John Lewis, Donald Trump and Brexit: The Political Disconnect.

The name, John Lewis, is well known on both sides of the Atlantic. In UK, it is the chain of department stores whose boast is “never knowingly undersold.” In America, he is a 76 year-old civil rights campaigner who stood with Martin Luther King on the 1965 Selma March and got a beating for his pains on the Edmund Pettus Bridge. He is a man who knows what it takes to defy unfair and oppressive authority.

In my previous blog, I wrote about the epidemic of mass shootings in America and the abject failure by members of the US Congress to take any action to ameliorate the law. Last Wednesday, Congressman John Lewis of Georgia led Democratic colleagues in the US House of Representatives, seeking to persuade colleagues from both sides of the aisle to take action to staunch the bloodshed. His pleas were rejected. He called upon members from his side: “We have turned deaf ears to the blood of the innocent and the concern of our nation. We are blind to a crisis. Where is the heart of this body? Where is our soul? Where is our moral leadership? Where is our courage?”

What the Democrats wanted was actually not much, just votes that first would bar potential terrorists from buying guns and second would close background-check loopholes for firearm sales at gun shows and over the internet. According to The Washington Post, 90 percent of the country supports those steps. Yet, even to compel a vote required a hostile takeover of the House.

When the Speaker refused to entertain the request, Lewis and his colleagues took over the floor of the House in a sit-in. Some journalists termed the revolt “historic.” They have short memories. In 2008, Republican Congressmen staged a similar revolt in the House, protesting restrictions on oil exploration. This was a time when oil prices were sky high and fracking was in its infancy.

This week’s protest by Lewis et. al. was nothing more than a publicity stunt. I say this because there was never any hope of getting a vote in the House, let alone having new federal legislation on the statute book. Passing an Act of Congress is a horribly complicated business. I could write about it but even the most shortened version would take a page. Suffice it to say that with Republican majorities in both House and Senate, coupled with the fact that in this election year, the NRA provides financial support to a majority of legislators from both parties, the deck is stacked against the 90 percent.

Lewis seemed to expect more than publicity: “Sometimes you have to do something out of the ordinary. Sometimes you have to make a way out of no way. We’ve been quiet for too long. Now is the time to get in the way. We will be silent no more. The time for silence is over.” However, 26 hours after the protest began, Lewis and his fellow Democrats called an end to the demonstration. No vote was taken.

I interpret the Lewis-led demonstration as evidence of another disconnect between the politicians and the people they serve, a breakdown in the machinery of American government made sterile and inoperable by its Constitution.

If further evidence of such disconnect in needed, look at the Trump effect. Here is a man without any political or government experience who has persuaded a majority of registered Republican voters that he is fit for the Presidency. On Friday, I watched him lie blatantly on television at the opening of the new Trump Turnberry golf course resort. He spoke warmly about co-operation with local planners and environment experts, when the truth was he had to repair numerous breaches of the law by his development company, delaying the opening for years. For me, this inarticulate, bigoted, self-serving, dangerous man embodies every negative that politics offers. Yet here he is, one November-day vote away from the White House.

We in the UK can hardly gloat. Last week, the Referendum on the European Union ended in a vote for Brexit, i.e. a decision to leave the European Union. To say I am shocked and dismayed by the result is an understatement. The polls warned of the outcome but the markets and bookmakers seemed to predict a big Remain victory.

Why did it happen? My belief is that the vote was not about the EU but a commentary on how we live in the UK. Too many members of the British public feel disconnected from the polity. In addition the refugee crisis, fueled by the Middle East wars, created an opportunity for the Leave campaign to scare the public that the country would be overcome by migrants as a result of EU policy. Both Remain and Leave told bare-faced lies and used scare tactics in an effort to persuade voters. I consider that those so disillusioned by politics took the opportunity to give the government the finger.

The immediate result has been David Cameron’s resignation as Prime Minister, which may result in a split in the Conservative Party but will probably cause the new PM to call a general election. The Labour opposition is falling apart with its leader, Jeremy Corbyn, facing a vote of no confidence next week and a fight for the leadership of the Labour Party in the offing. The divisiveness is both ugly and harmful to any chance of constructive government.

