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Exclusive: "MTN DEW RISE ENERGY" Doesn't Infringe "Rise Brewing" Nitro-Brewed Canned Coffee Trademark – TalkOfNews.com

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"MTN DEW RISE ENERGY" Doesn't Infringe "Rise Brewing" Nitro-Brewed Canned Coffee Trademark

#quotMTN #DEW #RISE #ENERGYquot #Doesn039t #Infringe #quotRise #Brewingquot #NitroBrewed #Canned #Coffee #Trademark

From Riseandshine Corp. v. Pepsico, Inc., decided today by the Second Circuit, in an opinion by Judge Pierre Leval joined by Judges Denny Chin and Steven Menashi:

In a trademark dispute …, PepsiCo, Inc., the Defendant, which marketed a canned energy drink under the mark “MTN DEW RISE ENERGY,” appeals from a preliminary injunction imposed on it … at the instance of the Plaintiff, RiseandShine Corporation, d/b/a Rise Brewing (“Rise Brewing”), which sells nitro-brewed canned coffee (and also canned tea) under the name RISE. It is undisputed that Plaintiff began using the RISE mark prior to Defendant’s use of its mark.

The Second Circuit reversed the district court’s grant of a preliminary injunction:

“[T]he strength of a mark depends ultimately on its distinctiveness, or its ‘origin-indicating’ quality, in the eyes of the purchasing public.” The strength of a trademark is assessed based on either or both of two components: (1) the degree to which it is inherently distinctive; and (2) the degree to which it has achieved public recognition in the marketplace, sometimes called acquired strength.

We turn first to inherent strength. Inherent strength or weakness of a mark is frequently an important factor because strong marks command a wider scope of protection than weak marks. The trademark law allows every marketer to identify itself as a product’s source by use of a distinctive mark, which will allow the public to recognize it as the source of the product, rewarding the marketer if it has earned a good public reputation and punishing it if the public’s prior experience has been disappointing.

In this manner, the trademark law serves the purposes of both marketers and the consuming public. So long as marketers select words or signs that have no logical relationship to the products or services on which they are used, there will never be a shortage of marks. Trademark law favors the use of marks that are arbitrary or fanciful in relation to the products on which they are used. This is because such distinctive marks make it easier for the public to avoid confusion and because allowing the owner a broad exclusivity for such a mark detracts little from free expression, as other marketers of similar products have no justified interest in using such words to identify their products. In contrast, trademark law offers a much narrower scope of protection to marketers who seek to bar others from using words that describe or suggest the products or the virtues of their products.

To describe different degrees of inherent distinctiveness, the trademark law utilizes four categories. In order of ascending strength, they are: (1) generic, (2) descriptive, (3) suggestive, and (4) arbitrary or fanciful.

A generic mark is a common name, such as automobile or aspirin, that identifies a kind of product. A mark that consists of a generic identifier of the product receives no protection from the law of trademark, even if the mark has acquired public recognition as identifying the source of the product. Neither prior use, nor public recognition as a source identifier can justify denying others the right to refer to their product as what it is.

One rung above the unprotectable generic marks are descriptive marks. These are marks that “tell[] something about a product, its qualities, ingredients or characteristics.” Descriptive marks are presumptively unprotectable, but can acquire a degree of protection if they have acquired secondary meaning, i.e. an acquired public recognition as a mark identifying the source. Id.

Suggestive marks occupy the next higher rung. Suggestive marks suggest (rather than directly describe) the product on which they are employed, or its attributes, sometimes requiring imagination to grasp the linkage. They are the weakest marks that are protectable without need to show acquired secondary meaning. They receive a narrower scope of protection than the protection accorded to arbitrary or fanciful marks—those at the top of the ladder.

Arbitrary and fanciful marks—i.e., those that make no logical reference to the product or service on which they are used, such as Google for a search engine, Kodak for cameras, or Quilted Giraffe for a restaurant, receive the strongest protection. This is because other marketers of the same products or services have no justification or cognizable interest in using the same terms in referring to their own market offerings.

