Esquire

A Rising Constitutional Crisis No One Is Talking About

This week in the laboratories of democracy.

Getty

By Charles P. Pierce          October 12, 2017

(Permanent Musical Accompaniment To This Post)

We are going to do something unusual this week. Instead of skipping around the country in search of a state legislator with a duck on his head, or a state law making the date of Pat Robertson’s first orgasm a statewide holiday, we’re going to stay in this one spot and take stock of a truly dangerous bit of business that’s happening in a number of different states, and of a really long game that at the moment is perilously close to completion.

Last Sunday, Joy Reid hosted a discussion between former Senator Tom Coburn, the Oklahoma Republican and Teresa Tomlinson, the mayor of Columbus, Georgia. (While in the Senate, you may recall, Coburn was reckoned to be relatively normal because he served with Jim Inhofe, who is a failed replicant prototype that howls at the moon.) At issue was the proposed constitutional convention that would be called under Article V of the Constitution, a longtime conservative dreamshot that at the moment is as close to fulfillment as it ever has been. Under Article V, which deals with amending the Constitution, a constitutional convention must be called if two-thirds of the state legislatures called for it. At the moment, 27 state legislatures have done so. That leaves the plan a mere seven states short of the 34 that would meet the Article V threshold. As it happens, there are seven state legislatures with Republican majorities out there that have yet to take up the question. You can see why I’m just a little nervous.

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The movement has its roots in the drive for a balanced-budget amendment to the Constitution, a.k.a. The Worst Idea In American Politics. In his first term, President Ronald Reagan broached the idea in a televised address, causing constitutional scholars to duck and cover under their desks. By now, this is hardly an extreme position in the Republican Party; John Kasich, everyone’s favorite moderate manqué, has been a fan for years. There was no way that TWIIAP ever was going to be approved by two-thirds of both houses of Congress and then by two-thirds of the states. So this was the route its devotees took.

Many of the sharpies pushing the idea reassure the public that a convention thus called would be limited to a specific agenda. (Some even propose that the convention would pass TWIIAP and then everyone would drink up and go home.) There is no way to guarantee that; there’s certainly nothing in Article V that would support that argument, and very little in the history of the last constitutional convention that would do so, either.

The idea of a convention of Article V was one that came up very late in the proceedings. George Mason, the influential delegate from Virginia, rose to argue that the amending power as written left too much of that power to the national government. So he proposed that the several states be allowed to call a convention themselves. Mason’s colleague, James Madison, who hated revisionist constitutional conventions because he then nearly was finished hijacking one, perked right up. He immediately sussed out the difficulties:

“Mr Madison remarked on the vagueness of the terms, “call a Convention for the purpose.” as sufficient reason for reconsidering the article. How was a Convention to be formed? by what rule decide? what the force of its acts?”

All good questions, none of them ever has been answered.

A convention so called could pass TWIIAP lickety-split. That, of course, would be terrible in and of itself. But then the convention really could get down to business. There’s no apparent constitutional bar to a convention’s passing amendments allowing, say, congressional term limits, or requiring congressional supermajorities to pass any tax cut, or making raising the national debt limit dependent on the approval of a certain number of state legislatures. All of these are actual proposals floating around the various campaigns to bring this beast to life. Basically, this is the final masterwork of the conservative long game. These ideas have been around long enough to have become Republican dogma.

The party enlisted national sugar daddies like the Kochs, and regional ones like Art Pope in North Carolina. The radio and TV auxiliaries are led by Mark Levin, who wrote a whole book about the changes he wanted made, all of which would return the country to half-past the Articles of Confederation. They’ve suppressed the vote and gamed the maps. They have spent decades fashioning the state legislatures they need and now is the moment to strike. Looked at it from a distance, and ignoring the fact that the policy proposals are unworkable where they are not actually insane, it really is quite a political act of artistic creation.

teresatomlinson.com

(Here in the Commonwealth, God save it, the conservatives pushing the notion of a convention have “reached out” to their left by suggesting that some alterations in the Second Amendment might be possible. Yes, and the Sacred Cod is going to drop down into the well of the Massachusetts House and dance The Hustle.)

