“Anti-intellectualism has been a constant thread winding its way through our political and cultural life, nurtured by the false notion that democracy means that 'my ignorance is just as good as your knowledge.'” — Isaac Asimov
Asked again after the debate if he could carry on if he doesn’t win South Carolina, Biden was equally declarative.
“I’m gonna win South Carolina,” Biden said, and then for those who might not have heard, he reiterated, “I’m gonna win South Carolina.”
No one has more riding on South Carolina than Biden. Biden led for nearly a year in national polls for the Democratic presidential nomination and by big margins in South Carolina. After disappointing finishes in Iowa and New Hampshire, Biden collapsed nationally and margins tightened in South Carolina.
In the last week, Biden’s lead has rebounded in South Carolina, as fears of a potential Bernie Sanders nomination are hitting fever pitch among establishment Democrats. In South Carolina, black voters are crucial, and Biden had one of his best debate performances of the cycle Tuesday night. Then, the next morning, he got the endorsement of popular longtime South Carolina Rep. Jim Clyburn.
It was probably the best 24 hours Biden has had since voting began in the nominating contest and was a much-needed shot in the arm for his candidacy. But the candidate who staked his claim in the race as the most electable, hasn’t won anything yet — making South Carolina must-win for Biden.
The stakes are especially high for Biden, as he jockeys to be the principal alternative to Sanders, because his campaign is running on fumes — trailing badly in ad spending and organization in those crucial Super Tuesday states that vote just three days after South Carolina.
A shrinking coalition
Biden dismissed losses in Iowa and New Hampshire, the first two states in the Democratic nominating process, because they are overwhelmingly white states and don’t represent the entire country.
Never mind that Biden held leads in both states in an average of the polls, just days and weeks before both contests.
Never mind that Biden has touted his ability not to win just black voters, but also white, working-class voters.
That pressure has pushed the traditional retailer to burn tens of billions of dollars to fight back while its executives have cycled through various stages of reaction to Prime’s ascent: denial, followed by meek competition, followed by a reversal that seemed to signal Walmart wanted to stick to a free, no-membership strategy.
But Recode has learned that over the past 18 months, the world’s largest brick-and-mortar retailer has explored creating its own paid membership program that would include perks that Amazon can’t replicate, in part to avoid a direct comparison to Prime. Amazon now accounts for nearly 40 percent of all online retail sales in the US, according to eMarketer, and Prime is a huge reason why. Walmart is a distant No. 2 with only a little more than 5 percent of the US e-commerce market.
As soon as next month, Walmart plans to start publicly testing a membership program called Walmart+, according to sources. The program is expected to essentially launch as a rebrand of Walmart’s existing Delivery Unlimited service, which charges customers $98 a year for unlimited, same-day delivery of fresh groceries from one of the 1,600-plus Walmart stores in the US where the program is available. The company is also considering launching Walmart+ with a feature that would allow customers to use text messaging to place orders. Sources said that the amount of the Walmart+ fee could still change or the company might test multiple price points.
But the long-term vision for Walmart+ is for the program to add more perks, which could include discounts on prescription drugs at Walmart pharmacies and fuel at Walmart gas stations, as well as a Scan & Go service that would allow shoppers to check out in Walmart stores without waiting in line — a tool Walmart briefly tested but discontinued nearly two years ago.
Still, no additional perks beyond grocery delivery are set in stone, which has led some insiders to worry that the pressure to simply act might be supplanting a strong rollout plan and business case, according to sources. It’s unlikely that a $98 annual program built exclusively around grocery delivery would be enough to successfully compete with Amazon Prime. Those overseeing the program, however, believe that testing different perks and learning from those tests will benefit both customers and the business in the long term.
A Walmart spokesperson confirmed that a membership program called Walmart+ was in development but declined to provide other details.
The reality Walmart is facing is that Prime, which boasts more than 150 million members worldwide, has become a retail wrecking ball that’s impossible for competitors to ignore, even if they’re hard-pressed to truly compete with all it offers. Prime costs $119 a year in the US, and it comes with unlimited one-day shipping on more than 10 million products, same-day grocery deliveries from Whole Foods or Amazon Fresh, access to a large catalog of TV shows and movies available for online streaming, and more. Prime customers spend more and shop more frequently than Amazon’s non-Prime shoppers.