The district court determined that Plaintiff’s mark was “suggestive,” noting that the word “Rise” “evokes images of morning, which ‘suggest[s] a quality or qualities of the product through the use of imagination, thought, and perception.’” We find no error in the district court’s determination that Rise Brewing’s mark is “suggestive.” … [But] “a finding of suggestiveness does not guarantee a determination that the mark is a strong one.” Because suggestive marks, by their nature, seek to suggest the qualities of the product, it can be difficult to distinguish weak suggestive marks from descriptive ones. Like descriptive marks, instead of focusing on the favored goal of source identification, suggestive marks aim to secure the exclusive right to an advertising message that is built into the trademark. The district court failed to note that the strong logical associations between “Rise” and coffee represent weakness and place the mark at the low end of the spectrum of suggestive marks.

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In its ordinary usage, “Rise” suggests waking up and “rising” from bed. Rising is generally associated with the morning, a time when many crave a cup of coffee, relying on its caffeine to jumpstart their energy for the day. The intended and achieved reference of the RISE mark is illustrated by Plaintiff’s company name—RiseandShine—something that a morning cup of coffee helps us to do. The proposition that one isn’t fully awake until one has had one’s morning coffee is a cliché.

The word “Rise” may also refer directly to energy itself; after consuming caffeine, one’s energy levels can be expected to “rise.” The trademark law does not favor giving one marketer an exclusive right to prevent others from using such valuable marketing terms in their own marketing campaigns. When a mark so clearly evokes the claimed virtues of the product it references, that mark, although perhaps muscular as a marketing tool, is weak under the trademark law.

The close associations between the word “Rise” and coffee constituted a weakness of the mark under the trademark law, which reduced, rather than advanced, Plaintiff’s likelihood of success on the merits. Because the word “Rise” is so tightly linked with the perceived virtues of coffee, the mark is inherently weak and commands a narrow scope of protection.

Although the suggestive category is higher than the descriptive category because a descriptive association between mark and product is more direct than a suggestive association, it does not necessarily follow that every suggestive mark is stronger than every descriptive mark. If the suggestion conveyed by a suggestive mark conjures up an essential or important aspect of the product, while the description conveyed by a descriptive mark refers to a relatively trivial or insignificant aspect of the product, the particular suggestive mark could be deemed weaker than the descriptive. Coffee’s capacity to wake one up and lift one’s energy, which is what the “RISE” mark suggests, is such an important part of the perceived virtue of coffee in the eyes of the consuming public as to render this suggestive mark decidedly weak.

A survey of the use of the term “Rise” in the beverage market further underlines the weakness of the mark. Extensive third-party usage of a mark in related products generally weighs against a finding that a trademark is strong. “[I]n a ‘crowded’ field of similar marks, each member of the crowd, is relatively ‘weak’ in its ability to prevent use by others in a crowd.” This is especially true where both the plaintiff’s product and the other products use the word to signify the same ordinary meaning.

Although, as the district court points out, Plaintiff appears to have been “the exclusive user of the principal term ‘RISE’ to identify a single-serving, canned caffeinated beverage,” there were already a number of marks using “Rise” on coffee drinks and other similar products when Plaintiff began to use its mark. Defendant presented evidence of over 100 uses of the term “Rise” in connection with coffee, tea, bottled beverages, energy drinks, soft drinks, drinkable health supplements, cafes, yogurts, and granolas. Many of these products use “Rise” in the same way as Plaintiff does—to allude to increased energy, particularly in the morning hours.

Plaintiff itself acknowledged this crowded field in its application to the United States Patent and Trademark Office (“PTO”). It initially attempted to register the mark “RISE COFFEE CO.” but was rejected by the PTO on the basis that there was a likelihood of confusion between “RISE COFFEE CO.” and prior registrations that also used the word “Rise” for coffee, such as “Rise Up Coffee Roasters” and “Rise Up Organic Coffee.”

Plaintiff objected to the PTO’s determination, arguing that the presence of multiple marks using the word “Rise” indicated the mark’s weakness: “[M]any entities have used the word ‘Rise’ in relation to the Applicant’s goods, making it unlikely that consumers would give significant weight to this term in ascertaining the source of such goods.” Plaintiff further elaborated, “The fact that there are multiple Rise-formulated coffee marks owned by different registrants peacefully coexisting without confusion shows that there is room for another Rise-formulated mark….” After Plaintiff modified its application to register “RISE BREWING CO.” rather than “RISE COFFEE CO.,” the PTO agreed to register the mark.

