Thursday, July 31, 2014

Go ahead, Impeach him

In High School I was a cynic. By college I was a realist. After sobriety I became an optimist. I certainly still have my moments of cynicism and realism – but in a world of difficulties and challenges I try to look for the good in things. Politics makes it very hard. Putting a good spin on bad news is something the Obama White House has mastered. The House of Representatives voted to sue the President over their belief that the Executive Branch hasn’t fulfilled its constitutional duties on the Affordable Care Act by providing waivers to components of the law. (Of course the irony is Congress has voted 37+ times to repeal the law they're suing the President to enforce.) The White House has spun this to be the first step towards impeachment, and the media has taken the story hook, line and sinker.

It’s not all fantasy - there are many in Congress who have called for the President’s impeachment. Rep. Steve Stockman even handed out copies of Impeachable Offenses –The Case For Removing Barack Obama From Office to every member of Congress.

Article II of the United States Constitution (Section 4) states that "The President, Vice President, and all civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors." The House of Representatives has the sole power of impeaching, while the United States Senate has the sole power to try all impeachments. The removal of impeached officials is automatic upon conviction in the Senate. Only two U.S. Presidents have been impeached by the House of Representatives. Both were acquitted at the trials held by the Senate: Andrew Johnson in 1868 and Bill Clinton in 1998/1999.

House Speaker John Boehner has said there were “no plans” for impeachment, calling the talk a Democratic tool to raise money.

The LA Times report supports the claim: “On Tuesday (July 30, 2014), the chairman of the Democratic Congressional Campaign Committee said the party had raised $7.6 million online since Boehner announced the suit in June, including $1 million collected Monday alone after incoming House Majority Whip Steve Scalise (R-La.), during a network television interview, repeatedly refused to rule out the possibility of impeachment.”

I wrote about the lawsuit last month. Rather than attack any merits that the allegations have – the White House has framed the litigation as the first step towards the impeachment of the nation’s first black President.

The suit actually has legitimate concerns. Under the Constitution the Executive Office is required to implement the laws that Congress passes. It can’t just change them. In the case of the Affordable Care Act, when there were difficulties in the roll-out the President pushed back a number of the deadlines (notably the Employer mandate) without Congressional approval. This is important because it’s not just a technicality – it’s a key funding mechanism of the law. Historically as major legislation is implemented Congress and the Executive Branch work together to amend the law to work out the kinks. In this case Congress refused to make any changes, and the President just changed the rules claiming the ability to do so falls under the expansive authority allowed in implementing legislation. Usually a change that impacts the funding requires Congressional approval, so this will be an interesting case because technically Congress is right. But Congress is right only because it abdicated its responsibility to modify the law as it has throughout history. By tying the suit to impeachment, however, the Democrats are hoping to change the conversation to it being personal and political against Barack Obama. 

The case for Impeachment against President Obama could be strong, depending on one’s interpretation of “high crimes and misdemeanors.” The President’s kill list – where he alone chooses whom to execute without the benefit of trial or any form of legal process could be defined as a high crime. And that doesn’t include looking at any of the civil rights issues with the NSA, drone attacks on foreign soil, etc.

George W. Bush could have been impeached for the high crime of sending Americans to war for made-up reasons. Those lies cost lives and treasure amongst other things. Then there’s his Administration’s bullying one bank to bail out another in clear violation of U.S. law. Not to mention the whole torturing of people after 9/11.

In each instance – Obama and Bush – there are good reasons to explore the actions. The political reality, though, is that there aren’t the votes to convict – now or under Bush. Congress has been complicit in the areas that would be explored for impeachment (in both cases) – so unless we’re really ready to throw out the whole bunch, this is just a clever turn-about by the White House. Oh my, is that cynicism creeping into my otherwise sunny disposition?

Thursday, July 24, 2014

How do you solve a Problem like …

Andrew Lloyd Weber was on the hunt to cast a Maria for a production of “Sound of Music” some years ago and ran the audition process via a reality show on ITV. It was a nice hybrid of singing competition and motivational work to find the right person. Adapting and shifting approaches is all part of the process. I’ve spent a good chunk of my professional life fixing things. For many years I came into organizations – for profit, not-for-profit, hybrids in-between – and worked with stakeholders to find solutions. I’d do a big fix and then I’d come back every few months to do a check-in/tune-up. It was a good business model for both of us. Something always needed tweaking. Situations are not stagnant -  they change. This basic tenant of life seems to be missing in the thinking at the White House these days.

