SEED 'LAW'S: Primer On How Companies Intend to Control and Monopolize Seeds

Roasted Pumpkin Seeds. (Photo by Brian Jackson)

By GRAIN
All over the world, farmer’s seeds and seed systems are under attack. Corporations are pushing for ever more aggressive new laws and regulations that criminalize farmers for sowing, keeping, exchanging, and taking care of their seeds. If companies get their way, farmers around the world will face the possibility of being jailed or harshly fined for doing what they have been doing over centuries.

Alarmingly, the governments of non-industrialized countries are showing little or no will to resist, and in more than just a few cases, they are happily cooperating with these attacks. The recent approval of a new protocol on intellectual property over plant varieties by member states of the African Regional Intellectual Property Organization (ARIPO) is just the latest example.

Farmer seed systems stand at the very origin of agriculture, as we now know it. They are a fundamental prerequisite if farming families and communities across the world are to remain free, as well as to achieve food security and food sovereignty. The rights of farmers over seeds have been recognized by governments in several international treaties, but the same governments are signing new laws and regulations that trample on those very same rights to allow multinational corporations to further dominate the world’s seed supply. The changes we are witnessing are major.

Via Campesina and GRAIN have recently published a booklet des­cribing how farming communities are being affected by these new legislations and how they are struggling against them1. GRAIN also published a database and a map documenting what farmers across the world are or are not allowed to do with their seeds.2

This primer is meant to further explain how farmers are affected by seed laws, illustrated with extracts from legislation from a variety of countries.

International Pressure to Privatize Seeds

Corporations are using multiple strategies to control and monopolize seeds. A fundamental one is putting pressure on countries to privatize seeds through legislation that provides what is called plant breeders’ rights or plant variety protection.

But there are other regulations with similar aims: patent laws for plants are becoming increasingly common, and then there are seed certification laws, seed marketing regulations and food safety rules. Many social movements have dubbed them “Monsanto Laws” to highlight the transnational seed corporation that has been active in their drafting – and who will benefit most from their adoption.

The new rules may be imposed as laws, decrees, executive orders, administrative orders, ministerial regulations, etc., but their purpose is the same across the board: handing over exclusive rights to corporations to control the seed supply. In some cases, this is made very explicit. For example, a model seed law for Southern African countries promoted by USAID stipulates that the national seed agency “shall take the necessary measures to promote the seed industry enhancement and development”.3

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UPOV

UPOV is the French acronym for the International Union for the Protection of New Varieties of Plants. Officially an intergovernmental body since 1961, it as worked exclusively and explicitly for the privatization of seeds around the world by imposing intellectual property rights on plant varieties. Member states must join the UPOV Convention, and write it into national law.

The Convention was first drafted in 1961 and has been revised three times (in 1972, 1978 and 1991), each time to strengthen the rights of corporate breeders and re­strict what others can do with the seeds. The 1991 revision was particularly controversial because it eliminated the right of farmers to save privatised seeds and also limited what other plant breeders can do with that seed.

For most of its history UPOV has been a small and rather obscure club of mostly rich countries that wanted to advance the interests of their seed companies.

At the time of the last revision, 1991, only 20 countries were members. But after the World Trade Organization agreed in 1994 that all WTO member countries should have intellectual property rights for plant varieties, UPOV membership quickly increased and over 70 countries are members today. Much of this was due to arm twisting by rich countries to get non-industrialised countries to sign on, like through the trade agreements.

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Although it can be argued that small local seed producers could also be part of the seed industry, the fact is that governments are responding to pressure from big companies, and the rules are clearly biased in favor of big companies, not local seed producers – through requirements on the facilities and staff needed to market seeds, for example. Governments are also being forced to keep the public sector out of any seed breeding or distribution activities. For example, the government put in place after the US invasion of Afghanistan duly returned the favour by including the following requirement in its new seed law: “the Ministry shall take such steps as are necessary to ensure that the production and trade in all kinds of seeds are undertaken by the private sector and that the Ministry shall divest itself of all seed production and trading enterprises and activities”.4

An important strong arm tactic used by industrialized countries to push for seed privatization across the world is including it in bilateral or regional trade agreements. One could wonder what the right of small farmers to save seeds has to do with free trade, but for the trade negotiators that link is very clear: peasants saving and exchanging seed are competing with the global seed trade. The goal is to ensure that companies like Monsanto or Syngenta can control seed trade in general and maximise profits from their seeds business by preventing farmers from multiplying and saving seeds – a bit like the way Hollywood or Microsoft try to stop people from copying and sharing films or software. So, in all the trade agreements the USA has signed, it has included a paragraph that obliges the other country to join – as a minimum – the 1991 version of the UPOV Convention, which gives corporate plant breeders intellectual property rights over plant varieties.

The European Union is applying exactly the same policy, and Japan is moving in the same direction. If the Trans-Pacific Partnership agreement (TPP) is signed, matters will probably get worse, as leaked documents show that the US is pushing not only for UPOV 91 type of legislation, but also for the patenting of plants and animals.5

Article 15.2. Each Party shall ratify or accede to the following agreements:

e) the International Convention for the Protection of New Varieties of Plants (1991) (UPOV Convention); US-Morocco Free Trade Agreement6

By the end of the fourth year after the entry into force of the Agreement, Egypt shall accede the following multilateral conventions on intellectual property rights:... the International Convention for Protection of New Varieties of Plants (UPOV) (Geneva Act 1991); European Union – Egypt Association Agreement7

Assessing future scenarios

Although all laws and regulations are officially drafted at the national level, the ones that affect seeds are all in fact very similar to each other – in some cases carbon copies of texts drafted by UPOV bureaucrats or by industry representatives themselves. Therefore, the contents of these laws and the way they are being implemented in countries that have already passed them is a good indication of what will happen in countries that may adopt them in the future.

When trying to understand what the new legislations might mean, it is important to keep in mind that they will be interpreted and enforced with a certain ideology and within a certain political context. In most cases, the authorities implementing seed legislation know little or nothing about seeds, know little or nothing about small farmers and are strongly and undeniably biased in favor of the interests of companies. Experience shows that the effect of these laws gets worse with time, because they are enforced increasingly more strictly or because they are repeatedly revised to become more strict and encompassing. The newer laws show a clear tendency to grant wider privileges to companies and simultaneously apply harsher sanctions and forms of punishment to farmers and consumers. One example of this is the extension of privatization beyond plants, to animals and animal breeds.

a patent shall give the exclusive right to use a selection achievement and this right shall be protected by the State...“Protected selection achievements” means patented plant material and pedigree animal registered in the State register; Law on Selection Achievements, Azerbaijan8

In sum, this means that, when trying to assess what a new draft law or new regulation might mean, the worst-case scenarios are often the most realistic indication of what may happen if the new laws and rules are imposed.

Below we list a series of implications that these combined laws have for farmers and farming, and selected examples of the legal texts from countries that enforce them at the national level.

1. Bans or Restrictions on Using and Exchanging Privatized Seeds.

The 1991 version of the UPOV Convention and the laws drafted in line with it grant companies or institutions property rights over new plant varieties of any plant species (wild, cultivated, medicinal, etc.), and increasingly over fungi, bacteria and algae as well. This means that only the company or institute that is granted property over a variety can produce, reproduce, sell, export or import that variety. If anyone else wants to do that, it requires a permit from the company and to fulfill the conditions that the company determines, such as paying a fee and/or royalty for keeping seeds for continued use in later seasons.

Article 15.- Any production or reproduction, conditioning for the purpose of propagation, offering for sale, selling or marketing, importing and exporting, stocking of a variety or protected material shall require the right owner’s authorization. (...) The right owner may authorize the use of his variety subject to certain conditions or limitations. Law on Seed Management and Plant Breeder’s Rights, Cambodia9

The owner of the plant patent may, at his discretion, make any such authorization subject to conditions and limitations.Law on Patents for Plant Varieties of April 13, 1995 . (Latest Edition [Ammendment] from June 14, 2004), Belorus10

“Plant” includes all fungi and algae. Plant Varieties Protection Act 2004, Singapore11

For farmers, it means that

a) They can legally get that seed only if they buy it from a store that has permission to sell it from the company or institute that claims it as property

b) Privatized seeds cannot be exchanged in any manner among peasants, not even as a gift

c) Their right to keep seed for the next season is restricted or banned

In some countries, farmers can reproduce and keep a privatized seed variety for the next season, but only for use on their own farms. This is often restricted to certain crops and farmers are often restricted to saving only the same amount as they originally bought.

