May 24, 2019

Nike Ducks Civil Rights Question

Press Release from the National Center for Public Policy Research:

“Today, Nike Showed Zero Respect for Its Shareholders, Zero Respect for the Rule of Law and Zero Integrity.”

Nike Signed Amicus Brief Defending Obama DOJ’s Position that Federal Law Requires Mixing the Biological Sexes in Public School Locker Rooms and Other Public Facilities in Litigation over North Carolina’s HB2

Obama’s DOJ Claims the Executive Branch Can Re-Write the Civil Rights Act to Allow People to Self-Determine Their Sex

National Center for Public Policy Research Asks Nation’s Largest Sports Apparel Brand To Explain How the 1964 Civil Rights Act Can Be Re-Written Without the Involvement of Congress

Despite Being Given the Question in Advance of Today’s Meeting, Nike Executives Refused to Answer the Question

Shareholder National Center for Public Policy Research Also Asked if the Sports Apparel Giant Will Put its Money Where its Mouth is and Withdraw from the Tar Heel State Like the NBA and NCAA; Nike Ducked that Question Also

Beaverton, OR/Washington, D.C.  At today’s annual meeting of Nike shareholders in Beaverton, Oregon, National Center for Public Policy Research General Counsel and Free Enterprise Project Director Justin Danhof, Esq. asked the sports apparel company if Nike believes the president of the United States has the power to re-write the 1964 Civil Rights Act without the involvement of Congress.


Nike, breaking from corporate best practices, did not accept direct questions. The company required Danhof to surrender the question in advance. Then, during the meeting, Nike CEO Mark Parker took the question, changed it radically, and asked one of his subordinates, chief sustainability officer Hannah Jones, to answer it for him.

Like a state-run media outfit, Nike rephrased the question to not only place the company in a favorable light, but to eliminate its entire purpose.

Here is the full text of the National Center’s question as provided to Nike today:

Despite the media headlines, HB2 is about much more than bathrooms; it is about the fundamental way the federal government operates. Nike’s support for the Justice Department means one of three things:

• Nike’s management believes that Congress, when it voted for the 1964 Civil Rights Act and the 1972 Education Act Amendments, intended “sex” to be a mental state or belief about one’s sex not related to biology.

• Nike’s management believes that Congress, when referring to sex in 1964 and 1972, meant the term to refer to biological males and females, and that the definition of “sex” in federal law has simply changed over the years. Yet, if the definition of “sex” has changed, how did it change in federal law without Congress voting to change it and no federal court ruling redefining it?

• Or, finally, Nike believes that the executive branch can change the core meaning of federal laws all by itself.

My first question is: which of these does Nike believe?  Secondly, if Nike so opposed to HB2, would you be willing to put your money where your mouth is and pull your business out of the state? Like the NBA pulled its All-star game from Charlotte and the NCAA pulled numerous championship events from North Carolina sites, Nike could end its affiliation with Tar Heel State schools such as Duke, the University of North Carolina and Wake Forest and stop selling all related apparel. Would you be willing to do that?

Instead of asking – or answering – that question, CEO Parker simply asked Jones what Nike’s position is on discrimination and how that relates to its involvement with HB2 and North Carolina.

In response, Jones blankly stated that Nike doesn’t support discrimination and that’s why it was proud to partner with the Human Rights Campaign’s legal brief in support of the Justice Department.

“The behavior of Nike’s executives today would have been a joke, except it wasn’t funny,” said Danhof. “We posed a very serious question about why a corporation would support the Obama Administration’s effort to rewrite federal law in a way that could establish a very dangerous legal precedent, but the company clearly does not take these issues seriously. If it did, one of its executives would have had the courage to answer our question, but none did. Furthermore, the company’s restated question was an effort to claim that the National Center supports discrimination, while the company is some sort of defender of the downtrodden and discriminated. Now, that’s a joke.”

The conduct at Nike’s meeting should also be of great concern to all the company’s investors. Shareholders have one opportunity a year to voice concern and ask questions of key company executives. To neuter that process by rewriting questions and giving prepared answers is extremely disrespectful to those who invest their money with a publicly-traded company,” said Danhof. “Today, Nike showed zero respect for its shareholders, zero respect for the rule of law and zero integrity.”

