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Marsh to meet with Gov. Ivey to decide fate of economic developer bill

Brandon Moseley

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Senate President Pro Tem Del Marsh, R-Anniston, speaks at a press conference announcing the filing of new comprehensive ethics reform. (Chip Brownlee/APR)

Senate President Del Marsh, R-Anniston, asked the Senate Fiscal Responsibility and Economic Development Committee to hold over a bill Wednesday to exempt economic developers from the state’s lobbying requirements until after he meets with Alabama Gov. Kay Ivey on the matter today.

House Bill 317, titled The Alabama Jobs Enhancement Act, is sponsored by State Representative Ken Johnson, R-Moulton, but is being carried in the Senate by Marsh. Marsh said that he also was going to meet with the attorney general and would get back with the Committee on whether or not the Senate would take up this bill this year.

Alabama Law Institute Director Othni J. Lathram said that there was an issue on whether or not site selectors had to register as lobbyists under Alabama’s ethics law. There is a staff opinion at the Alabama Ethics Commission that they do qualify as lobbyists and do fall under that licensing regime. The Commission carried over that opinion, because the law was not clear. It was their opinion that the legislature should clarify the law.

Lathram said, “The original bill was an exception based on conduct, but there was a push back on that by law enforcement.” The bill that passed the House was rewritten with language in a bill that was being carried by Marsh that defined economic development.

Lathram said that a formal advisory opinion by the Alabama Ethics Commission would make you immune to prosecution so that no prosecutor can indict you if you were honest and accurate in your description of your activities with the commission. Lathram said that this special exception for economic developers does not apply to elected officials.

The Senate Fiscal Responsibility and Economic Development Committee is chaired State Senator Phil Williams, R-Rainbow City.

Williams said that economic developers are not usually going to be in direct contact with the public official asking for incentives.

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State Senator Trip Pittman, R-Montrose, said that the Ethics Commission staff had the opinion that economic developers met the definition of lobbyists.

“I have tremendous concerns about parts of this,” Pittman said. “if you engage people for money you are lobbying.”

State Senator Clyde Chambliss, R-Prattville, said that there is a site selection process that is part of an economic developer’s job that isn’t lobbying, but there is a second phase when we go from site selection to talking to public officials.

Sen. Pittman asked, “If someone were to leave the legislature would they be able to immediately go into the field of economic development?”

Lathram replied, “You would be right, but we could tweak the revolving door act.”

Alabama Commerce Secretary Greg Canfield said, “I am charged as the Secretary of Commerce with advancing jobs and capital investment across the state of Alabama.”

Canfield said that the press “mischaracterized the process that we have been engaged in to make sure that we have a workable ethics bill.”

“I was with you when we passed this legislation initially in 2010,” Canfield, a state senator until appointed by then Gov. Robert Bentley, said. “We didn’t intend for economic development professionals to be under the ethics law.

Canfield said that in December 2015 Gregory C. Burkart wrote a column in IPT insider titled “The Accidental Lobbyist” where Burkart, an attorney in Michigan, gave the opinion that economic developers are not exempted from the Alabama Ethics Law.

Williams provided the Alabama Political Reporter with the article as part of a 16-page packet supporting passage of the Alabama Job Enhancement Act.

Burkette warns economic developers doing business in Alabama.

“Another consequence is that lobbyists are prohibited from giving anything of value to a public employee or public official.” Burkette warned that economic developers would have to provide, “A detailed statement showing any direct business association or partnership with any public official, candidate or members of the household of such public official or candidate.”

Canfield said that economic developers were not specifically written out of the 2010 ethics law and in fact, you have disagreement on the intent of the Legislature. Some of you believe that economic development would be considered to be lobbyists and there are others that believe that economic development was exempted

Canfield said that he believed that economic development can continue without falling under the definition of lobbyists if this legislation is passed.

“We are using language that the Attorney General’s office used for a very narrowly carve out,” Canfield said.

The legislature’s intent in 2010 and 2011 was not to hinder economic development. “We slowed the process down to make sure that we get it right.”

Canfield said that he has heard from Jay Garner, with the Site Selector Guild, which represents the top 44 site consultants that there are concerns that the Alabama ethics law might make premature reporting of his clients and not just once but four times a year.

