October 25, 2014

Tankman, the GOP and Voting Rights

One of the most evocative images of the 20th century was the image of a single man standing in front of a column of tanks as part of the pro-democracy protests in Beijing’s Tiananmen Square. The picture resonates because, as Thomas Jefferson wrote two centuries earlier, we are all endowed with certain fundamental unalienable rights – Life, Liberty and the pursuit of Happiness.

In the United States, a half-century ago the Supreme Court explained that

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

Over the course of our history, we have endeavored to expand the right to vote to include all sexes, all races and all adults.

In March 1965, a voting rights march to Montgomery, Alabama was met with brutal force by Alabama state troopers on Selma’s Edmund Pettus bridge and the nation reacted in horror. President Johnson spoke before Congress to introduce the Voting Rights Act, declaring

There is no constitutional issue here. The command of the Constitution is plain.

There is no moral issue. It is wrong—deadly wrong—to deny any of your fellow Americans the right to vote in this country.

There is no issue of States rights or national rights. There is only the struggle for human rights.

The Voting Rights Act was passed in 1965 and reauthorized multiple times, most recently in 2004 without a single Senator voicing opposition.

Then two events occurred that shook the nation from its forward trajectory. First was the election of Barack Obama in 2008 that, rather than heralding the arrival of a post-racial America, became a call to arms for the dark knights of bigotry.

Then in 2012, an activist conservative majority of the Supreme Court gutted the Act’s enforcement mechanism that enabled the Justice Department to block discriminatory voting laws. Texas, which had been a repeat offender of the Act, reacted gleefully by immediately introducing and swiftly passing one of the most restrictive voter laws in the country that would prevent as many as 600,000 registered Texas voters (about 4.5% of all registered voters) from voting in person for lack of compliant identification. Republicans who once spoke in favor of voting rights have gone silent as twelve other states have enacted similarly strict voter ID laws.

After a nine-day trial, a Texas federal judge blocked implementation of the Texas law finding it was enacted with a racially discriminatory purpose and would yield a prohibited discriminatory result. Richard Posner, a widely respected conservative judge, recently concluded a similar Wisconsin law had only one motivation and that was “to discourage voting by persons likely to vote against the party responsible for imposing the burden.”

I often hear objections to these laws dismissed with statements such as “what’s so hard about getting an ID” or “both sides are playing politics, the Democrats want to make voting easier because it will help them.” Keep in mind that we are talking about a fundamental right. There is a big distinction between making the exercise of that right easier and attempting to deny it altogether. Such an argument also ignores the long history of many of these states to block minority voters and the clear intent of the restrictions. There is ample evidence of Republicans stating on record that these restrictions are intended to discourage voting by “lazy blacks” as one North Carolina Republican stated.

Texas and other states have chosen these restrictions knowing it will prevent people from voting without any real evidence of voter fraud. Even worse, Texas allowed IDs for groups favored by Republicans, military and concealed weapons holders, but would not allow student IDs. Voters can obtain an “election identification certificate” from the Texas Department of Public Safety but more than 400,000 eligible voters would face round-trip travel times of three hours or more and incur fees obtaining birth certificates or other supporting documentation.

The attack is not limited to voter ID requirements but also includes cutting back early voting (especially on Sundays) since that has yielded higher minority votes and cutting back polling places in Democratic areas. I was in Florida during the vote in 2012 and saw voters wait in line until nearly midnight to vote.

When we see the photo of the “Tiananmen Tankman,” we all respond because we understand that what he sought – freedom – is a fundamental human right. How many think, “well wait a minute, how is he going to exercise that right?"

That is the state of the Republican Party today. Whether it is voting rights or allowing the largely African-American citizens of the District of Columbia representation in Congress - they are against it. When it comes to such fundamental unalienable rights, the party that freaks out if you don’t have a flag lapel pin on your jacket, apparently has the Confederate battle flag in its heart. While these tactics may yield victory, they undermine confidence in and threaten the legitimacy of our entire political system.

October 9, 2014

Netanyahu's Partisan "Stink Bomb"

On Sunday's Face the Nation, Israeli Prime Minister Benjamin ("Bibi&quot Netanyahu charged that he was "baffled" by President Obama's opposition to expansion of settlements in the Israeli Occupied Territories, a position he said was "against American values." It was not, however, the first time Prime Minister Netanyahu has either disrespected a sitting President or attempted to inject himself into U.S. domestic politics.

Partisan Bibi

This is, after all, the same Netanyahu who once bragged during a 1998 trip to Washington that he would "set this town on fire" and made a point to first visit Jerry Falwell who at the time was distributing a video accusing President Clinton of selling drugs and being an accomplice to murder. During the Obama administration he has timed the announcement of settlement expansions to coincide with Vice President Biden's visit to Israel, publicly lectured the President at the White House in front of the press and injected himself in the presidential campaign in fall 2012 by demanding that the U.S. draw a red line on Iran's nuclear program that if crossed would result in military action.