Now, having registered its trademark, Plaintiff argues that there is no such room for multiple “Rise” marks to coexist peacefully, even outside the coffee sector. That is not persuasive. If there was room for Plaintiff’s use of “Rise” in the already crowded coffee field, there would also be room for Defendant’s, especially on a product that is distinct from coffee. Trademark law does not offer robust protection to those who demand the exclusive right to use words that describe or suggest a product or its virtues. Given the inherent weakness of “Rise” for coffee, the first factor does not favor Plaintiff..

The Second Circuit also concluded that “Plaintiff has not shown that its RISE mark has achieved sufficient acquired strength to counterbalance the inherent weakness of its mark,” and then went on to conclude that there wasn’t likelihood of confusion, either:

The only notable similarity is the shared use of the term “Rise” in large bold letters. However, as explained above, the word “Rise” in this context is not distinctive. Therefore, without more striking visual similarities, the shared use of this ordinary word, used to signify a virtue of the product, is not enough to render the two products “confusingly similar.” Nor is there anything distinctive about the use of large bold letters to present a drink’s brand name.

Comparing the two products, the differences appear far more notable than the similarities. The two cans are different in size, proportion, style, color, and artwork. Even the word “RISE” is presented in very different manners. On Plaintiff’s can, it appears in a simple sans-serif font—its “R” and “S” evenly curved. Defendant’s can, in contrast, uses an angular and jagged font. Furthermore, while “RISE” on Plaintiff’s can is written on a horizontal line, the letters on Defendant’s can are arranged in an arc.

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Beyond the presentations of the shared word, the overall appearances of the cans are very dissimilar. Plaintiff’s seven-ounce can is less than half the size of Defendant’s sixteen-ounce can. Plaintiff’s can features warm or neutral colors, in stark contrast to the bright, bold colors of Defendant’s cans. The word “RISE” on Defendant’s can is partially covered at the top by Defendant’s prominently displayed house mark, “MTN DEW.” And perhaps most plainly, while the lower half of Plaintiff’s can shows simple, regular, white writing against a calm, uniform background, the lower half of Defendant’s can depicts a large, stylized lion’s head, composed of jagged shards that complement the can’s angular font. There is little about the appearance of the two cans that would suggest to a consumer that they come from the same source….

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Exclusive: Fed to Weigh Higher Rates Next Year – TalkOfNews.com

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FDA Authorizes Updated Covid Booster Shots

#Fed #Weigh #Higher #Rates #Year

Wall Street Journal: “A smaller 0.5-point increase would mark a new phase of policy tightening as they calibrate how much higher to lift rates. Policy makers expect price pressures to ease meaningfully next year, but brisk wage growth or higher inflation in labor-intensive service sectors of the economy could lead more of them to support raising their benchmark rate next year above the 5% currently anticipated by investors.”

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Exclusive: Rachel Maddow Raises An Interesting Question About Anti-LGBTQ Extremists And Infrastructure Sabotage – TalkOfNews.com

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Rachel Maddow talks about the power grid attack in Moore, County, NC.

#Rachel #Maddow #Raises #Interesting #Question #AntiLGBTQ #Extremists #Infrastructure #Sabotage

Rachel Maddow pointed out that the same weekend that white nationalist groups were protesting against LGBTQ events someone shot up a power station in the county where one of the events was taking place.

Video:

Maddow said:

So when Moore County, North Carolina, was host this Saturday to another one of these far right anti-gay, anti-trans protests and then just as a local drag show that they were protesting started up, someone shot up the power stations and cut power to the whole county.

Yes, understandably people locally immediately started asking the sheriff if that was the reason why, if there was a connection. Now, the sheriff has said repeatedly that he has no idea if the attack on the power stations is linked to those anti-gay, anti-trans protests. There really is no indication either way. The sheriff says he has no idea about a motive of any kind. No suspects, nobody claiming any responsibility, no one in custody.

Someone has committed at best an act of sabotage against the power supply. At worst, it was an act of domestic terror.

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It is not a coincidence that on the same weekend that anti-government extremists and neo-nazis show up to protest in a North Carolina county, the power grid gets shot up.

Rachel Maddow didn’t say that it was the extremists who shot up the power grid because there is no evidence to suggest either way, but the power grid wasn’t shot up before the right-wing extremists showed up, and then it was.

Right-wing threats did not stop after 1/6. In fact, the situation has gotten worse, and at a time when there is a lot going on, this problem is worth monitoring.