Article 12 : The protection conferred by the plant breeder’s right places no limitation on the right of farmers to use the variety freely for the purposes of planting their own field, …Law no. 010-2006/An Regulating Plant Seeds in Burkina Faso.12

Anyone who saves and plants, on his own property, within reasonable limits and subject to the safeguarding of the breeders’ legitimate interests, the product of the harvest that he has obtained from the growing, on his own property, of a protected variety or a variety covered by section 18(c) of this Act does not thereby infringe the breeder’s right. This provision does not apply to fruit, ornamental, and forest species exploited for commercial purposes. Plant Breeders’ Rights Act no. 8631, Costa Rica13

In other countries, farmers can reproduce and keep a privatized seed for the next season if they use it in their own farm, and only if they pay a royalty to the company that claims property

(2) A farmer who [reproduces privatized seed in his/her own farm] ...shall pay an equitable remuneration to the holder of plant breeder’s right, Act on Amendments to the Plant Variety Protection Act of October 21, 2012, Croatia14

In a growing number of countries, no exceptions are granted to farmers, and hence reproducing a privatised seed and keeping it for the next season is banned outright.

The breeder’s rights shall not extend to: acts performed in a particular context for experimental purposes which are not commercial in nature; (...) operations performed in connection with education or scientific research which relate to the creation of new varieties. Law No. 99-42 of May 10, 1999, on Seeds, Seedlings and New Plant Varieties, Tunisia15

[The rights of the breeder] apply also to the production of seeds or propagating material of specific species of a protected variety for the purpose of repeated reproduction (multiplication) for [the farmer’s] own use. Plant Variety Rights Act, Estonia16

Even when farmers and peasants are allowed to reproduce and keep privatised seeds for the next season (with or without a royalty payment), they face an additional burden: they must tell government authorities and sometimes seed companies where they will sow the seed they kept and how much seed they will use, and they must accept inspections by public or private agents.

A farmer is in obligation to give, upon request, the authority and the plant breeder’s right holder the necessary information for establishing the payment obligation. Plant Breeder’s Right Act (1279/2009), Finland17

(13) Growers and seed processors are obliged, upon request, to provide to the holder, information in writing about their name, surname, permanent residence address and identification number (…) (15) Growers are obliged, upon request, to provide to the holder, information in writing about the scope of use of farm saved seed. ACT of 25 October 2000 on the protection of plant variety rights and the amendment to Act No. 92/1996 Coll., on plant varieties, seed and planting material of cultivated plants, as last amended, Czech Republic18

2. Privatizing Farmers Seeds

It could be argued that as long as farmers keep their own seeds and avoid using privatised seeds, they don’t need to worry. But things do not work that way.

UPOV 91 and patent laws allow the privatization of farmers’ and peasants’ seeds through two mechanisms:

a) Companies and breeding institutes can take seeds from farmers’ fields, reproduce them, do some selection to homogenize them, and then privatise them as a variety they have “discovered”.

“Breeder” means a physical or legal person, or any employee who has bred, discovered and developed a new plant variety. The Law No. 8880 Dated April 15, 2002, of The Republic of Albania on Plant Breeder’s Right, Albania19

b) To make matters worse, a second provision of UPOV 91 allows breeders to extend rights over a specific variety to any other varieties that are similar to the one they have privatised.

Art. 37. — The rights granted ...cover: a) the protected plant variety (...) b) all varieties that cannot be clearly differentiated from the protected variety... Law of Algeria n° 05-03 of 27 Dhou El Hidja 1425 or 6 February 2005 relative to seeds, plants and the protection of plant varieties, Algeria20

Using these two provisions, a seed company can take farmers’ seeds from the field, privatise them, and then claim property over all similar varieties. Farmers will then find out that they cannot use their own seed, unless they buy them or pay a royalty to the company that claims the variety as its property.

Advocates of the privatization of seeds have argued that a scenario where farmers find their own seeds have been privatized cannot happen, because no property rights can be granted over anything which is not “new” and “distinct”, that is, over anything that existed before a property right was claimed. What these laws actually say is that a seed cannot be privatized if it is “previously known”, a “matter of common knowledge” or has not been “sold by or with the consent of the breeder”. So if the company claiming rights over a seed variety has not previously sold this seed – even if the variety has been circulating in farmers’ markets for years – it is still considered “new” and can be privatized. Also “previously known” and “common knowledge” refer not to what common people or peasants know, but to what is known to the seed industry, seed institutes and intellectual property officers. Therefore, something that is well known by farmers or peasants but not acknowledged as existing by industry or the authorities can be privatised too.

A variety shall be deemed to be new if... it has not been sold or otherwise marketed, by or with the consent of the breeder... Law on seed management and plant breeder’s rights, Cambodia21

A plant variety or animal breed shall be deemed to be new if, ..the seeds or breeding material of the given selection achievement has not been sold or otherwise disposed of to others, by or with the consent of the breeder or his successor in title, for purposes of exploitation of the selection achievement Law on the Protection of Selection Achievements, Russian Federation22

A variety shall be considered to be distinct if it is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of filing of the application. Law on Patents for Plant Varieties of April 13, 1995 . (Latest Edition [Ammendment] from June 14, 2004), Belorus23

The following varieties shall be deemed to be of matter of common knowledge: a) protected in the Czech Republic or abroad, b) entered in the official plant variety register in the Czech Republic or a similar register abroad, c) in respect of which an application for grant of plant variety rights or for entry in the plant variety register has been filed in the Czech Republic provided the application will led to the granting or entering, d) in respect of which an application for grant of plant variety rights or for entry in the plant variety register has been filed abroad, provided the application will led to the grant or entry, or e) offered for sale or sold in the Czech Republic or abroad ACT of 25 October 2000 on the protection of plant variety rights and the amendment to Act No. 92/1996 Coll., on plant varieties, seed and planting material of cultivated plants, as last amended, Czech Republic24

3. Limits or Bans on Keeping, Exchanging and Selling Seeds

UPOV-style legislation to privatize seeds is often complemented by other rules and laws, such as marketing and certification laws. Taken together, they can

a) Force peasants and farmers to keep seeds packaged and labelled, even their own seeds, and ban the marketing, exchange and transportation of unpackaged seeds. If the new regulations were strictly applied, walking around with a handful of seeds in your pocket would become a legally punishable offense in some countries.

Obligations: Natural or legal persons [who produce seeds] shall: (…) Market and/or transfer free of charge [only] seeds meeting the established requirements concerning signage, tagging, and labelling; (...) Market or transfer free of charge seeds with authorized labeling, tagging, packaging, repackaging, and/or containers (...) In those cases where it is found that any act of production, … storage, marketing, transfer without charge, and/or use is being performed with seeds, whether identified or not, … for the purposes of their disposal in any manner or form, in warehouses or storehouses, on lots or premises, in barns, fields, or mills, or at other sites where there are seeds and/or other plant materials that do not meet the provisions of this Decision, … the applicable control measures and sanctions may be imposed without entitlement to any compensation. Decision 970 of the Instituto Colombiano Agropecuario (ICA), Colombia25

b) ban the marketing of seeds that are not certified or deemed homogeneous enough, which is in fact a way of banning farmers’ or peasants’ seeds, as they often do not meet such requirements.

Article 7. The following cases will be considered as violations and infringements of the Act and the violators will be treated in accordance with the prevailing laws and regulations (...) v) Production and propagation of seeds and seedlings to be supplied to the market without obtaining of the certificate from the Institute Act of Plant Varieties Registration, Control and Certification of Seeds and Seedlings, Islamic Republic of Iran26

Only varieties that have been approved for release and notified and included in the variety list may be sold.... A variety may be recognized [and included in the variety list] if (...) (b) it is sufficiently homogeneous having regard to the particular features of the reproduction or vegetative propagation thereof; Seed Act (Act No.9 of 1996), Malawi27

c) ban the marketing, gift or exchange of varieties that are not registered. A variety can be registered only after fulfilling a set of requirements, such as having a detailed and cumbersome but useless description.

