onto one of the most controversial areas of constitutional law. The interpretation continues to develop with the change in norms of each generation of Americans14)good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]

I will avoid a summary of the history of Commerce Clause interpretations15)for the sake of time, space, and your sanity and instead excerpt a summary from Justice Stevens from Gonzalez v. Raich:16)In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.

In assessing the validity of congressional regulation, none of our Commerce Clause cases can be viewed in isolation. As charted in considerable detail in United States v. Lopez, our understanding of the reach of the Commerce Clause, as well as Congress’ assertion of authority thereunder, has evolved over time. The Commerce Clause emerged as the Framers’ response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power under the Articles of Confederation. For the first century of our history, the primary use of the Clause was to preclude the kind of discriminatory state legislation that had once been permissible. Then, in response to rapid industrial development and an increasingly interdependent national economy, Congress “ushered in a new era of federal regulation under the commerce power,” beginning with the enactment of the Interstate Commerce Act in 1887, 24 Stat. 379, and the Sherman Antitrust Act in 1890, 26 Stat. 209, as amended, 15 U. S. C. §2 et seq.

Cases decided during that “new era,” which now spans more than a century, have identified three general categories of regulation in which Congress is authorized to engage under its commerce power. First, Congress can regulate the channels of interstate commerce. Perez v. United States, 402 U. S. 146, 150 (1971). Second, Congress has authority to regulate and protect the instrumentalities of interstate commerce, and persons or things in interstate commerce. Ibid. Third, Congress has the power to regulate activities that substantially affect interstate commerce. Ibid.; NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937). Only the third category is implicated in the case at hand.

Our case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic “class of activities” that have a substantial effect on interstate commerce. See, e.g., Perez, 402 U. S., at 151; Wickard v. Filburn, 317 U. S. 111, 128–129 (1942). As we stated in Wickard, “even if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce.”17) 545 U.S. 1, 12-13 [2005](emphasis added).

 

If you are not familiar with Wickard18)cited in the paragraph above, you would not believe how angry a dispute of selling wheat would make people (seriously, really angry).  As much as my libertarian friends would like to think the Safe and Accurate Food Labeling Act of 2015 is unconstitutional, it is difficult to make a distinction from Wickard or Raich because, even though, states like Vermont19)In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling. are only regulating commerce within their own borders, their regulations will have a “substantial effect on interstate commerce,” and therefore, the regulation from a federal level is likely constitutional.20)Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense. I find it unlikely, if the Safe and Accurate Food Labeling Act of 2015 is signed into law,21)also unlikely, even if it gets through the Senate that a court would declare that the federal government overreached.

In fact, a few months ago a federal judge in Vermont (Act 120 is the law I am referring to) examined the inverse of the question, whether it is unconstitutional for a state to pass laws requiring food manufacturers to label GMOs if they want to sell in the state.  Big Food22)tm pending? sued the state to prevent Vermont from instituting the new GMO labeling law.  They threw the kitchen sink at Vermont, saying they violated the First Amendment23)mandatory speech?, the Equal Protection Clause, and the Supremacy Clause. The Court only upheld the last constitutional objection, because the FDA promulgated laws through FMIA24)The Federal Meat Inspection Act and PPIA25)Poultry Products Inspection Act that concerned the sphere of influence of GMO labeling:

Act 120 mandates a GE26)genetically engineered disclosure that is clearly in addition to and different than the marking, labeling, and packaging requirements imposed under the FMIA and PPIA. Act 120’s GE disclosure requirement is therefore expressly preempted for products subject to those federal laws.27)Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42(emphasis added)28)Mr. Dillard has more on the Vermont opinion.

 

Although Judge Reiss29)author of the Vermont opinion is not the final authority of what is and is not constitutional, her contention that Act 120 may violate the Supremacy Clause is persuasive.  Granted, on its face, this seems confusing. States are permitted to regulate cigarette smoking, both in terms of where and how much it costs, and alcohol (with respect to the liquor content of certain beverages, for example). Why would states not be permitted to regulate if GMOs are permitted in her citizen’s food? Any legislative arena that the federal government has abdicated (by lack of legislative action) or is forbidden to regulate (by the Constitution) is in the purview of the states. The FMIA and PPIA (with respect to meat) and the new bill would assign the arena of GMO labeling exclusively to the federal government. Dislike this as an anti-GMO person/states’ rights individual? Time to call your Congress-person.

