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Bennet Kelley

Profile Information

Name: Bennet Kelley
Gender: Male
Hometown: Providence, RI
Home country: USA
Current location: Santa Monica, CA
Member since: Wed May 24, 2006, 11:57 AM
Number of posts: 142

About Me

Bennet Kelley is an award winning columnist, a political commentator, radio host and the former Co-Founder and National Co-Chair of the Democratic National Committee\'s Saxophone Club (its young professional fund raising and outreach arm during the Clinton years). He also is the founder of the Internet Law Center in Santa Monica and a past co-chair of the California Bar Cyberspace Committee. Since 2011, Bennet has been host of Cyber Law and Business Report which airs Wednesdays at 10AM Pacific on WebmasterRadio.fm. In winning two Southern California Journalism Awards for his writing for Huffington Post and the Santa Monica Daily Press, judges praised his work as \"an entertaining and compelling mix of bite, intelligence and humor,\" \"exceptionally piercing,\" and for not being \"afraid to tell it the way he sees it\" . For more information go tohttp://www.BennetKelley.com.

Journal Archives

Bringing an End to the Lottery of Gun Violence in the U.S.

In the classic American short story “The Lottery,” readers recoil with horror that society would accept an annual ritual in which one of their members must be stoned as acceptable. We sympathize with the victim as she pleads, "It isn't fair, it isn't right."

Yet isn’t that what we do in America every day. This week we reacted in horror over the 295th mass shooting and 45th school shooting this year in Roseburg, Oregon, but if we do not do anything about it aren’t we living “The Lottery”. Are we not saying to whomever is randomly chosen by the next gun wielding maniac, “sorry, but that’s just how things are” or, as Jeb Bush so eloquently stated, “stuff happens”?

“Stuff” does not just happen. The pro-death lobby wants us to believe that these events are inevitable and cannot be stopped, but they do not occur in other countries with any frequency (if at all). The pro-death lobby also claims that additional gun laws will not solve the problem, but the evidence is that stricter gun laws actually reduce gun deaths. This includes:

 Background checks at the time of purchase;

 Requiring a permit to purchase a gun;

 Requiring that all guns be registered;

 Requiring a gun owner to report a lost or stolen gun;

 Prohibiting anyone with a history of domestic violence from owning a gun; and

 Increasing the minimum age to purchase a gun or ammunition to 21.

Researchers found that states that combined background checks with permitting and gun registration were four times less likely to have a gun used in the commission of a crime than other states. (Note 1)

More significantly, half of the mass shootings in the U.S. involve high capacity magazines which results in 57 percent more deaths. In Australia, after a gunman used a semiautomatic rifle and a semiautomatic assault weapon to kill 35 people in Port Arthur in 1996, the country banned the weapons and implemented a buy-back program and have not had a mass shooting since that time. (Note 2)

We need these measures enacted at the federal level, because what good is a state restriction if neighboring states do not follow suit. Nonetheless, even had these measures been in place a number of these horrific shootings likely would still have occurred. Yet, both individually and collectively, the record indicates that these measures will ensure that there are fewer incidents, with fewer people being killed and less gun deaths overall.

You may say that there is no way this Republican-dominated Congress is going to enact a single one of these measures, but this may be true until they begin feeling heat for their opposition. Even in this post-Citizens United age, Congress has reversed itself in the face of mass outrage. In 2012, approximately 115,000 websites participated in the “internet blackout” in protest against the sweeping provisions of the “Stop Online Piracy Act” (SOPA) and its Senate counterpart the “PROTECT IP Act” (PIPA) that triggered 10 million voters to contact Congress to voice their opposition. The next day, 95 Members of Congress, including 11 of the original Senate sponsors, either withdrew their support or joined the opposition to the legislation.

I fully expect that the Republicans in Congress will block any gun legislation from passing, but if one Senator or long-serving House member loses their seat next November because of this, enough Members will think twice about blocking the legislation in the next Congress that something might actually get done.

