The 2016 Election. Already?

Yesterday, the Washington Post stated categorically that Hillary Clinton would run for president in 2016. I don’t know where their crystal ball came from but I inhabit a London suburb and the Post is within the famous Beltway, so it is fair to say that the Post knows better than me. However, Mrs Clinton has made no announcement about running, nor, as the Post concedes, will she do so at any time in the near future. So, why was the Post so adamant in its prediction?

I suppose that after President Obama, Mrs Clinton is the most recognisable American politician, save perhaps for her husband. The appetite of the Clinton couple for politics Washington-style is probably insatiable. This is not a criticism. Politics is in their bones, much like soccer is to a Manchester United fan. It is their raison d’etre.

I have question marks about Mrs Clinton’s supposed run for the White House. She fought a brutal battle for the Democratic nomination in 2008. I have no doubt that in her failure, she made many friends but I suspect she made as many, if not more, enemies. Will grass roots Democrats be willing to support her in 2016 in another “divide the nation” election? These days in America, the red factions are getting redder and the blues are getting bluer, thus a moderate candidate might appeal to the electorate at large. Hillary is anything but a moderate.

Mrs Clinton would attract the African American vote but will she appeal to the Latinos? I believe this depends on whom she has to face in the primaries, as much as the election itself but the Latino vote will be crucial, something which the Clintons will know very well.

The part of the Post’s story that rankled with me related to the Superpacs already in place to support Mrs Clinton. The Supreme Court has ruled that rich corporations and individuals can donate as much of their money as they want to a soft money political campaign. The law in Great Britain is quite different. Individuals and corporations can make large donations, it’s true, but to political parties, not individuals. Our rules on full disclosure ensure that people who try to buy influence have come seriously unstuck, for example Bernie Ecclestone’s one million pound donation to the Labour Party. It was seen as an attempt to buy a deferral of restrictions on tobacco advertising in motor racing. Labour returned the donation following an onslaught from the British press, which is merciless in these kinds of circumstances.

I see the Superpac problem as a tension between the American ideals of freedom and democracy. How can it be democratic for people to donate huge sums of money, with the influence such donations can buy? How is it right to restrict the freedom to spend? The Supreme Court has ruled for freedom. I think the Court is horribly wrong.

In 2016, more money than ever before will be spent on the Presidential primaries and the general election. On the one side, much of this money goes to advertising, printing, merchandise, rent and pizzas, thus funds are ploughed back into local economies. In the battle states, these funds are helpful. On the other side, a small number of individuals will be seen to buy political influence, something that defeats the whole purpose of a free election.

I can offer no solution to this conundrum. At the end of the day, the American voter must decide what to tell his or her political leaders. The biggest danger is that the voters will just turn their backs on the political process.

The American Constitution Part II

Last week, a baby was born in London in the private wing of one of our large teaching hospitals. The event would have been unremarkable had it not been for the identity of the child, who is now the heir to the heir to the heir to the throne of the United Kingdom. Put simply, after Elizabeth II, it is likely we get Charles III, William IV and George VII.

Now, I am not hard-boiled when it comes to the birth of a baby. The days when my children were born remain clear and memorable. And if I am ever lucky enough to become a grandfather, I am sure I will feel the same. It is the most special event, but one which most of us experience in private.

The new royal parents weren’t given much privacy. The world’s press waited outside the Lindo Wing of St. Mary’s Hospital for more than 48 hours. But for what? A picture, brief comments from the parents and that was that. Yet for those 48 hours, the news media hardly reported anything else. Were they bothered by the latest victims in the Syrian civil war, were they interested in new Middle East negotiations leading to peace talks, were countless other disasters or crises mentioned? These questions are, of course rhetorical.

My curiosity was piqued by the vast number of American reporters and photographers sent to London to cover the event. So, taking courage in both eyes and ears, I watched CNN and Fox News. As a lawyer, I am meant to have “the gift of the gab” but I would not know how to talk about nothing for 48 minutes, let alone 48 hours. These intrepid reporters talked hot air every time I switched to these channels. I feel sorrow and pity for what the American public was fed.

As for the interviews conducted, one could not fail to get the impression that the Americans who spoke were looking for a revolution. They wanted their own royals and they wanted them now!