His latest comments coming less than a month before the election were criticized by Haaretz, Israel's leading English newspaper, as a "stink bomb" that failed on multiple levels. Haaretz condemned Netanyahu for playing the partisan during our election season when he

slammed the president as if he was a Tea Party brawler rather than the leader of a country with a 'special relationship' with America.

Presumptuous Bibi

Haaretz also criticized the Prime Minister for his

presumptuousness in appointing himself the arbiter of what “reflects American values” and what doesn’t. Just try to imagine the mortified mayhem that would break out if Obama had retorted that construction in East Jerusalem that could kill off the moribund peace process is “un-Jewish” or “un-Israeli” or runs to contrary to “Jewish values.” Israeli politicians would hit the roof, American Jewish leaders would plotz all over the place and Fox News would stop its regular programming in order to foam at the mouth and run John Bolton’s inevitable call for the president’s impeachment in an endless loop.

As the White House diplomatically noted, "it’s American values that led this country’s unwavering support to Israel. It's American values that have led us to fight for and secure funding to strengthen Israel's security in tangible ways."

Flat Out Wrong Bibi

The biggest problem with Netanyahu's comments are that they are absolutely wrong. Netanyahu knows this, since shortly after taking office he received a letter from Secretaries of State and National Security Advisors for Presidents Carter, Reagan and Bush warning him that unilateral

expansion of settlements, would be strongly counterproductive to the goal of a negotiated solution and, if carried forward, could halt progress made by the peace process over the last two decades. Such a tragic result would threaten the security of Israel, the Palestinians, friendly Arab states, and undermine U.S. interests in the Middle East.

The point is not even debatable, since every President since the 1967 War, from President Johnson to President Obama, has expressed opposition to expansion of the settlements in the Occupied Territories. As explained by the 2001 Mitchell Report,

During the half-century of its existence, Israel has had the strong support of the United States. In international forums, the United States has at times cast the only vote on Israel’s behalf. Yet, even in such a close relationship there are some difficulties. Prominent among those differences is the U.S. government’s long-standing opposition to the Government of Israel’s policies and practices regarding settlements.

American Jewish group J Street noted that Netanyahu's characterizing

the principled opposition to settlements of every US administration since 1967 – the administrations of Presidents Nixon, Carter, Reagan, George H.W. Bush, Clinton, George W. Bush and Obama – as being against American values gives new meaning to the word 'chutzpah.

Misguided Bibi

This latest incident, however, validates the assessment of President Clinton who dealt with Netanyahu when he was first elected following the assassination of Prime Minister Rabin and noted:

He thinks he is the superpower, and we are here to do whatever he requires.

For a leader of a small nation to make such a statement towards its principal benefactor (who not only have provided over $230 billion in aid but have paid the price in blood and economic hardship as a result of actions taken against it for their unwavering support of Israel over the years), it can only be described as a breathtaking affront not only to the President but to all Americans for which he should promptly apologize.

As Margaret Chase Smith noted during the McCarthy era, too often those who invoke "Americanism" don't have clue about what it truly means and Netanyahu foolishly proved this point. In fact, no Israeli Prime Minister has more consistently thwarted U.S., values and efforts to find peace in the Middle East. So as President Obama looks ahead to his final two years in office, he can only hope that former President Shimon Peres is right when he says "the Netanyahu government has reached the end of its path."

July 15, 2014

My Comment to the FCC on Net Neutrality

Today is the last day to submit comments to the Federal Communications Commission (FCC) on its proposed rule making on Protecting and Promoting the Open Internet (GN Docket No. 14-28). Nearly 700,000 Americans have done so to date, mine is below.

When the Net Neutrality debate first emerged, critics dismissed the concept as a meaningless slogan, a solution in search of a problem and crying wolf over hypothetical dangers. Then in 2005, SBC Chairman Edward Whitacre declared that companies like Google and Vonage may want to

use my pipes free, but I ain't going to let them do that because we have spent this capital and we have to have a return on it. . . . Why should they be allowed to use my pipes? The Internet can't be free in that sense, because we and the cable companies have made an investment and for a Google or Yahoo! or Vonage or anybody to expect to use these pipes [for] free is nuts!

Whitacre made clear that the cable and telecom Internet service providers’ (ISPs) objective was to serve as gatekeepers and monetize both the delivery and receiving ends of Internet access.

ISPs tried to distance themselves from Whitacre's admission and argued competition would prevent any ISP from establishing toll booths on the Internet or discriminating against content. That, however, presumes competition.