Last weekend, chased up a tree by Mayor Tomlinson, Coburn gave the whole game away. He began by saying that he was calling for “an amendments convention as long as you specifically state what areas you want to talk about.” This is, of course, nonsense. Here’s Article V in its entirety:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

You see anything in there that would require that a convention “specifically state what areas you want to talk about?” Neither do I. Coburn went on, though, blustering and fuming at the two women who kept pressing him for what he’s really up to here:

“We have three areas. We think there ought to be fiscal responsibility on the federal government’s part….We believe there ought to be term limits on our elected officials. (Ed. Note: Bingo!) The advantage of incumbency is unbelievable…And finally, we believe the scope and jurisdiction of the federal government ought to be what the Founders intended, which is a limited role, but very specific and very powerful, and what is not specifically set out for the federal government, left to the states.”

In other words, Coburn wants to enshrine in the Constitution itself every Republican national platform for the past 40 years. You will note that two of the three “areas” are pretty damn vague. How many amendments to the Constitution do you think it would take to roll back the federal government to a size that would satisfy Tom Coburn? Twelve? Twenty-seven? Eleventy-infinity? The mind boggles.

(Watch him as Mayor Tomlinson tells us about all the hidden jokers in this deck. Coburn looks like he’s going to float out of the studio in a burst of pure rage.)

But we’re talking about this today because all those state legislators with ducks on their heads who pass the laws making Pat Robertson’s first orgasm a statewide holiday, the people whom we’ve been mocking out the windows of the shebeen’s luxurious tour bus every Thursday for going on seven years now, these are the people who will be the delegates to this convention. Maybe you want to trade George Mason for the guy with the duck on his head, or James Madison and Alexander Hamilton for Mark Levin and Tom Coburn, but I don’t.

And we conclude right where we began, and as is our custom, in the great state of Oklahoma, where Blog Official Boot Scooter Friedman of the Plains was represented in the Senate for many years by both Coburn and Jim Inhofe and therefore has had enough trouble so we’ll leave him be this week.

This is your democracy, America. Cherish it…while you still can.

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ThinkProgress

Northern California firestorm ‘literally exploded,’ killing 15 and destroying hundreds of homes

More than 200 have been reported missing after fast-moving fires devastate communities north of San Francisco.

Natasha Geiling         October 10, 2017

Flames from a massive wildfire burn in Napa, CA. (CREDIT: AP Photo/Rich Pedroncelli)

High temperatures and fast winds are fueling more than a dozen wildfires across California, forcing more than 20,000 northern California residents to evacuate their homes and communities. At least 15 people have died, and more than 200 have been reported missing, after several fires spread rapidly throughout Monday.

The fires ignited late Sunday night and into Monday morning and have since spread over 50,000 acres across Napa and Sonoma counties, destroying at least 2,000 structures and sending at least 100 to the hospital with injuries ranging from burns to smoke inhalation. The Tubbs Fire — which is currently burning at 27,000 acres — has prompted the evacuation of at least 10 neighborhoods in the city of Santa Rosa, which has a population of 125,000. Two hospitals have also been evacuated after the fire jumped across Highway 101 between Sunday night and Monday morning.

Aerial photographs show entire neighborhoods of the city completely destroyed by the fire, which as of Tuesday morning was zero percent contained. Smoke from the wildfires caused the Bay Area Air Quality Management District to issue an air quality warning for the region on Monday; as of Tuesday, much of the area north of San Francisco was still experiencing unhealthy air quality.

The cause of the fires is still under investigation, but officials are confident windy conditions combined with an excess of dry grass and underbrush helped the fuel the fires’ rapid growth. According to the National Weather Service, “fire literally exploded and raced along the landscape” aided by fuel at “all time record dry levels.”

September and October tend to be the worst months for California’s fire season, as strong winds can combine with low humidity and dry vegetation to turn a single spark into a major incident. At the beginning of September, fast-moving winds and record-heat sparked the largest wildfire in Los Angeles’ history, burning more than 5,000 acres north of the city. The worst wildfire in California history — the Cedar Fire of 2003 — started in October and burned more than 273,246 acres, destroying 2,820 structures and killing 15. Already, the scope of this weekends’ fires rivals the destruction of the Cedar Fire.

Fast-moving winds and low humidity aren’t rare in California, and neither are October wildfires, but it’s likely climate change made these fires even more destructive. After years of historic, prolonged drought, which studies have linked to climate change, California experienced record-setting rains that fueled the growth of grasses and underbrush — young vegetation that dries easily during the summer and is especially susceptible to ignition. Because warmer atmospheric temperatures can hold more water, experts have suggested that the cycle of drought followed by intense precipitation could be linked to climate change.