As President Obama sadly noted,

This is a political choice that we make to allow this to happen every few months in America. We collectively are answerable to those families who lose their loved ones because of our inaction

As the news cycle for this tragedy eventually wanes, it is up to those of us fortunate enough to have been spared by this tragic lottery, to take responsibility. It is not enough to say to ourselves, “It isn't fair, it isn't right," for change will only happen if we each own this issue.

I’m using this link to call my Senators and Congressman to tell them the time is now to enact responsible gun legislation. What are you going to do?

Note 1: Francie Diep, Which Gun Laws Work?, Pacific Standard (Mar. 20, 2015); David S. Fallis, Data Indicate Drop In High-Capacity Magazines During Federal Gun Ban, Washington Post (Jan. 10, 2013); Effectiveness of the Brady Act and Background Checks, Law Center Against Gun Violence (Aug. 21, 2015); Minimum Age to Purchase & Possess Firearms Policy Summary, Law Center Against Gun Violence (Oct. 1, 2013).

Note 2: Large Capacity Ammunition Magazines Policy Summary, Law Center Against Gun Violence (May 31, 2013); John Howard, I Went After Guns. Obama Can, Too, New York Times (Jan. 16, 2013).
Posted by Bennet Kelley | Sat Oct 3, 2015, 01:04 PM (0 replies)

The Carter Presidency Revisited

The Carter Presidency Revisited

From the moment he left office in 1981, Republicans from President Reagan to Mitt Romney have embraced Jimmy Carter as the poster child for Democratic failure. Since Democrats raced to distance themselves from Carter with almost as much vigor as Republican embraced him, the Carter failure meme has gone unchallenged for 35 years. With Carter’s announcement this week that he is fighting advanced cancer, maybe it is time to set the record straight.

Let me be clear from the outset, I am by no means a Carter apologist. I first entered politics partly because I was unhappy to see Carter win the nomination in 1976 and was a strong Kennedy supporter in 1980. I also will concede that regardless of what I may say on this page, the most important determination on the Carter presidency occurred on November 4, 1980 when voters overwhelmingly decided to change course.

That vote, however, cannot change how consequential the Carter presidency remains today. The only Naval Academy graduate to serve in the White House, President Carter has an enormous foreign policy legacy. He took office after a decade that saw three Arab-Israeli wars and the murder of Israeli athletes at the 1972 Olympics, yet managed to forge a historic agreement at Camp David that, according to at least one Middle East scholar “reshaped the Arab world . . . and in doing so, strengthened immeasurable the U.S. position in the Middle East.” More importantly, it fostered a period of relative peace in the region.

Carter also reshaped Latin America, with the Panama Canal Treaty and cut off of military aid to repressive regimes in Argentina and Brazil. In doing so, Carter signaled that the days of Yankee Gunboat Diplomacy was over (at least temporarily).

Carter was the first U.S. president to put human rights at the forefront of foreign policy. Carter’s emphasis on human rights and use of the CIA to smuggle in pro-democracy texts into the Soviet bloc played an important role in fostering the anti-Soviet activism that led to the collapse of Soviet control over Eastern Europe.

While Republicans often cite Reagan’s military buildup as contributing to the collapse of the Soviet Union, rarely do they mention that it began under President Carter. When the Soviets challenged Carter, he acted forcefully by arming the mujahideen in Afghanistan to give the Soviets their own Vietnam-like catastrophe, proceeding on the MX Missile Program, reinstating draft registration and boycotting the Moscow Olympics.

More importantly, unlike past Presidents who did little to prevent Soviet military action in Hungary and Czechoslovakia, as 27 Soviet and Warsaw Pact divisions amassed on the Polish border ready to invade to crush the nascent Solidarity movement, Carter publicly and privately signaled to the Soviets that there would be “very adverse consequences”. These were not mere words, as Carter had a retaliatory strategy in place with key allies that included a plan to immobilized much of the Soviet merchant fleet. Poland’s leader later indicated that Carter’s actions and the Soviets’ difficulties in Afghanistan led to their abandoning invasion plans.