I was in Miami in 2010 when we held our most recent General Election. I watched the television coverage on CNN as David Cameron went to Buckingham Palace to “kiss hands” with the Queen. The naivety of the commentator was pretty shocking, even by CNN standards. “Does he really kiss her hands?” And the one I loved the best was when Cameron was driven back to Downing Street, with one security car and outrider in attendance. “Where’s the motorcade?” was the scream.

Now, we Brits and you Americans enjoy very different cultures. Most Brits like the royal family but the numbers of my compatriots who yell and swoon in their presence is small. I cannot believe how Americans go completely crackers when a royal is nearby. Heavens only knows what would happen to Kate were she soon to visit New York. The city would come to a complete stop.

So, in the light of the demands from those Americans staying on this side of the pond, I wonder if there is a fundamental problem with the American Constitution? Should the Founding Fathers have kept to the suggestion made among their number that they be ruled by a king and a hereditary monarchy? If you don’t believe they considered offering Washington the title of King George, read the Federalist Papers!

In these days of clever bank instruments and ruthless hedge funds, perhaps a way can be found to market or franchise our royals. I doubt that there would be much of a market in Europe. After all, except for Germany, the countries in the Euro zone are flat bust. But I am reliably informed that American corporations have trillions of dollars available for investment. If, for example, we leased Price Harry out for five years, our GDP could increase by 0.5%, a significant number.

What I think is better is for the American media to calm down, stop behaving like swarming, angry bees and to look realistically at the institution of monarchy. If so, they would conclude that their system of government has worked for more than two centuries and the American public is well served by it. Alternatively, have a referendum in USA and see if Americans would like their own royalty. But please stop making ours look like a circus show.

The American Constitution – A Case for Treatment?

In a forty year professional lifetime of reading countless statutes, regulations and legal documents, there were only two occasions when I realised instantly that I had read something exceptional. One was The Partnership Act of 1890, a document I was required to understand to pass one of my many law exams. The statute was a mere twelve pages long. The law relating to English partnerships was written in language as succinct as could be. The other exceptional document was the American Constitution, which I read when I was at school. I was instantly impressed by its clarity of language, a reaction I remember all these years later. I recall a liking for the structure of government, the certainty of separation of powers and the potential tensions between the three branches of federal government, although I didn’t think in exactly those terms. For me, the document was a work of art.

I am envious of Americans with their Constitution. We Brits, too, have a partially written constitution but it is not codified into one document. We have common law, statute and legal precedent. We also have a Bill of Rights, passed in 1688 following the bloodless Glorious Revolution, when “the Crown in Parliament” became the supreme power but our Bill of Rights is not a document anywhere near as influential as the American version.

Until 2009, we Brits did not have branches of government whose powers were clearly separate and enforceable as such. Our executive branch, namely the prime minister and his or her cabinet, were also legislators, so no separation of powers there. The law lords, our equivalent of the Supreme Court, were not excluded from the House of Lords acting as a legislative body until recently. In addition, the strong government whipping powers in the House of Commons makes certain that the legislative demands of the executive will always be met. In contrast, Americans do not have to put up with attempts by the Executive to circumnavigate separation of powers and force legislation through. I know of only one exception to US separation powers, namely when the Vice-President sits as chairman of the U. S. Senate, with a deciding vote in the event of a tie.

In writing this article, I hold myself out neither as a constitutional lawyer nor as an expert on the American Constitution. I am merely an interested observer. However, I cannot regard the Constitution as perfect. It has surprising omissions. For example, there is no declaration of “one person, one vote,” a bedrock of democracy. Perhaps the Framers were not impressed by the educational standards of a majority of their fellow citizens. The lacuna is rectified by the states in election statutes.

The Constitution makes no provision whatsoever for the regulation of city or town government. True, the largest American city in the 1780s was Boston, with a population of some 8,000 persons, thus there was no apparent urgency to legislate. However, the Framers were aware that by 1789, Europe boasted large city populations, like Paris (750,000) and London (700,000), and it was easily foreseeable that the American urban population would increase with considerable rapidity. Indeed, Jefferson warned it would happen. My conclusion is that the Founders had more than enough to cope with between 1789 and 1792, deciding upon the rules for a federal government and getting the Constitution ratified by the states. City government would be a matter for local citizens and the states.  