Sixty percent of Americans have at most a choice between two internet service providers, while thirty percent have either one or no choice at all, which is why it is not surprising that Americans pay more for slower internet service than their foreign counterparts.

Slowly, all of the concerns that had been dismissed as mere speculation began to come to life.

For example, Verizon has:

• refused to activate a non-Verizon tablet;
• blocked pro-choice text messages;
• argued that it had a First Amendment right to censor traffic on its network; and
• indicated to the D.C. Circuit Court of Appeals that it would implement dual market pricing (i.e., charging both the internet user and content providers) were it not for the Open Internet Order establishing the FCC's net neutrality regulations.

In addition, Time-Warner and Comcast each have exempted their own streaming data services from their bandwidth caps, while AT&T and Comcast have blocked access to certain applications and websites and Verizon and Comcast are under investigation for throttling Netflix.

Despite all the political controversy generated over the issue, the concept of Net Neutrality is nothing new as its principles of non-discrimination date back to the Pacific Telegraph Act of 1860. While it true that the D.C. Circuit has twice stricken FCC net neutrality rules, it has always been on a procedural basis and never on a substance.

Four years ago, the FCC led by then-Chairman Julius Genachowski had the wisdom to embrace Net Neutrality but lacked the political courage to make the legal determinations necessary for its ruling to withstand scrutiny. Even then, however, the FCC warned that under a dual pricing model in which ISPs could charge both the consumer and the content provider, ISPs would "have incentives to allow congestion rather than invest in expanding network capacity" and could prevent innovation by blocking user access to only affiliated or toll-paying content providers. Each of these events is happening now.

Internet Neutrality is essential to maintaining a free and open internet that encourages innovation and robust political debate. If the FCC was correct in 2010 that Net Neutrality was necessary for a free and open internet when it adopted the Open Internet Order, the need for it has only become greater since that time as ISPs' anti-competitive behavior have demonstrated why a strong and enforceable Net Neutrality rule is required.

This is not the time to backtrack. The Commission should finish the job the Genachowski FCC started and not relinquish a free and open Internet out of political expediency.

I am grateful for the opportunity to be among the approximately 700,000 Americans voicing their concern over this rule and ask that you give heed to their voice. The “netizens” of America are calling out and declaring the concept of a tiered internet as tantamount to creating a cyber-Berlin Wall separating the haves and have-nots and the truly-free and those subject to an illusion. The world erupted in elation when the Berlin Wall fell twenty-five years ago, why would we now seek to impose its squalor in cyberspace?

Bennet G. Kelley

Founder, Internet Law Center

Host, Cyber Law & Business Report

Past Co-Chair, California Bar Cyberspace Committee

Note: The views expressed herein are my own personal views and do not necessarily reflect the views of any client, WebmasterRadio or the California Bar.

July 5, 2014

Washington's Truly Offensive Name

DID YOU KNOW THAT the state of Florida has outlawed dwarf tossing in bars; Missouri prohibits driving with uncage bears or North Dakota prohibits the sale of beer with pretzels? These may sound ridiculous but, unless you live there, there is nothing you can do about it.

Not so for the District of Columbia. If you don't like a law passed by the D.C. Council, just tell your Congressman and they can block it. This happened last month when Maryland Republican Andy Taylor attached an amendment to a budget bill that would prohibit D.C. from spending local money on a D.C. law to decriminalize possession of marijuana.

This is nothing new since Congress in the past has intervened to block measures approved by the D.C. City Council ranging from health insurance benefits for domestic partners, contraceptive equality and medical marijuana use. Washington residents can only watch from the sidelines as their fate is bounced around like a political beach ball, since their only voice in Congress is its non-voting Delegate.

Keep in mind that we are talking about Congress enacting laws restricting how the city spends both local and federal funds. In 2013, 83 percent of D.C. voters approved an initiative to give the mayor the authority to spend local funds (which accounts for 74 percent of its budget) without Congressional approval, but this was quickly overturned by the courts. Federal Judge Emmet Sullivan explained

as a native Washingtonian, the Court is deeply moved by Plaintiff’s argument that the people of the District are entitled to the right to spend their own, local funds. Nevertheless, the Court is powerless to provide a legal remedy and cannot implement budget autonomy for the District. .?.?. Congress has plenary authority over the District, and it is the only entity that can provide budget autonomy.

As we celebrate Independence Day, let us remember that for the District of Columbia's 632,323 residents -- who pay more federal taxes per capita than the citizens of any other state and who have lost more of its sons and daughters defending this nation than twenty other states -- taxation without representation is alive and well.

The Supreme Court has said that

no right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.

In fact, the Organization of American States and the United Nations Human Rights Commission have both found the fact that D.C. residents are deprived "of the very essence of representative government" to be a human rights violation.