An official list of varieties shall be established to register varieties that can be marketed in the country and in the region following the regional variety release system. The landraces and local varieties will also be registered with special provisions. Model Seed Act For Southern Africa Countries. Southern African Seed Systems Development Initiative. USAID/RCSA28

Art. 17. — …. only those varieties registered and listed as such in the official catalogue of varieties, subject to the modalities and conditions prescribed by this act, are authorized to be produced, multiplied, imported, exported, distributed, or marketed. Law no. 05-03 of 27 Dhu al-Hijjah 1425 corresponding to 6 February 2005 in respect of seeds, plants, and plant breeders’ rights, Algeria29

9. Only seeds and seedlings of the plant varieties entered in the official register in one of the categories referred to in Article 3 of this Law may be marketed. Law No. 99-42 of May 10, 1999, on Seeds, Seedlings and New Plant Varieties, Tunisia30

Only varieties that have been approved and notified and included in the variety list may be sold.(...) “sell” includes to exchange or barter Seed Act (Act N°9 of 1996), Malawi31

In the case of agricultural species, only propagating material of registered varieties shall be put on the market, further commercialized and exported. Seeds and Planting Material Act. Consolidated Text of the Act of October 6, 1966, as Last Amended by the Act of January 28, 1999, The Netherlands32

d) ban farmers and peasants from producing or exchanging seeds unless they are registered seed producers. To become a registered seed producer, a farmer must get permission from the government to produce seeds, after informing the authorities exactly where he/she will produce seeds and fulfilling a set of requirements including having costly infrastructure and hired technical staff. A monthly or annual allowance to stay registered is often required as well,

Article 7: Any physical or legal person who engages in an activity with seeds shall keep a record of transactions by species, variety, and category under the conditions defined by regulation. Law no. 2001/014 of 23 July 2001 in respect of seed-related activities, Cameroon.33

Article 16 : Any physical or legal person may freely produce or multiply seeds if he is registered with the competent bodies (...) The conditions of registration shall be determined by a decision of the ministers responsible for agriculture and forests. Law no. 010-2006/An Regulating Plant Seeds in Burkina Faso.34

(1) A person desiring to practice seed business shall be equipped with facilities prescribed by a Presidential Decree and register his business with the Mayor or Provincial Governor. (2) Any person desiring to practice seed business in accordance with Paragraph (1) shall have one (1) or more seed managers; Seed Industry Law, Korea35

SEED PRODUCER: The natural or legal person duly registered to engage directly or indirectly in, or to take responsibility for someone else’s involvement in, the multiplication, drying and packing, storage, distribution, and marketing of seeds and nursery plants for planting. (...) Section 28.- The requirements for becoming a seed and nursery plant producer are as follows: 1) Possess the basic knowledge of the practices essential to the process of seed and nursery plant production or have technical personnel with knowledge of the activity to be carried out. 2) Possess the agricultural machinery or implements necessary for the activity involving the production of seeds and nursery plants. 3) Possess the financial resources necessary for the performance of the various field and post-harvest management activities Seed Production and Trade Act and Regulation, Nicaragua36

The transfer of seeds in any manner [e.g., exchange], for the purposes of trade, planting, or propagation by third parties thereof, may only be carried out by a person listed in the National Seed Trade and Supervision Registry. Draft Seed and Plant Variety Act (presented by the govern­ment of Argentina in 2012 and later withdrawn due to widespread resistance)37

e) ban the production of seeds outside registered fields. Those that produce seeds have to tell government authorities exactly where they will produce them,

[Farmers must] register their fields....indicating the plant material to be sown, number of hectares to be sown, placement and area of the farm, sowing date, seed category....Resolution 970, Colombia38

f) ban the exchange of seeds between farmers and/or peasants, even if they exchange their own seeds. This is done with the excuse that exchanging seed is a way of selling, and therefore falls within the scope of marketing and seed privatization laws

sell includes letting on hire and exchanging by way of barter. Plant Breeder’s Rights Act 1994, Australia39

The word “sale” includes “gift” Seed Act (Act N°9 of 1996), Malawi40

“sell” means to offer, advertise, keep, expose, transmit, convey, deliver or prepare for sale or exchange or dispose of for any consideration or transmit. Convey or deliver in pursuance of the sale, exchange or barter... Protocol for the Protection of New Varieties of Plants (Plant Breeders’ Rights) in the Southern African Development Community Region (draft)41

Together, these regulations can make it increasingly difficult or outright illegal for farmers and peasants to use their own seeds. They may find themselves forced to use privatized commercial seeds.


4. Fines and Jail Terms Over Seed Saving and Exchange

Along with mandating the privatization of seeds, UPOV 91 and trade agreements require that countries “provide for appropriate legal remedies for the effective enforcement of breeders’ rights”; in other words, countries must put in place a set of sanctions for any possible infringement. Where UPOV 91 laws and the like are already in place, if farmers infringe these new regulations, even by keeping on doing what they and their communities have been doing for generations, the sanctions are harsh and getting harsher.

a) fines can be imposed for a long list of actions that will be treated as offenses, from reproducing a privatized seed and keeping it for the next season, to keeping your own seed unlabelled or unpackaged. The severity of the fines changes from country to country, but in general terms they are significant, they double in case of a second offense, and the person fined can go to jail if the fine is not paid. In a growing number of countries, the punishment includes jail and / or a fine. Jail terms can range from months to ten years,

Anyone who produces, multiplies, imports, fraudulently exports, distributes, or markets seeds or plants not registered or listed in the official catalogue is punishable by a prison term of two (2) months to six (6) months and to a fine of one million (1 000 000) to one million five hundred thousand (1 500 000) dinars [USD $10000–15000]. The seeds and/or plants concerned by the offense shall be destroyed. The penalty is doubled in the case of a repeat offense. Law no. 05-03 of 27 Dhu al-Hijjah 1425 corresponding to 6 February 2005 in respect of seeds, plants, and plant breeders’ rights, Algeria42

48.—(1) Any person who willfully offers for sale or markets propagating material of a variety protected in Barbados in contravention of this Act, is guilty of an offense, and liable on summary conviction to a fine of $20 000 [10000 USD], or imprisonment for 3 years, or to both. Protection of New Plant Varieties Act, 2001—17, Barbados.43

Any individual who knowingly commits an act which constitutes an infringement of plant breeder’s right, ... shall be guilty of an offense punishable by a fine of between 5 million Riels and 20 million Riels [1250 – 5000 USD], or by a period of imprisonment of one to five years, or by both a fine and a period of imprisonment. Re-offenders shall have their previous sentences doubled. Law on Seed Management and Plant Breeder’s Right, Cambodia44

Any person who has infringed a breeder’s right or an exclusive exploitation right shall be punished by imprisonment with work for not more than ten years or by a fine of not more than 10,000,000 yen, or combination thereof. The Plant Variety Protection and Seed Act (Act No. 83 of May 29, 1998) as amended by Act No. 49/2007, Japan45

b) If a farmer uses privatised seeds without the permission of the owner of that variety (for example, if he or she got the seed from a neighbor, or bought seed one year and then kept part of the harvest to use the next season), their crop can be seized and destroyed, as well as their harvest and the products obtained from their harvest. This kind of sanction can be imposed even before the farmer accused is actually declared guilty, as was the case in Colombia, where tons of farmers’ seeds have been confiscated and destroyed based on suspicion of infringement.46

2) The holder of a breeder’s right or the holder of an exclusive exploitation right, ...may demand the destruction of the propagating material, the harvested material or the processed products which is a component of the act of infringe­ment, or the objects used in the commission of the act of infringement, or other measures necessary for the prevention of such infringement. The Plant Variety Protection And Seed Act (Act No. 83 of May 29, 1998) as amended by Act No. 49/2007, Japan47

c) Tools and machinery used to manage the crops or the seeds can be seized as well.