President Obama continued his spate of Executive actions this week issuing #11246 that that prevents any business that contracts with the U.S. government to discriminate based on sexual orientation. It applies to all contracts starting October 23, 2014 and beyond. It is not retroactive nor does is apply to existing contractors.

Progressives and many LGBT leaders have hailed this action as long overdue. Conservatives froth at the Imperial Presidency. The President has been taking action because, he says, the Congress won’t act. They’re all right – and they’re all wrong.

Congress is deadlocked – a reflection of the country. To move beyond the stalemate the President has the right to issue proclamations and directives, and his critics have the right to claim he’s trying to legislate around him.

All but one President has issued an Executive Order and President Obama is not a volume user. He’s at 182 while his predecessor had issued 291, and Bill Clinton 364. Not surprisingly FDR issued the most ever during his reign of government reinvention: 3,522.

ENDA, the Employment Nondiscrimination Act, has been introduced in one form or another since 1974 and has never become law. The resistance can be attributed to everything from homophobia to concerns about finding an exemption for religious organizations. Various accommodations were never agreed to and the bill stalls. Now a small portion of future federal contracts will have the protection for LGBT individuals seeking work with those companies. It’s a miniscule number. The PR and the illusion of the order implies a much more broad-based impact – so many businesses may just opt to update their hiring practices – that’s the hope at least. Complacency could kick in and activist groups might just rest on having won the PR battle, not the legislative war.

The real problem comes after President Obama is out of office. If President Cruz, or President Christie or President Conservative come into office – they’ll rescind the order. (There’s precedent as President George W Bush (43) rescinded several orders related to labor that Clinton had issued, and Clinton rescinded those of Bush (41), and so on.)

If you are a LGBT person seeking stability in your work environment, protection should not come at the discretion of who’s in the Oval Office. Employment issues must be consistent and across the board. It's the underlying premise of the civil rights movement: basic fairness. It’s been 40 years and LGBT people can still be fired for whom they love. It’s appalling and the President deserves credit for trying to change it. You don’t, however, solve a problem like this by executive order (a "special" carve-out). You solve it by working with Congress and changing the law for everybody.

Thursday, July 17, 2014

Membership had its privileges

Groucho Marx resigned his membership in the Friar’s club, sending a wire that said: “I don’t want to belong to a club that would have me as a member.” On the other end of the spectrum American Express for years marketed their cards (which all carry hefty annual fees) with the tagline “membership has its privileges.” It was quite successful, getting millions of people to part with hundreds of dollars a year in order to get a piece of plastic that enables them spend even more money. In both of these instances there is a criteria, whether it be high or low, to participate or belong. U.S. immigration policy establishes the standards for entry to the country – and there’s millions who don’t follow it. Even for those who do work within the system, it is a hotly debated procedure with some 50,000 Central American youth flooding the southern U.S. border in recent weeks.

The current influx of unaccompanied, undocumented minors is putting a strain on the system. It puts into question the mythologized phrase “Give me your tired, your poor, your huddled masses yearning to breathe free.”  Poet Emma Lazarus wrote that in her sonnet to help raise money for the pedestal to the Statue of Liberty, a gift from the people of France. It was never U.S. policy though the ethos of the quote speaks to American folklore – we’re a country of immigrants, a mixing pot, a place where all are welcome.

Like most folklore – it’s just not completely accurate. Throughout American History immigration has been a hotbed issue. The 1790 Act established the first rules: free white persons of good character. Various rules and definitions refined the Act and in 1921 the Emergency Quota Act passed nearly unanimously and “restricted the number of immigrants admitted from any country annually to 3% of the number of residents from that same country living in the United States as of the U.S. Census of 1910.” Then in 1965 the Immigration and Naturalization Act passed which was  “a preference system that focused on immigrants' skills and family relationships with citizens or U.S. residents. Numerical restrictions on visas were set.”

George H.W. Bush (41) signed the Immigration Act of 1990 that raised the numbers and relaxed the reasons people could immigrate, increasing the immigrants by more than 40%. President Clinton revised the policy, reducing immigration by 800,000.  President George W. Bush (43) revised the Clinton procedures, allowing a wider range of people to qualify.
The current issue is related to people who come to the U.S. outside of the legal channels. They’re undocumented or illegal – depending on your perspective. They’re actually both, but labeling people isn’t helpful at finding a solution. Estimates range from 11 to 30 million for people who are in the U.S. without a legal status.