Williams shared Garner’s letter with APR.

Garner wrote in a letter to Canfield, “There is growing concern among site selectors, regarding ambiguity in Alabama’s statutes that can be interpreted as requiring site selectors and other economic development professionals to register as lobbyist to legally negotiate for project incentives. That requirement would be burdensome on-site selectors.”

Garner is the president of Garner Economics L.L.C. in Atlanta.

Garner objected to, “The requirement that we attend a training event.”

”There are only two states that we are aware of that define professional economic developers as lobbyists: California and North Carolina and North Carolina is seeking to change that.

“I am here to warn you of the consequences if we don’t do something,” Canfield warned. “Georgia does not require this. Tennessee does not require this. Mississippi does not require this. Louisiana does not require this. Please consider supporting the bill.”

Pittman asked, “How much money have we allocated in incentives as a state and by local government?” “There are parts of this I support and parts of this I have serious reservations about.”

Senate Majority Leader Greg Reed, R-Jasper, said explain to me how did we go from where we are attracting companies to now being at a disadvantage.

Canfield said that until the “Accidental Lobbyist” article on December 2015 we thought we had an understanding that economic developers were not lobbyists. We have begun hearing that other states were using this against us.

“In 2017 we decided there was one way to clarify that and it was to go to the Ethics Commission and ask for an advisory opinion,” Canfield said.

Marsh said, “Two weeks ago we had a press conference where we talked about ethics reform and we created a commission to thoroughly study ethics issues in the state of Alabama. The Attorney General and others were to work on reviewing the ethics laws. I understand that the Ethics Commission has asked for clarification on this. We have this small bill and another small bill by Senator Albritton. What I am going to ask today is that that both of those bills be carried over until I can talk with the Governor. I have an appointment to see her tomorrow on this. I will talk with the Attorney General as well. I am going to ask that you not pass this bill today.”

“I want to make sure that we go down the right path,” Marsh said. “I stood in front of the public and told them we were not going to pass anything on ethics this year.”

Williams said it is the policy of the Fiscal Responsibility and Economic Development Committee that we vote on the same day that we hold a hearing. “The one exception to that rule is if the sponsor asks us to wait,” Williams said. “I will grant your request.”

The Executive Director of the Economic Development Association of Alabama (EDAA) Jim Searcy said that our members are economic developers not lobbyists and they’ve expressed concerns starting in 2016.

The President of EDAA Lee Lawson said he was a local economic developer.

“I am an employee of a 501C6 non-profit,” Lawson said. “One-hundred percent of my activities are to support growth and economic development in my community. I represent those people. I am funded by the county, 12 municipalities, businesses and individuals who contribute to Baldwin County EDA. We have a 3000 acre mega site. We were a finalist for the Toyota-Mazda site. Those site selectors did not reveal to us who they were working for until very late in the process. I am not a lobbyist, I am an economic developer.”

Pittman (who represents Baldwin County) said, “Lee you do lobby that is what you do. You ask for taxpayer money for incentives to give to private companies to come to Baldwin County. You do lobby.”

The Chairman of the Alabama Ethics Commission Jerry L. Fielding (also a former State Senator) said, “Our staff came forward with an advisory opinion, where the staff decided to write that these site consultants were covered by the ethics act. We did not want to grant that advisory opinion because the Secretary said that they were working on some things that could have been impacted.”

Chairman Fielding said that the Commission carried over the issue to their August meeting and then in August decided to carry it over to the legislature for clarification.

“Y’all are in charge of legislation and we are in charge of interpreting the legislature,” Fielding said. “HB317 is crystal clear as it has come out of the House . Four of the five Commissioners are satisified with the language in the act at hand.”

Williams asked, “If we don’t take action on this bill you are saying that you will have to deal with the vagary?”

Fielding said it is up to the legislature, “Y’all can vote it up or down.”

State Senator Jim McClendon, R-Springville, said, “I know the Ethics Commission must have some regulatory authority that the legislature has granted you. Why couldn’t you guys look at the current law and come forward with a regulation instead of asking for this?”

Fielding answered, “I don’t think there is any regulatory authorization for this. I don’t believe this part of the ethics act is covered.”