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Exclusive: Inside the fight for an end-of-year deal on the child tax credit – TalkOfNews.com

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Inside the fight for an end-of-year deal on the child tax credit

#fight #endofyear #deal #child #tax #credit

In 2021, an expansion of the child tax credit delivered hundreds of dollars monthly to some 35 million parents across the United States, helping them afford gas, food, and school expenses, and lifting almost 3 million children out of poverty. But last December, Democrats narrowly failed to approve an extension of the expanded credit, and it expired.

Now, with only a few weeks remaining before a new Congress takes office, advocates for the child tax credit are trying again to get an expansion included in any end-of-year tax package.

It’s a tall order, especially because Democrats would need at least 10 Senate Republicans to agree to pass any broad deal; last year, even a simple Democratic majority proved out of reach. But Democrats believe the political dynamics have since changed in their favor, and so have their policy demands, making a compromise potentially easier for Republican moderates to stomach.

The sticking point since the expanded credit expired has been Republicans and West Virginia Democratic Sen. Joe Manchin’s resistance to the idea that a more generous child tax credit should go to families where no parents are working. 2021 marked the only time in its quarter-century history that the CTC had no parental work requirement, and it was that feature, experts agree, that drove the policy’s substantial reduction in child poverty: a stunning 46 percent drop in one year, according to US Census data. Until the Inflation Reduction Act passed in August, Democrats and their allies were unwilling to entertain any child tax credit expansion that maintained a connection to work.

Now, though, Democrats are signaling they’d embrace a more modest expansion — ideally one that keeps the credit fully available for all families, but at least makes it easier for parents with little to no earnings to access, even if at a reduced rate. Whether lawmakers can increase the amount of funding available for parents of infants and toddlers, as opposed to all kids under 18, is another option on the table.

The biggest negotiating card Democrats have right now is certain expiring business tax breaks. Since 1974, companies have been allowed to deduct research and development (R&D) spending the same year they make the investments, but as a budget gimmick included in the 2017 Tax Cuts and Jobs Act, businesses, as of 2022, now must expense those costs over five or 15 years instead. Restoring the right to annually deduct R&D spending is a top legislative priority of the business community.

Advocates are hoping to pair any restoration of R&D tax breaks with an extension of the child tax credit. In November, Democratic Sen. Ron Wyden, who chairs the Senate finance committee, declared his intent to push for both together while Democrats still control both chambers of Congress.

Democratic Sen. Sherrod Brown, chair of the Senate banking committee, has stated that expanding the CTC is his top priority. “I’ll put it this way, no more tax breaks for big corporations and the wealthy unless the child tax credit’s with it. I’ll lay down in front of a bulldozer on that one,” he said in September.

Additional aid for Ukraine, public health, and disaster relief are the Biden administration’s top priorities for any end-of-year deal, but in late November, Karine Jean-Pierre, the White House press secretary, said that if corporate tax breaks are included in a final deal, tax cuts “for working families” should be as well.

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The negotiations ultimately may turn on just how much corporate lobbying pressure Republican lawmakers face. Prior to the midterms, Republicans anticipated much bigger electoral gains, making compromise with Democrats ahead of the new Congress seem less urgent. But now, with Democrats set to retain Senate control and Republican House margins tighter than expected, the expectation that Republicans would even be able to reach a deal on the business tax breaks next year if they wanted to looks dicey.

This reality, in fact, partly explains why Senate Republican leader Mitch McConnell announced last week that he’d like to negotiate an omnibus tax package in December, rather than a temporary spending deal that prevents a government shutdown but kicks the can on serious legislative decisions. Pushing the tax negotiations to 2023 would mean incoming House Speaker Kevin McCarthy, rather than current Speaker Nancy Pelosi, would be tasked with getting an acceptable deal through his chamber. “Nobody trusts McCarthy to pass anything (not even McCarthy),” quipped Politico in late November.

Though some advocates are still publicly calling for the expanded CTC of 2021, most acknowledge they’d accept more modest improvements

The 2021 expansion of the child tax credit, passed as part of President Joe Biden’s pandemic relief program, sent thousands of dollars to parents across the US. It made non-working and poor families fully eligible for the credit’s full value and increased the value of the subsidy itself — up to $3,600 per child.