“It’s easy to sit on the sidelines, but if Parker and Nike’s leadership are really so opposed to North Carolina’s public accommodation law, the company should sever all financial ties with the Tar Heel State, including its lucrative contracts with major universities such as Duke and the University of North Carolina,” added Danhof.

“I’m not surprised that Nike has jumped on this liberal bandwagon,” said Danhof. “The company, famous for its swoosh, has recently taken on many far-left social causes. For example, last year Nike CEO Mark Parker spoke out against state-level religious freedom laws. Nike also funds America’s largest abortion mill, Planned Parenthood. It appears that Nike has become a go-to corporation for liberal politicians and policy groups when they need support for leftist causes. That should alarm all Nike investors. We are a nation that is deeply divided politically. To pick one side over the other is to snub tens of millions of potential consumers.”

“Perhaps Nike’s executives remain blind to what the real legal issues are in the HB2 litigation. The Obama Administration’s Justice Department is pulling a classic bait and switch. The DOJ is using the siren song of discrimination over the use of public restrooms in North Carolina to try to wrest power away from Congress. What the DOJ is really seeking is executive authority to rewrite federal law. Viewed through the correct legal lens, companies such as Nike aren’t combating discrimination, they are supporting the Obama Administration’s goal of expanding executive branch power,” said Danhof.

Nike signed an amicus brief in the Department of Justice’s lawsuit against North Carolina claiming that North Carolina’s HB2 law, which assigns restrooms, showers and locker rooms in public facilities based on biological sex, is illegal “sex discrimination,” citing the 1964 Civil Rights Act’s ban on sex discrimination.

The 1964 Civil Rights Act was written to ban discrimination based on race, color, religion, biological sex or national origin. It contained no provision establishing an individual’s legal right to claim a sex at odds with biology.

Nike’s position is that the Obama Administration can re-define the terms within the 1964 Civil Rights Act. If Nike’s position is upheld, a future President Trump or Clinton, and his or her successors, would have the legal precedent to also re-write any of the Act’s provisions, including those dealing with race and religion.

The National Center also asked if Nike is willing to “put its money where its mouth is” and withdraw business from North Carolina, as other sports, entertainment and corporate interests have done to protest HB2.

The DOJ is arguing that under the 1964 Civil Rights Act, the 1972 Education Act Amendments and the 2013 Violence Against Women Act, assigning a person a sex based on their physiology constitutes illegal sex discrimination.

The National Center for Public Policy Research believes Congressional approval is necessary if the federal government is to extend the Civil Rights Act to cover individuals who identify as transgender, but choose not to actually change their gender medically or legally. Otherwise, it says, any part of the Civil Rights Act could be redefined at the whim of any president, for any reason.

In July, the National Center issued a press release criticizing the 68 companies, including Nike, that are working with the Obama Administration to give the executive branch more power in rewriting federal laws. In that release, Danhof noted:

Besides offending the sensibilities of millions of Americans and North Carolinians who don’t wish to have grown men and young girls in states of undress in the same public facility, the Justice Department’s lawsuit seeks to fundamentally alter the rule of law. Obama’s Justice Department has long sought to include self-identified transgender individuals as a protected class under Title VII of the 1964 Civil Rights Act and Title IX of the Education Act Amendments of 1972. Since the DOJ doesn’t have the Constitutional authority to rewrite laws, it is trying to seek the same result by establishing precedent with this court case. Such a result would irreparably damage America’s unique separation of powers and open the floodgates for increased executive branch control over state and local matters.

If the government is going to extend the Civil Rights Act to cover individuals who merely identify as transgender – but choose not to actually change their gender medically or legally – then that’s up to the U.S. Congress. Members of Congress are elected and accountable to the American people. Attorney General Loretta Lynch and her lackeys at the Department of Justice are not. However, publicly-held companies are accountable to their investors and customers. Corporations that want to undermine the American people need to hear from these stakeholders. Every time a corporation even hints at taking a perceived conservative action or position, the liberal activist machine kicks into high gear and attacks that corporation. Conservative and free enterprise-minded folks need to start using the same tactics to go after companies that limit freedom.

And last month, Danhof questioned the executives of Red Hat – another signatory to the amicus brief – regarding the software company’s support for the DOJ’s overreach.

For more information on that meeting, see here and here.