Even the state’s characteristic winds — known in the northern part of the state as Diablo Winds and in the southern part of the state as Santa Ana winds — could be getting worse because of climate change. The Santa Ana and Diablo winds occur when high inland pressure pushes air down the sides of mountains (Mt. Diablo in northern California and Mt. Ana in southern California), whipping wind through the canyons and hillsides outside major population centers like Los Angeles and San Francisco. According to a 2015 study lead by researchers at University of California, Los Angles, UC Davis, UC Irvine, and the U.S. Forest Service, a warming climate will likely make these winds both more frequent and stronger, fueling potentially destructive fires.

Across the country, warm, dry conditions have fueled a record-breaking fire season. The National Wildfire Coordinating Group currently lists 179 active wildfire situations throughout much of the Western United States, from Colorado to Washington. The largest active fire in the United States is the Chetco Bar Fire in southern Oregon, which has burned over 191,121 acres and is 97 percent contained. As of October 6, wildfires have burned 8,469,590 acres across the United States — the third largest total acreage burned in the last 10 fire seasons.

According to an analysis by Climate Central, climate change has increased the length of the annual fire season, a reference to the time of year when conditions are ripe for wildfires, by 105 days since 1970. Over the same period of time, the average number of wildfires over 1,000 acres has doubled across the western U.S. Since 2000, at least 13 states have experienced their largest fires on record.

As climate change is fueling longer fire seasons, human activity — both through an intense focus on fire suppression, rather than forest management, and an decreasingly populated rural-urban boundary, are making fires more destructive and deadly. A longer and more active fire season is also stretching the bounds of the Forest Service’s budget, with 2017 fire suppression costs already exceeding $2 billion, making this the most expensive year on record.

Unlike disasters like hurricanes or earthquakes, wildfires don’t qualify for federal disaster funding under the Disaster Relief Act; instead, the Forest Service is forced to pay for fire suppression costs in excess of the budgeted amount by borrowing from other Forest Service programs. That means in especially active fire years, the Forest Service is taking money from programs meant to prevent fires and using those funds to fight existing fires — a cycle that critics of the current set-up argue puts the Forest Service at a perpetual disadvantage when it comes to anticipating and preventing forest fires.

“Land managers can’t plan for restoration projects, even if they have huge fire benefits, if they don’t know whether the money is going to be there by the time they get around to doing the project,” Collin O’Mara, president and CEO of the National Wildlife Federation, told ThinkProgress. “An account for a forest in Tennessee could be slashed to fight fires in Wyoming, and then all of the sudden you could have a terrible fire in Tennessee the next year, and you didn’t get the project done, so it ends up burning bigger, brighter, and longer than it would have if you had the projects completed.”

Driven by heat and high winds, wildfires are 10 times worse this year than average.

Climate change means that there is no such thing as a typical “fire season” anymore.  

Since 2015, the Forest Service has spent more than 50 percent of its budget on fighting wildfires — more than a thirty percent increase from 1995, when fire suppression was just 16 percent of the agency’s budget. According to a 2015 report, future fires could consume even more of the Forest Service’s budget, to the point where by 2025, two-thirds of the agency’s budget could be spent on fire programs.

One legislative solution for the Forest Service’s budget woes currently being considered in Congress would allow the agency to draw from a separate pool of federal disaster funds, similar to what other agencies can do through FEMA after a disaster like a tornado or hurricane. That bill, known as the Wildfire Disaster Funding Act of 2017, is sponsored by a bipartisan coalition of nine Western senators — five Democrats and four Republicans. In the House, Rep. Mike Simpson (R-ID), has introduced a similar bill for the past three years. Speaker of the House Paul Ryan (R-WI) has urged Republicans in Congress to oppose the bill in the past, arguing that it would “result in increased federal spending.”

Fiscal conservatives in Congress have instead proposed a different way to address the rising costs of forest fires: loosen environmental regulations to allow timber companies more leeway to thin forests, thereby lessening the amount of fuel available for wildfires. One bill, introduced this year by Rep. Bruce Westerman (R-AR), would do away with the public input and full environmental review process for thinning or logging projects of 10,000 acres or less (currently, only projects 3,000 acres or less are subject to less stringent environmental regulations). It would also allow the Forest Service to forgo required consultations with the Fish and Wildlife Service if the agency determined the project was unlikely to harm a federally protected species.