McClendon asked, “Why is there not a pro and a con?” In every hearing I have been part of in the legislature one speaker speaks in favor and the next speaker speaks against.

William said, “This is not a public hearing. This is a chairman’s hearing. The people who I invited are who is allowed to speak.”

The Attorney General’s Chief Counsel Katherine Green Robertson said, “We had a 150 page bill addressing this and that proved hard to move.”

Williams asked, “If we actually adopt this will the attorney general’s office still be able to go after bad actors?”

Robertson answered, “Yes.”

State Senator Cam Ward, R-Alabaster, asked, “You had the comprehensive bill being proposed. Are you ok with this as a standalone?

Robertson answered, “It was a compromise. We would like to have had our full bill passed. To the extent that it is addressed here the attorney general is satisfied.”

Williams shared a letter from the Attorney General with APR.

Attorney General Steve Marshall wrote, “The amendment provides a narrowly-drawn exemption for full-time lobbyists under the ethics law. This would include, for example, high-level individuals from foreign car companies or staff members of local chambers of commerce. Lawmakers and other public officials are specifically prohibited from claiming this exemption.”

“This approach to economic development has been a part of the Attorney General’s Office’s working draft for nearly two years,” Marshall wrote in a memorandum dated March 14, 2018.

Chairman Williams said that he is going to offer a, “Press Association amendment” that would ensure that everything that is available now to the press now will still be available if this passes. APR has not yet seen this amendment.

Pittman asked, “Will there be an opportunity for additional amendments?”

Williams replied, “Yes,” either next week or on the floor.

HB317 has already passed the House. Whether the bill will be allowed to move forward in this session or not will be determined by  Marsh.

Brandon Moseley is a senior reporter with eight and a half years at Alabama Political Reporter. You can email him at [email protected] or follow him on Facebook. Brandon is a native of Moody, Alabama, a graduate of Auburn University, and a seventh generation Alabamian.

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Under cloak of secrecy, dark money nonprofit targets Birmingham law firm

From the beginning, Forbes’s “BanBalch.com” website set out to tarnish the law firm by claiming to expose “unsettling controversies surrounding Balch & Bingham,” much of which stems from allegations, inference and speculation.

Bill Britt

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A mosaic of headlines from Forbes's website, which attack the Birmingham law firm Balch & Bingham.

A California-based, dark money organization has set up shop in Alabama. It appears the move has substantially improved the group’s financial outlook and altered its core mission.

Because of the group’s federally protected status, it is impossible for the public to know who is pouring cash into Consejo de Latinos Unidos — translated as United Latinos Council — but a state tax lien and its CEO’s website may offer a peek at what might be hiding behind the nonprofit’s dark-money veil of secrecy.

Founded in 2001, and originally headquartered in Los Angeles, CDLU’s stated mission, according to reports was to “foster, encourage and develop educational opportunities and programs in Latino communities.”

Leaving its Latino-centric advocacy roots, the current website says the group’s “primary mission is helping to provide urgent and life-saving medical care for those in need with nowhere else to turn.”

Although it relocated to Birmingham sometime between 2013 and 2014, CDLU has never registered with the Alabama Secretary of State’s Office — and its board of directors is still located in California and elsewhere.

In 2017, it appears CDLU once again found an added purpose for its activities far from its previously stated missions.

CDLU’s CEO, Kevin Brendon Forbes, who goes by his initials “K.B.” launched a website in 2017, on which he targets Birmingham-based law firm Balch & Bingham.

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Mother Jones characterizes Forbes as a “self-styled ‘child of the Reagan revolution,’ [who] grew up in a mixed household in a Los Angeles suburb.” Forbes also worked for far right-wing commentator and one time Republican presidential hopeful Pat Buchanan, as well as media-mogul and former Republican presidential contender Steve Forbes. (The men are not related.)

Why a leader of a nonprofit would devote daily energy to attacking a law firm is not entirely clear, but it seems to have begun with what Forbes refers to as the “Newsome Conspiracy Case,” which involves an extended court battle between Burt Newsome, a Birmingham attorney, and Balch & Bingham.

Not only did CDLU’s focus change when Forbes became close to Newsome, the organization’s fortunes began to improve, as well.

