28 October 22
Live on the homepage now!
Reader Supported News
How our inability to change America’s most important document is deforming our politics and government.
Laws govern people; constitutions govern governments. Lately, American democracy has begun to wobble, leaning on a constitution that’s grown brittle. How far can a constitution bend before it breaks? The study of written constitutions has become a lot more sophisticated since Madison’s day. A project called Constitute has collected and analyzed every national constitution ever enacted. “Constitutions are designed to stabilize and facilitate politics,” the project’s founders write. “But, there is certainly the possibility that constitutions can outlive their utility and create pathologies in the political process that distort democracy.” Could that be happening in the United States?
The question is urgent, the answer elusive. There are a few different ways to tackle it. One is to investigate the history of efforts to amend the Constitution, a subject that’s been surprisingly little studied. Working closely with Constitute, I head a project called Amend—an attempt to assemble a comprehensive archive of every effort to amend the U.S. Constitution.
Another approach is to query the public. In July, 2022, the nonprofit organizations More in Common and YouGov collaborated with Constitute and Amend to conduct a national survey. It asked a sample of two thousand Americans questions about whether the Constitution is still working, and, if it’s not, how to fix it.
In this piece, The New Yorker will be asking you some of the same questions. More than two centuries on, does the U.S. Constitution need mending?
Public-opinion surveys have been asking Americans this question for a long time, as the political scientist Zachary Elkins has demonstrated. In 1937, when asked “Should the Constitution be easier to amend?,” twenty-eight per cent of those surveyed said yes, and sixty per cent said no. A half century later, in 1987, another survey asked more or less the same question, and got more or less the same answer: twenty per cent of respondents said that the Constitution was too hard to amend, and sixty per cent said that amending it was about as hard as it ought to be.
This era of contentment appears to have come to an end. In 2022, forty-one per cent of respondents said that the Constitution should be more frequently reviewed and amended, and another seven per cent that it should be entirely rewritten and replaced. Those are the over-all numbers. But the results are strikingly polarized. Seventy-two per cent of Republicans think that the Constitution is basically fine as is; seventy-two per cent of Democrats disagree.
In 1787, the men who wrote the Constitution added a provision for amendment—Article V—knowing that changing circumstances would demand revision. To amend meant, at the time, to correct, to repair, and to remedy; it especially implied moral progress, of the sort that you indicate when you say you’re making amends or mending your ways. The idea for an amendment clause, a constitutional fail-safe, came from the states, where people demanded that their constitutions be revisable, “to rectify the errors that will creep in through lapse of time, or alteration of situation,” as one town meeting put it. No single article of the Constitution is more important, the Framers believed, because, if you couldn’t revise a constitution, you’d have no way to change the government except by revolution.
Without Article V, the Constitution would not have been ratified. But, from the start, most amendments failed, and were meant to. Amending the Constitution requires a double supermajority: an amendment introduced in Congress has to pass both houses by a two-thirds vote, and then must be approved by the legislatures of three-quarters of the states. Also, a lot of proposed amendments are horrible. In March, 1861, weeks before shots were fired at Fort Sumter, Congress passed a doomed amendment intended to stop the secession of Southern states: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.” Others have been silly, like the amendment, proposed in 1893, that would have renamed the country the United States of the Earth. And plenty have been perfectly reasonable but turned out to be unnecessary. The Child Labor Amendment proposed to give Congress the “power to limit, regulate, and prohibit the labor of persons under eighteen years of age.” It passed Congress in 1924 and went to the states for ratification, where it failed; later, child labor was abolished under the terms of the Fair Labor Standards Act of 1938.
More than ten thousand amendments have been introduced into Congress. Many more never made it that far. Only twenty-seven have ever been ratified and become part of the Constitution. Looking at them all at once, straight off, you can see patterns. Most successful amendments involve a constitutional settlement in the aftermath of a political revolution. Ratifications have come, mostly, in flurries: first during the struggle over the Constitution itself, when its critics secured ratification of amendments one through ten, the Bill of Rights; then during the Civil War and Reconstruction, a second founding, marked by the ratification of amendments thirteen through fifteen; and, finally, during the Progressive Era, when reformers achieved amendments sixteen through nineteen. Scattered amendments have been ratified since, notably the Twenty-fifth, which established a procedure in the event of Presidential debility, and the Twenty-sixth, which lowered the voting age to eighteen. The Twenty-seventh Amendment, concerning congressional salaries, was ratified in 1992, but it was first proposed in 1789. All of these have been one-offs, rather than part of efforts to constitutionalize political revolutions.
Amending the Constitution
Since 1789, members of Congress have introduced more than ten thousand proposals to amend the Constitution. Nonetheless, only twenty-seven amendments have ever been ratified, giving the United States one of the lowest amendment rates in the world. The rest are “discards,” amendments that failed.
In this time line, amendment proposals are grouped by congressional session and ordered by the year they were introduced as bills.
It’s always been hard to amend the Constitution. But, in the past half century, it’s become much harder—so hard that people barely bother trying anymore. Between 1789 and 1804—fifteen years—the Constitution was amended twelve times. Between 1805 and 2022—two hundred and seventeen years—it’s been amended only fifteen times, and since 1971 only once. The Framers did not anticipate two developments that have made the double supermajority required of Article V almost impossible to achieve: the emergence of the first political parties, which happened in the seventeen-nineties, and the establishment of a stable two-party system, in place by the eighteen-twenties. As John Adams complained, in 1808, “the Principle Seems to be established on both Sides that the Nation is never to be governed by the Nation: but the whole is to be exclusively governed by a Party.” This state of affairs raised the bar for amending the Constitution. The current era of party polarization, which began in the early nineteen-seventies, has raised the bar much, much higher.