Even with its huge lead over all US competitors, Amazon isn’t satisfied, pushing into prescription drugs in 2018 with the acquisition of the online pharmacy PillPack, and developing multiple grocery store concepts beyond Whole Foods. Earlier this week, Amazon opened a new, high-tech supermarket that allows shoppers to pluck fresh foods like fruits, vegetables, and meat off of shelves, walk right out, and get automatically charged for the merchandise afterward.
This state of affairs, in which even an industry titan like Walmart has struggled to combat Amazon’s e-commerce offensive, highlights the power Amazon has amassed that has made it a target of a broader congressional investigation of Big Tech and a separate probe by the Federal Trade Commission. Recode reported last year that the FTC was exploring the question of whether Prime’s bundling of various features allows Amazon to unfairly undercut competitive services.
At Walmart, the Walmart+ initiative is a top priority for Janey Whiteside, the company’s chief customer officer who joined from American Express in 2018, according to sources. Other top Walmart leaders, including CEO Doug McMillon, have played an active role in planning. The goal for the program is to eventually save Walmart customers both time and money, and presumably to encourage them to keep spending heavily with the brick-and-mortar giant. Executives believe the program needs to strike a balance of being valuable enough that customers will pay for it, while different enough from Amazon Prime that it doesn’t promote a direct comparison that would likely be impossible for Walmart to win.
Perks like prescription drug and fuel discounts could provide an edge, since they are frequent purchases and Amazon doesn’t own gas stations or its own brick-and-mortar pharmacies. (Amazon does own the online pharmacy PillPack, though its current target customer is someone who regularly takes multiple medications versus one-off patients.) The Walmart+ rollout also comes with a belief that top-spending Walmart families that subscribe to Amazon Prime will still be attracted to Walmart+ because its fresh grocery prices are often lower than those Amazon offers.
A procedural change would force individuals to take on costly and difficult legal battles.
In 1973, Jane Roe, whose real name was Norma McCorvey, won a landmark victory at the Supreme Court: She and every woman in the United States were guaranteed the constitutional right to an abortion. But this didn’t actually resolve the problem that led McCorvey to file her suit three years earlier; she gave birth while Roe v. Wade was being litigated. The case also threw McCorvey into a harsh spotlight she never wanted. She later became an anti-abortion crusader, but she was forever forced to carry the burden of being the plaintiff in the case that became shorthand for abortion rights.
In the years that followed Roe, subsequent court rulings enshrined a slew of other abortionprotections, including one that would protect other pregnant people from those types of burdens. Nearly 50 years ago, a lesser-known but critical case, Singleton v. Wulff, gave abortion providers the power to sue for their patients’ well-being, known as third-party standing. That ruling shifted the legal burden from individual women to clinics with greater resources.
But that safeguard is now at risk of disappearing. If it were to be eliminated, the consequences could be vast—upending abortion law and litigation at a time when the basic right to the procedure is already vulnerable.
The Supreme Court is preparing to hear arguments in June Medical Services v. Russo next week. The case centers on a 2014 Louisiana law requiring abortion providers to have admitting privileges at local hospitals. But in a counter-petition, Russo v. June Medical Services, the state of Louisiana is questioning the entire basis of the case, specifically the right of abortion providers to file lawsuits that challenge abortion restrictions. If the justices decide that abortion providers do not, in fact, have third-party standing, pregnant plaintiffs will likely be required to file suit themselves, almost certainly resulting in fewer abortion-related lawsuits. That, in turn, would take the pressure off states that are unconstitutionally regulating the procedure.
Advocates would be forced to fight against an onslaught of abortion bans, like many of those seen in 2019, under great personal and financial strain. And given how long these cases take, it’s likely they’d end up in the same position as McCorvey: fighting a long legal battle that no longer has anything to do with their individual ability to get an abortion.