Forbes is considered the driving force behind the group’s ventures in Alabama. He is also personal friends with Newsome. Facebook posts show both Newsome and Forbes’ wives enjoying social events on multiple occasions.

There is a direct friendship between the wives of Forbes and Newsome. They have been friends since at least 2016 and posts show a number of public interactions since then.

Forbes reserved the website “BanBalch.com” shortly after the Newsome and Forbes families formed a friendship, and the website’s first articles were aimed squarely at Newsome’s lawsuit with Balch & Bingham.

From the beginning, the website set out to tarnish the law firm by claiming to expose “unsettling controversies surrounding Balch & Bingham,” much of which stems from allegations, inference and speculation.

Under the banner of his nonprofit, Forbes has also taken further steps to attack the firm’s largest clients.

Forbes has taken credit for costing Balch & Bingham hundreds of thousands of dollars in client fees while also remaining fixated on the firm, writing Newsome a check to settle the disputed lawsuit with CDLU as mediator.

Why would CDLU offer itself as a mediator in a private lawsuit especially given the fact that Forbes is not an attorney?

From a ragtag blog to a more sophisticated web presence, BanBalch.com has expanded its coverage to include those associated with Balch & Bingham.

Veteran politicos who asked not to be directly quoted in this article to avoid being dragged into Forbes’ intrigues suggest that those with other darker motives could use the site for a broader political agenda. These insiders question whether political operatives are now feeding Forbes opposition research and money to do their bidding.

As a federally sanctioned nonprofit, CDLU must complete an annual tax filing.

Federal Form 990, the annual statement that must be filed by all IRS recognized nonprofit organizations, shows that in the past five years, annual gross income of CDLU averaged $7,030. The last 990 filed for the year 2018 shows CDLU finishing the year with a $12,363 deficit, and all the 990s filed by CDLU for the past decade show the nonprofit has never paid anyone a salary.

While the 990 for 2019 is not due until November of this year, a tax lien from the state of Alabama filed on January 3, 2020, suggests that in the first three months of 2019, CDLU paid someone or some number of people between $186,000 to more than $500,000. The lien for $11,671.73 was for unpaid withholding tax to the state of Alabama — including up to a 25 percent penalty.

Depending on the number of people paid and the amount each person was paid, this lien represents a minimum of $186,000 in compensation paid and a maximum possibility of more than $580,000.

As a 501(C)(3), Forbes’ organization is not required under federal law to publicly disclose donors. As a charitable organization, it is barred from engaging in political activity or supporting political candidates, and while most “dark money” groups are 501(C)(4)s for this reason, (C)(3)s operate with similar opacity in regard to their funding sources, though many publicly disclose their donors in the interest of transparency.

501(C)(3)s are also required to remain true to their founding purpose unless they notify the IRS in advance of the change in purpose.

An organization with a long history of little income and zero salaries appears from the lien documents to have paid more in compensation in the first four months of 2019, than it had collected in gross income for more than five years. Where did the money come from and what was CDLU doing to attract this kind of investor?

In his writings, Forbes has made it clear that paying Newsome would make the attacks on Balch & Bingham and the firm’s clients go away.

Excerpts from an article Forbes has posted at least twice summarize the central focus of his efforts:

So, we ask, would it not have been cheaper to simply resolve the Newsome Conspiracy Case for $3 million? If Balch & Bingham had simply reached out to us, the CDLU, and tried to resolve the Newsome Conspiracy Case in early 2017, this blog would not exist and our advocacy efforts at the CDLU would not be focused on educating the public, law enforcement, legislators, corporate leadership, and institutional investors on Wall Street about Balch & Bingham's alleged unsavory if not criminal conduct. When Newsome originally wanted to settle this matter, back in 2015, his legal team asked for three things: An apology. The end of the tracking of Newsome's banking cases by Balch partners. $150,000 for revenue lost from the alleged defamation. Balch rejected the offer and now that decision has cost them millions and millions more to come.

Forbes’s words would seem to indicate that he set out to harm Balch & Bingham to force them to pay Newsome.

Is Forbes attacking the firm’s clients to coerce a payment to Newsome? Did someone pay CDLU hundreds of thousands of dollars in 2019, as is indicated by the tax lien. Did Forbes pay his friend Newsome all or any of this money? Where did the money come from and who did Forbes pay?