How high? Political scientists talk about the “amendment rate”—the number of amendments to any given constitution, per year. Divide twenty-seven ratified amendments by two hundred and thirty-three years and you get 0.12, the U.S. amendment rate. It is one of the lowest rates in the world.
What effect is that having on American politics and government? Consider the Electoral College. Proposals to reform or abolish the Electoral College have been introduced in Congress more than seven hundred times since 1800, and electing the President by popular vote has enjoyed a great deal of popular support for the past half century or so. In 1967, sixty-five per cent of Americans were in favor of it. And support has remained at about the same level ever since—with the exception of a notable dip in 2016.
What do you think?
The More in Common/YouGov 2022 survey suggests that, if a constitutional amendment to abolish the Electoral College were a matter of public opinion, it would win, forty-seven per cent to thirty-five. Support, however, varies by party: seventy-three per cent of Democrats want to abolish the Electoral College, and sixty-three per cent of Republicans want to keep it. Such an amendment doesn’t seem to lie in the realm of the possible. Accordingly, most people interested in this reform have sought instead to increase the size of the House of Representatives, and to admit Puerto Rico, the District of Columbia, and Guam to statehood—both measures that would alter the number of delegates to the Electoral College. Meanwhile, domestic tranquillity remains elusive. In two of the past six Presidential elections, 2000 and 2016, the winner of the popular vote has lost the Presidency; in the aftermath of the 2020 election, supporters of the loser staged an armed insurrection at the Capitol.
An unamendable constitution is not an American tradition. U.S. state constitutions are much easier to amend than the federal Constitution. The average amendment rate of a U.S. state is 1.23; Alabama’s constitution has an amendment rate of 8.07. A high amendment rate is generally not a sign of political well-being, though, since it comes at the cost of stability. Also, it can be disastrous in states where constitutions can be amended by a popular referendum: research suggests that the language of ballot initiatives is so mealy-mouthed that many voters, confused or misled, end up casting votes that go against their actual preferences. It’s a Goldilocks problem. You don’t want your constitution to be too hard to amend, but you don’t want it to be too easy, either.
Making the Constitution easier to amend would itself require a constitutional amendment, which means it’s not going to happen. But what if it could? The most radical way to make amending easier would be to drop the supermajority requirements, allowing Congress to pass proposed amendments by a simple majority, and then sending them not to state legislatures for ratification but to the whole of the people, by way of a national popular referendum. I’m not proposing this. No one is, not even the far-right movement—a descendant of the Tea Party—that calls for a second Constitutional Convention. Still, it’s a worthwhile thought experiment. Would the eighty-five per cent of liberals who would like to make the Constitution easier to amend be happy with the results?
Consider, for instance, the hot-button issue of immigration. Amendments to repeal birthright citizenship—a guarantee of the Fourteenth Amendment—have been introduced into Congress at least twenty times since 1991. Red states whose governors have taken strong anti-immigration positions—including Greg Abbott of Texas and Ron DeSantis of Florida—might well support amendments to their state constitutions limiting the rights of immigrants. And it’s easy to imagine a national initiative.
Terrifyingly, using a referendum-based system, a federal constitutional amendment ending birthright citizenship would be only very narrowly defeated, forty-nine per cent to fifty-one, according to the poll conducted by More in Common and YouGov.
You could ask the same question of abortion. This summer, Kansas voters struck down a proposed state constitutional amendment banning all abortions. This November, voters in California, Michigan, and Vermont will vote on amendments to their state constitutions guaranteeing a right to abortion. What would be the result if abortion were put to a national popular referendum?
Surveys aren’t binding. They’re not even especially reliable. But this 2022 survey offers at least a glimpse of what might happen if a slate of constitutional amendments were voted on in a nationwide referendum this year. A constitutional amendment to restrict abortion would likely be ratified, fifty-one to forty-nine—and yet, paradoxically, a constitutional amendment to guarantee a right to abortion would also be ratified, fifty-seven to forty-three.
Under the current rules, no federal abortion amendment could possibly be ratified. No proposal, in either direction, is going to earn a two-thirds majority in both houses. But that doesn’t mean that the Constitution isn’t being changed on this question. Instead, it’s undergoing a massive change by way of constitutional interpretation, in the hands of the Supreme Court.
“Nothing new can be put into the Constitution except through the amendatory process,” Justice Felix Frankfurter declared, in 1956, and “nothing old can be taken out without the same process.” That’s not strictly true. The Constitution has become unamendable, but it has not become unchangeable. Its meaning can be altered by the nine people who serve on the Supreme Court. They can’t rewrite it, but they can reread it.
The Framers did not design or even anticipate this method of altering the Constitution. They didn’t plan for judicial review (the power exercised by the Supreme Court to review the constitutionality of legislation), and they thought they’d protected against the possibility of judicial supremacy (the inability of any other branch of government to check the Court’s power).