“It’s almost impossible to imagine that an individual patient…would divert the resources required to litigate the case away from the challenges of her own personal life, to vindicate the rights of other women in order to prevent the law from going into effect,” says TJ Tu, a lawyer representing June Medical, the Louisiana abortion provider, on behalf of the Center for Reproductive Rights.
Amy Hagstrom Miller, the founder and CEO of Whole Woman’s Health, which runs eight abortion clinics across the country, has firsthand experience leading the legal fight against abortion restrictions. In 2015, she sued Texas over an anti-abortion law nearly identical to Louisiana’s. She describes the process of being the plaintiff in Whole Woman’s Health v. Hellerstedt, in which the Supreme Court struck down the Texas law in 2016, as a trauma that she’ll never forget, and not just because she was forced to close clinics and turn away women who needed abortion care. She vividly recalls the opposing attorneys raking through Whole Woman’s Health’s emails in the discovery process and the vitriol that she and her colleagues received as a result of being the faces of a high-profile case.
“If a pregnant person had to bring a lawsuit on behalf of themselves, and undertake what we have gone through, it’s not only ridiculous, it’s actually cruel,” Hagstrom Miller says. “I’ve been through depositions, I’ve been in the witness stand myself. And even if I was [anonymous], how disruptive that is, and the discovery and the process and the time it takes to even go through the preparation for a deposition or being a witness, it’s really, really difficult. So just saying, ‘Oh, well, that’s the only path to justice that a patient could have,’ it’s scary and it’s also just extreme.”
It would be riskier for an individual to bring a suit today than it was for McCorvey in the 1970s. The inescapable gaze of the internet brings risks of harassment and doxxing. “To think that somebody has to bring a lawsuit in order to assert their rights and sacrifice their confidentiality, sacrifice their family’s well-being…,” Hagstrom Miller says, trailing off.
In states like Louisiana, which last year passed one of the most restrictive early gestational abortion bans in the country, it’s difficult to imagine a pregnant plaintiff bringing a suit while surmounting a whole host of other restrictions. The average person seeking an abortion in the state is a low-income woman living with a child or children of her own, miles away from the nearest clinic. She often has to find child care, money for the procedure, and transportation. She has to return to the clinic, because Louisiana has a mandatory 24-hour waiting period between a consultation and an abortion, which means more travel and child care costs.
If women are forced to file the lawsuits individually, they would face all of those obstacles while simultaneously having to marshal the resources to fight a drawn-out legal battle against powerful state entities, potentially over the course of years. In addition, they would be required to delay access to a medical service they have already decided they need because they would have to be pregnant and seeking an abortion when the lawsuit was filed.
Ultimately, abortion providers are best suited to argue these cases, says Marc Hearron, senior counsel for the Center for Reproductive Rights. They see the wider landscape—how restrictions impact a slew of different patients—and also how individuals can suffer. The providers can articulate the lack of medical basis for an admitting-privileges requirement and explain why these privileges are next to impossible to get, in ways that individual patients are unlikely to understand. “Any patient who is seeking an abortion doesn’t necessarily have access to all of those facts and may not even understand why it is that she is unable to access an abortion,” says Hearron. “All she knows is that the clinic has shut down.”
Attacking third-party standing is a particularly shrewd strategy on the part of anti-abortion opponents. Mary Ziegler, a professor at Florida State University who studies the history of abortion law, explains that the approach calls into question the intentions of abortion providers. “The general argument is that abortion providers don’t have patients’ best interests in mind,” Ziegler says. “If the court accepts that argument, it will say a lot about the court’s willingness to buy arguments that abortion is bad for patients or bad for women.”
It also will say a lot about who gets to decide what, exactly, is in the best interest of women who seek abortion care.
Next week, the lawyers for June Medical will argue that there is no difference between the Texas law that was at the heart of Whole Woman’s Health and the 2014 Louisiana law. But since that ruling, two new anti-abortion justices have been confirmed to the court, and earlier this year, the Trump administration filed a brief that proposes eliminating third-party standing for providers. Additionally, in the 2016 Whole Woman’s Health case, conservative Justice Clarence Thomas made a direct argument against third-party standing for abortion providers in his dissent.