In the case of illegal reproduction of the variety, in addition to the fine and prison sentence, the propagating materials obtained, and the materials and equipment used in the process of propagating the variety illegally, shall be confiscated. Law on Protection of Breeder’s Rights for Varieties of Plants, Dominican Republic48

d) Some of the latest draft laws – clearly under the pressure of industry – have included provisions that would allow someone to be banned from farming if these laws are infringed.

There shall be created, under the jurisdiction of the National Institute of Seeds: (…) b) The “National Registry of Seed Users,” in which any physical or legal person who uses seeds shall be registered (...) Section 44. — Where the offences defined in section 45 are committed, the National Institute of Seeds shall sanction the perpetrators with (...) e) temporary or permanent suspension from the relevant registry; f) temporary or permanent disqualification. (...) Section 45. — The National Institute of Seeds shall, as prescribed in section 44, sanction anyone who: a) infringes the provisions of sections 9 [inadequate signage associated with seeds exhibited, sold, or exchanged],18 last paragraph [distributing an unregistered variety] or 29 [giving privatized seed in any manner]; (...) i) fails to register in the National Registry of Seed Users as prescribed by regulation. Draft Seed and Plant Variety Act (presented by the government of Argentina in 2012 and later withdrawn due to widespread resistance)49

5. Guilty by Suspicion

If sanctions are harsh, the legal procedures imposed by the new regulations are a giant step backwards in the evolution of human and social rights. The UPOV 91 laws, as well as other laws related to seeds or granting property rights over plants, have increasingly imposed what is called a “reversal of the burden of proof”. This means that those who accuse farmers of infringement do not need to present strong proof of such infringement, while farmers must bear an increasing part of the burden of showing that they have not infringed the law. In order to do so, they must keep records of the seeds they use, buy and sell, and must accept inspections of their premises, fields and books when they keep them. This is in direct conflict with the Universal Declaration of Human Rights that states that everyone must be considered innocent until proven guilty.

For the purposes of claiming the remuneration [for the use of privatized seed] ... any farmer who... may be deemed to have performed an exploitation [of that seed] ... is obliged to deliver ... data to the holder – upon his request...... If the authenticity of the data provided is disputed, the burden of proof shall be on the farmer. Act XXXIII of 1995 on the Protection of Inventions by Patents, as last amended by Act XXVII of 2009. Part V. Protection of Plant Varieties, Hungary50

Using this logic, the new legislations sanction or punish farmers and peasants before they are proven guilty or before they are even informed they have been accused. For example:

a) Peasants’ houses and other buildings and vehicles in a farm can be searched without a court order, based on suspicion

An Inspector may, a) At any reasonable time, enter any place, premises or vehicles or receptacle where he/she believes there is any seed to which this Act applies, packaged or not, take samples for the purpose of ensuring that the provisions and regulations of this Act, are being complied with.(...) g) enter any public or private premises during or after regular business hours without notice of inspection when a suspected violation of this Seed Act and regulations. Model Seed Act For Southern Africa Countries. Southern African Seed Systems Development Initiative. USAID/RCSA51

A seed inspector may, for any of the purposes of this Act and at all reasonable times a) enter upon any land, building, premises or vehicle at or in which there is reasonable cause to believe that any prescribed seed or restricted seed is being stored, sold or transported for sale in contravention of this Act, or is being packaged in packages or other containers which are marked or labeled.... in contravention of this Act.... (...) d) further, may seize and remove therefrom any prescribed seed or restricted seed (...) The word “sale” includes “gift” Seed Act (Act N°9 of 1996), Malawi52

Any authorized officer or police officer not below the rank of Inspector may, for the purpose of enforcing this Act, do all or any of the following: (a) enter, inspect and examine with or without notice any premises or farm at any reasonable hour in relation to any offense reasonably suspected to have been committed under this Act; Protection of New Plant Varieties Act 2004 . Act 634, Malaysia53

b) Searches can be carried out based on accusations that the accused may not have been informed of...

Where a precautionary measure is applied [including confiscation of crops, seeds, and harvest products] without the other party having been given a prior hearing, OFINASE [the National Seeds Office] or the competent judicial authority shall notify the affected party within the three working days following the application of the measure. Plant Breeders’ Rights Act no. 8631, Costa Rica54

B. 1. The breeder of the protected variety, before bringing a claim of infringement, may, with by a bond, request the court to order any of the procedures provided in paragraph (A) of this Article, without notifying the defendant. Coalition Provisional Authority Order Number 81. Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law, Iraq55

c) Crops, harvests and products made from the harvested material can be seized or destroyed before a farmer is proven guilty, once again, based on suspicion...

The court may order the confiscation of the infringing variety as well as the materials and tools substantially used in the infringement of the protected variety. (...) The court may also decide to destroy the infringing variety as well as the materials and tools or to dispose of them in any noncommercial purpose.” Coalition Provisional Authority Order Number 81. Patent, Industrial Design, Undisclosed Information, Integrated Circuits and Plant Variety Law, Iraq56

d) Accused farmers often have a very short time to gather proof of their innocence

Art. 24.- The testing period will be of eight working days. Decree Num. 530, El Salvador57

e) Accused farmers may have the obligation to denounce others that have infringed the law,

The following non exhaustive list of enforcement measures might be considered (...) vi) measures to require an infringer to provide information to the holder of the breeder’s right on third persons involved in the production and distribution of infringing material Explanatory Notes on The Enforcement of Breeders’ Rights Under The UPOV Convention. Adopted by the Council at its forty-third ordinary session on October 22, 2009 58

f) Searches and seizures can be carried out with the support of military force.

Article 67.- The local authorities at all levels, armed forces, customs and excise, airport and port offices, and other relevant authorities shall co-operate in the uncovering, prevention and suppression of seed offenses and in the temporary storage of evidence relating to seed offenses upon request by the Seed Inspector. Law on Seed Management and Plant Breeder’s Right, Cambodia59

g) Private entities or individuals may be granted the power to act as inspectors or certifying authorities, creating de facto private police entities. Seed companies can set up such entities and become inspectors of small seed producers or other competing companies.

The accredited certification system shall allow individuals, third parties, seed laboratories, and/or seed entities to inspect fields, sampling and test seeds, and /or issuance of labels subject to the regulation of this Seed Act. Model Seed Act For Southern Africa Countries. Southern African Seed Systems Development Initiative. USAID/RCSA60

Good for Farmers, Good for Breeders?

UPOV-based legislation and other seed laws are often justified with the argument that they are good for farmers and for plant breeders, as well as for society as a whole. Farmers benefit, the argument goes, because these laws help to create a vibrant and competitive plant-breeding sector that produces high quality seeds that farmers can use. They also benefit because counterfeiting practices are eliminated and the available seeds are free of pests and diseases. Plant breeders benefit because, through clear intellectual property and other rules, they can make a return on their investment. And society as a whole gets new solutions to old problems, accessing new technologies and permitting progress.

None of these arguments hold true. If anything, the global race towards the privatisation of seeds has led to the creation of a monopolistic global seeds industry that increasingly dominates the world seed supply while threatening age-old local farmer seed practices that form the cornerstone for sustainable food production. It is criminalizing farmers in the process.

The good news is that the world is starting to realize what’s happening and what’s at stake. Despite all their power, big companies and powerful governments pushing seed laws are not having an easy time. Popular opposition and resistance has surged around the world, and in many places popular movements have managed to stall and even repeal the new regulations. These struggles now need support and strengthening.