Nonprofit organizations like CDLU do not have to reveal their donors. But during 2019, Forbes’ attacks on Balch & Bingham’s clients took on a wide-ranging field of subjects.

Politicos, who spoke with APR, posed the following questions: Did someone recognize that Forbes had created a communication channel through which they could accomplish goals that had nothing to do with Burt Newsome? Was a rival law firm paying Forbes to attack Balch to steal Balch’s clients? Could environmental groups or their supporters be paying Forbes to attack utility companies? Were Washington-based lobbying firms paying Forbes to bolster their efforts to take Balch’s national lobbying contracts?

The answer to these questions would easily be resolved if Forbes revealed who was paying him.

Forbes has indicated in writing that “this blog would not exist” if someone would just write Newsome a very large check.

Forbes has attacked clients of Balch & Bingham and told the clients the attacks would go away if they forced Balch to settle with Newsome, according to APR‘s sources.

A veteran of hundreds of legal skirmishes who, like others, asked not to be quoted because of Forbes’ propensity to write unfounded accusations, said Forbes’ actions in his opinion rose to extortion and torturous interference of business.

Forbes has never fully explained why his nonprofit moved from California to Alabama, nor why CDLU’s mission changed from Latino advocacy in Los Angeles to attacking a Birmingham law firm and its client.

When social media hoaxes and fake news are trade craft, there is a ready market for blogs like BanBalch.com, insiders believe.

The question that may need answering by law-enforcement is what is going on at CDLU that would allow them to operate Banbalch.com under a cloak of federally sanctioned secrecy?

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Crime

Tenth state inmate dies after testing positive for COVID-19

As of Tuesday, 97 inmates had tested positive for COVID-19.

Eddie Burkhalter

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As of Tuesday, 97 inmates had tested positive for COVID-19. (Stock photo)

A tenth Alabama inmate has died after testing positive for COVID-19, according to the state.

Raymond Earl Allen, 59, who was serving at the St. Clair Correctional Facility died Monday at a local hospital, where he had been taken after exhibiting symptoms for coronavirus, the Alabama Department of Corrections said Tuesday. 

Allen was considered high-risk because he had end-stage renal disease, according to ADOC. 

ADOC also said another inmate at St. Clair has tested positive for COVID-19, bringing the total number of confirmed cases among inmates at the prison to 28. Six workers at the prison have also tested positive for the virus. 

The department also announced that four workers at the Kilby Correctional Facility, two at the Fountain Correctional Facility and one at the Alex City Community Based Facility and Community Work Center also tested positive for COVID-19. 

As of Tuesday, 97 inmates had tested positive for COVID-19, while 28 have since recovered. Of the state’s approximately 22,000 inmates, 490 have been tested. Of the 184 confirmed cases among prison staff, 100 have recovered. 

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Two prison workers at the Julia Tutwiler Prison for Woman have died after testing positive for coronavirus. There have been confirmed cases of the virus in 27 of the state’s 32 facilities.

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Health

COVID-19 kills 228 Alabamians in last three weeks as deaths pass 1,000

At least 1,007 Alabamians have died from COVID-19 since the first case was diagnosed in the state in mid-March.

Brandon Moseley

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At least 1,007 Alabamians have died from COVID-19 since the first case was diagnosed in the state in mid-March. (Stock Photo)

The Alabama Department of Public Health reported Tuesday that more than 1,000 Alabamians have now died from COVID-19. At least 228 of those were killed in just the past three weeks.

At least 1,007 Alabamians have died from COVID-19 since the first case was diagnosed in the state in mid-March, according to the Alabama Department of Public Health. Another 26 deaths are listed as probably COVID-19 deaths.

By June 1, 18,246 Alabamians had tested positive. By June 17, 26,914 cases had been diagnosed in the state. In the twenty days that have followed, another 18,349 Alabamians have tested positive. As of Tuesday, 45,263 tested positive, with another 888 positive coronavirus tests announced on Tuesday.

Alabama’s coronavirus epidemic was expected to peak in April while the state was under a shelter in place order. By April 30, the state began lifting restrictions to reopen the economy.