As with the filibuster, whether you like judicial supremacy generally depends on whether your party’s in power or out. The Court is the least democratic branch of government. But it also has the ability to protect the rights of minorities against a majority. In the nineteen-fifties, because Jim Crow laws meant that Blacks in the South could not vote, it proved impossible to end segregation through electoral politics or a constitutional amendment; instead, the N.A.A.C.P. sought to end it by bringing Brown v. Board of Education to the Supreme Court. Since then, the Court has implemented all sorts of constitutional changes: it has secured the rights of criminal defendants; established rights to contraception, abortion, and same-sex marriage; declared corporate campaign donations to be free speech; and interpreted the Second Amendment as restricting the government’s ability to regulate firearms. Which of these you believe to be bad decisions and which good depends on your position on all manner of things. But, unlike a constitutional amendment, every decision the Court makes it can reverse, the way that, this year, in Dobbs v. Jackson Women’s Health Organization, it overturned Roe v. Wade, from 1973. (You can reverse a constitutional amendment, but only with another one: that’s how Prohibition ended.)
In 2002, Congress considered a proposed amendment that read, “Marriage in the United States shall consist only of the union of a man and a woman.” Introduced again and again in subsequent congressional sessions, it went nowhere. Instead, in 2015, in Obergefell v. Hodges, the Supreme Court determined that same-sex marriage is constitutionally guaranteed under the equal-protection clause of the Fourteenth Amendment. Given the direction the Court is headed, will that ruling be enough to protect that right? Alternatively, if this question, too, were submitted to a national popular vote, how would Americans lean?
Much depends on how survey questions are phrased. But the survey data suggest that, in a referendum, a constitutional amendment banning same-sex marriage would be defeated, thirty-five per cent to sixty-five, while a constitutional amendment guaranteeing same-sex marriage would be ratified, sixty-two to thirty-eight.
Reversing Roe v. Wade did not require a constitutional amendment (even though many were proposed). Instead, it required something even more extraordinary: a wholly new mode of constitutional interpretation. Roe built on a 1965 case, Griswold v. Connecticut, which protected access to contraception under a right to privacy. After Griswold, conservative critics of the Court began to devise an approach to constitutional interpretation custom-built to defeat it: the jurisprudence of originalism. Robert Bork first proposed its framework in 1971, in an essay in which he argued against Griswold. Originalism undergirds one of the most radical constitutional reversals in recent American history: the reinterpretation of the Second Amendment as protecting an individual right to bear arms, as opposed to the right of the people to form militias. (Bork himself disagreed with this reinterpretation, which has been advanced by the N.R.A.) This spring, in the Bruen case, the Court reinforced its N.R.A.-informed interpretation of the Second Amendment. What would happen if the Second Amendment were put to a referendum?
There’s a good reason that American constitutional amendments are not decided through national referendums. (Consider, after all, that Brexit was decided by a national popular referendum.) “A nation of philosophers is as little to be expected as the philosophical race of kings wished for by Plato,” Madison wrote, in Federalist No. 49. “The danger of disturbing the public tranquillity by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society.” If the question of whether the government can regulate the possession of firearms were put to the people, and the people were evenly divided, what would be the consequence? Madison worried that putting constitutional matters to the people directly was an experiment “of too ticklish a nature to be unnecessarily multiplied.” Then again, plainly the people ought to have a greater role than they have when no amendments are any longer even sent to the states.
All sorts of ideas are floating around for how to shake things loose. Constitutional populists—Tea Partiers, Trumpists, and other conservatives, from Rick Santorum to Greg Abbott—have rallied around a proposal to revise the Constitution by way of a provision in Article V that’s never been used, and which holds that the country, “on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments.” Nineteen state legislatures have made some version of that application; thirty-four are required. Since 2013, this effort has been headed by the Convention of States project, funded in part by the Koch brothers. A new book, “The Constitution in Jeopardy,” co-authored by the former Democratic senator Russ Feingold, warns that, if Republicans win a few more state legislatures in this year’s midterms, a convention that could gut the Constitution, or at least the federal government, is around the corner.
If you could fix Article V, how would you do it? In 2020, the National Constitution Center asked three teams of experts—constitutional lawyers, mostly, divided into teams of libertarians, conservatives, and progressives—to draft a new constitution. The libertarians, who joked that “all we needed to do was to add ‘and we mean it’ at the end of every clause,” left Article V alone. The conservatives decided to make their constitution easier to amend (“but not too much easier”) by lowering the voting requirement in Congress from two-thirds to three-fifths, and in the states from three-fourths to two-thirds. And the progressives came up with a plan under which amendments could be proposed “not just by two-thirds of members of each House (or two thirds of states) but by Members of each House (or states, for constitutional conventions) representing two-thirds of the U.S population.” Think of it as an amendment caucus; if an amendment succeeded in Congress, it could then be ratified either by three-quarters of the states (the way things are now) or “by states representing three-fourths of the population.” No one is calling for constitutional amendment by national referendum.
Americans aren’t going to amend Article V anytime soon because we’re not going to amend any part of the Constitution anytime soon. In the end, the really interesting question isn’t what would happen if the people could amend the Constitution by popular vote but what actually happened, in the first place, to cripple Article V, and give the Supreme Court superpowers.
The Constitution became effectively unamendable in the early nineteen-seventies, just when originalism began its slow, steady rise. The Twenty-sixth Amendment, which was ratified in 1971 and lowered the voting age from twenty-one to eighteen, an antiwar-movement objective, turned out to be the only amendment that constitutionalized an aim of one of the political revolutions of the sixties—the women’s movement, the civil-rights movement, the gay-rights movement, and the environmental-rights movement. People did not see that coming: they expected those movements to result in amendments.