---

Notes
1 https://www.grain.org/article/entries/5142-seed-laws-that-criminalise-farmers-resistance-and-fightback
2 https://www.grain.org/article/entries/5153-infographic-seed-laws-around-the-world
3 Model Seed Act for Southern Africa Countries. Southern African Seed Systems Development Initiative. USAID/RCSA. http://www.seeds.iastate.edu/images/modelseedact.pdf
4 Seed Law. Islamic Republic of Afghanistan. (Final Draft). http://www.wipo.int/edocs/lexdocs/laws/en/af/af006en.pdf
5 For an updated overview, see: “Trade deals criminalise farmers’ seeds”, GRAIN, November 2014, http://www.grain.org/e/5070
6 https://ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text
7 http://eeas.europa.eu/egypt/eu-egypt_agreement/index_en.htm
8 http://www.upov.int/export/sites/upov/members/en/npvlaws/azerbaijan/Azerbaijan_Law.pdf
9 http://eapvp.org/library/member/pdf/Khmer_UPOV_Act-Eng-Final.pdf
10 http://www.wipo.int/edocs/lexdocs/laws/en/by/by008en.pdf
11 http://www.upov.org/upovlex/en/details.jsp?id=5303
12 http://www.farmersrights.org/pdf/Africa/Burkina%20Faso/Burkina%20Faso-seedpvp06.pdf
13 http://www.fao.org/pgrfa-gpa-archive/cri/docs/Ley-8631.pdf
14 http://www.wipo.int/edocs/lexdocs/laws/en/hr/hr068en.pdf
15 http://www.wipo.int/wipolex/en/text.jsp?file_id=129811
16 http://www.upov.org/export/sites/upov/en/publications/npvlaws/estonia/Law1998.pdf
17 http://www.finlex.fi/fi/laki/kaannokset/2009/en20091279.pdf
18 http://www.wipo.int/edocs/lexdocs/laws/en/cz/cz031en.pdf
19 http://www.wipo.int/wipolex/en/text.jsp?file_id=209068
20 http://faolex.fao.org/docs/pdf/alg51862.pdf
21 http://eapvp.org/library/member/pdf/Khmer_UPOV_Act-Eng-Final.pdf
22 http://www.upov.org/upovlex/en/profile.jsp?code=RU
23 http://www.wipo.int/edocs/lexdocs/laws/en/by/by008en.pdf
24 http://www.wipo.int/edocs/lexdocs/laws/en/cz/cz031en.pdf
25 http://www.ica.gov.co/getattachment/03750a73-db84-4f33-9568-6e0bad0a507d/200R970.aspx
26 http://www.wipo.int/wipolex/en/text.jsp?file_id=197793
27 http://www.malawilii.org/files/mw/legislation/act/1996/9/sa200550_pdf_52782.pdf
28 http://www.seeds.iastate.edu/images/modelseedact.pdf
29 http://faolex.fao.org/docs/pdf/alg51862.pdf
30 http://www.wipo.int/wipolex/en/text.jsp?file_id=129811
31 http://www.malawilii.org/files/mw/legislation/act/1996/9/sa200550_pdf_52782.pdf
32 http://www.upov.org/export/sites/upov/en/publications/npvlaws/netherlands/netherlands99.pdf
33 http://www.spm.gov.cm/fr/documentation/textes-legislatifs-et-reglementaires/article/loi-n-2001014-du-23-juillet-2001-relative-a-lactivite-semenciere.html
34 http://www.farmersrights.org/pdf/Africa/Burkina%20Faso/Burkina%20Faso-seedpvp06.pdf
35 http://www.wipo.int/edocs/lexdocs/laws/en/kr/kr068en.pdf
36 http://intapapssan.info/wp-content/uploads/2013/07/Ley280reglamento-ProduccionComercioSemilla.pdf
37 www.casem.com.ar/proyecto_ley_%20de_%20semillas.doc
38 http://www.ica.gov.co/getattachment/03750a73-db84-4f33-9568-6e0bad0a507d/200R970.aspx
39 http://www.austlii.edu.au/au/legis/cth/consol_act/pbra1994222/
40 http://www.malawilii.org/files/mw/legislation/act/1996/9/sa200550_pdf_52782.pdf
41 http://www.ip-watch.org/weblog/wp-content/uploads/2013/04/SADC-Draft-PVP-Protocol-April-2013.pdf
42 http://faolex.fao.org/docs/pdf/alg51862.pdf
43 http://www.wipo.int/wipolex/en/details.jsp?id=325
44 http://eapvp.org/library/member/pdf/Khmer_UPOV_Act-Eng-Final.pdf
45 http://www.upov.org/export/sites/upov/en/publications/npvlaws/japan/japan_act_49_2007.pdf
46 A documentary on this case can be seen at https://www.youtube.com/watch?v=kZWAqS-El_g
47 http://www.upov.org/export/sites/upov/en/publications/npvlaws/japan/japan_act_49_2007.pdf
48 http://www.wipo.int/edocs/lexdocs/laws/en/do/do014en.pdf
49 www.casem.com.ar/proyecto_ley_%20de_%20semillas.doc
50 http://www.upov.org/export/sites/upov/en/publications/npvlaws/hungary/pages_from_gazette_103_hu.pdf
51 http://www.seeds.iastate.edu/images/modelseedact.pdf
52 http://www.malawilii.org/files/mw/legislation/act/1996/9/sa200550_pdf_52782.pdf
53 http://www.wipo.int/wipolex/en/text.jsp?file_id=128880
54 http://www.fao.org/pgrfa-gpa-archive/cri/docs/Ley-8631.pdf
55 http://www.wipo.int/wipolex/en/text.jsp?file_id=229977
56 Ibid
57 http://www.asamblea.gob.sv/eparlamento/indice-legislativo/buscador-de-documentos-legislativos/ley-de-semillas
58 http://www.upov.int/export/sites/upov/en/publications/pdf/upov_exn_enf_1.pdf
59 http://eapvp.org/library/member/pdf/Khmer__Act-Eng-Final.pdf
60 http://www.seeds.iastate.edu/images/modelseedact.pdf

Campaign Zero: A 'Blueprint for Ending Police Violence'

'We must end police violence so we can live and feel safe in this country,' Campaign Zero states on its website.
(Photo: Basil-Malik/flickr/cc)

By Nadia Prupis
On Friday, activists with the country's growing racial justice movement unveiled a new campaign to end police violence, bridging protester demands with data and policy to create structural solutions to the crisis that has gripped national attention for more than a year.

Launched as an online manifesto with an interactive website, Campaign Zero proposes new federal, state, and local laws that would address police violence and reform the criminal justice system—including demilitarizing law enforcement, increasing community oversight, limiting use-of-force, and requiring independent investigation and prosecution of police violence cases.

"More than one thousand people are killed by police every year in America," the group states on its website. "Nearly sixty percent of victims did not have a gun or were involved in activities that should not require police intervention such as harmless 'quality of life' behaviors or mental health crises."

The action plan also incorporates recommendations by the President's Task Force on 21st Century Policing as well as those of research organizations like the Center for Popular Democracy. The architects behind Campaign Zero characterized it as a project that will continue to develop over time as new solutions emerge and more supporters come on board.

The four creators of the new campaign and authors of the manifesto—Samuel Sinyangwe, Brittany Packnett, Johnetta Elzie, and DeRay McKesson—are co-founders of We The Protesters, which as the Guardian notes is "a prominent section of a wider protest movement that is frequently referred to, in general terms, as Black Lives Matter."

"This is just the beginning," they wrote in a statement accompanying the launch.


In the year that has passed since 18-year-old Michael Brown was shot to death by an officer in Ferguson, Missouri, police have killed at least 1,083 Americans—an average of nearly three people per day, according to figures compiled by VICE News. Even that figure, released August 9, quickly became outdated.

The policy recommendations also call for an end the controversial practice of "broken windows" policing—a tactic that involves cracking down on petty infractions as a means to prevent more serious crime. The chokehold death of Eric Garner, who was targeted by police for allegedly selling loose cigarettes, heightened criticism of the policy, which Columbia law professor Patricia J. Williams said "has intimidated, dispossessed and humiliated millions of innocent people" for two decades.

Campaign Zero launches just as new reports highlight the lack of training and culture of aggression that permeates law enforcement agencies throughout the country. Addressing that issue in another policy demand, Campaign Zero states, "An intensive training regime is needed to help police officers learn the behaviors and skills to interact appropriately with communities."

The group points to the recent successful overhaul of policing tactics in Richmond, California, a city which reduced its crime rate by 33 percent through community policing.