If the court does dismantle third-party standing all-together, the impact could sweep the entire judiciary system, as many of the cases currently being fought in the courts by clinics—in Alabama, Missouri, Georgia, and elsewhere—may become moot or have to be refiled, says Stephen Wermiel, a constitutional law professor at American University Washington College of Law. While their exact futures would depend on how narrow or broad the court makes its final ruling, there would, without a doubt, be a “destabilizing effect,” says Tu.
If the court eliminates third-party standing for abortion providers, many women and abortion rights supporters may not even know there’s been a change. Dismantling abortion rights by attacking an obscure legal principle could result in less pushback than has occurred in states that are passing outright bans on early-term abortions. “Once [abortion opponents] passed the six-week bans, the public really turned against them,” says Leila Abolfazli, who leads the reproductive rights program at the National Women’s Law Center. “People were protesting in the middle of the street in Alabama, in the middle of the week. [Anti-abortion advocates] get that.”
Even if the legal principle at issue is opaque, the stakes of the case are high. “It is almost as much of a threat to the right to abortion,” says Tu, “as reversing Roe v. Wade.”
California environmental group says much of the tons of plastic in the oceans can be traced back to the 10 companies they are suing
Coke, Pepsi, Nestle and other large companies are being sued by a Californiaenvironmental group for creating a plastic pollution “nuisance” and misleading consumers about the recyclability of plastic.
The suit, filed in San Mateo county superior court on Wednesday, argues that companies that sell plastic bottles and bags that end up polluting the ocean should be held accountable for damaging the environment.
Earth Island Institute, which filed the lawsuit, says a significant amount of the eight to 20m tons of plastic entering the Earth’s oceans annually can be traced back to a handful of companies, which rely heavily on single-use plastic packaging.
The suit seeks to require these companies to pay to remediate the harm that plastic pollution has caused to the earth and oceans. It also demands these companies stop advertising products as “recyclable”, when they are, in fact, largely not recycled.
“These companies should bear the responsibility for choking our ecosystem with plastic,” said David Phillips, executive director of Earth Island Institute. “They know very well that this stuff is not being recycled, even though they are telling people on the labels that it is recyclable and making people feel like it’s being taken care of.”
The suit names 10 companies found to be top producers of the plastic collected in beach cleanups in an international audit conducted last year by 72,000 volunteers working with the group Break Free From Plastic. The companies are Coca Cola, Pepsi, Nestle, Clorox, Crystal Geyser, Mars, Danone, Mondelez International, Colgate-Palmolive, and Procter & Gamble.
“Plastic waste is a worldwide problem that demands thoughtful solutions,” said William M Dermody Jr, a spokesman for the American Beverage Association, which represents Coca Cola, Pepsi and other makers of non-alcoholic beverages. “America’s beverage companies are already taking action to address the issue by reducing our use of new plastic, investing to increase the collection of our bottles so they can be remade into new bottles as intended, and collaborating with legislators and third-party experts to achieve meaningful policy resolutions.”
Other companies, including Nestle, said they are still reviewing the lawsuit’s allegations or they could not immediately be reached.
Noting that, at the current rate of dumping, plastic will outweigh fish in the ocean by 2050, the suit charged that companies have engaged in a “decades-long campaign to deflect blame for the plastic pollution crisis to consumers”. Consumers are led to believe that the earth would be healthy, if only they recycled properly, when, in reality, there is no market for most plastics to be recycled, the suit says.
Past studies have shown only about 10% of plastic gets recycled, but Phillips said, once those numbers are updated to reflect the recent collapse of the recycling market, it will likely show that only about 5% is getting recycled.
He said customers have received misinformation downplaying the harms caused by plastic in marketing campaigns similar to the disinformation promoted by tobacco companies downplaying the dangers of smoking.
“This is the first suit of its kind,” Phillips said. “These companies are going to have to reveal how much they’ve known about how little of this stuff is being recycled.”