In 1970, the civil-rights activist, constitutional theorist, and Episcopal priest Pauli Murray told the Senate Judiciary Committee that the passage of the proposed Equal Rights Amendment, barring discrimination on the basis of sex, was essential to ending what Murray referred to as Jane Crow, and to inaugurating a new and better era in the history of the nation’s constitutional democracy:
The adoption of the Equal Rights Amendment and its ratification by the several States could well usher in an unprecedented Golden Age of human relations in our national life and help our country to become an example of the practical ideal that the sole purpose of governments is to create the conditions under which the uniqueness of each individual is cherished and is encouraged to fulfill his or her highest creative potential.
That, of course, did not come to pass. No golden age ever does. In 1972, Congress passed the Equal Rights Amendment and sent it to the states, where most observers expected that it would secure quick ratification. But, in 1973, the Supreme Court issued its opinion in Roe v. Wade. And conservatives began a decades-long campaign to advance originalism, reverse Roe, and defeat the E.R.A. by arguing, as Phyllis Schlafly did, that “the E.R.A. means abortion.” Every significant amendment attempted since has failed. And, although efforts are ongoing to revive the E.R.A., so far they haven’t succeeded, either.
Polarization weakened Article V. But the Constitution really snapped when it became too brittle to guarantee equal rights to women. Liberals gave up on constitutional amendment; conservatives abandoned it in favor of advancing originalism. Still, nothing’s broken that can’t be mended. It’s a question, now, of how.
READ MORE
Speaker Nancy Pelosi with her husband Paul Pelosi. (photo: Getty)
Democratic House speaker’s office says husband ‘violently assaulted’ early on Friday by suspect who is now in police custody
Pelosi’s office said he was “violently assaulted” by an attacker who broke into the Pelosi home.
“The assailant is in custody and the motivation for the attack is under investigation,” the office of the longtime Democratic congresswoman and House speaker said.
In a statement, Pelosi’s spokesperson Drew Hammill said her husband, 82, was “receiving excellent medical care and is expected to make a full recovery”. Hammill said Nancy Pelosi was not in San Francisco at the time of the attack.
“The speaker and her family are grateful to the first responders and medical professionals involved, and request privacy at this time,” Hammill said.
Paul Pelosi is a businessman who runs his own real estate and venture capital investment firm, Financial Leasing Services, based in San Francisco. He met Nancy D’Alesandro when they were both students in Washington DC, and they married in 1963. They have five children.
Nancy Pelosi has had two stints as speaker of the US House, between 2007 to 2011 and since January 2019. She represents California’s 12th congressional district.
Military nurse Viktoria Obidina was among 108 Ukrainian women released on October 17 in a prisoner swap with Russia after spending more than five months in captivity. (photo: AFP)
Former prisoners of war, swapped in a recent deal, say they were subjected to starvation and other forms of abuse.
“I was glad she wasn’t near me,” she told Al Jazeera, describing how she trusted a total stranger to take Alisa away on a bus.
Mother and daughter were in a filtration camp for Ukrainian prisoners of war captured in the southern city of Mariupol, and Obidina was about to be whisked away to a Russian detention centre.
“They could have tortured me near her or could have tortured her to make me do things,” she explained matter-of-factly.
“They” were the Russian servicemen and pro-Russian separatists who interrogated her and roughly 1,000 Ukrainians who emerged from Azovstal, a huge steel plant that was the last Ukrainian holdout in besieged Mariupol.
Azovstal withstood almost three months of constant attacks, and its defenders left their underground bunkers only after a direct order from Kyiv.
The separatists threatened to sentence some servicemen to death and kept them in concentration camp-like conditions for months, just as they do with thousands of other Ukrainian prisoners of war.
Some of the POWs are women. And some have been subjected to starvation, torture and sexual humiliation, Ukrainian officials and former POWs say.
“These people hold nothing sacred,” said Inga Chikinda, a Lithuania-born marine who was among 108 servicewomen and civilians released on October 17 in a POW swap.
“There were times when we were starving,” Chikinda told Al Jazeera. “We were not treated like humans.”
She lost 8kg (17.6 pounds) in one of the Russian jails.
Their captors kept them away from non-Russian news outlets and any contact with their relatives and Ukrainian officials.
“We were in an information vacuum,” Tetiana Vasylchenko, a bookkeeper-turned-paramedic who was captured in Mariupol in early March, said at a Kyiv press conference on Wednesday.
“They loved saying, ‘Ukraine doesn’t want you. Nobody wants to swap you,’” she said.
But the women found ways to keep their spirits up.
One time, 27 women packed in a tiny cell designed for six people whispered the Ukrainian anthem, Vasylchenko said.
“This was incredible,” she said. “All doubts disappeared. The girls’ eyes lit up.”
The women were routinely denied basic healthcare.
Liudmila Guseinova, who started helping rural orphans living near the separatist-held areas in Donetsk in 2014, was captured in 2019.
“For three years, I couldn’t get an ophthalmologist to see me, to simply get a pair of glasses,” she said. Separatist leaders charged her with espionage, treason and extremism.
After three years and 13 days in captivity, she has lost 70 percent of her eyesight, she said.
Like other POWs, Guseinova could only watch Russian television channels but picked up on Moscow’s battlefield losses from the changing tone of news reports and talk shows.
“The angrier [TV anchors Olga] Skabeyeva, [Vladimir] Solovyev and other Russian propagandists got, the better we understood that Ukraine was winning,” she said.
One of the places where Guseinova was held was Isolyatsia, a concentration camp in Donetsk where thousands of people have allegedly been tortured since 2014.
Survivors say they were beaten, waterboarded, shocked and raped with electric rods. They report having their teeth and nails removed, being buried alive for hours and facing mock games of Russian roulette and executions.