"We must end police violence so we can live and feel safe in this country," Campaign Zero states.

Campaign Zero also introduces strategies for charting presidential candidates' policy positions on such issues. Racial justice activists have recently engaged with the campaigns of candidates including Hillary Clinton, Bernie Sanders, Martin O'Malley, and Jeb Bush to demand action plans on addressing police brutality and criminal justice reform.

"Right now, the country is awake," organizers stated. "We must continue to leverage this awakening for substantive change. We have an opportunity to change the way that issues in blackness are prioritized in political spaces and an opportunity to redefine how the political process interacts with our communities."

"America is finally waking up to this very necessary and critical conversation about race, equity, and preserving the life and dignity of all citizens," Packnett told the Guardian on Friday.

Added McKesson, "This is a blueprint for ending police violence."

Reprinted with permission from Common Dreams.

Corporate Media Blacks Out Coverage of Bill to Overturn Corporate Personhood — The Future of American Democracy At Stake

Congressman Rick Nolan, Leesa “George” Friday, and David Cobb at the Move to
Amend Press Conference, April 29, 2015

By Pam Martens and Russ Martens
Last Wednesday, the grassroots organization, Move to Amend, held a press conference at the National Press Club to announce that six members of the U.S. House of Representatives were introducing legislation to overturn Citizens United v FEC to make free speech and all other rights guaranteed under the U.S. Constitution available only to “natural persons,” not corporations or limited liability companies. The legislation would also give Federal, state and local governments the ability to limit political contributions to “ensure all citizens, regardless of their economic status, have access to the political process.”

When corporations overturn the will of the people, it’s widely covered by corporate media. When the people fight back, the news is frequently blacked out. As of this morning, we could find no major corporate media outlet or corporate wire service reporting on last Wednesday’s press conference by Move to Amend. That might be because there was evidence presented at the press conference of a groundswell of public momentum to overturn Citizens United, the decision handed down on January 21, 2010 by the U.S. Supreme Court that opened the floodgates to corporate campaign spending in elections along with super wealthy donors.

The press conference revealed that 16 states have passed resolutions asking Congress to overturn Citizens United while almost 600 municipalities and local governments across the country have done likewise. Almost two dozen other states have resolutions pending or introduced.

Congressman Rick Nolan of Minnesota spoke at the press conference, telling attendees that “Good and successful movements in this country have always started with ordinary people who commit to accomplishing great things. And so it was with ending slavery, with child labor laws, environmental laws, women’s suffrage, civil rights, the progressive income tax, Social Security, Medicare, rights for the disabled – you name it – this movement transcends labels, it transcends political parties, it transcends regions and it transcends generations.”

Nolan added that “America’s future and American democracy is dependent upon the success of this movement.” In addition to Nolan, co-sponsors of the bill include Mark Pocan (WI), Matthew Cartwright (PA), Jared Huffman (CA), Raul Grijalva (AZ), and Keith Ellison (MN).

Read More

Vouchers on the Move: Return to School Segregation?

By Jonas Persson
Twenty-five years ago, Wisconsin Governor Tommy Thompson signed the nation's first school voucher bill into law. Pitched as social mobility tickets for minority students, Wisconsin vouchers allow children to attend private, and sometimes religious, schools on the taxpayers' dime.

But as shown by the murky history of the voucher movement, and by the way voucher programs have developed in Wisconsin and other states, racial equity had nothing to do with it. It was a scheme cooked up out of an ideological disdain for public schools and teachers' unions, and first used to actually preserve school segregation in the South.

Today, vouchers bills are on the move in multiple states and on Capitol Hill. GOP presidential hopefuls, who want to boost their free market bona fides for a 2016 run, have been outbidding themselves in touting vouchers as educational panaceas that will not only help minority children close education gaps, but cut corporate and property taxes in the process.

A Nationwide Voucher Program?

On April 15, Rand Paul (R-KY) introduced an amendment to an omnibus education bill that would have spelled the end to federal education aid as we know it.

Under the amendment to the Senate bill, which is a revamp of the No Child Left Behind Act, federal Title I dollars, intended to support public schools with a high proportion of low-income students, would instead follow individual students even if they choose to attend private schools.

This would have paved the way for a multi-billion-dollar nationwide voucher system, siphoning money from public school districts to private and possibly religious schools that—unlike their public counterpart—have no obligation to serve minority, at-risk or special-needs students. These schools are also free to ditch the science curriculum in favor of climate-denial and creationism.

A few months earlier, Congressman Luke Messer (R-IN) bused a bunch of kids to the Capitol to celebrate "National School Choice Week." Among the speakers were Sen. Ted Cruz (R-TX) and House Speaker John Boehner (R-OH). Their enthusiasm, however, was somewhat dampened by the kids who—for all Messer's emceeing—seemed ill at ease with being displayed as placard-wearing pawns in a political game.

Precisely what kind of school choice Messer had in mind became clear when he introduced a voucher amendment to the House version of the bill. Both Messer and Paul chose to withdraw their respective amendments, but introducing them in the first place is a way of flexing their muscles. Vouchers are gaining traction and Messer, who chairs the Congressional School Choice Caucus, has vowed not to rest until "every kid in America has that kind of opportunity."

Secretive Group of Millionaires (ALEC) Still Wreaking Havoc On Workers — ALEC 'Give Workers Less' Legislation Pops Up in Multiple States

Cookie-Cutter ALEC Right-to-Work Bills Pop Across Country

By Jody Knauss and Jonas Persson
This week, Wisconsin Gov. Scott Walker signed an anti-union right-to-work (RTW) bill into law. RTW laws require unions to provide the same representation and workplace services to all workers in a workplace but make contributing to the cost of that representation optional. They lead to smaller, weaker unions and lower worker wages and benefits.

The Center for Media and Democracy detailed the fact that the Wisconsin bill was taken almost word for word from the American Legislative Exchange Council "model" bill. (See CMD's side-by-side here.) And we reported on the Koch and Bradley Foundation funding behind the panoply of usual suspects that flew into the state to testify on behalf of the bill, including "experts" from the National Right to Work Committee, the Mackinac Center and the Heritage Foundation with assists from ALEC "scholar" Richard Vedder and State Policy Network "stink tanks" like the Wisconsin Public Research Institute. And let's not forget the $1 million in TV ads from the Koch-funded Americans for Prosperity group.

But the push for RTW continues in multiple states in a variety of forms. From a legally dubious executive order in Illinois to an equally suspect county-level strategy in Kentucky, ALEC's effort to disable unions as an organized voice for working families marches on.

New Hampshire: Working families won a round last week when two Republicans in the State Senate voted with all 10 Democrats against a RTW bill, resulting in a 12-12 tie which defeats the bill. Even so, two other RTW bills continue to move through the State House. H.B. 658 is taken straight from the ALEC playbook. (See side-by-side here and below.) Democratic Governor Maggie Hassan is a RTW opponent.

Missouri: Missouri has two identical RTW bills (H.B. 116 and H.B. 569) that borrow language from ALEC, sponsored by two ALEC legislators (Rep. Eric Burlison and Rep. Bill Lant respectively.) H.B. 116 bill passed the Missouri House on February 12, the first time a RTW bill has ever been approved in a chamber of the state’s legislature. Despite an overwhelming Republican House majority, 23 Republicans voted against the bill. The legislation now moves on to the State Senate, where Republicans hold a 25-9 majority.

Last night there was an "informational" hearing in the Senate on S.B 127 by ALEC legislator Senator Dan Brown, with key portions taken verbatim from ALEC. (See the side-by-side here.) If the bill also passes the Senate, Governor Jay Nixon has vowed to veto it. On the evidence thus far, and despite a promise from Grover Norquist, Republicans do not have the votes to overturn a veto.

New Mexico: The Republican-controlled New Mexico State House passed a combined public- and private sector RTW bill (H.B. 75) on February 25. ALEC has versions of both these bills and bill author Rep. Dennis Roch is an ALEC member. In an apparent effort to make the legislation more palatable, the measure also includes a 50-cent increase in the state’s minimum wage, to $8.00 per hour. The bill now moves on to the Democratic-controlled Senate, where a hearing was held Sunday and a vote is expected this week. Senate Democrats claim to have the votes to stop it. Republican Governor Susana Martinez is a supporter.