 

How will we address our GMO concerns in the long run?

First, we need to have a better understanding of why so many folks want GMO labels on our food. Unfortunately for them, but Monsanto has been straw-manned into the evil corporate entity that wants to overtake our food supply30)not that the other GMO companies have much better reputations. Many of us are familiar with the rumors of what Monsanto produced during the Vietnam War31)rhymes with cagent dorange, and a lot of folks, justly or unjustly, are uncomfortable with the same company selling us food. Maybe one or more of these companies could use a Blackwater-esq rebranding?

Often cited is the fact that more than 60 countries have banned GMO produce. If a GMO is not harmful, than why the worldwide ban? A little conjecture, given that I am not privy to internal politics of any other countries (or even ours): Perhaps the ban is political. The majority of the companies that sell GMO seeds are American, and American corporations do not have the best reputation abroad32)rightly or wrongly. Perhaps all these countries do not want to be dependent on American corporations for their food supply. Although state autonomy is a valid motive, it is distinct from GMO food being dangerous.

In fact, the American Association for the Advancement of Science ends their paper discussing the research of the health effects of GMO foods with the statement “Legally mandating such a label can only serve to mislead and falsely alarm consumers.”33)Source I am not sure I buy that claim, but I will take them at their word.

This New York Times debate on GMO products has a nice segment that middles the issue:

Currently, there are two paradigms of agriculture being widely promoted: local and organic systems versus globalized and industrialized agriculture. Each has fervent followers and critics. Genuine discourse has broken down: You’re either with Michael Pollan or you’re with Monsanto. But neither of these paradigms, standing alone, can fully meet our needs.

Organic agriculture teaches us important lessons about soils, nutrients and pest management. And local agriculture connects people back to their food system. Unfortunately, certified organic food provides less than 1 percent of the world’s calories, mostly to the wealthy. It is hard to imagine organic farming scaling up to feed 9 billion.

Globalized and industrialized agriculture have benefits of economic scalability, high output and low labor demands. Overall, the Green Revolution has been a huge success. Without it, billions of people would have starved. However, these successes have come with tremendous environmental and social costs, which cannot be sustained.34)I found each entry of this debate interesting; it is worth a look

 

Like it or not, GMO foods will likely be part of our future. For those concerned about their safety, it might be wise to engage in the debate so that there is at least some regulation35)My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids

More GMO reading for your perusal, in particular I enjoyed the material written by grist.org36)also a silly Jimmy Kimmel video as a reward for all your hard work:

 

The Hill

Open Secrets

Nature News

RT

USA Today

Mother Jones

Common Dreams

Scientific American (subscription required)

Grist

Grist II

 

Footnotes   [ + ]

1. with an equal amount of passion
2. Vermont, Connecticut and Maine
3. Source
4. the latest in ironic bill names from the House
5. the correct verb choice here is difficult, the scientists are splicing genes and attempting to optimize desirable attributes
6. Source
7. think food you buy in a box
8. that should sufficiently upset everyone
9. if there is one
10, 22. tm pending?
11. Not that I have a dog in the fight but the political party sponsoring this bill is the same one that has been arguing for a few years now that Obamacare violates states’ rights. Some folks on the other side of the aisle are perturbed. I say if you want logically consistency, politics is not the place to look
12. once they are finished with the ad hominems
13. Source
14. good thing the Constitution is a living, breathing document. See also Missouri v. Holland 252 U.S. 416 [1920]
15. for the sake of time, space, and your sanity
16. In this case, the federal government raided a Californian’s medical marijuana supply. The Respondent, Mr. Raich [You may remember Mr. Gonzalez as President Bush’s Attorney General] claimed that the federal government had no legal authority prohibit his growth or use of medical marijuana that took place exclusively in the state of California. The Court disagreed with Mr. Raich.
17. 545 U.S. 1, 12-13 [2005]
18. cited in the paragraph above
19. In the 19th/early 20th century, the Commerce Clause cases were concerned with states protecting local industries and arbitrarily punishing competitive industries from foreign states[protectionism is as old as any type of politics]. Interestingly, the Vermont law exempts cheese and beer from the food products requiring GMO labeling.
20. Some critics of commerce clause jurisprudence find that contemporary courts decisions to be blatantly results-oriented, meaning that the courts will use the commerce clause to allow the federal government to regulate industries they find displeasing (marijuana, small business) but not for issues where they are sympathetic to the users (guns, big business), for instance see United States v. Alfonso D. Lopez, Jr., 514 U.S. 549 (1995), where the court struck down a federal law banning guns near schools. I would defend my justice friends with more passion if the distinctions drawn made more sense
21. also unlikely, even if it gets through the Senate
23. mandatory speech?
24. The Federal Meat Inspection Act
25. Poultry Products Inspection Act
26. genetically engineered
27. Grocery Manufacturers Association et al v. Sorrell et al, No. 5:2014cv00117 – Document 95 [D. Vt. 2015] p. 42
28. Mr. Dillard has more on the Vermont opinion
29. author of the Vermont opinion
30. not that the other GMO companies have much better reputations
31. rhymes with cagent dorange
32. rightly or wrongly
33. Source
34. I found each entry of this debate interesting; it is worth a look
35. My guess is that many of the anti-GMO folks have similar passions toward fracking. Disengagement and protest have not resulted in any less domestic drilling, nor any progress in having the drilling companies identify what is in the fracking liquids
36. also a silly Jimmy Kimmel video as a reward for all your hard work
Flag of South Carolina