Democrats had been optimistic that if they could just seed the generous program through the American Rescue Plan, then they would amass the kind of political support that makes a popular subsidy hard to repeal. But they failed, and the CTC is resultantly back to its pre-Covid form, with a maximum of $2,000 per child for working families only — and will remain there unless lawmakers change it.

Democratic Sen. Joe Manchin and Republicans believe it’s important for the child tax credit to maintain a connection to working parents.
Kevin Dietsch/Getty Images

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At the heart of ongoing debates over the CTC are unsettled questions about what the policy is for. Is it to reduce childhood poverty? Is it to incentivize parents to work? Is it to help all kids?

Some Democratic lawmakers and CTC activists have been publicly calling for a reinstatement of the 2021 child tax credit, pointing to the research showing it helped families, reduced child poverty, and did not deter parents from working.

In late October, dozens of centrist Democratic lawmakers sent a letter to House leadership calling for an extension of the CTC passed under the American Rescue Plan. Theirs was followed by a similar letter, making the same ask, signed by dozens of progressive Democratic lawmakers. Another letter in November signed by over 550 hunger groups likewise called on congressional leadership to reinstate the child tax credit from 2021.

Adam Ruben, the director of Economic Security Project Action, a group organizing for the CTC, told me that advocates both in Congress and outside Capitol Hill are “crystal clear and aligned” in calling for the child tax credit that passed the House as part of their Build Back Better package, which mirrored the American Rescue Plan version. “That’s the version that’s most effective at reducing poverty, most effective at helping families with the high cost of gas and groceries,” he said.

Yet privately, most child tax credit champions admit they’d accept something less generous than the American Rescue Plan version, and in lobbying meetings they aren’t pressing lawmakers to hold the line, as they did during the reconciliation process. Even some lawmakers and advocates are saying this now publicly.

One option to expand the credit is to focus on the 19 million children under age 17 who currently receive less than the full $2,000, either because their parents earn too little to qualify or because they aren’t working at all. (These children are disproportionately Black, Latino, American Indian, or Alaska Native.)

Expanding the credit for those 19 million children — or, as policymakers say, making the credit “fully refundable” — would cost about $12 billion per year. But it’s not really the cost, advocates acknowledge, that’s the barrier to doing that. It’s that Manchin and Republicans believe it’s important for the credit to maintain some connection to working parents.

As a compromise, Democratic aides say they’re hoping they could make the credit at least fully refundable for parents of young children, or lower the amount parents need to earn to qualify for the credit’s full value.

“I have always believed that in the end this would be bipartisan, that it wouldn’t be just the way I had designed it, that the Republicans would make some changes to it,” Democratic Sen. Michael Bennet said recently on a Politico podcast.

Elyssa Schmier, a lobbyist with MomsRising, told me that while their long-term goal is to see a permanent extension of the child tax credit passed under the American Rescue Plan, what they’re hoping to see in a lame-duck deal “is first and foremost the inclusion of the child tax credit” and in a form that helps it reach as many families in need as possible. Schmier said their focus is not on increasing the value of the credit right now, but expanding it for low-income families currently barred by work requirements.

Rev. Jim Wallis, another child tax credit advocate who leads the Georgetown University Center on Faith and Justice, said he’s not expecting lawmakers to approve a permanent end to all work requirements in December, and said advocates are pushing for some kind of “expansion” targeted specifically to the poorest and most vulnerable families.

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Most liberal activists right now agree with Schmier and Wallis that focusing on the credit’s anti-poverty potential is the most important piece. Other coalition letters have been careful to exclude mention of the 2021 child tax credit, so as to not imply they’re demanding the same policy they were calling for earlier this year. One congressional letter sent by five national civil rights organizations simply called to “expand the CTC,” as did another sent by a coalition of Christian churches and ministries.

The money elephant in the room

One reason many Democrats are trying to minimize discussion of the 2021 expanded child tax credit now is because it — and the version Democrats passed in their subsequent House Build Back Better package — is very expensive, with a price tag exceeding more than $100 billion per year.

In comparison, the corporate tax breaks with which advocates are hoping to pair a child tax credit expansion come at a lower cost. Estimates vary, but the ballpark figure floating around the Senate is somewhere between $45 billion and $60 billion per year. The Committee for a Responsible Federal Budget has estimated that a permanent R&D fix would cost roughly $155 billion over the next 10 years.