Late last night, the Senate's Public Affairs Committee voted to table the legislation for the session.

West Virginia: Republicans took control of both houses of the state’s legislature in 2014 and ALEC member Rep. John Overington promptly introduced an ALEC RTW bill H.B.2643 (see side-by-side here). However, Majority Leader Mitch Carmichael said recently that, with the session due to end March 14 and the bill still in committee, RTW was dead for the 2015 session. Just to make sure, 6,000 union supporters rallied at the State Capitol on Saturday.

Kentucky: Democrats in both the State House and governor’s office have stymied the corporate push for RTW at the state level in Kentucky. An ALEC RTW bill (S.B. 1) authored by ALEC member and Senate President Robert Stivers, passed in the Republican-controlled Senate but did not make it out of committee in the House. (See side-by-side here.)

The bigger action in Kentucky is at the local level. Since mid-December, ten counties in Kentucky have passed local RTW ordinances, and others are exploring the possibility. Challenging a half-century of settled labor law, the Heritage Foundation and the new ALEC offshoot, the American City and County Exchange (ACCE), are promoting the idea that localities also have authority under National Labor Relations Act to enact RTW. Kentucky’s Attorney General does not share that interpretation and a coalition of Kentucky unions has filed in federal court to overturn the ordinances. This ALEC/ACCE strategy was featured on the front page of the New York Times.

Illinois: Billionaire Republican Gov. Bruce Rauner has issued an executive order implementing RTW for Illinois public sector workers and preemptively filed suit in federal court trying to get the current law declared unconstitutional. He has also pushed for enabling legislation to allow Illinois localities to pass Kentucky-style local RTW ordinances. An ALEC RTW bill (H.B. 4139) has been introduced in Illinois, but may not pass in the Democratic-controlled legislature. (See the side-by-side here.)

Michigan: Republican State Rep. Gary Glenn, a founding member of the Michigan Freedom to Work Coalition, has decided Michigan's 2012 RTW law did not go far enough. Glenn has introduced a bill (H.B. 4312) to extend RTW to the police, fire and public safety unions exempted from the 2012 law, and another (H.B. 4311) that would do away with exclusive representation in the public sector by banning public sector unions from representing non-members.

Other states: A public-sector RTW bill died in committee in the Montana House on February 27. An ALEC-modeled RTW bill died in committee in the Colorado House on Feb. 4.

See CMD's side-by side comparisons between ALEC's Right to Work Act and bills introduced in: New Hampshire, Missouri, West Virginia, Kentucky, Illinois and Colorado.

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______________
Jody Knauss is Senior Analyst and Writer at CMD. He has two decades of business, labor, and economic policy experience.

Reprinted with permission from PRWatch.

Protests Grow Against Expansive Canadian Surveillance Bill

Day of action set for 'every province across Canada' against so-called anti-terrorism bill

Anti C-51 Protest, March 14, 2015. (Photo by Jeremy  Board)

By Nadia Prupis
Canadian activists are taking part in a weekend of action against the controversial C-51 surveillance bill currently making its way through Parliament.

Supporters of the bill say it would protect the nation against terrorist attacks, but critics charge that it would give the government ever more expansive and invasive spying powers.

If passed, C-51 would give up to 17 government agencies access to Canadian citizens' private information, including their financial status, medical history, and religious and political beliefs. The Canadian Security Intelligence Service would also be given the power to spy on Canadians and foreign nationals living in the country, while the Royal Canadian Mounted Police would be granted increased powers of preventive arrest.

Protests against C-51 are slated to take place in "every province across Canada," organizers said on Friday. Many of those actions will take place outside the offices of 13 conservative Ministers of Parliament who support the bill.

"This bill disproportionately targets indigenous communities, environmental activists, dissidents, and Muslims, many of whom are already subjected to questionable and overreaching powers by security officials, [and] will make it easier and ostensibly lawful for government to continue infringing upon the rights of peaceful people," reads a statement from the organizers.

Among those raising their voices against the bill are human rights and free speech groups like Amnesty International, Canadian Journalists for Free Expression, and OpenMedia.

Steve Anderson, executive director for OpenMedia, told Yahoo! News on Friday, "More and more Canadians from all walks of life are concerned about this bill.

"We’re just hoping to make that more clear to the government and educate more Canadians, because … the real kind of challenge for those of us who understand the dangers of the bill is to educate [other] Canadians," he added.

Canadian Journalists for Free Expression last week hosted a teleconference with NSA whistleblower Edward Snowden, who warned that C-51 was "an emulation of the American Patriot Act" and that Canadian intelligence agencies have the weakest oversight in the Western world.

"No matter what we do, no matter what laws we pass, we cannot throw away all of our rights, all of our liberties, all of our traditional freedoms because we are afraid of rare instances of criminal activity," he said at the time.

On Saturday, the message to Canadian officials was clear. "We think that the government should go back to the drawing board…work in consultation with the privacy commissioner [and] seek the opinions of experts," Anderson continued.

Hearings on C-51 are scheduled to continue when the House reopens on March 23.

On Twitter, the actions are being updated under the hashtag #StopC51. #stopc51 Tweets

Reprinted with permission from Common Dreams.

Behind the Supreme Court’s Obamacare Case: A Secretive Society’s Hidden Hand—Supreme Court Decisions Shaped To A Conservative Agenda

For more than 30 years, the Federalist Society has worked behind the scenes to shape Supreme Court outcomes to a conservative agenda. In King v. Burwell, its influence could eliminate health insurance subsidies for millions of people.

By Nina Martin, ProPublica
The Supreme Court has no shortage of potentially precedent-shattering cases on its docket this term. But the one the justices are hearing tomorrow, King v. Burwell, could be the most consequential.

King focuses on the issue of whether low-income people who get insurance under the Affordable Care Act's federal exchanges are entitled to tax subsidies. Much has been said (and written) about what could happen if the justices rule "no": Millions of people in as many as 37 states could lose their health coverage. The political earthquake could be cataclysmic.

Yet, few reports have highlighted the role of the Federalist Society, the conservative law group whose ideas are at the intellectual heart of the King v. Burwell challenge. That's not surprising, given that the group's members have played a mostly behind-the-scenes part in King — and in many of the most significant conservative legal victories of the last 30 years.

In a new book, "Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution," Pomona College political scientist Amanda Hollis-Brusky channels her inner investigative journalist to trace the group's influence on the courts, and especially, the Supreme Court.

Note: This interview has been edited for clarity and length.

Q. What is the Federalist Society? What did it grow out of?

A. The Federalist Society was founded in 1982 by a small group of conservative and libertarian law students at Yale and the University of Chicago. Many of the founders had worked on the Reagan presidential campaign, and when they arrived in their elite law schools, they noticed a profound mismatch between the ideas that were achieving political ascendancy — about limited government and free markets and states' rights — and a liberal orthodoxy that was embedded in almost all major legal institutions of the time.

Flash forward 30 years: The Federalist Society has matured into a self-professed "society of ideas" that claims 40,000 to 60,000 members. These include every Republican-appointed attorney general and solicitor general since the 1980s, dozens of federal judges, and four sitting U.S. Supreme Court justices: Antonin Scalia, who was one of the organization's original mentors at the University of Chicago; Clarence Thomas, Samuel Alito and John Roberts.

Q. How does it operate?

A. The Federalist Society doesn't exhibit its power in a way that is easily recognizable. It doesn't bring court cases, or lobby, or publish position papers, or officially endorse political or judicial candidates. Instead, it trains and socializes its members through thousands of events every year. It promotes collaboration. Members are encouraged to draw on their training and networks as they go about their work as judges, policy makers, litigators and academics. In this way, the Federalist Society's influence is one step removed from the policy process. Yet that influence is profound.

Q. The Federalist Society doesn't even make public its membership rosters. How did you trace its impact on policy and the courts?