Martin Bourque, who runs the Ecology Center, which handles recycling for the City of Berkeley, said he is tired of knowing that some portion of the plastic collected in his city’s recycling bins will eventually just be thrown away.
“It’s about time these companies that have been telling people that this stuff is recyclable be held accountable for polluting our ecosystem,” he said.
Phillips said the suit does not mean to dissuade customers from recycling, but it seeks to have companies take more responsibility for the waste their products create.
“It’s not that we’re slamming recycling,” he said. “We’re totally in favor of recycling. We just want companies to take responsibility for what’s really happening to all this plastic they’re producing.”
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THE CONGRESSIONAL EFFORT to rein in the government’s surveillance powers before a looming deadline on March 15 could run up against a new opponent: the coronavirus.
House Democrats have been working on plans to further amend a provision of the Patriot Act, which as of 2015 provides a way for the government to get American citizens’ phone records from telecom companies. This and other key provisions of the Patriot Act must be reauthorized by March 15, or the surveillance authority lapses. The Democrats’ amended bill would pull the provision’s authorization while allowing and tweaking other other ways the government collects records.
But those negotiations have been thrown off track, with critics of the spying program alarmed by the possibility that congressional leaders may try to use the coronavirus outbreak — and the coinciding legislation to fund a response — as a vehicle to muscle through an unamended extension or reauthorization.
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The Trump administration’s request for $2.5 billion to mitigate the coronavirus pandemic is likely to become an unstoppable legislative vehicle — as must-pass legislation that congressional leaders of both parties could use to ram through a reauthorization of the FBI’s call detail records program. Such a move would sidestep the House’s reform effort and instead push through a clean reauthorization of the program.
The Senate, said a Democrat on the House Judiciary Committee, is “threatening to put that clean reauthorization into something like coronavirus funding which would make it impossible to defeat if we don’t come up with a bill here. Pelosi and Schiff will never allow it to expire.”
“I would say it is still chatter at this point. But it is also chatter that could become their Plan A,” a Senate Republican aide, who requested anonymity because they are not authorized to speak on the matter, told The Intercept.
Josh Withrow, senior policy analyst at the GOP-leaning libertarian organization Freedom Works, said that he has heard from a number of his sources on Capitol Hill on both sides of the aisle that the coronavirus vehicle is a looming threat. “It’s a real fear,” he said. “It obviously seems to have some legs, but I think they’d run into a little bit of a problem with that, because they already have a lot of conservatives questioning the dollar amount and saying, just pass a clean coronavirus.”
THE PROGRAM in question is the “call detail records” program, which sets out how the FBI or NSA can obtain phone records stored by telecom providers. Prior to that, the NSA collected phone records in bulk, relying on a secret interpretation of the Patriot Act that a federal appeals courtdisputed in 2015.
But due to widespread compliance issues and limited intelligence value, the NSA voluntarily shut down the call details records program in 2019, leading many in Congress to question why the Trump administration was seeking to extend the legal basis for a now-defunct program. Civil liberties groups now see the reauthorization fight as a bellwether for whether Congress can bring itself to roll back surveillance authorities even in cases where the intelligence community determines they have limited intelligence value.
On Wednesday, the House Judiciary Committee had been scheduled to meet to vote on the product of closed-door negotiations between Judiciary Committee Chair Jerry Nadler, his counterpart on the intelligence committee Rep. Adam Schiff, Republicans, and the intelligence community.
Rep. Zoe Lofgren, a California Democrat who has been a lead civil liberties reformer on the committee, had said that she would introduce five amendments to the bill. Given that there is bipartisan skepticism of surveillance authority — Republicans have become increasingly opposed to it in the wake of the inspector general report into Foreign Intelligence Surveillance Court abuses surrounding the Carter Page case — the amendments had a reasonable chance of success, opening the possibility that leadership would push forward with an Intelligence version of the bill and ditch the Judiciary legislation.
With Lofgren’s unexpected amendments surfacing, the hearing was canceled at the last minute. If the negotiations looked deadlocked, committee members worried, it upped the chance that the Senate, with the backing of House leaders, would attach the reauthorization to the must-pass coronavirus bill.