Other countries within the EU, such as Holland, are facing demands for a Referendum. In France, President Francois Hollande has to re-apply to his own political party for approval before he can ask the country to renew his job. In Spain, yesterday’s general election, the second in four months, will probably result in continued deadlock. Is there a new trend within the western bloc where dissatisfaction with political leadership and policy turns things upside down?  If so, I am too old for this!

 

Latin Tags and Light Tanks.

I have a confession. Last night I dreamed about Latin tags. When I entered the legal profession more than fifty years ago, Latin phrases abounded everywhere. I expect Latin was used even in criminal law but I can’t remember. Mind you, I wasn’t up to much as a criminal lawyer. Some of my clients would have said, “Drop the word ‘criminal’ and you have it right!”

‘Volenti’, or to use the tag in full, ‘volenti non fit injuria’ means “to a willing person, injury is not done.” It is a common law doctrine; if someone willingly places himself or herself in harm’s way, knowing that some degree of harm might result, he or she are not able to bring a claim against the other party. For example, if I go to watch a cricket match and the ball is hit forcefully and lands on my head, I can’t blame the batsman or anyone else for my head injury.

In America, it is lawful for citizens to own firearms. In many states, it is lawful to enter a public space with a concealed weapon. Since everybody is expected to know the law – this is a legal maxim which applies throughout the western world – those who attend, say, a nightclub in Orlando will know they may be putting themselves in harm’s way and thus have only themselves to blame if they are shot dead. If you feel this is a harsh interpretation, don’t blame me. Blame the judges. They interpret the law, including the true meaning of the Second Amendment.

The second Latin tag, “reductio ad absurdum,” means reduction of an argument to absurdity. The argument exposes the truth or otherwise of a statement by showing a false, untenable, or absurd result. My suggestion that the killer in the Pulse nightclub massacre had a tenable defence is absurd. It is unlawful to murder people. The murderer cannot base an argument that those killed ought to have known of the danger merely by entering the place.

But is the following argument absurd? We all know the protections offered by the Second Amendment to the Constitution which states: "A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." The Supreme Court has not only been consistent over the years in protecting the right to keep and bear arms. It has accepted that the word ‘arms’ is not restrictive. Any kind of weapon seems to be legal. President Bill Clinton’s Criminal Justice Bill banned specified automatic weapons but the Bill had a sunset clause and has expired. Nowadays, there are no restrictions on what arms Americans can bear, or are there?

Assume you are an American, living in a pleasant city suburb and your neighbour drives onto your street in a T17 Combat Car, a light tank. Does he have the right to bear this arm? If not, why not? What if the same neighbour places a WW2 artillery Field Gun in his front yard? Can he point it at you as a threat because your front yard is a mess? And can a US citizen own a dirty nuclear bomb? The answer to the latter is no. It is a federal offence to buy or hold weapons’ grade uranium. That’s quite a relief!

What about a Kinder Chocolate Egg? These are chocolate eggs where the chocolate has a hollow centre in which a toy is placed. You will be relieved to hear the federal authorities are on the ball. Kinder Eggs are banned in the USA because they are potentially dangerous to children. I know, it’s laughable. Not even the regulation fanatic in the EU have taken things this far.

Last week, there was a Senate debate on a criminal justice measure. Chris Murphy, the Democratic senator for Connecticut, led a filibuster which ended when a deal was struck with Republican leaders to discuss holding votes on amendments to expand background checks and to ban gun sales to suspected terrorists. Exactly how this will prevent mass shootings is a mystery to me but I suppose that any movement on gun control is better than none.

America has a terrible gun crisis. In more than three years, there have been over 1,000 mass shootings. It’s easy to blame President Obama for not doing anything to stem the killings but the finger has to be pointed elsewhere. America’s government system is based on separation of powers and it is Congress, not the President, which has the power to legislate. A Presidential executive order to ban automatic and semi-automatic weapons will not hold. Congress will speedily set it aside.

The real villain of the piece is the National Rifleman’s Association and other gun lobbies. They have gone quiet in the wake of Orlando but when memories start to fade, the NRA will poison the waters with their “guns don’t kill” message. Gun sales have already increased, the sine qua non or indispensable ingredient of a mass shooting.

What is the solution? If I was an American, I would join an anti-NRA lobby, dispute and debate the NRA at every turn and lobby my legislators to write a sensible set of gun laws. Most important, I would find ways to fund prospective Congressmen and Senators, both federally and at state level, to defeat pro-gun incumbents.   