Then there is Iran. The hostage crisis and failed rescue attempt was an albatross that hung over Carter, no more so than on election day which happened to be the first anniversary of the hostage crisis. Carter deserves credit for getting all hostages home safely and would have done so sooner but for an apparent deal that the Reagan campaign had agreed to provide arms to Iran in exchange for delaying the hostages release.

Domestically, Carter had to deal with an economy in a state of shock from two Arab oil embargos, the release of Nixon-era price controls and the continued decline of manufacturing jobs due to foreign competition. Once again, he did so forcefully with an aggressive energy policy that included establishing the Department of Energy, promoting alternative fuels and the establishing fuel efficiency standards in automobiles. Had subsequent administration’s followed his path and continued to increase fuel efficiency standards, we would have stopped importing oil years ago.

His legacy also includes the creation of the Department of Education, expanding Pell Grants to an additional 1.5 million families and doubling the size of the National Parks through the addition of 43 million acres in Alaska.

Carter could have achieved far more, including national health care, had he been a better communicator and not antagonized Congressional Democrats. This, along with disarray within his administration, undermined Carter as a leader and was part of what led me to campaign for Ted Kennedy in 1980.

It is curious to see Republicans continue to bash President Carter as a failure when he makes his Republican successors look like the JV-team. Carter outperformed all of them in job creation and both Bush presidencies in GDP growth, while actually lowering the deficit.

While there is consensus that Carter has been our greatest ex-President, it is time that we also acknowledge in his lifetime what his Presidency achieved and its continued legacy.
Posted by Bennet Kelley | Sat Aug 22, 2015, 09:13 PM (21 replies)

The DC Marijuana Battle: It's About More Than Weed

The battle between Congress and the District of Columbia over its new voter approved marijuana legalization initiative may seem esoteric at first blush. That is because the current debate centers on when the District law was deemed enacted in order to determine whether it has violated a Congressional restriction on use of funds to "enact any law, rule, or regulation to legalize or otherwise reduce penalties associated with" controlled substances.

Should the debate move beyond semantics, this confrontation could result in a very significant, consequential and long overdue debate both about marijuana policy in the United States and about Washington's continued status as the nation's last colony.

The Battle of Dates

To understand this debate you have appreciate the importance of a few key dates. The first is November 4, 2014 when seventy percent (70%) of District of Columbia voters approved Initiative 71 legalizing possession of up to two ounces of marijuana (and this results was duly certified on December 3, 2014).

The second date is December 9, 2014 which is when President Obama signed an appropriation bill containing a provision from Rep. Andy Harris (R-MD) prohibiting the use of federal or local funds to "enact any law . . . reducing penalties associated with" any controlled substances.

Now comes the third date - February 27, 1801. That is the date that President John Adams signed the Organic Act placing the District of Columbia under the exclusive control of Congress. In 1973, Congress passed the Home Rule Act allowing the District the ability to elect a Mayor and City Council but providing that all laws enacted were subject to review and rejection by Congress during a review period of thirty (30) legislative days.

The final date is February 26, 2015. That was the last day of the review period and hence the law's effective date since Congress took no action to override it.

The District contends it did not violate the Harris amendment since the law was already enacted when the President signed it into law. The House Committee on Government Oversight contends a District law is enacted only once the review period has ended and therefore even the transmittal of the law to Congress was unlawful. They have even suggested that the Mayor could be arrested for violating the Deficiency Act.

The Real Debate Part 1

While Congress and Washington Mayor Bowser debate the intricacies of when a District law is "enacted", the prospect of legalized marijuana in the nation's capitol should spur great interest and hopefully debate.

The debate over what our policy on marijuana should be is long overdue. Marijuana was criminalized and made a controlled substance in 1937. President Nixon's National Commission on Marijuana and Drug Abuse recommended the decriminalizing of private possession of marijuana in 1972, but both Nixon and Congress rejected their recommendations.

Jump forward forty plus years and marijuana prosecutions now clog our courts and fill our prisons with estimates that the U.S. would save nearly $8 billion per year in costs by legalizing marijuana combined with revenue projections for the taxation of marijuana ranging from $6 to $100 billion per year.