Torture “goes on for hours. You lose the sense of time, and the most horrible thing is that you can’t stop it,” Ihor Kozlovsky, a theologian who spent several months in Isolyatsia, told Al Jazeera in 2021.
A military official who organises military swaps said the newly released POWs appear broken and depressed.
“When people came out of the bus, there was a smell of fear, despair,” Colonel Volodymyr Petukhov told Al Jazeera.
“They walk differently, they speak differently, they look differently,” he said.
Kyiv considers the release of each POW a priority – even if they have to be swapped for high-profile figures suspected of spying for Moscow.
Pro-Kremlin Ukrainian oligarch Viktor Medvedchuk, who was charged with high treason, was among 55 people Ukraine swapped for 215 Azovstal defenders and other servicemen in late September.
“Ukraine remembers everyone,” said Petro Yatsenko, an author who helped negotiate the prisoner swap. “Ukraine will get everyone back.”
Back in March, the Mariupol apartment building that nurse Obidina and her daughter, Alisa, lived in was being shelled when a Ukrainian serviceman calmly waited for them to pack up and go to a bunker under the Azovstal steel plant.
The serviceman was later killed by a Russian sniper, she said.
Alisa spent almost two months in the bunker with other civilians, horrified by the constant bombardment by Russian planes, cruise missiles and artillery.
She helped her mother hand out painkillers to wounded soldiers, read books and played with other children – but kept asking her mother about death.
“’Is this our last day?’” she once asked.
Alisa pulled at the heartstrings of millions of Ukrainians after she was seen in the steel plant in a a shaky video filmed with a mobile phone camera.
As she leafed through a book, the child said she wanted to go home and say hello to her grandmother Svitlana.
But the video led to Obidina’s arrest and imprisonment.
When they came out of Azovstal’s underground hell, a Russian soldier recognised the child.
“I was told Alisa would be sent to an orphanage and I would be arrested,” Obidina said.
Luckily, a woman at the filtration camp in the southeastern town of Mangush told Obidina she could take Alisa to Ukrainian-controlled territory.
Obidina agreed right away.
Alisa’s bus spent days stranded in no man’s land in the southern region of Zaporizhia.
Then Alisa reunited with her grandmother, and both fled to Poland, where the child attends kindergarten and is learning Polish.
Her mother spent 165 days in concentration camps in the separatist-held parts of Donetsk.
One was the sprawling Olenivka prison, where 60 Ukrainian servicemen were killed on July 29.
Moscow accused Ukraine of hitting their barracks with a US-supplied cruise missile, but media reports suggested the blast was caused by the Russians and separatists.
During her captivity, Obidina was allowed to call Alisa once, on the morning after her fifth birthday.
In exchange, her Russian captors coerced her into memorising anti-Ukrainian statements and saying them on camera for a Kremlin-controlled television network.
“I was forced to say what they wanted to hear,” Obidina said.
Weeks later, she was swapped and returned to Ukraine. She never got back the documents, jewels, phone or money she handed over during her arrest.
She will reunite with Alisa after several weeks of psychological rehabilitation in the eastern city of Dnipro.
“I’m only a month away from her,” she said with a radiant smile.
A screengrab of Elon Musk carrying a sink as he enters the Twitter headquarters in San Francisco on Oct. 26. (photo: Twitter)
Musk, 51, is replacing Parag Agrawal, who was fired along with three other top executives, a person familiar with the matter said, asking not to be identified discussing internal deliberations. The mercurial entrepreneur, who also leads Tesla Inc. and SpaceX, may eventually cede the Twitter CEO role in the longer term, the person added. Twitter representatives declined to comment.
Musk’s acquisition puts the world’s richest man in charge of a struggling social network after six months of public and legal wrangling. Among Musk’s first moves: changing the leadership. Departures include Vijaya Gadde, the head of legal, policy and trust; Chief Financial Officer Ned Segal, who joined Twitter in 2017; and Sean Edgett, who has been general counsel at Twitter since 2012. Edgett was escorted out of the building, Bloomberg News reported.
Musk also intends to do away with permanent bans on users because he doesn’t believe in lifelong prohibitions, the person said. That means people previously booted off the platform may be allowed to return, a category that would include former president Donald Trump, the person said. It’s unclear however if Trump would be allowed back on Twitter in the near term.
In response to a Twitter user complaining they are being “shadowbanned, ghostbanned, searchbanned,” as well as having followers removed, Musk said in a tweet on Friday that he will be “digging in more today.”
The takeover caps a convoluted saga that began in January with the billionaire’s quiet accumulation of a major stake in the company, his growing exasperation with how it’s run and an eventual merger accord that he later spent months trying to unravel. Musk’s buyout marks the end of nine years of public trading. Twitter debuted with a bang on the New York Stock Exchange in 2013 but failed to match the rocket ride achieved by some other tech heavyweights.
The change in leadership will bring immediate disruption to Twitter’s operations, in part because many of Musk’s ideas for how to change the company are at odds with how it has been run for years. He’s said he wants to ensure “free speech” on the social network.
Twitter banned Trump days after the 2021 Capitol insurrection, citing the “risk of further incitement of violence.” With the former president widely expected to make another run for the White House in 2024, a return to Twitter could grant him an opportunity to turbocharge his message.
More broadly, Musk’s initiatives threaten to undo years of Twitter’s efforts to reduce bullying and abuse on the platform.
The prospect of less restrictive content moderation under Musk’s leadership has prompted concerns that dialogue on the social network will deteriorate, eroding years of efforts by the company and its “trust and safety” team to limit offensive or dangerous posts. On Thursday, Musk posted a note to advertisers seeking to reassure them he doesn’t want Twitter to become a “free-for-all hellscape.”