Westerman, who has received more than $142,000 from the timber industry since being elected to Congress in 2014, has argued that the bill would “provide protection to America’s forests by reducing the risks of wildfires through proper management techniques.” Westerman received a master’s degree in forestry from Yale Forestry School in 2001, and is the only licensed forester in Congress.

But environmentalists, conservationists, and Democratic lawmakers argue that the real problem with the growing cost of forest fires isn’t a lack of management techniques, but a lack of funds with which to implement them. Even Secretary of Agriculture Sonny Perdue has criticized the current funding structure of the Forest Service, saying in September that without a consistent stream of funding, “we’re asking for disasters.”

“You can have all the tools in the universe, but if you don’t have the resources to implement that, it doesn’t matter,” the National Wildlife Federation’s O’Mara said. “And that’s where we are right now.”

Update, 10/10/17, 4:29 p.m. EST: This story has been updated to reflect new estimates of the number of missing persons, fatalities, and destroyed structures.

Time

California’s Raging Wildfires as You’ve Never Seen Them Before

TIME Staff,         October 9, 2017

Lake Fire | Big Bear June 2015

On the Front Lines of California’s Increasingly Devastating Fires

Video by Jeff Frost | Text by Josh Raab

Forest fires have long been a part of life in California, but not always like this. In recent years, artist Jeff Frost, based near Joshua Tree National Park, has watched as fires raged across the West Coast with increasing frequency and intensity. “Fire is a natural part of nature,” he says, “but what you’ll hear veteran firefighters say over and over, ‘I’ve never seen fire behavior like this.” Fire seasons are also starting earlier and ending later, on average 78 days longer than they were in 1970. On Monday, late in the fire season, Frost was chasing blazes in Sonoma and Napa counties, which have scorched tens of thousands of acres and led to widespread evacuations, including in Santa Rosa, Calif.

Four years ago, Frost, now 39, decided to begin documenting the fires. He put himself through the most intense fire-safety training courses he could find, enrolling in courses sanctioned by the U.S. Forest Service, then equipped his camper with a bed and a generator and headed to the front lines of California’s biggest fires.

Bluecut Fire | Cahone Pass Aug. 2016

Frost’s project, “California on Fire”, will be a feature-length art film combining his wildfire time lapses. The non-narrative film will look at forest fires loosely through the five stages of grief: denial, anger, bargaining, depression and acceptance. The stages will follow the life of wildfires, looking at their causes and effects from their ignition to the twisted metal and charred forests they leave behind. Frost is especially interested in exploring the role human involvement plays in these fires, both intentional and unintentional. “Human beings are stewards of the planet,” he says. “It’s just a question of whether we’re good stewards or bad stewards.”

On scene, Frost shoots sequences of hundreds of still photos, which he then combines into time-lapse videos. He previously used this approach at Joshua Tree National Park and at CERN, the research center renowned for building particle accelerators like the Large Hadron Collider.

For the “California on Fire” project, Frost has shot more than 300,000 images at over 40 forest fires, resulting in over 500 time lapses ranging from 1 to 30 seconds. The blazes he has documented include the Erskine wildfire outside of Bakersfield in June 2016 that destroyed 386 structures and led to two deaths, and the King wildfire near Lake Tahoe in September 2014, which destroyed 80 structures and scorched almost 100,000 acres of land. While he is fascinated by fire, Frost’s obsession is to create an art piece that speaks to a larger reality: The role climate change plays in the fires.

Erskine Fire | Lake Isabella June 2016

“The intent is to show the effect of climate change right now, not just in the future,” he says. “Burning people’s houses down is not abstract.” Over the past three decades, climate change has doubled the area burned by forest fires in the western United States and the fire season has grown significantly longer. A number of climate-related issues are intensifying fires. Drier climates and more available fuel cause fires to start easier, burn longer and move faster. In addition, forest fires lower the number of trees that can absorb the carbon dioxide that causes climate change in the first place.

The federal cost of fighting forest fires has risen substantially. Fires cost the U.S. Forest Service more than $2 billion in 2015, over half of its annual budget, up from $240 million in 1985 (not adjusted for inflation).

LaTuna Fire | Los Angeles September 2017

While shooting the Rocky fire in Lake County in July 2015, Frost followed a firefighting team into a valley only to find himself completely surrounded by flames until a backup team arrived. “The wind was whipping across the hillside and catching grass on fire. I was sitting in the truck freaking out,” he says. “There were droves of insects running into the truck trying to get away from the fire. We had to wait for two hours before somebody could come in and retrieve us. That fire was a total of 70,000 acres but that day it burned 50,000.” Frost’s point-of-view video below documents his close call.