The War of Drugs, like any other war, has created real societal costs that should be evaluated. This is especially true in Washington that has one of the highest marijuana arrest rates in the nation.

The Real Debate Part 2

Frequently in such a debate, there is the notion that the states are laboratories of democracy that should be able to experiment or test what solutions work best for their communities. Not so in the colonial city of Washington where Congress has over the years intervened to prevent the District from, among other things, extending health benefits to registered domestic partners, funding abortions, establishing medical marijuana dispensaries, experimenting with needle exchanges or lobbying for representation in Congress.

All this from a body in which it has no voting representation. Unlike Puerto Rico and other territories who also have no voting representation but whose residents pay no federal income tax, the District pays more in federal taxes than 19 states and the most of any state on a per capita basis.

The U.N. Human Rights Commission and the Organization of American States' Commission on Human Rights each have found that the denial of voting rights to Washingtonians is a violation of the United States' human rights obligations under international law. Nonetheless, recent efforts to grant the District voting representation in Congress or even budgetary autonomy as to non-federal funds have gone nowhere.

So today Washingtonians play the familiar role of the pawn, this time in the resistance to updating our marijuana laws. Hopefully activists who engage to protect Washingtonian's right of self determination will see the bigger picture and recognize that it is not just our marijuana laws that are seriously antiquated.

While the Boston Tea Party was a spark that ended taxation without representation for most Americans, maybe it will be a different leaf that finally brings it to an end in Washington.

Bennet Kelley is a former Washington resident who has studied and written extensively on the history of Washington, D.C. home rule.
Posted by Bennet Kelley | Sat Feb 28, 2015, 09:50 PM (7 replies)

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.
Posted by Bennet Kelley | Sat Oct 25, 2014, 06:45 PM (0 replies)

Netanyahu's Partisan "Stink Bomb"

On Sunday's Face the Nation, Israeli Prime Minister Benjamin ("Bibi" 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."
Posted by Bennet Kelley | Thu Oct 9, 2014, 06:04 AM (7 replies)

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.
Posted by Bennet Kelley | Tue Jul 15, 2014, 07:42 AM (3 replies)

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.
Posted by Bennet Kelley | Fri Jul 4, 2014, 09:18 PM (9 replies)

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."
Posted by Bennet Kelley | Wed Jun 4, 2014, 02:43 PM (0 replies)

Responding to the Tea Party's Secession By Other Means

Responding to the Tea Party's Secession By Other Means

In considering the root of the current divide that has led to the government shut down, I am reminded of a 1994 visit I made to a German refugee center where immigrants from the former Soviet bloc with some minimal German ancestry could claim their German citizenship. This was a privilege that was not extended to the Italians, Turks and other immigrants who had came in and rebuilt Germany after the war. At this time, Europe was seeing a resurgence of xenophobic right wing parties (such as the National Front in France) as part of a backlash against increased immigration.

It occurred to me at that time that one major advantage that the United States has over other countries is that we define American not by ethnic characteristics but by our shared beliefs. I anticipated that Germany and other Western European countries could face turmoil in the coming decades as they struggled with what it meant to be "German" or "French", while in the United States we would be standing tall as one nation, indivisible throughout.

As the current government shutdown approaches its third week, it is clear that this is no longer the case. A recent Pew survey shows a surge in partisan polarization in the past decade fueled largely by a sharp turn to the right by Republicans with dramatic drops in support for a labor unions (down 17%), a social safety net (down 28%) and environmental regulation (down 39%). Other recent polls show the GOP taking more extreme ideological positions that ignores all evidence to the contrary.

For example, polls show Republicans believe:

(i) the theory of evolution is wrong (68%);
(ii) President Obama was born in another country (64%);
(iii) global warming is a hoax (58%);
(iv) ACORN, which folded in 2010, stole the 2012 election for Obama (49%); and
(v) Obama is the anti-Christ (20%).