The National Center’s Free Enterprise Project is the nation’s preeminent free-market activist group focusing on shareholder activism and the confluence of big government and big business. In 2014-15, National Center representatives participated in 69 shareholder meetings advancing free-market ideals in the areas of health care, energy, taxes, subsidies, regulations, religious freedom, food policies, media bias, gun rights, workers’ rights and many other important public policy issues. Today’s Nike meeting marks its 20th shareholder meeting of 2016.

Just this year, the Free Enterprise Project has been featured in the Washington Post, the Washington Times, Fox News “Cavuto,” the Drudge Report, the Financial Times, Crain’s Chicago Business, Hollywood Reporter, the Los Angeles Times, Fortune, Newsmax, Daily Caller, Lifezette, the Seattle Times, the Quad City Times, the San Francisco Chronicle, and the Chicago Tribune among many others.

The National Center for Public Policy Research is a Nike shareholder.

The National Center’s Free Enterprise Project is also prominently featured in Wall Street Journal writer Kimberley Strassel’s new book, “The Intimidation Game: How the Left is Silencing Free Speech,” published by the Hachette Book Group.

The National Center for Public Policy Research, founded in 1982, is a non-partisan, free-market, independent conservative think-tank. Ninety-four percent of its support comes from individuals, less than four percent from foundations, and less than two percent from corporations. It receives over 350,000 individual contributions a year from over 96,000 active recent contributors. Sign up for free issue alerts here or follow us on Twitter at @NationalCenter.

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If DOJ Prevails in North Carolina’s HB2 Case, Future Presidents Could Re-Write Federal Laws

*Editor’s Note* – The National Center for Public Policy Research asks if “future presidents” could rewrite Federal Law. The question actually is answered by a simple examination of what has and continues to be a disregard of Federal Law and the authority granted any president to do just as he or she damned well pleases. The intent of “executive actions” is being severely abused, at least as most of us have been led to believe is the purpose of executive privilege. With each successive executive action that goes unchallenged by the public or by Congress, remains as precedence and policy, which drives the laws of this land today. The question here by NCPPR appears as though such a move to declare defining any sex as sexual discrimination, is something an administration can’t do. Since when does such a claim matter anymore?

I think this action was well described earlier today by a contributor to the website, in his article about “Arguing the Premise.”

Press Release from the National Center for Public Policy Research:

Could Barack Obama and His Successor, Presumably Hillary Clinton or Donald Trump, Re-Write the 1964 Civil Rights Act Anytime They Want?

National Center for Public Policy Research Asks Major Software Company Why It Argues In Court That Assigning the Use of Public Restrooms and Showers by Biological Sex Is Illegal “Sex Discrimination”

U.S. Department of Justice Argues that 1964 Civil Rights Act, 1972 Education Act and 2013 Education Act All Make Traditional Biological Determinations of Sex Illegal Under Federal Law

68 Corporations, Including Red Hat, Claim the DOJ is Right

But When Did Congress Pass a Law Saying the Very Idea of Biological Sex is Illegal Discrimination?

Answer: It Didn’t.

Does Red Hat Believe the DOJ Can Re-Write Federal Law Any Way It Wants? Does It Argue that Donald Trump or Hillary Clinton Could, Too?

Raleigh, NC/Washington, D.C.  At today’s annual meeting of Red Hat shareholders held in Raleigh, North Carolina, the National Center for Public Policy Research asked management for the legal rationale behind the company’s argument that assigning sex based on physiology constitutes illegal “sex discrimination” under federal law.

North Carolina passed a law, known as HB2, determining that public restrooms, locker rooms and shower facilities, including some in educational settings, should be used by individuals based on their biological sex. The U.S. Department of Justice (DOJ) has gone to federal court to argue the law should be thrown out because assigning sex by biology constitutes illegal “sex discrimination.”

The DOJ is arguing that under the 1964 Civil Rights Act, the 1972 Education Act Amendments and the 2013 Violence Against Women Act, assigning a person a sex based on their physiology constitutes illegal sex discrimination.

National Center General Counsel and Free Enterprise Project Director Justin Danhof, Esq., asked Red Hat’s management at the meeting just when it became illegal to assign sex by biology.

Danhof asked the Red Hat management:

This case is about much more than diversity. This is a question about law.