As the Oct. 28 deadline neared, Musk began putting his stamp on the company, posting a video of himself walking into the headquarters and changing his profile descriptor on the platform he now owns to “Chief Twit.”
He arranged meetings between Tesla engineers and product leadership at Twitter, and he planned to address the staff on Friday, people familiar with the matter said. Twitter’s engineers could no longer make changes to code as of noon Thursday in San Francisco, part of an effort to ensure that nothing about the product changes ahead of the deal closing, the people said.
Twitter employees have been bracing for layoffs since the transaction was announced in April, and Musk floated the idea of cost cuts to banking partners when he was initially fundraising for the deal. Some potential investors were told Musk plans to cut 75% of Twitter’s workforce, which now numbers about 7,500, and expects to double revenue within three years, a person familiar with the matter said earlier this month.
While visiting Twitter headquarters on Wednesday, Musk told employees that he doesn’t plan to cut 75% of the staff when he takes over the company, according to people familiar with the matter.
The past six months have been challenging for Twitter employees, who have primarily followed the ups and downs of the roller-coaster deal through the news headlines.
Many have been unhappy with Musk’s involvement and some have questioned his qualifications to run a social networking company. His support of a far-right political candidate in Texas, plus sexual harassment accusations from a former SpaceX flight attendant in May, have raised additional concerns. During a video Q…A with Musk in June, some employees mocked Musk on internal Slack channels. Others have ridiculed or chided him publicly on Twitter throughout the deal process.
Oregon Democratic gubernatorial candidate Tina Kotek, left, and Vermont Sen. Bernie Sanders acknowledge the crowd during a visit to the University of Oregon campus in Eugene, Oregon, Thursday, Oct. 27, 2022. (photo: Chris Pietsch/AP)
The tour is an effort to energize young voters and shore up support for vulnerable Democratic candidates ahead of the midterm elections. Other planned stops for Sanders include California, Texas, Michigan and the battleground states of Nevada, Pennsylvania and Wisconsin.
“This is the most important midterm election in the modern history of our country,” Sanders told the crowd of hundreds of people gathered at downtown Portland’s Roseland Theater.
He criticized the U.S. Supreme Court decision that overturned the right to abortion, and then turned to the talking points he’s been urging Democratic candidates to take up for months, including the nation’s wealth inequality; fears that a Republican-controlled Congress may cut Social Security, Medicaid or Medicare; and the way that high corporate profits in the oil, food and prescription drug industries may be fueling inflation.
“If you’re sick and tired of paying four, five or even six bucks a gallon for a gallon of gas, understand that the largest five oil companies in America made $59 billion in profits during the second quarter alone of this year,” Sanders said, pinning inflation on the supply chain disruptions stemming from the coronavirus pandemic, Russia’s war in Ukraine and “corporate greed.”
The rallies in Portland and Eugene, Oregon, included appearances with Democratic gubernatorial candidate Tina Kotek and Oregon’s Democratic nominee for the state’s 4th District congressional seat, Val Hoyle. Hoyle is running against Republican Alek Skarlatos for the seat left open by the retirement of longtime Democratic U.S. Rep. Peter DeFazio.
Typically a bastion of West Coast liberalism, Oregon has become the unlikely site of one of the most competitive governor’s contests in the country. Considered a toss up by analysts, the three-way race features Kotek, Republican Christine Drazan and nonaffiliated candidate Betsy Johnson.
Democrats are concerned that Johnson may act as a spoiler by siphoning votes from Kotek and potentially boosting the GOP in turn.
“A vote for Betsy Johnson is a vote for Christine Drazan at this point,” Kotek said at the Portland rally.
Enrique Ruiz, a 24-year-old Portland resident and labor organizer who attended, said he already planned on voting for Kotek but was excited that Sanders came to town.
“The fact that Bernie is coming out here, it sends a very powerful message. If someone like Bernie recognizes that this is important, then I’ll be here,” Ruiz said.
Sanders is the latest high-profile progressive to stump for Kotek after Sen. Elizabeth Warren visited Portland last weekend. President Joe Biden also campaigned with Kotek during a recent trip to Oregon, and former president Barack Obama has urged voters to support her in a recently released digital ad, as national Democrats pay close attention to the race.
Democrats hope the rallies will energize their base and sway potential Johnson voters to support their candidate instead.
All three candidates will have to woo nonaffiliated voters, who outnumber both registered Democrats and Republicans in the state, although they surpass Democrats by a much slimmer margin.
Katie Hobbs at a press conference outside the Evo A. DeConcini U.S. Courthouse on Oct. 7, 2022, in Tucson, Arizona. (photo: Mario Tama/Getty)
Democrats were quick to claim Hobbs' GOP opponent, Kari Lake, was responsible for the burglary because of her rhetoric. Lake responded by suggesting the break-in was staged.
Phoenix police said they arrested Daniel Mota Dos Reis, 36, on a single count of third-degree burglary. There does not appear to be any evidence that the break-in was politically motivated.
Still, the burglary has sparked accusations at both ends of the political spectrum, even before police announced they had arrested a suspect. Democrats claimed GOP opponent Kari Lake’s election denialism is to blame, while Lake suggested the break-in was staged.
Asked at an event Wednesday about the break-in, Lake told CNN, “It sounds like a Jussie Smollett part two,” a reference to the actor who staged a fake crime against himself in 2019.