Yet when it comes to the District of Columbia's disenfranchisement, few outside of Washington notice and even fewer care. That is simply how it has been for over two centuries now. As former Washington resident, I refuse to let this go unnoticed, which is why in 2012, 2013 and today I have made posts highlighting the nation's forgotten colonists.

Forget the name of its football team, the fact that its citizens have no voice in the halls of Congress should be offensive to us all. Maybe if Dan Snyder changed the Redskins name to Colonist people would finally take notice of Washington's status as the last American colony.

June 4, 2014

LBJ, Reagan and the Great American Paradox

Name the hawkish former President that liberals love to hate who cut taxes shortly after taking office, presided over a booming economy with low unemployment, reduced the national debt and whose legacy shapes much of today's debate?

If you said Ronald Reagan, guess again. In fact, far from reducing the national debt, Reagan tripled it during his two terms, while his "Morning in America" had the highest average unemployment rate of any post-World War II President and was surpassed by Presidents Clinton, Johnson and Kennedy in GDP growth.

If you said, President Johnson you were correct. It was President Johnson who secured passage and signed the Revenue Act of 1964 that cut tax rates across the board by approximately 20 percent and introduced a minimum standard deduction. Johnson also presided over a booming economy (5% annual GDP growth) with low unemployment (4.47 percent is second lowest of post-war Presidents), while the nation's debt to GDP ratio fell 8.3 percent.

President Johnson also left a footprint on American life so vast it is hard to imagine an America without it. Consider the following:

• Civil Rights
Johnson passed the Civil Rights Act of 1964 and 1968 and Voting Rights Act of 1965 that collectively outlawed racial segregation, housing discrimination and voting discrimination.

In contrast Reagan opposed each of these measures and launched his fall campaign in 1980 by stressing "state's rights" in Philadelphia, Mississippi where four voting rights activists were killed in 1964.

• Great Society
Johnson's Great Society and War on Poverty included Medicare, Medicaid, Food Stamps and extensive funding for education that led to a substantial reduction in poverty in the U.S. The former high school teacher remains our top education President as he signed the Elementary and Secondary Act that was "the most far-reaching federal legislation affecting education ever passed by Congress" and is the starting point for substantial federal aid to local schools. He also passed the Higher Education Act that established work-study and other financial aid programs for college, and gave us Head Start, aid for bilingual education, the National Endowments for the Humanities and Arts and Big Bird (through the Public Broadcasting Act).

President Johnson helped shape our cities through the creation of the Department of Housing and Urban Development that included major funding for housing and mass transit and the National Historic Preservation Act to preserve historical landmarks.

Reagan opposed Medicare as "socialism" and blamed the Great Society for placing a huge burden on the "productive sector".

• Environmental and Consumer Protection
Environmental protection began under President Johnson with the Clean Air Act, Water Quality Act and Endangered Species Act. Johnson also enacted a number of consumer protection measures from warning labels on cigarettes, auto safety standards (including seat belts) to child safety measures.

The Reagan administration worked to reduce the effectiveness of the Clean Air and Clean Water Acts and sought to reverse requirements that cars include air bags.

• Government Transparency
President Johnson's legacy includes a more open government through enactment of the Freedom of Information Act (FOIA) ensuring citizens access to government records and proceedings.

The Reagan administration adopted a presumption against disclosure under FOIA and succeeded in weakening its requirements.

Given this legacy, I was surprised when I went to the Johnson Presidential Library in Austin. The library seems understated since it opened eight years before I.M. Pei's cathedral to his predecessor that has set the standard for all that followed. Most striking was how few books there were about Johnson in the gift shop compared to the Kennedy museum, as despite his impressive legacy, the stain of Vietnam has left shockingly few willing to carry his banner.

Yet try to imagine life today without the Johnson Presidency. You can't. Now try to imagine life today had Reagan not been President. It is not so hard is it? In fact, its pretty easy to image a presidency that did not squander billions on tax cuts for the rich and Star Wars weapons system but instead invested in every day Americans as Johnson had.

It would seem that the starting point for understanding what is wrong with our politics today is digesting the paradox that one of the greatest Presidents of the 20th Century is considered a failure, but the President who gave us the failed legacy of voodoo economics and resulting income inequality is deemed a success. Yet as long as progressives ignore the Johnson legacy and cede the debate over government being a force for good, not only will this paradox continue, but Reagan's heirs will be increasingly emboldened in their efforts to dismantle Johnson's legacy.

The upcoming crucial midterm elections fall on the 50th anniversary of Johnson's landslide victory over the godfather of modern conservatism. Democrats must make the case that from Kennedy to Johnson to Clinton to Obama the record is clear which party stands for hope and opportunity and which party represents "mourning in America."