            I like the immediacy of conflict, built into the Constitution, between the Executive and Legislature. A President’s legislative programme has to be championed into Congress. Positions on the legislation are taken rapidly and a President can quickly gauge the difficulties he may have to face to get his programme through. Each body has advantages and disadvantages, not specified in the Constitution. For example, the Senate’s power of filibuster, which is a Congressional rule, not a constitutional power, could be removed or altered, as it was during Truman’s presidency, if Congress so decides. Within the Executive, a President has what Teddy Roosevelt called “the bully pulpit”, namely the power to persuade, these days through all kinds of media outlets needing to report daily on presidential activities.

To counter the speed of conflict between the Executive and Legislative branches, the Supreme Court’s role is often decidedly slow. It took two years before Roosevelt’s First New Deal programme was torn apart by members of the Court, known as the Horsemen of the Apocalypse. The Supreme Court is an extraordinary device and is rightfully held in high esteem. Undoubtedly, it is a political body but most of the time, it seeks to transcend partisan politics. On occasion it fails, for example when the 2000 Presidential election was handed to George W. Bush by the Court. I can hear hackles rising. If so, please be sure to explain to me why the Court took jurisdiction in a case which was properly resolvable under the 10^th Amendment by the Florida Supreme Court? Also, please also add to your explanation why the Court’s judgment was expressed “not to be taken as a precedent.”

Where I struggle with the American Constitution is on interpretations made by the Court. Let us consider the First Amendment and the ruling of the Supreme Court that “speech” and “money” cannot be separated in the political sphere. It seems that the law permits a citizen to say anything he likes and to spend his money wherever and on whatsoever he chooses. In principle this is admirable but in financing political elections, there is hardly an even playing field between Mr Oil Moneybags and Joe Citizen.

The Supremes has extended First Amendment rights to corporate bodies and we now have Superpacs. Tens of millions of dollars are paid to finance candidates. Are Americans naïve enough to believe that nothing will be wanted in return? In these rulings, oddly the Court failed to impose a conservative or strict construction test upon what is constitutional, a quality Republicans insisted upon as the litmus test for the appointment of Justice Roberts as the new Chief Justice. Furthermore, the ruling is difficult to reconcile with the ideals of founding fathers who sought to escape the privilege and abuse of wealth of their British masters. In 1792, would the Framers have approved of a rival presidential candidate to George Washington who spent his way to power? Not long ago, John McCain, together with Russ Feingold, sponsored a fair and reasonable statute on campaign finance. That statute is now in tatters, mainly as a result of Supreme Court rulings. Is this what Congress intended to happen? There seems to be something corrosive and corruptive in a political system that allows money, not ideas, to be the dominant factor in an election.  

I am also deeply troubled by the interpretations of the Second Amendment. I know I am treading on hallowed ground and expect many brickbats. Did the Framers really intend all citizens to have the right to own semi-automatic weapons? By extension, what is there to prevent a citizen from parking a Centurion Tank in his front yard? My argument is based on legal reason. The Second amendment provides as follows:

“A well regulated militia being necessary to the security of the State, the right of the People to keep and bear arms shall not be infringed.”

The opening clause of the Amendment is what we lawyers call a condition precedent, in other words something which must occur or be in existence before the rest of a provision can apply. The words are plain. “Militia” in late eighteenth century-speak meant a legally constituted armed force. If a person was a member of such a force, he might keep and use a weapon as part of his duties. How can this Amendment be interpreted to allow Americans in many states to go to a gun show and buy and lawfully keep a weapon?

Now, I am happy to go toe to toe with any NRA member and argue with him or her on their bromides such as “guns don’t kill, people do.” But this is not my point. I am looking at the amendment purely on legal interpretation. I do not believe the Framers had any intention whatsoever of permitting the entire American adult population to have the right to own guns. Had there been such an intention, the opening words of the Amendment would have been omitted because they would have been superfluous.

For certain, there is nothing in the Federalist Papers which shows an intention to arm citizens as a matter of course or right. “Why would it?” I hear people ask. “Those discussions did not cover individual rights.” True but they covered every aspect of federal government for those times.

There are numerous examples of other Supreme Court decisions which are causes for concern, for example the Plessey v Ferguson decision, which contradicted not only the Fourteenth Amendment but the Civil Rights Act of 1875, to recent rulings on the Eighth Amendment. More positively, I know there have been innumerable brilliant decisions by the Court, dating back to Madison v Marbury.