Lake’s campaign later confirmed her quote to NBC News.
Hobbs' campaign manager, Nicole DeMont, responded Thursday to Lake's remarks.
"Kari Lake’s preposterous allegation that this break-in was staged is unfounded and her refusal to condemn the threats that have become common in our politics continues to stoke chaos," she said in a statement.
A police spokesperson said Wednesday that officers responded to a call about a break-in Tuesday and determined that items had been taken from the office Monday night.
Democrats were quick to point the finger at Lake, who's backed by Trump, claiming she was directly responsible for the break-in.
“Make no mistake — this is a direct result of Kari Lake and fringe Republicans spreading lies and hate and inciting violence — and it is despicable,” the Arizona Democratic Party said in a statement Wednesday.
The burglary comes amid reports of voter intimidation in Arizona, where Hobbs, as secretary of state, is the top election official. On Monday, her office said it had referred more cases to the state attorney general’s office and the U.S. Justice Department for further investigation.
In a statement Wednesday, Hobbs' campaign tied the reports of alleged voter intimidation to Lake and other election deniers.
“Let’s be clear: for nearly two years Kari Lake and her allies have been spreading dangerous misinformation and inciting threats against anyone they see fit. The threats against Arizonans attempting to exercise their constitutional rights and their attacks on elected officials are the direct result of a concerted campaign of lies and intimidation,” DeMont said.
She added that “Hobbs and her staff have faced hundreds of death threats and threats of violence over the course of this campaign.”
Shell and ExxonMobil are selling their California wells despite oil selling at high prices. Experts say one reason is looming liability for environmental cleanup.
It might seem like a lucrative time to drill for oil in the Golden State. Yet, some of the world’s largest oil companies, several of which have done business in the state for more than a century, are selling assets and beginning to pull out of California.
Even with strong cash flow in the short term, producers have more to gain from offloading wells and the associated liability — chiefly expensive environmental cleanup — than from pumping more oil and gas, experts say.
“This is the kind of deal you see when an industry is in its twilight,” said Andrew Logan, senior director for oil and gas at Ceres, a nonprofit focused on sustainability in companies and markets.
Some industry experts, lawmakers and environmentalists are concerned about the recent deals, noting that the sales shift environmental liability from corporate powerhouses to less-capitalized firms, increasing the risk that aging wells will be left orphaned, unplugged and leaking oil, brine and climate-warming methane. They see a threat that the state’s oil industry could repeat a pattern seen in other extractive industries like coal mining and lead to taxpayers bearing cleanup costs.
California Assemblymember Steve Bennett, a Democrat who has long worked on oil policy, has seen oil companies in his Ventura district walk away from environmental liability. “It gets passed on to a smaller company and to a smaller company until someone declares bankruptcy and the public is stuck with the cleanup bill,” he said.
IKAV Enters the Fray
Supermajors Shell and ExxonMobil recently agreed to sell more than 23,000 wells in California, which they owned through a joint venture called Aera Energy, to German asset management group IKAV for an estimated $4 billion. Aera accounts for about a quarter of California’s oil and gas production, largely from pumping in Kern and Ventura counties.
Shell and ExxonMobil say the deal will strengthen their businesses.
But Greg Rogers, an attorney and accountant who researches the oil and gas industry, said the deal allows the sellers to shed decommissioning costs. “You got bad assets with big liabilities, and you can get rid of both at the same time. That’s a win for Exxon and Shell,” he said.
IKAV will inherit a portfolio littered with wells past their prime. Nearly 9,000 Aera wells were idle as of early October, meaning about 38% of the company’s unplugged inventory isn’t producing oil or gas, according to state data.
“With oil being over $100 a barrel, any well that would’ve come back has likely come back,” Logan said, adding that long-idled wells are simply “orphan wells in waiting.”
In an email, Aera spokesperson Kimberly Ellis-Thompson said the company is capable of managing its large portfolio of idle wells. “Since 2019, when new idle well management program regulations were published, we have met or exceeded the requirements for retiring idle wells,” she said. The company has decommissioned and plugged nearly 1,000 wells on average every year since then, she said.
IKAV, Aera’s soon-to-be new owner, manages about $2.5 billion in energy-focused assets. News releases on the Aera sale quoted Constantin von Wasserschleben, IKAV’s chairman, saying, “We advocate a co-existence between renewable and conventional energy for decades to come.”
As the world increasingly shifts to cheaper renewable energy to address climate change, IKAV has been snapping up oil and gas wells from supermajors exiting the market. The firm, which once focused exclusively on renewable energy, began expanding into oil and gas in 2020 when it purchased BP’s gas assets in the San Juan Basin, spanning New Mexico and Colorado. The deal was part of BP’s push to divest $10 billion in assets, including aging American gas fields.
BP declined to comment.
If it’s not profitable to return wells to production, they need to be plugged. But if a company doesn’t plug its wells before walking away, wells are orphaned and the cleanup costs ultimately fall to taxpayers and current operators through fees.
This has happened with thousands of wells in California and hundreds of thousands, or more, across the country.
For example, the Greka group of companies left more than 750 wells for California to plug when its wealthy owner began pushing his businesses into bankruptcy in 2016 and retired to his Santa Maria winery. And a subsidiary of one of the country’s largest mining companies, Freeport-McMoRan, left dozens of likely orphaned wells, state records show, even though the company brought in nearly $23 billion in revenue last year.
Greka’s CEO didn’t respond to a request for comment, and a Freeport spokesperson said the company is working with the state to verify details about its orphaned wells.