As Thomas Mann and Norman Ornstein write in It’s Even Worse Than It Looks, the Republican Party has become

ideologically extreme, contemptuous of the inherited social and economic policy regime, scornful of compromise, unpersuaded by conventional understanding of facts, evidence and science, and dismissive of the legitimacy of its political opposition.

To this very point, fifty-seven percent (57%) of Republicans think President Obama should be impeached (presumably for the high crime of whooping their behind in consecutive elections), while twenty-five percent (25%) of Republicans stated that they would like their state to secede following Obama's reelection. It is worth nothing that a significant portion of the Republican's Dixie base remains ambivalent about the last secession, with a plurality of Mississippi Republicans still wishing that the South had won the war and believing that interracial marriages should be illegal.

Having failed at the ballot box and been unsuccessful in their 40-plus attempts to repeal Obamacare, Republicans are now openly engaged in sabotage through a legislative coup attempt which Bill Moyers' calls "secession by other means."

The question then turns to how do we avert another Fort Sumter? Just as General Grant's victory at Vicksburg gave the Americans control over the Mississippi River and divided the Confederacy in two, Democrats must reach out to reasonable Republicans to find a solution that strengthens their hand at the expense of the tea party radicals. Both will want to avoid the United States defaulting on its obligations and both have an interest in ensuring that the result is seen as a defeat for the tea party.

Republicans should heed the words of their first President, Abraham Lincoln, who warned

we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. . . . The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation.

The tragedy, however, is that responsible Republicans may be too few in number or lack the courage to take on their bomb-throwing colleagues, leaving the nation trapped in gridlock until elections thirteen months away.

Should that happen, President Obama should stand before Congress and call out this insurrection for what it is and tell the Tea Party they cannot wear both the blue and the grey. He should appeal to the American people to unite based upon values we agree upon, with the most important one being majority not minority rule and that no party or faction can hold the American people hostage.
Posted by Bennet Kelley | Sun Oct 13, 2013, 07:16 PM (5 replies)

The Road to Shut Down 2013: From the Clinton Wars to the New Confederates

The Road to Shut Down '13:
From the Clinton Wars to the New Confederates

The 2013 shut down of the government by Tea Party Republicans is not an event that just spontaneously sprung up this year, but rather is the result of over twenty years of actions each building on the next that made this conflict predictable if not inevitable.

Great conflicts require formidable adversaries. Yet from 1968 to 1988, Republicans had a virtual lock on the White House winning on average by 52.7% - 43.0%, with the sole exception being Jimmy Carter's narrow victory following Watergate. Then came William Jefferson Clinton who was able to beat President Bush in a three-way race with only 43 percent of the vote.

The Republicans recognized right away the threat posed by a successful New Democrat and they were determined at the outset to challenge his legitimacy and to obstruct wherever possible. House Speaker Gingrich, who once said that Clinton supporters were "the enemy of normal Americans," believed that they had to fight the Democrats "with the scale and duration and savagery that is only true of civil wars" -- and he delivered.

Clinton Not My President

President Clinton told Joel Klein that:

After I got here and started dealing with them, I realized that the Republicans had been in power since Nixon . . . They figured there’d never be another Democratic President. . . . So they just never saw me as a legitimate person.

Prominent Republicans such as Representative Dick Armey and Senate candidate Oliver North openly declared Clinton was not their President. Klein himself wrote in The Natural:

From the beginning of his presidency, there was indeed the sense – radiating from the Gingrich wing of the Republican Party . . . that the new President was a usurper who had managed to hoodwink the American public. He was to be opposed at every turn, by any means necessary, and, if possible, destroyed.

Devolution on Health Care

With today's reflexive rants that Obamacare is part of a godless, socialist plot, forgotten are the origins of the Clinton and Obama proposals. The Clinton plan was spurred in part by a push by the Business Roundtable for universal coverage since health care costs were becoming a competitive burden. Items such as the individual mandate came from the conservative Heritage Foundation's proposal entitled "A National Health System for America."