“We are trying to work out something and ensure also that the Senate does not push a clean reauthorization. So we needed more time,” said the Judiciary Committee member, citing the looming coronavirus vehicle.
The negotiations over surveillance reform are also complicated by the fact that congressional House leadership can decide which version of a bill receives a vote on the floor. In January 2018, while members of Congress were considering whether to reauthorize a different NSA surveillance, House leadership advanced a hastily written bill passed by the House Intelligence Committee under Rep. Adam Schiff, which was much more favorable to the intelligence community, over a counterpart authored by the Judiciary Committee.
On surveillance issues, House Speaker Nancy Pelosi and Schiff are much more closely aligned than her and Nadler. Schiff is increasingly being viewed in the House as a potential successor to Pelosi as House Speaker. Pelosi herself was the former top Democrat on the Intelligence Committee.
AT&T, T-Mobile among companies facing hundreds of millions of dollars in fines, though they will likely fight decision
The telecommunications regulator in recent weeks informed AT&T Inc., SprintCorp., S -2.62% T-MobileTMUS -2.57% US Inc. and Verizon CommunicationsInc. VZ -3.64% of pending notices of apparent liability, the people said. Such notices aren’t final, and the companies can still argue they aren’t liable or should pay less. It would ultimately fall on the U.S. Justice Department to collect any penalties.
The proposed fines, which could total more than $200 million, are expected to be announced Friday, one of the people said. Last month, FCC chairman Ajit Pai notified members of Congress that an agency investigation had concluded that “one or more” carriers had apparently violated federal law by disclosing real-time location data.
The FCC moved after some of the carriers had continued sharing their subscribers’ coordinates even after they told members of Congress they were cutting off the middlemen companies from using their data feeds. Verizon has said it stopped sharing cellular location data in 2018. AT&T and T-Mobile said in early 2019 that they were cutting off some location data sharing.
The top U.S. wireless providers agreed to curb their data sharing after independent reporting found data aggregators were misusing feeds that provided subscribers’ real-time locations. Upon request, the carriers would pinpoint specific subscribers and share the result with middlemen companies, which then shared the information with hundreds of other businesses.
Some privacy advocates criticized the FCC action as overdue.
“Consumers have no choice but to share highly private information with a provider about everywhere they go” to obtain cellular service, said Laura Moy, associate director at the Center on Privacy & Technology at Georgetown Law. “Carriers are not allowed to turn around and sell that location information to anyone with a phone number and a few dollars to spend. But this has been a widespread practice, and the FCC has been slow to rein it in.”
Sen. Ron Wyden (D., Ore.), who wrote to carriers in 2018 after the location-sharing partnerships were revealed to ask about their data privacy practices, called the proposed fines inadequate. He said in a tweet that strong privacy legislation was needed.
Cellphone companies need to know their subscribers’ coordinates to route calls and data to the right place. That gives them a more consistent view of customers’ movements than app developers, which use global positioning systems, Wi-Fi and other data sources that users can shut off through their smartphone settings. Wireless carriers also sell anonymized location data to marketers.
Data aggregators LocationSmart Inc. and Zumigo Inc. told The Wall Street Journal they distributed real-time locations to legitimate clients, including bank fraud-detection departments and roadside assistance services. But others used the data feeds for what the carriers said were unauthorized purposes. One prison phone provider created a website that let law-enforcement agencies find the location of any cellphone user without obtaining a court order, the New York Times and Motherboard have reported.
The FCC didn’t offer the carriers any settlements, one of the people said. That might prompt some carriers to fight the charges against them through the commission’s administrative process.
The fines, if paid, could fall heavily on T-Mobile if it closes its planned merger with Sprint in the coming weeks. The two companies recently revised the terms of that agreement, which was worth $26 billion when it was signed two years ago.
Under the revised merger, the parent companies of T-Mobile and Sprint agreed to split the cost of any liabilities up to $200 million. Sprint ownerSoftBank Group Corp. would be on the hook for excess liabilities above $200 million.