A. I used speaker agendas from Federalist Society national student conferences and lawyer conferences from 1982 to 2012 to construct a database of everyone who's ever participated in one of these meetings: 1,190 individuals in all. These are the thought leaders — the Mick Jaggers of the movement. If you are invited to speak at a national conference, it signals true believership.

Then I tracked their movements: What Supreme Court cases were they participating in? Were they consistently promoting a certain kind of scholarship or set of beliefs?

I identified the key areas of law that have taken a significant conservative turn over the past 30 years. And by reviewing transcripts from meetings and conferences, I was able to show how those ideas were gestated within the Federalist Society network for decades before being accepted by the Supreme Court.

Q. What kind of ideas?

A. The organization's statement of principles provides a useful frame. The first part says: We believe the state exists to preserve freedom. Two key areas where this principle has played out are the Second Amendment — there has been a radical reframing of the right to bear arms as a right on par with speech and religious freedom — and campaign finance, culminating in Citizens United and the idea that corporations and individuals both have free speech rights.

A second Federalist principle holds that the separation of governmental powers is central to the Constitution. There's been a very, very concerted effort to narrow the federal power over interstate commerce, to restrict the ability of Congress to regulate, and to dramatically expand states' rights.

The third principle is the idea that it is the role of the judicial branch to say what the law is and not what it ought to be. That is the key issue in King v. Burwell.

Q. Let's talk about the Supreme Court's first Obamacare decision in 2012. Conservatives greeted that ruling with shock, outrage, disappointment. They lost — the Affordable Care Act (ACA) was upheld. But in your view, that ruling was actually an important Federalist Society victory. Why?

A. For one thing, they won on the Medicaid expansion issue. Conservatives and libertarians had fought that expansion, arguing that it was a coercive policy that infringed on states' rights. The proposed expansion was a keystone of the ACA, so that part of the ruling was a huge blow to health care reform.

The Federalist Society also prevailed on the issue of the constitution's Commerce Clause. Congress had argued that the Commerce Clause gave it the power to regulate health care, but a majority of the justices disagreed. That precedent has further contributed to the narrowing of the federal commerce powers.

It's true, Chief Justice Roberts found a way to salvage the ACA's individual mandate based on the power of Congress to impose taxes. That made many conservatives very unhappy. But the Federalist Society didn't just get half a loaf, it got 80 percent of the loaf.

Q. King v. Burwell is avery different type of case. How does the issue at the center of it reflect Federalist Society thinking?

A. Unlike the 2012 challenge to the ACA, King v. Burwell is not a constitutional case. It's a statutory case. At issue is whether people in states with federally facilitated health insurance exchanges are entitled to receive the tax benefits that make insurance affordable. The parties in this case are asking the Supreme Court to interpret just five words: what is meant by an "exchange established by the State."

There are two very different ways to look at the issue of statutory interpretation. For many years, the dominant view was: If the meaning of that language is not immediately apparent, judges should look to legislative history – what was Congress's intent when they wrote those words? In the case of Obamacare, the legislative intent is pretty clear: Congress's aim was to provide tax benefits to lower income Americans to help underwrite the cost of insurance.

But since the 1980s, there's been a quiet revolution in statutory interpretation by the courts. Instead of taking into consideration legislative history and intent, there's been a shift to just looking at the plain meaning of the text and ignoring everything else because supposedly things like legislative history are too subjective. This revolution began with a core group of Federalist Society members centered in the Reagan Justice Department. Justice Scalia has been a major proponent.

If the plaintiffs in King v. Burwell prevail, the Federalist Society will have two victories. The obvious one is that Obamacare will suffer another major setback. The other will be to more firmly entrench this idea of statutory interpretation – we shouldn't look at legislative history; we shouldn't look at consequences; we should just look at the plain meaning of the words, and our inquiry ends there. The Supreme Court majority's approach could well be: The ACA says what it says — let Congress fix it. But they know full well that this Congress will not pass that fix.

Q. This idea of ignoring Congressional intent, and just reading the plain text of a statute, comes up in another important Supreme Court case this year,Young v. UPS, which focuses on pregnancy discrimination in the workplace. How has Federalist Society thinking shaped the Supreme Court's rulings on sex discrimination?

A. Young v. UPS is another case of statutory interpretation — in this instance, the question centers on the Pregnancy Discrimination Act of 1978. The Act prohibits employers from treating pregnant women differently from other employees who are "similar in their ability, or inability, to work." But what does that mean? Women's rights advocates say it's obvious: Pregnant women must not be discriminated against in the workplace. But many employers said it means that pregnant women can't be treated any differently than "similarly situated" male employees — otherwise women are getting preferential treatment. Never mind that men can't be similarly situated because men can't get pregnant.

One of the ways the Federalist Society has been effective is in changing the debate. Twenty or 30 years ago, if you were going to hear oral arguments in a case about the Pregnancy Discrimination Act, much of the discussion would have focused on statutory intent — the fact that the entire purpose of this Act, regardless of how the language is phrased, was to prevent discrimination on account of pregnancy. That is virtually not talked about now.

In the Young oral arguments last December, almost the entire focus was on the meaning of "similarly situated" and "similar in their ability or inability to work." There was a lot of discussion about semicolons. And when you limit the conversation in this way, the effect almost always is to limit protections, to restrict rights.

Q. There's another huge discrimination case before the Supreme Court this term, involving the Fair Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.) Does the Federalist Society's approach to sex discrimination extend to race?

A. There's a trope you hear over and over in the Federalist Society network: the idea of the "color-blind Constitution." The implication is, to treat people equally, you treat them the same and it will all shake out in the end. The government shouldn't try to equalize resources or equalize opportunity — that's not its role. As long as discrimination isn't intentional, it doesn't matter whether a law or policy has a disparate impact on minorities.

But there's another way of understanding equality, which is that if you want to treat some people equally, you have to treat some people — like pregnant women, or certain homeowners, or black voters in historically segregated states — differently. That is a line of thinking that Federalist Society members have absolutely rejected.

As we've seen, this Supreme Court has been pretty opposed to race-conscious remedies. It has seemed pretty bent on limiting, if not declaring unconstitutional altogether, affirmative action policies. In the Shelby v. Holder voting rights decision from a couple of years ago, it repudiated the idea that certain states should have to appeal to the federal government or courts before they make changes to their electoral voting procedures. That case, of course, also touched on another issue important to the Federalist Society network, states' rights.

Q. I've been reading a lot about the pressures on Roberts in King v. Burwell.

A. Yes, there is a very active campaign, mostly by the left, to remind Chief Justice Roberts that the integrity of the Supreme Court as an institution is once again at stake and to argue that there are alternative paths he could take to uphold this provision of the ACA and still keep his conservative credentials. On the right, there's been very quiet and subtle but potentially very effective counter-pressure. People say, we're not worried about losing any of the conservatives on this, Roberts will follow the rule of law.

One important function of the Federalist Society has been to provide a counterweight to the so-called liberal media. There was a very conscious effort to build a counter-elite to counteract this effect.

Q. What do you think the outcome of King v. Burwell will be?

A. Because of this 30-year revolution in statutory interpretation, the justices have a shield. My sense is that conservatives have enough cover that if five of them want to strike down the law, they will.

Q. But unlike in 2012, the ACA has already gone into effect. Millions of people would have their subsidies and their health coverage taken away. The real-world consequences would be very different.

A. Yeah, but you'd have to believe that the justices are in touch enough with real people to believe that they're going to take that into consideration.

Anthony Kennedy has demonstrated enough antipathy to the ACA that you would not normally count on him to be the one to save it. But he is the one who, in the marriage equality cases, for example, would bring up the fact that there are children who want their parents to be able to get married. So there are times that he will actually look outside the court and try to work in the real-world impact of potential decisions.

I don't know if this is one such case. I don't know how bent he is on disposing of Obamacare at any cost. But who knows — maybe he'll be the John Roberts of King v. Burwell.

Related stories: Read Nina Martin's story about how Alabama Judge Tom Parker and the personhood movement are shaping the abortion rights debate.

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Reprinted with permission from ProPublica