The Confederate Flag Has Little to do with Free Speech

Pardon my pontificating by wading into a politically charged subject, but the issue has really gotten under my skin and I cannot hold it in any longer. And, yes, I am going to take a side in this debate and you may not like it. I am talking, of course, about the hubbub about the Confederate battle flag (or whatever you prefer to call it). Here is my take on the issue: free speech has nothing to do with it.1)What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.

As is well-known, in the wake of the shooting in Charleston, SC, numerous companies and state and local governments have removed the Confederate flag and merchandise bearing images of the Confederate flag from their shelves and buildings. Wal-Mart, Amazon, Sears, and eBay (among others) have all announced that they will no longer sell any merchandise that bears the Confederate flag.2)CNN has the story NASCAR has asked its fans to not fly or display the Confederate flag at NASCAR events.3)The LA Times has the story The South Carolina legislature quite publicly determined to remove the Confederate flag from its state capitol building.4)Reuters has the story

Among other responses from defenders of the flag, the response that drives me crazy and makes me want to write a blog post about it is this: “But, what about my free speech rights? How can Wal-Mart take away my right to wear the flag? That’s unconstitutional!” AAAGH!! No, this is not about your free speech rights. I am not going to tell you5)in this blog post whether you are right or wrong to love the flag and want to fly it or wear it loud and proud, but I am going to tell you6)with peace and love that your free speech rights are not affected.

 

The Constitution and the confederate flag

The First Amendment to the Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press ….” Simply stated, the United States Supreme Court has consistently (and always) upheld the principle that governments (city, state, national) and their various departments may not codify or enforce laws that tell you what you may or may not say. Most importantly, in order for a restriction on speech to be unconstitutional, the restriction must have been imposed by the government, not by a private citizen or business7)Univision also did not violate the First Amendment by breaking up with Donald Trump.

Now let us look at the examples noted above. When Wal-Mart, Amazon, Sears, and eBay made a business decision that they will not sell merchandise bearing images of the flag, this was NOT an unconstitutional restriction on anyone’s free speech rights because their decision was not compelled by a governmental action. In other words, no governmental entity forced these private companies to make this decision. However, if the government passed a law that told these companies that they are prohibited from selling merchandise with images of the flag, that WOULD be an unconstitutional restriction of free speech. To my knowledge, no governmental entity anywhere has yet passed a law telling private companies that they cannot sell such merchandise. These companies have simply made a business decision that they will not engage in certain speech. You, of course, still have every right to own, fly, and/or wear any item you want that shows images of the Confederate flag and no governmental entity has yet told you that you are legally prohibited from doing so. However, you do not have a constitutional right to require WalMart or eBay to sell it to you.

Whatever you feel about the “political correctness” of business decisions by private companies, please, for the love of the Constitution, do not ever say, “But what about my rights of free speech?”

Footnotes   [ + ]

1. What? You thought I was going to pick a side on what to actually do about the flag? The author does have an opinion on that question, but reserves the right to blog about that question at another time. Feel free to hit me up for lunch if you want to know my opinion privately.
2. CNN has the story
3. The LA Times has the story
4. Reuters has the story
5. in this blog post
6. with peace and love
7. Univision also did not violate the First Amendment by breaking up with Donald Trump
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