 

This week, a horrifying event took place in Yorkshire, England when Jo Cox, a young Member of Parliament, was cruelly shot and stabbed to death. Excluding the murders of people in public life by the IRA during the so-called Irish troubles, I cannot recall an MP being murdered, although two have been injured by attackers. Since the assassination of President Kennedy, twenty five US legislators, governors, judges and mayors have been murdered by gunshot. I do not make a quantitative argument. However, the man who allegedly killed Jo Cox had no legal right to possess a firearm. I would bet a large sum that those who killed the twenty five Americans in public life enjoyed such a right.

Whatever your politics and whether you are in public life or a private citizen, there should be no allowance for gun killings in any civilised society. I don’t wish to offend my many American friends and relations but when will those of you who defend the right to bear arms wake up and accept that this is not a right but a recipe for disaster?

 

 

Richard Nixon Returns to Presidential Politics

In the Dicken’s novel, Great Expectations, lawyer Jaggers discloses dark secrets to the hero, Pip, using the phrase, “put the case,” meaning I have a series of events to disclose and I want to put my spin on it. Today, I want to put my case on the forthcoming battle between Clinton and Trump.

For more than three years, Hillary Clinton has dominated the Democratic Party race for the Presidency. Eight years ago, she was the front runner at the start of the primary season but in a brilliant campaign, Barack Obama caught her up and passed her and Hillary’s nomination was denied her. Mrs Clinton seems to have learned the lessons well.

Since 2014, Hillary has been her Party’s front runner. It has benefited her to run against another Democrat, Bernie Sanders, who has made quite an impression and made the Clinton camp sweat a bit. Would Democratic Party supporters have adopted a socialist for their nominee? I don’t think so. And Clinton has known this all along.

The event that I believe has paid off in spades for Mrs Clinton is the Republican’s choice of nominee. Picture Hillary and her close advisers back in January, settled before a television set and watching the first Republican Presidential debate where there were more than twenty candidates. A Hillary adviser poses a question:

“Which of these people do we not want to face in November?”

“Rubio, Bush,” come the replies.

“Okay, who would we best like to face?”

“Trump,” everyone shouts.

In 1972, CREEP, the campaign to re-elect President Nixon, embarked on a series of acceptable and non-acceptable political antics to ensure their man held onto the White House. They engineered the selection process so that stronger candidates like Ed Muskie dropped out of the race. Do you remember the “Canuck Letter,” when Mrs Muskie’s character was impugned for racism and Muskie himself broke down in public? Nixon went on to face the man he wanted, George McGovern, undoubtedly the weakest Democratic candidate. Nixon won the election in one of the biggest landslides on record.

I do not suggest that the Clinton camp has played dirty tricks on her Republican opponents but Hillary cannot be anything but delighted that she will not face a politician in the election. Noticeably, she has refrained from making serious attacks on Trump until this week when she secured the Democratic nomination. Then she left fly, pouring scorn on Trump, particularly about his accusation that U.S. District Judge Gonzalo Curiel had a prejudicial conflict in presiding over the litigation on Trump University, given that he was of Mexican heritage and a member of a Latino lawyers’ association.

No doubt, we can expect to hear a lot more from Trump about “crooked Hillary.” He will lambast the FBI for not bringing charges against her over the use of a private e-mail server when she was Secretary of State. But Trump will have to face facts. There will be no prosecution. The FBI has investigated this case for more than six months. Were a prosecution mounted now, it would be regarded as interfering with the political process.

I see the e-mail issue in political terms. The FBI is part of Homeland Security which reports to the Attorney General, whose boss is the President. He has now endorsed Hillary. End of story.

I do not expect serious Democratic Party attacks on Trump until the Conventions. However, come August, I anticipate the most negative Presidential campaign ever witnessed. Trump’s naivety and inexperience on foreign affairs is a big target but Presidential elections are not won over foreign policy. Americans vote their pocket books (wallets) and Trump’s economic policies will be savaged. Despite the hopes of Trump supporters, there is little in what he says that will raise middle-class wages in real terms or help the poor in American society.