To minimize the government’s exposure if wells are orphaned, producers must put up a bond, typically held as cash or a surety policy. The bonds act like a security deposit: The company gets its bond back if it cleans up its mess, but the government keeps the money if the company orphans its wells.
Newsom has called for an end to all oil extraction in the state by 2045, but his administration has yet to use another tool to hold producers responsible for cleanup.
California has the authority to ask for an additional $30 million in financial security from a single operator but only requires Aera to hold a $3 million bond. As a result, Aera’s bonds cover less than half a percent of the $1.1 billion that ProPublica estimates it would cost the state to plug the wells based on the average cost to California for past well plugging. (That estimate does not include the additional cost of full surface remediation.)
California Oil and Gas Supervisor Uduak-Joe Ntuk said in a statement that his agency reviews bonds for all oil companies in the state but did not say whether the amount of Aera’s financial security would be increased through the sale.
Aera, Shell and ExxonMobil did not respond to a question about the gap between their bonds and the estimated cost to plug their wells. IKAV did not respond to requests for comment. In an email, ExxonMobil spokesperson Meghan Macdonald said that “when we make divestments, we always try to work with partners like Aera and IKAV who are also committed to a lower-emissions future.”
Costs vary widely, but states have paid $100,000 or more to plug wells — and the same to clean up surface pollution — meaning there’s a significant gap between what’s needed and what California has available in bonds.
“If they don’t have the financial resources when it comes time to plug those wells, there’s a possibility that the public will be left holding the bag and paying those costs even though it’s the company that made the profit from selling the oil,” said Hollin Kretzmann, an attorney with the Center for Biological Diversity.
Who Will Be Liable?
More than 240,000 wells have pierced the state since the late 1800s, when Southern California’s first producing well spouted oil near where Dodger Stadium now stands. Of those, more than 5,300 are “orphan, deserted, and potentially deserted wells,” according to data the California Geologic Energy Management Division published in September.
Many on that list belong to individuals who died long ago or companies that dissolved in the shuffling of corporate paperwork. However, some responsible parties are still around but no longer legally liable after offloading their wells through sales and bankruptcies.
So who will be responsible for cleanup?
California is unique because state law allows regulators to call on former operators such as Shell and ExxonMobil to help pay for plugging onshore oil wells if they are later orphaned, even by a different owner. But companies have escaped responsibility under this stronger legal standard by exploiting loopholes such as a porous bankruptcy code.
Some experts question whether Shell and ExxonMobil would be required to pay if the wells they are selling to IKAV are ultimately orphaned, saying their ownership of the wells through a separate company, Aera, might shield them from liability.
“Exxon and Shell do not directly operate those wells. There’s corporate structuring going on in between,” Rogers said. And IKAV now adds another layer of corporate paperwork, holding the wells it acquired in New Mexico, Colorado and California through companies that were registered in Delaware shortly before the sales.
Alongside Aera, two other companies — California Resources Corp. and Chevron — account for the vast majority of California’s oil and gas production, and they too are shrinking their positions in the state. California Resources, which has been in and out of Chapter 11 bankruptcy in recent years, sold most of its Ventura Basin operations in November 2021. Chevron recently sold its California headquarters and plans to consolidate some of its unused Bakersfield office space as it shifts employees to Texas. Reuters reported in early October that Berry Corp., another large oil company that for many years has operated in California and Utah, was considering selling.
Berry did not respond to a request for comment.
Shell acknowledged its California wells were overvalued, suggesting the wells are even nearer to the end of their economic life than previously predicted. The company is wiping as much as $400 million off its books through the sale via an impairment charge.
Shell has been shedding assets in part to hand off associated greenhouse gas emissions. A 2021 Dutch court ruling ordered it to significantly reduce emissions, although the company has appealed the ruling. Zoe Yujnovich, the company’s upstream director, said in a news release about the sale of Aera that Shell will instead be “focusing on positions with high growth potential.”
For its part, ExxonMobil plans to focus on oil and natural gas that costs less to extract, Liam Mallon, president of ExxonMobil Upstream Co., said in a news release announcing the sale to IKAV.
Large public companies are handing off oil and gas assets around the country. Between 2017 and 2021, more than a quarter of oil and gas mergers and acquisitions took public companies private, with private equity often involved, according to a study conducted by the Environmental Defense Fund. The report voiced concern that private companies are less transparent and have less incentive to protect the environment.
California Is Just the Beginning
With more than 2 million unplugged oil wells believed to be scattered across the U.S., California is the tip of the iceberg.
A massive boom in American oil and gas production over the past 15 years spurred by technological advances in hydraulic fracturing and horizontal drilling unlocked previously inaccessible geologic formations. But the shale revolution and current market highs buoyed by Russia’s invasion of Ukraine won’t last forever.
Longtime petroleum reservoir engineer Dwayne Purvis laid out the reality at a recent conference. This shale revolution revitalized only some oil fields, and more than 90% of the country’s unplugged wells are either idle or minimally producing and unlikely to make a major comeback, according to his research.
“The bulk of the wells are producing from plays where there is no hope of another deus ex machina,” Purvis said, referencing nearly depleted oil fields.
The oil industry also faces an impending decline in demand from the shift to renewable energy and the trend toward banning the sale of new internal-combustion engine cars, as well as plans to phase out drilling in metro areas.
“The overall industry is being assaulted right now through policy changes at the state and federal level. That’s the story writ large,” Rogers said. “The industry is dying.”
Follow us on facebook and twitter!
PO Box 2043 / Citrus Heights, CA 95611
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.