Is it the position of Red Hat’s management that Congress, when it voted for the 1964 Civil Rights Act and the 1972 Education Act Amendments, intended “sex” to be a mental state or belief about one’s sex not necessarily related to biology or physiology?

Or is it the position of Red Hat’s management that Congress, when referring to sex in 1964 and 1972, meant the term to refer to biological males and females, and that the definition of “sex” in federal law has simply changed over the years?

If the definition of “sex” has changed, how did it change in federal law without Congress voting to change it and no federal court ruling redefining it?

Or is it the position of Red Hat that the executive branch can change the core meaning of federal laws all by itself?

In response, Red Hat CEO James Whitehurst largely deferred to the company’s general counsel, Michael Cunningham.

Company executives claimed that they signed the brief based on public policy reasons, fearing that HB2 would lead to discrimination. Cunningham then tried to parse the legal procedure of the case by stating that the company signed onto a brief supporting an injunction on HB2 until the full case on the merits is litigated – and that the company didn’t necessarily back DOJ’s full lawsuit.

“I pressed Red Hat’s executives on the claim that they only signed a brief supporting an injunction. I pointed out that this was a distinction without a difference since the brief that Red Hat signed and the DOJ’s brief on the merits apply the same logic and much of the same legal principles. At that point, Cunningham conceded that the company did support the DOJ’s primary position regarding HB2 and thought the law should be overturned,” noted Danhof.

“I left the meeting with the sense that the company is fully supporting the Obama Administration’s effort to rewrite federal law and that it somehow thinks the DOJ is justified in this extra-Constitutional action,” said Danhof. “So I warned Red Hat’s executives that they are supporting a potentially precedent-setting case with ramifications far beyond North Carolina’s HB2 law – and that in the future they should take a much more earnest look at all the issues before getting involved in legal cases that have almost nothing to do with the company’s operations.”

The core of the Department of Justice’s case is that the DOJ can re-define the meaning of “sex discrimination” in the 1964 Civil Rights Act and in Title IX of the 1972 Education Act, two of the most influential civil rights laws ever adopted by Congress. By endorsing the DOJ’s position in the case, Red Hat and the other corporations have explicitly endorsed allowing the executive branch to re-write federal law.

“Does corporate America really believe the executive branch can re-write federal law anytime it wants?” asked Amy Ridenour, chairman of the National Center for Public Policy Research. “Because the companies are arguing either that Members of Congress in 1964 and 1972 intended the word ‘sex’ to refer not to biological men and women but to a fluid definition individuals can change, even repeatedly, or that Congress changed the definition since those laws were passed. But if Congress changed those laws, when did it do so?”

“Red Hat and 67 other major corporations, including Nike, General Electric, American Airlines and United Airlines, IBM, Dow Chemical, Capital One and many others are arguing that the executive branch – that means Barack Obama and soon, presumably, Donald Trump or Hillary Clinton – can change laws anytime he or she wants,” added Ridenour. “All these corporations should be explaining to their shareholders why they have gone to court arguing that the separation of powers laid out in the U.S. Constitution, which says Congress passes the laws and the executive branch enforces them, is no longer in effect, and when and how that change took place.”

“If these 68 corporations and the DOJ prevail in their case and the executive branch does get the power to re-write federal law by itself,” Ridenour concluded, “they had better hope no anti-business politician ever gets elected President of the United States.”

On March 23rd, North Carolina’s legislature passed HB2, formally titled the “Public Facilities Privacy and Security Act,” often called North Carolina’s restroom and shower law. Among other things, the law states that individuals must use public restrooms corresponding with the sex on their birth certificate (transgender individuals can change the sex on their birth certificate after gender reassignment surgery). On May 9th, the Justice Department filed suit seeking to halt the law’s implementation. On July 8th, 68 major corporations, in conjunction with the Human Rights Campaign, filed a legal brief supporting the Justice Department’s position. The trial is tentatively scheduled to start November 14.

“Who uses which public restroom, locker room or public shower facility in the Tar Heel state has nothing to do with Red Hat’s international software business,” added Danhof. “Yet, Red Hat and 67 other major corporations are actively involved in litigation supporting the federal government’s attempt to block North Carolina’s common sense public accommodation law. Unfortunately, many of these corporations probably have no idea what they are really doing is supporting the U.S. Justice Department’s efforts to upend the rule of law and separation of powers.”