Say what you like about Mrs Clinton, she is well prepared for the chief executive’s job. Eight years as first lady, four years as a US senator and four more years as Secretary of State. In comparison, Trump has a reality TV show, an uncertain dollar worth, (much will be made of his refusal to disclose his tax returns), a suspect business track record, littered with bankruptcies, as well as questionable practices in connection with Trump University.

At the end of the day, a Presidential election is about character. Here is a problem. Both nominees are professional liars! Both are immensely unpopular with less than a 40% approval rating. However, if Trump starts to see the polls go against him, I suspect he will make more and more outrageous claims relating to Muslims, Mexicans and immigration, the role of women and the like. I have not seen any evidence of his engaging with close advisers who feel confident to tell him “no, you can’t say that.”

In contrast, Hillary not only has seasoned, professional advisers but an ace in the hole. Bill Clinton is the best political campaigner I have ever seen. I am not a betting man but if I was, I would take a flutter now on the Democrats retaining the White House.

The race for Congress? That’s another story.

 

 

Yesterday’s shootings in Orlando were appalling, a homophobic terrorist attack with a record number of deaths and injuries. Trump used the tragedy to prop up his controversial call for a ban on all Muslims entering the US. He tweeted: “What has happened in Orlando is just the beginning. Our leadership is weak and ineffective. I called it and asked for the ban. Must be tough.” He chose to ignore the fact that the perpetrator was American born! Hillary Clinton correctly emphasised the Pulse horror as a hate attack on the LGBT community, calling for better gun control but she also used the terrorism label, saying, “We need to redouble our efforts to defend our country from threats at home and abroad.”

Sadly, by the end of the month Orlando will probably be just a memory, calls for more gun restrictions will be met by the gun lobby response that the Second Amendment is the best defence, that more arms mean better defence, the gun sale market will boom and Congress will resist any attempts by the administration to outlaw automatic and semi-automatic weapons. I hate to be so negative but the history of gun outrages does nothing to encourage me to believe otherwise.

 

Referenda in America and Great Britain

 

According to the headlines in the British newspapers, on 23rd June, 2016, the United Kingdom will decide. That day, all registered UK voters will get their say on whether we will remain in the European Union or secede. Remain or Leave: will the vote be the end of the story? My belief is that, at best, it will be the end of a chapter.

There are so many variables. For example, if those who want to leave the EU, the so-called Brexiters, lose the vote in a tight decision, their leaders will argue the Remain majority is small. They will look for ways to do down the Conservative government, which is odd because the vocal, leadership element of Brexit are almost all members of the government and the Conservative Party. Old hands at American Party politics might say the Conservative Party currently looks like the Democratic Party of old, as each side of the former seeks to destroy the arguments of the other and looks not for compromise.

Americans might wonder how the EU Referendum works. After all, there is no American equivalent, or is there? Does America have direct democracy? The federal government does not go to the whole of the American people to ask for approval to a policy. Instead, Congress gets a request to fund a program or pass a law and, if it does the latter, the Supreme Court may get its say on whether that law is constitutional.

In the UK, a referendum is a means, rarely used, for government to establish the will of the people and act accordingly. In the 1970s, the Harold Wilson’s Labour government sought approval to the UK joining the European Economic Community. Only last year, the Scots voted in a referendum whether to remain part of the United Kingdom or go it alone.

Oddly, referenda are not binding on a British government. Later this month, if the Leave element prevails, will the current government act on the result and take us out, despite what Cameron says? In this week’s House of Commons Prime Minister’s Question Time, Mr Cameron told the House he would abide by the people’s decision. Whatever happens in the vote, political blood will be spilled.

In America at federal level, I am unaware that a referendum has ever been held. Over the years, America has argued huge social issues like abortion and single sex marriage. The vast majority have accepted that the issues need to be resolved by the U. S. Congress and, of course, the Supreme Court.

 

Under the 10^th Amendment, states’ rights apply to powers not expressly given to Congress. I have not researched the powers reserved to each of the 50 states on referenda but an example is the state of California which holds them in virtually every recent election. They are called Propositions. In November, 2008, in a California state-wide ballot, voters approved Proposition 8, eliminating rights of same-sex couples to marry. The approval made same-sex marriage illegal in California.