Senate Minority Leader Mitch McConnell has insisted that any end-of-year tax deal must prioritize defense spending over domestic policies like the child tax credit.
J. Scott Applewhite/AP

“I love the CTC, but I think advocates have done a terrible job of acting like it costs peanuts,” said one Democratic aide working on the negotiations. “It gets you nowhere to pretend we can do this massive transformational thing for nothing. Like expectations here have just been so out of whack because none of the advocates would admit this massive expansion of child benefits costs a lot of money.”

Rather than focus on comparing dollar amounts between the child tax credit and the business tax breaks, CTC advocates have stressed lawmakers should focus instead on parity of time for benefits. In other words, if Congress extends R&D tax breaks for another two years, then they should extend the child tax credit in some form for two years, too. A spokesperson for the Chamber of Commerce declined to comment.

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For now, Democratic aides say they’re waiting to hear more details from Senate leadership over how much money is on the table to work with at all. McConnell has previously insisted that any end-of-year tax deal must prioritize defense spending over domestic policies, given that Democrats have already passed major domestic policy bills this year, though Senate Majority Leader Chuck Schumer said he intends to fight this.

One crucial factor, according to Senate aides, will be if Republicans feel like they’re getting a fair trade — something that can be measured in terms of dollar amount, length of time, or even, frankly, just “vibes.” When House lawmakers first sent their letters in late October and early November calling for a reinstatement of the 2021 expanded CTC in exchange for business tax breaks, some Republican staffers felt Democrats were not making a serious offer, given that many Democrats also want the R&D credits extended. In other words, since Democrats weren’t coming out of the gate with any proposed cuts to their own priorities, it didn’t seem like a great deal to Republicans, or even a realistic threat.

Democratic aides I spoke with said the threat to vote against R&D tax breaks if not paired with the child tax credit is no bluff, and pointed to the fact that Democrats have stood resolved against approving the business tax breaks to this point despite intense lobbying pressure. “If the number of Democrats willing to support the Young-Hassan bill were compelling then this would have been passed by now,” one aide said, referring to a bill Sens. Todd Young (R-IN) and Maggie Hassan (D-NH) have tried to include in multiple legislative vehicles this past year.

Sam Hammond, the director of social policy at the Niskanen Center, a centrist think tank, thinks the chances of reaching a deal on the child tax credit this month are relatively slim, though he believes the results of the midterms increased its odds. “Even though Democrats lost the House, just having control of the Senate floor is, like, nine-tenths of the battle over what can be put on the floor and up for a vote,” he said. “I think if Republicans had swept, there wouldn’t be a tax package being discussed at all.”

Where are Republicans on this?

Conservatives opposed to expanding the child tax credit are sensing that a legislative deal might not be far-fetched, and have started to ramp up their opposition.

The Wall Street Journal ran an op-ed and an editorial against the CTC in late November, perhaps the clearest indication they recognize it’s time to fight. “The tax credit is a parable about good intentions, unintended consequences, and the insatiable entitlement state,” the Journal argued, citing new studies that estimate a permanent extension of the American Rescue Plan child tax credit would reduce economic output by 0.2 percent over a decade, and lead to 1.5 million people leaving the workforce.

In June, Republican Sens. Mitt Romney (UT), Richard Burr (NC), and Steve Daines (MT) introduced a new bill — the Family Security Act 2.0 — to distribute monthly cash payments to parents. The proposal is a modified version of a child allowance policy Romney introduced in 2021, though his new bill includes a requirement that families earn at least $10,000 to receive its full benefit.

The Republican proposal would mark a big expansion from the current child tax credit. It would increase the maximum value from $2,000 to $4,200 for each child under age 6 and $3,000 for each child ages 6 through 17, paid out in monthly installments.

Romney’s office declined to comment for this story, but the Utah senator told Semafor “it’s probably not going to be until next year that we consider new legislation” on the CTC.

Most other Republicans, though, are being more tight-lipped, and Ruben, of the Economic Security Project, says his conversations with Republicans suggest they’re keeping their negotiating options open for now.

“We’re talking to Republican offices that say they want to do more for families than current law provides, and when we say, ‘What’s your bottom line in terms of what you can or can’t accept?’ they say, ‘Well, I don’t know, it’s a deal,’” Ruben said. “They don’t say, ‘It has to absolutely do this,’ or has to be written in a certain way. It’s all more fluid in Congress right now than that.”

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