“Also, where is all this supposed discrimination? To hear these corporate executives talk or read the words in their legal brief, one would expect widespread news coverage of constant discrimination of transgender individuals across North Carolina. The dearth of such stories speaks truth to these lies of discrimination,” Danhof concluded.

In July, the National Center issued a press release criticizing the 68 companies, including Red Hat, that are working with the Obama Administration to give the executive branch more power in rewriting federal laws. In that release, Danhof noted:

Besides offending the sensibilities of millions of Americans and North Carolinians who don’t wish to have grown men and young girls in states of undress in the same public facility, the Justice Department’s lawsuit seeks to fundamentally alter the rule of law. Obama’s Justice Department has long sought to include self-identified transgender individuals as a protected class under Title VII of the 1964 Civil Rights Act and Title IX of the Education Act Amendments of 1972. Since the DOJ doesn’t have the Constitutional authority to rewrite laws, it is trying to seek the same result by establishing precedent with this court case. Such a result would irreparably damage America’s unique separation of powers and open the floodgates for increased executive branch control over state and local matters.

If the government is going to extend the Civil Rights Act to cover individuals who merely identify as transgender – but choose not to actually change their gender medically or legally – than that’s up to the U.S. Congress. Members of Congress are elected and accountable to the American people. Attorney General Loretta Lynch and her lackeys at the Department of Justice are not. However, publicly-held companies are accountable to their investors and customers. Corporations that want to undermine the American people need to hear from these stakeholders. Every time a corporation even hints at taking a perceived conservative action or position, the liberal activist machine kicks into high gear and attacks that corporation. Conservative and free enterprise-minded folks need to start using the same tactics to go after companies that limit freedom.

“Even if this case was purely about the public restroom, locker room and shower provisions in HB2, Red Hat is making a poor strategic decision. Opinion polls show a plurality of Americans support the law’s commonsense approach requiring men and boys to use the men’s facilities and women and girls to use the women’s facilities when in public places,” noted Danhof. “If Red Hat wants an example of what public backlash can look like for supporting perverse restroom and accommodation policies, it should look to Target Corporation. After announcing that its restrooms and changing rooms were open to anyone based on their subjective identification, the retailer’s stock price and foot traffic to its stores plummeted.”

National Center President David Ridenour is a Red Hat shareholder.

In May, Danhof confronted Pepsi CEO Indra Nooyi after she called for North Carolina Governor Pat McCrory to repeal HB2. While Nooyi defended Pepsi’s position, the company did not join in the Human Rights Campaign legal brief that Red Hat endorsed.

* * *

The National Center’s Free Enterprise Project is the nation’s preeminent free-market activist group focusing on shareholder activism and the confluence of big government and big business. In 2014-15, National Center representatives participated in 69 shareholder meetings advancing free-market ideals in the areas of health care, energy, taxes, subsidies, regulations, religious freedom, food policies, media bias, gun rights, workers’ rights and many other important public policy issues. Today’s Red Hat meeting marks its 19th shareholder meeting of 2016.

Just this year, the Free Enterprise Project has been featured in the Washington Post, the Washington Times, Fox News’ “Cavuto,” the Drudge Report, the Financial Times, Crain’s Chicago Business, Hollywood Reporter, the Los Angeles Times, Fortune, Newsmax, the Daily Caller, Lifezette, the Seattle Times, the San Francisco Chronicle, and the Chicago Tribune among many others.

The National Center’s Free Enterprise Project is also prominently featured in Wall Street Journal writer Kimberley Strassel’s new book, “The Intimidation Game: How the Left is Silencing Free Speech,” published by the Hachette Book Group.

The National Center for Public Policy Research, founded in 1982, is a non-partisan, free-market, independent conservative think-tank. Ninety-four percent of its support comes from individuals, less than four percent from foundations, and less than two percent from corporations. It receives over 350,000 individual contributions a year from over 96,000 active recent contributors. Sign up for free issue alerts here or follow us on Twitter at @NationalCenter.

 

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50th Anniversary of Civil Rights Act “Bittersweet,” Say Black Activists

Black Activists Call 50th Anniversary of Civil Rights Act Enactment “Bittersweet” Occasion, Since Many Fail to Recognize the Progress That Has Been Made

“The Civil Rights Act changed American culture… racist sentiment became largely outdated and unacceptable …black people… are now the masters of their own destiny.”