Republicans initially sought to push a compromise proposal, the "Health Equity and Access Reform Today Act of 1993," which also included an individual mandate. Introduced by Senator Chafee (R-RI), the bill had 18 Republican co-sponsors including conservative Senators Bennett (R-UT), Grassley (R-IA) and Hatch (R-UT) who would later lead the charge against Obamacare.

As Jacob Weisberg explains in Slate, it was at this point we witnessed the death of the Responsible Republicans. Former Vice President Quayle aide William Kristol wrote a memo to Republican leadership stressing that "the Clinton proposal is also a serious political threat to the Republican Party" and therefore Republicans must "adopt an aggressive and uncompromising counterstrategy designed to delegitimize the proposal".

As a result the Republicans abandoned all compromise proposals, health care reform died and Republicans were rewarded for their efforts by taking control of both houses of Congress following the 1994 election. Weisberg notes that it was the embrace of Kristol's recommendation that

marks the pivotal moment when Republicans shifted from fundamentally responsible partners in governing the country to uncompromising, hyperpartisan antagonists on all issues.

The Clinton Wars

Newt Gingrich became the leader of what conservative columnist George Will described as “ideologically intoxicated” Republicans who believe that “Democrats are not merely mistaken but sinful” or as one Republican conceded to Elizabeth Drew, simply feel that “they were totally right and the other side was totally wrong.” Gingrich’s disciples embraced his attack philosophy as they shared his belief that “the Earth must be scorched and sown with salt before the Heavenly City can be built."

Gingrich and his crusaders marched right into the first partisan shutdown of the government, as Republicans shut down the government for 28 days in late 1995 and early 1996. Gingrich sought to justify breaking off discussions after allegedly being snubbed on Air Force One the flight home from he funeral of assassinated Israeli leader Yitzhak Rabin, but it backfired after the White House produced a photograph contradicting him and the New York Daily News capturing and cementing national sentiment with its famous "Cry Baby" headline. The shut down ended with Republicans taking a hit in the polls and Bill Clinton cruising to reelection.

Clinton's reelection, however, only intensified the Republicans efforts to destroy him and the Lewinsky scandal gave them that opportunity. Once again, Republicans overreached and pushed for impeachment despite overwhelming public opposition, paying a steep political price in becoming the first party out of power since 1822 to lose seats in a mid-term election. The polls were clear and the voters had spoken, yet when they returned for the post-election lame duck session, Gingrich pushed forward with impeachment nonetheless, explaining he did simply "because we can."

Gingrich stepped down as Speaker and resigned from Congress as a result of his 1998 electoral failure, while Clinton prevailed in the impeachment trial and finished his term with a 66 percent approval rating.

Act II: Prevent Another Successful Democratic Presidency

In 2004, a young Senate candidate named Barack Obama electrified the Democratic Convention with a keynote speech that spoke to an increasingly divided nation:

For alongside our famous individualism, there’s another ingredient in the American saga. A belief that we are connected as one people. . . . It’s what allows us to pursue our individual dreams, yet still come together as a single American family. “E pluribus unum.” Out of many, one.

That notion would be tested in January 2009 when that young man became the 44th President and the first African American to hold the office. From the start, Republicans would deploy the same methods - challenge the President's legitimacy and obstructionism - but with greater ferocity and open disregard for majority rule.

Minority Rule

When President Obama took office in 2009, the economy was still in tailspin. President Obama pushed for a stimulus to prevent what some called The Great Depression 2.0 that included the largest tax cut in history. Nearly 200 Republicans had supported the Bush stimulus only months earlier, but under President Obama only three did (with one of switching parties thereafter). The message coming from leadership was they will not let Obama succeed on anything.

In the Senate, Mitch McConnell used the filibuster to gum up what was once the world's greatest deliberative body such that (i) less than half of Obama's judicial nominees have been confirmed (compared to 93 percent for Reagan); (ii) some regulatory boards are unable to obtain a quorum to act since Republicans will not confirm appointed commissioners; and (iii) approximately 70 percent of major legislation is now subject to some form of filibuster thus changing the structure of government from majority rule to minority veto.