Rocky Fire | Clear Lake July 2015

After almost four years, Frost has shifted away from the front lines and turned his focus to covering the aftermath. He is shooting scorched landscapes and the remains of cars left behind. Recently, he started picking up pieces of charred aluminum, polishing them and displaying them in art exhibits to bring awareness to the power of forest fires. He expects to complete his time-lapse film in early 2018. A pre-public release will go out to his Patreon followers before he submits the film to Cannes and Sundance.

Jeff Frost is an artist based outside of Los Angeles. Follow him on instagram @frostjeff.

josh raab IS a multimedia editor at time. follow him on instagram @instagraabit.

The New York Times

Miles of Algae Covering Lake Erie

By Jugal K. Patel and Yuliya Parshina-Kottas        October 3, 2017

A potentially harmful algae bloom covered more than 700 square miles in the western basin of Lake Erie last week, turning the lake bright green and alarming residents and local officials.

Source: Landsat 8

Scientists say that algae blooms have been a growing problem for Lake Erie since the 2000s, mostly because of the extensive use of fertilizer on the region’s farmland.

The algae blooms contain cyanobacteria, which, under certain conditions, can produce toxins that contaminate drinking water and cause harm to the local ecosystem.

During last week’s bloom, the amount of toxins in the algae remained low at the intake points where towns draw water from the lake, according to officials.

Lake Erie’s algae blooms are driven by a landscape dominated by agriculture.

Rain causes nutrients from fertilizers on farmland to run off into rivers.

The nutrients travel along rivers, eventually reaching Lake Erie.

In the Maumee River, the largest tributary to any of the Great Lakes, green algae was visible last week in an aerial photograph.

According to experts, excess nutrients that are transported by the Maumee River can be a good indicator of how severe an algae bloom in the lake will be.

Source: Aerial Associates Photography, Inc., Zachary Haslick

Millions of people get drinking water from Lake Erie. Previous blooms have been toxic.

While not all algae blooms are toxic, they can produce a type of toxin called microcystin that can cause serious liver damage under certain conditions. Dangerous levels of the toxin caused Toledo, Ohio, to shut down the drinking water supply of a half million residents for three days in 2014.

In total, almost 3 million people get drinking water from the central basin of Lake Erie. Officials have been testing the intake pipes in the lake where towns draw water and report that the current toxin levels are low.

Source: NASA MODIS    Note: Only intake points for towns and cities in Ohio are shown.

The blooms are hurting the region’s economy.

Lake Erie attracts millions of visitors for beaches and recreation like fishing, and many businesses stand to lose money during large algae blooms.

David Spangler, vice president of the Lake Erie Charter Boat Association, describes the algae as a musty-smelling, lime-green skin on the lake’s surface that’s so thick you could write your name in it.

“An awful lot of money may go someplace else other than Ohio if we continue having these issues in the lake,” Mr. Spangler said. He noted that in 2015, an algae bloom kept boats out of the lake for six to seven weeks.

The algae blooms are getting larger.

Since the 2000s, algae blooms in Lake Erie have become much more extensive.

According to one study by the Carnegie Institute for Science and Stanford University , most of the increase in the size of the blooms can be attributed to a rise in the amount of dissolved phosphorus flowing into the lake.

 

In the 1980s, researchers started tracking algae blooms in Lake Erie. They were mostly small, but changes in farming practices caused them to spike.

The blooms are expected to grow more harmful as global warming changes rainfall patterns.

According to local experts, storms have become more intense in the region, carrying more nutrients from the farmland into the lake.

Another study from the Carnegie Institution for Science shows that extensive algae blooms will continue to grow throughout the continental United States and around the globe, especially in Southeast Asia.

The mayor of Toledo, Paula Hicks-Hudson, wrote a letter to President Trump on Sept. 26, calling on the federal government to declare Lake Erie impaired, which would allow for the lake’s nutrient loads to be regulated under the Clean Water Act.

“There is something very wrong with our country when our rivers and lakes turn green,” Ms. Hicks-Hudson wrote in her letter. “As I look out my office at a green river, I can tell you one thing: The status quo is not working.”

Correction: Oct. 5, 2017

An article on Wednesday about an algae bloom in Lake Erie misidentified a toxin produced by algae blooms. It is microcystin, not microcystis.