On Tuesday, Dr. Anthony Fauci told reporters that Alabama and other states may have reopened their economies “too soon.” Since the Memorial Day weekend, cases of coronavirus have risen at an alarming pace. On Monday, hospitalizations for COVID-19 set a new record at 1,016.

The combination of a surge of cases, many Alabamians out and about without masks or face coverings, and large holiday gatherings over the Fourth of July weekend make many public health officials concerned that we could be seeing dramatically higher numbers of cases, hospitalizations, and even deaths moving forward into late July and early August.

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Fauci told members of the Alabama press corps that 20 to 40 percent of people who are infected are not showing any symptoms, but they could still be spreading the virus.

Fauci said that wearing a mask or cloth face covering and staying at least six feet away from other people is the best way to avoid becoming infected with the coronavirus — or transmitting the virus to other people if you are already infected, but just don’t know it.

Several cities and counties in Alabama have already implemented a mask requirement.

State officials are urging Alabamians to take personal responsibility for their own health.

Thus far the global pandemic has killed 543,596 and known coronavirus cases are rapidly approaching twelve million.

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House

Alabama lawmaker pre-files legislation to allow removal of Confederate monuments

If passed, the measure would permit counties and cities to relocate historic monuments currently located on public property.

Brandon Moseley

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A Confederate monument in Birmingham's Linn Park was removed. As have monuments and memorials in Mobile and on the campus of the University of Alabama.

Alabama State Rep. Juandalynn Givan, D-Birmingham, introduced legislation this week in advance of the 2021 legislative session that, if passed, would permit counties and cities to relocate historic monuments currently located on public property. Givan’s bill, HB8, would also provide for the relocation of historic memorials to sites appropriate for public display.

“Across the state of Alabama, citizens are calling for the removal of prominently placed statues and monuments that are insensitive or offensive to the communities that surround them,” Givan said. “City and county governments must be able to address the demands of their citizens. This legislation provides a tool for local governments to safely remove these artifacts so that they can be moved to a site more appropriate for preserving or displaying the historical monument.”

Removing the monuments and historical markers is currently illegal under Alabama’s Memorial Preservation Act, which the state Legislature passed in 2017. Givan has been an outspoken opponent of that Republican-sponsored legislation. In 2018, Givan introduced a measure to repeal the bill that barred the removal of monuments.

“I believe HB8 can achieve bipartisan support,” Givan said. “My bill seeks to balance the wishes of the people. It respects the will of communities that want the monuments removed. It also respects those who wish to preserve history. With this legislation, Confederate monuments could be relocated to a public site, like Confederate Memorial Park, whose purpose and mission is to interpret and tell these stories. When the Legislature convenes, I hope to have the support of both the House of Representatives and the Senate.”

If enacted, HB8 would permit county and municipal governments to remove memorial monuments, including permanent statues, portraits and markers, located on public property in their jurisdictions. It would require a transfer of ownership of the removed monuments to the Alabama Department of Archives and History or the Alabama Historical Commission. Finally, the bill would instruct Archives and History or the Historical Commission to maintain and display monuments removed by local authorities in a location accessible for public display.

The Southern Poverty Law Center, which keeps track of Confederate monuments and memorials across the country, released an update to its Whose Heritage report, which tracks symbols of the Confederacy on public land across the United States. They report at least 30 Confederate symbols have been removed or relocated since George Floyd’s death on May 25, 2020.

These include 24 monuments removed, 5 monuments relocated and the Mississippi state flag replaced. Since the Charleston church shooting in 2015, 115 total symbols have been removed from public spaces. These include 87 monuments that have been removed or relocated from public spaces. At least 78 monuments were removed and nine were relocated.

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SPLC says there are still nearly 1,800 Confederate symbols on public land, and 739 of those symbols are monuments. The SPLC has prepared an “action guide” to help community activists target Confederate historical markers and memorials for removal.

President Donald Trump has denounced what he calls “cancel culture” that seeks to remove historical monuments and statutes.

“There is a growing danger that threatens every blessing our ancestors fought so hard for, struggled, they bled to secure,” Trump said. “Our nation is witnessing a merciless campaign to wipe out our history, defame our heroes, erase our values, and indoctrinate our children.”

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