 

A referendum is direct democracy in action. The people, not their representatives, decide. Direct democracy has been practised in America at city and town level for more than a century. Starting with Des Moines in 1907, the management of the city was delegated to a professional town manager, who reported to the elected board of aldermen. The new Des Moines charter brought many changes. One was that ordinance proposals would be included at elections as the subject of referendums, “if proposed by petition, subject to rules for advertisement, inspection and suspension.” So, if there were enough votes on a petition and if other rules were observed, the people of Des Moines got their say. Since 1907, most American cities and towns have changes their charters and adopted referenda rights.

I find it interesting that we in Britain used referenda only at national level but in America it is used usually by towns and cities and occasionally a state. I suppose one could argue that the Presidential election, which nominates candidates from each major political party to run against each other. Effectively, this is a referendum. Isn’t politics interesting!

 

 

The Zika Virus: Congress Plays Politics Again.

 

Whilst a substantial element of the current American polity believes it has no responsibility for the healthcare of its citizens, ideology on environmental health or public health emergencies accepts this is an issue for the federal government. The Zika virus, which has already struck more than fifteen hundred Americans, is especially dangerous to pregnant women who are at risk of delivering their babies with microephaly, a congenital condition associated with incomplete brain development. Hence attacking the Zika virus is something for Washington to handle.

Last February, the Centre for Disease Control and Prevention advised the Obama administration that some $2 billion emergency funding was required to cope with Zika. This virus is carried by mosquitos, so the government needed to be ahead of the curve before the summer breeding season. As much time as possible was needed to produce a preventative vaccine. The Obama administration’s request to Congress for funds was met with a stern refusal. “The administration already has enough money,” it was told. As a result, The Health Department was forced to transfer almost $600 million from the successful, ongoing Ebola virus programme to get work started on Zika.

The $600 million funds were insufficient, so the President had a bill championed to Congress, seeking full funding, as estimated by health officials, to combat Zika. Rather than simply debating the request on its merits, the Senate Republicans attached the Zika bill to another spending bill, a general bill comprising military construction, Veterans Affairs, housing and urban development, and transportation programs. Buried in this huge spending measure, crafted by lobbyists and special interests, were provisions to weaken truck driver fatigue rules. How does such a measure help the voter?

The Senate had the opportunity to consider a clean Zika bill but Republican members would agree to a debate on its merits and separate from the general spending bill if, and only if, Senate Democrats agreed to cuts in the Obamacare programme. The Democrats refused, so the clean Zika bill failed.

The House considered a stand-alone Zika bill, with only a budget of $622 million, or about a third of funds needed. Here, the House Republicans saw an opportunity to play politics. They decided to rename a deregulatory pesticide bill as a Zika bill. Backed by agriculture and pesticide industries which spend more than $30 million a year to influence Congress, the Reducing Regulatory Burdens Act, which would exempt pesticides from the Clean Water Act, had failed to pass the Senate for five years. Rebranded the Zika Vector Control Act, it now passed the House. At the moment, there is no companion pesticide bill before the Senate, which means the House bill would fail unless the House found a way to persuade the Senate to take it up.

On Wednesday night, Republican leaders found a way. They went to the House Rules Committee, which sets the rules for debates and votes, and put together their short-funded Zika bill and the pesticide exemption bill with the House’s military and veterans funding bill. They then attached all of that to the funding bill passed by the Senate. It passed, 233-180, on an almost 100% party-line vote.

I do not object to a legislature that seeks to be fiscally responsible. But to ignore advice from health officials about a virus which may prove to be a danger not only to hundreds of thousands of Americans, let alone potentially causing the postponement or cancellation of the Rio Olympics, cannot be right. Underfunding a programme to prevent the disease while playing politics for partisan causes is plain wrong.

The President is in a vice. I am sure he would like to veto the spending bill but doing so will block the Zika measure too. He has no line item veto rights. One must question the thinking process and the belief systems of those legislators voted to serve in the US Congress. Are they are not there to protect the health and welfare of all of the public or are they bound only to special interests?

There are times when I am so glad I live in a country whose political system is strong enough to expose this kind of hypocrisy and hold its legislators to ridicule. Here in the UK, environmental health issues like outbreaks of foot and mouth disease and BSE (Mad Cow disease) were both met with strong government action. There was no nonsense by our legislators. Had this not been the case, the country would have been in uproar. What a pity the American lawmakers are not bound by such strictures.