“Today, black Americans and other minorities no longer face the daunting obstacles that existed prior to 50 years ago. The public square and corridors of commerce are overwhelmingly accessible by blacks and whites, men and women alike.”

Washington, DC – Five decades after the Civil Rights Act of 1964 was signed into law, activists the Project 21 black leadership network are commenting on its impact and legacy. Many believe the overwhelmingly positive efforts of the Act are being downplayed by “race-obsessed” critics.

“The 50th anniversary of the Civil Rights Act is a bittersweet occasion. As we assess what its passage means for American society and why it came about, we also must lament those who treat 21st Century USA like the Jim Crow America of yesteryear,” said Project 21 Co-Chairman Horace Cooper , a legal commentator who formerly taught law at George Mason University and was a leadership staff member for the U.S. House of Representatives. “Today, black Americans and other minorities no longer face the daunting obstacles that existed prior to 50 years ago. The public square and corridors of commerce are overwhelmingly accessible by blacks and whites, men and women alike. Sadly though, for too many of us, broken families and undue faith in government programs serve as a modern hindrance to black achievement and success.”

President Lyndon Johnson signed the Civil Rights Act into law on July 2, 1964. The new law created sweeping protections against discrimination based on race, gender, religion and national origin. It covers issues such as access to government facilities, public accommodations, voter registration and workplace discrimination, among other things.

While the Civil Rights Act brought about fundamental change in the way American law handles the topic of race and helped usher in a new era of equality, Project 21 members note there are members of the civil rights lobby and self-appointed black leadership who still insist the United States is inherently racist.

“On the 50th anniversary of the Civil Rights Act, we are sure to hear that little has changed for black Americans. The usual batch of self-proclaimed black leaders will jockey for the opportunity to do so. They are wrong,” said Project 21’s Joe R. Hicks , a community activist in Los Angeles who was formerly the executive director of the Los Angeles City Human Relations Commission and the Greater Los Angeles chapter of the Southern Christian Leadership Conference — a civil rights group formed by Martin Luther King, Jr. “Simply put, the Civil Rights Act changed American culture. Within a matter of years, racist sentiment became largely outdated and unacceptable. Race-obsessed black leaders unrealistically demand a racial utopia, but they miss the fact that black people have achieved something far more important. They are now the masters of their own destiny.”

“The passage of the Civil Rights Act was a signpost that America demonstrated she is more committed to the idea of equality under the law than any point since the Declaration of Independence. But, unfortunately, black leaders often fail to give our nation the credit it’s due,” added Project 21’s Cooper. “It was quite a galvanizing act when the nation came together to ensure the commitment that all Americans would be equal under the law was secured. Unfortunately, instead of stepping out and embracing the reality of Dr. Martin Luther King’s dream of a colorblind society open to all Americans of good will, too many continue to focus on injustices of the past.”

“It’s been five decades since the Civil Rights Act was signed. It’s a time for us to reflect upon the sacrifices made so that equality and freedom can be shared with all men,” said Project 21’s Demetrius Minor, a youth minister and former White House intern. “It’s a mix of the heroism of individuals such as Dr. Martin Luther King, Jr. and Rosa Parks, who gave us the boldness and courage to fulfill our dreams, and a bipartisan coalition in Congress who codified their crusade into law. While there is obviously more work necessary to further the cause of civil rights, it remains largely at the personal level and not with society as a whole. It is with a grateful heart that I salute the heritage of the past that made my successes in life possible today.”

In 2014, Project 21 members have already been interviewed or cited by the media over 800 times — including TVOne, the Philadelphia Inquirer, Fox News Channel, Westwood One, St. Louis Post-Dispatch, SiriusXM satellite radio and 50,000-watt talk radio stations such as WBZ-Boston and KDKA-Pittsburgh — on issues that include civil rights, entitlement programs, the economy, race preferences, education and corporate social responsibility. Project 21 has participated in cases before the U.S. Supreme Court regarding race preferences and voting rights and defended voter ID laws at the United Nations. Its volunteer members come from all walks of life and are not salaried political professionals.

Project 21, a leading voice of black conservatives for over two decades, is sponsored by the National Center for Public Policy Research, a conservative, free-market, non-profit think-tank established in 1982. Contributions to the National Center are tax-deductible and greatly appreciated .

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