Let me make it as clear as I can. I have no issues with a nation whose laws stem from a document that is more than two hundred and twenty five years old and has, by and large, stood the test of time. It is common ground that if the Executive and Legislative branches of the federal government cannot get the job done, the cause is almost invariably the ideological, partisan political and, probably, personal problems between individuals, not the framework provided by the Constitution. Yet changes are needed to ensure that rights are not trampled upon.

In 1937, Congress held the composition of The Supreme Court sacrosanct, when President Roosevelt attempted his Court Packing Plan. However, is the Court still held in high esteem today for the right reasons? I am bound to question a judiciary which seems to flout the wishes of the majority of both those elected and those who elected them, for the same ideological and partisan political reasons as members of Congress. If my argument has merit, perhaps the workings and processes of the Court need to be re-examined as well.

Obama's Second Term

In my blog on presidential second terms, I listed a string of failures from Woodrow Wilson to George W. Bush. What is there in a second term that dooms it to failure? There seems to be no common theme. Wilson was defeated by ill health, FDR by hubris, Harry Truman by tough economic times moving from a war time to a peace time economy and an unpopular war, LBJ by a very unpopular war and a media keen to exploit the administration’s weaknesses, Nixon’s own personality caught him out as much as anything else, Clinton by personal weaknesses and Bush Junior by himself.

Perhaps there are dark arts at work. DC is a competitive place, a politicians’ Coliseum. Any member of Congress may harbour ambitions to enter the White House. So might the Vice President. Perhaps their efforts in a second term are directed towards a White House run, rather than doing the political business of the country. Likewise, there are fifty state governors who could be added to the mix. Faced with such opposition, it is little wonder that the Commander in Chief has a struggle on his hands.

Now, it's easy to criticise from the cheap seats on a subject like government which is difficult at the best of times. It was Mario Cuomo who lamented, “You campaign in poetry, you govern in prose.” Therefore, I acknowledge that when I pan Obama for a poor start to his second term, I do so from inexperience. I have never governed a small country, let alone a large one.

This month, Donald Lambro wrote in The Washington Times:

                President Obama’s job-approval ratings are declining, proving Abraham Lincoln’s admonition that you can’t fool all the people all the time. The Gallup Poll reported Thursday that Mr. Obama’s job-approval rating has fallen to a politically embarrassing 46 percent, and that 47 percent of those polled disapprove of his second-term performance, up 3 points from last month.

                To add insult to injury, Mr. Obama has had to swallow the news that his Republican predecessor, on whom he has blamed all of his problems, deficiencies, failures and blunders, is now seen as more popular than he is. A separate, nationwide Gallup survey finds that former President George W. Bush is seen as “more positive than negative for the first time since 2005, with 49 percent rating him favorably and 46 percent unfavorably.”

The polls are indeed bad for the chief executive. Obama's second term has evidently been mired in scandal. For example, the IRS has secretly investigated prominent Republicans, in what is viewed as a political move. Good Lord! It is as if the whole administration has suddenly invented dirty tricks. People have short memories, don’t they? The disgraced President Nixon used this very tactic time and again and the revered FDR was not above playing similar games. This stuff is just part and parcel of life in DC and everyone knows it.

Where President Obama has failed badly is in his domestic legislative programme and if he does not get his act together quickly, he'll be staring at next year’s Congressional mid-terms and two years of lame-duckery. Arguably Obama’s worst defeat was on gun control, where Senate Democrats laid on their backs and asked to have their tummies tickled.

When Geraldine Giffords was shot last year, I hoped Congress might react to the shooting of one of their own. But no; there was much lamenting and wreaking of hands but nothing else. That shooting was followed by several others until last December when twenty eight children and adults were murdered in Newtown, Connecticut. The nation as a whole reviled the event and demanded action. The legislation change proposed was so mild, one would have expected no reasonable objection but this is NRA territory. The President called for a revised law to tighten background checks. When the Bill came before the Senate, the Democrats gave up before a vote. The mere threat of a Republican filibuster was sufficient to defeat a measure which a majority of the nation wanted.

So, Mr President, here's what I suggest you do to get Congress worried and working with you.

1. Fire Harry Reid and find a feisty operator to lead your majority party in the Senate.

2. When Bills are introduced, make it clear to Congress that they will be fought all the way.

3. Go up to the Hill yourself and meet the legislators. In private, tell them, LBJ style, what will happen to their states and districts if they are unhelpful. In public, debate with these people before the glare of the media and make your case.