Republicans, who had been silent while the Bush administration burned through a surplus and added $5 trillion to the deficit through tax cuts, Medicare expansion and two wars without paying for them, became overnight fiscal hawks. In 2011 they threatened to block an increase in the debt ceiling (thereby raising the specter of a government default) with the result being a downgrading of U.S. debt that will cost U.S. taxpayers $18.9 billion over ten years (and the amount is approximately a quarter of the amount needed to repair structurally deficient bridges across the country -- something to think about the next time a bridge collapses). In addition, while Republicans attempt to use these deadlines to portray Obama as some reckless spender. he actually has cut the annual budget deficit in half!]

Obamacare and the New Confederates

The biggest battle of all, however, has been over health care. The market-based proposal that the Republicans offered as an alternative to Hillary-care, became "socialism" once it morphed into Obamacare. Republicans were unsuccessful in preventing its passage in 2010 and their legal challenge was subsequently rejected by the Supreme Court. In 2008, former Massachusetts Governor Romney (who had implemented a similar program in Massachusetts) vowed that he would repeal Obamacare as his first act as President only to lose decisively to Obama.

Yet Republicans' madness over Obamacare knows no bounds. After 42 votes to repeal Obamacare got them nowhere, Republicans now are willing to hold the nation hostage just to kill or simply delay the program. Republicans attempt to shift the blame to Obama by complaining he will not negotiate, but why should he when there are sufficient votes to pass a clean continuing resolution in the House but Speaker Boehner is blocking the vote and negotiating would only encourage future efforts at brinkmanship?

The Grand Rapids Press, which endorsed Mitt Romney, condemned "irresponsible GOP zealots" for the shut down. The paper added:

If Obamacare is the "train wreck" opponents claim it will be, voters soon will have the opportunity to choose leaders with better ideas, at the mid-term elections in 2014 and the presidential election in 2016. That’s called democracy.

It is not just Obamacare but also democracy itself that is under attack by the GOP zealots. In his brilliant and prescient 1995 piece American Weimar, Steve Erickson explained that

[h]istory is clear that democracy cannot long navigate a sea of national rage. Untempered by rationale and open-mindedness, fury eventually consumes democracy rather than nourishes it, because it overwhelms our tolerance, our willingness to be reasonably informed, our determination to hold ourselves accountable for what we decide. Most important, it overwhelms our basic faith in democracy itself .

That is what is happening in America today. Tea Party representatives and their members still refuse to accept their defeat in 2012. The voters were simply wrong. To paraphrase Erickson who wrote with respect to the Republican's refusal to accept Clinton, "in essence, the Right argues that a democracy that produces an [Obama] presidency invalidates itself" and they are free to ignore it.

That is what they have done. Rather than recalibrate their message to win wider support, Republicans have demonstrated their disdain for the voters by (i) seeking to revive Jim Crow voter suppression laws to prevent future Democratic victories and (ii) now shutting down the government.

Colbert King calls them the New Confederacy, explaining they are

as churlish toward President Obama as the Old Confederacy was to Lincoln, [yet] it has accomplished what its predecessor could not: It has shut down the federal government, and without even firing a weapon . . . .Its members are as extreme as their ideological forebears. It matters not to them, as it didn’t to the Old Confederacy, whether they ultimately go down in flames.

The New Confederacy is costing the American economy $1.6 billion a week and may soon threaten our national security as law enforcement personnel are furloughed.

For five years the Republicans have waged war against majority rule, triggering Time Magazine's poignant cover. As this crisis continues, it is time for the Republicans to decide whether they will behave as responsible members of the loyal opposition or whether they are simply saboteurs. More importantly, it is time for all Americans - Democrats, Republicans and Independents alike - to make note of their choice and hold them accountable.

It is my hope that this crisis will end promptly and that the Republicans pay dearly for their actions so no future Congress even contemplates holding the American people hostage again.
Posted by Bennet Kelley | Sun Oct 6, 2013, 04:46 AM (3 replies)
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