4. Have the Board of the NRA investigated for breach of lobbying and tax laws. Make their lives as uncomfortable as those of the parents at Newtown.

5. The NRA has advocated that to keep children safe in schools, teachers should be armed. Pass a law to make the NRA pay for training and arming teachers and making school buildings safe from gunmen.

6. Introduce new lobby laws with real teeth.

7. Fight every cause you need to fight and scare Congress into doing its job.

If you change your strategy, you may suffer defeats but you would lose these fights anyway through inaction. Americans love a fighter and your popularity ratings will go through the roof as the reputations of Congressmen and Senators plummet.

The Curse of the Second Term.

For my inaugural blog, I have asked myself a question. What is it about presidential second terms that cause so much hassle? Looking at the history of second terms since the turn of the 20th century, the picture is ghastly. Woodrow Wilson campaigned in 1916 to keep USA of war and promptly changed his mind the following year. In 1919, his efforts to have the Treaty of Versailles ratified by Congress ended in abject failure, loss of health and a premature end of his presidency, although the public did not know Mrs Wilson was in charge!

FDR's landslide victory in 1936 gave him sufficient confidence to take on the Supreme Court, whose justices had been dismantling New Deal legislation. FDR was so shocked when an overwhelmingly Democratic Congress rejected the administration’s Court Packing Plan. He lost faith in himself, something totally out of character. Then he made a grave error in turning off the spigots of federal money in 1936/7, throwing the economy back into recession. His foreign policy of “keep your hands off China” meant abandoning the Manchurians to a Japanese fate. What saved his administration and the route to a third term was the onset of hostilities in Europe and the rise of America’s Arsenal of Democracy.

Strictly, Harry Truman did not have a second term. He was elected Vice President in 1944. However, he served as president for just a few months less than eight years. It is worthwhile reading American newspapers for 1948-50 to understand the turbulence of those domestic times within USA. Industrial unrest was rife as unions fought for better wages at a time of price restriction and the administration struggled to come to terms with a peace-time economy. By 1950, the economy had improved a little but Truman then had to cope with the invasion of South Korea. He invoked a police action which he could not win. He left the White House with the lowest ever presidential popularity rating at that time. Mind you he left in typical Truman style. No helicopters and Air Force One for Harry. He and Bess walked out of the White House suitcases in hand, strolled to Union Station and took the train to Kansas City.

Ike's second term was mired in scandal. A Summit meeting with Khrushchev was dealt a body blow by the U2 spy plane debacle. The failure by the administration to invest in space found USA behind the curve, although the so-called Missile Gap was a myth, exploited by Kennedy to the full in 1960. In Ike’s farewell address, he had the chutzpah to warn against the rise of America's military industrial complex, something which Ike himself had helped create.

Like Truman, LBJ was strictly a one term president. Had he avoided the Vietnam trap, he might have gone down in history as the greatest of all the presidents. His domestic legislative programme, passed in just four years, changed American society for decades and despite the efforts of Republican administrations to dismantle such legislation, much remains. But the media nailed any hope of LBJ’s Valhallan legacy as a Vietnam settlement became impossible and as American casualties rose. LBJ left the White House a beaten man.

Nixon's second term began with his triumph in China but politics has a short memory. All too soon, his second term was mired in Watergate and impeachment. In 1974, he became the only president to resign his office.

Reagan was lucky to avoid impeachment. His conduct in the Iran Contra Affair showed his complete disregard for Congressional statutes. However, there was no political will to remove him. Supply side economics and “trickle down” created the biggest budget deficit the world had ever seen. Altogether, the second term was disastrous.

Clinton was in the White House in both bad and good economic times. H refused to accept a Republican budget and saw the federal government closed before accepting severe cuts for working families. His second term witnessed a budget surplus. However, the man had personal weaknesses which caught him out. Although the impeachment trial failed and should never have occurred, Clinton’s presidency was holed beneath the water line.

George W Bush did not just have a disastrous second term. He matched it in his first term! The War on Terror and more “trickle down” economics, together with the 2008 banking crisis, took the administration into free fall.

So is it any surprise that the apogee of Obama's second term may prove to be election night, November 2012? Since then, what legislation programme has been achieved? The damaging sequester is being felt the length and breadth of America society as working families are finding it hard come to terms with the new austerity.

In the follow-up to this blog, I will explore the reasons why second terms are so problematical, as well as the options that President Obama has available. Maybe his second term need not end in tears.