Allowing the Government to determine who can and who cannot enter its borders is ripe for discrimination and corruption. There are generations of examples supporting that. Being a free and open country that allows anybody who wants to show up to show up is nice in concept, but not practical. Neither is sending back people who are here. Rewarding law breakers isn’t helpful either. Sending people back to harms way isn’t consistent with U.S. morality either. Clearly the system is broken.

There’s no easy solutions. Minds that are much brighter than me have proposed solutions that set people who are here on a path to legalization. The challenge with that is that since 1986 Congress has passed seven amnesties – and still people enter illegally.

Figuring out how to stem the ability to enter the country in an undocumented way has to be priority one. If a faucet is broken and water is spewing forth, the first thing to remedy is closing the water line before determining if a new faucet is needed, there’s a break in the main, etc. Building a wall to enclose the country is na├»ve and impractical, as is posting National Guardsmen every few feet around every possible entrance to the country. Individuals attempted to enter outside of the system must be turned away on a go-forward basis, and their attempt noted so that if they try to enter the legal system, there’s an additional consequence for the failed effort. It has to be a fast and immediate process. Due process, something that is at the core of who America is should kick in for people who have respected the system.

When “new” undocumented individuals have slimmed, then the existing system of legalizing immigrants must be updated. Children from broken families, children escaping various horrors, other people needed to be safe from persecution – must all go into the system and be processed in a fast and fair way. The idea that immigration takes years and years is bizarre.

An expanded and efficient immigration process leaves tens of millions who are long-established and not legal. Fines and a new type of exempted visa just for their circumstance would close that gap and be a way to fund the updated system and processes.

Coming to America has its privileges and its responsibilities. We must adapt to allow for both. 

Thursday, July 10, 2014

Forget me not?

I’m a romantic. One year for Valentines I had 200 flowers delivered to my sweetie. Even though there’s a flower dedicated to making sure your love remembers you – I went with the traditional red rose. (In a German legend, God named all the plants when a tiny unnamed one cried out, "Forget-me-not, O Lord!" God replied, "That shall be your name.") Being remembered is more than just for the lovelorn on a February day. We all want to make an impact, have an imprint on the world. It’s not limited to lame duck politicians looking to mark their legacy – it’s part of how individuals make sense of “existence.” That is now easier in Europe where you can now pick and choose what the world knows about you.

The BBC reports: “The internet (almost) never forgets. Google - and other search engines - are extremely efficient at crawling the web to find and store data. Even if websites are taken offline, a cache is kept - meaning they can still be accessed.”

A Spaniard, Mario Gonzalez hit financial difficulties in 1998 and a property he owned was put up for auction to pay his debts. A decade later web searches kept pulling up the now dated information of his financial difficulties – so he sued Google. The European Court agreed – and despite appeals and counter suits - ordered the company to find a mechanism to allow people to make requests to cull certain information. The “right to be forgotten” law was passed and implemented.

The BBC reports on some of the 250,000 requests that have flooded into Google in the first weeks of the new law: “Google has received fresh takedown requests after a European court ruled that an individual could force it to remove 'irrelevant and outdated' search results, the BBC has learned. An ex-politician seeking re-election has asked to have links to an article about his behaviour in office removed. A man convicted of possessing child abuse images has requested links to pages about his conviction to be wiped. And a doctor wants negative reviews from patients removed from the results.”

The Internet – this generation’s most important transformation and innovation – is just a bunch of data. Search engines – whether it is Google, Bing, Ask, or Yahoo – mine data and sort it in a way that is useful. The industry is worth multiples of billions of dollars and I would gather than few of us today could imagine day to day living without immediate access to information.

The European Court has now changed the role of search engines – and instead of being a dispassionate technological algorithm, they now must interpret data. It's rife with problems. While I’d love for some of my past indiscretions to not appear on a search, the reality is that they did occur. Why censor the data? Couldn’t weighting the results based on the age of the material have been a solution? And easier to program? Something 12 years old maybe shouldn’t top the list – but it shouldn’t just go away because it's old and 'irrelevant.' The examples of requests that have already come in are chilling enough – just think of what Americans would do with this option.

The U.S. is a celebrity driven - both in politics and in culture. Richard Nixon would certainly have appreciated the ability to have things “forgotten” (beyond 18 minutes on an audio tape). Monica Lewinski wouldn’t have had to reappear and write a book to rehabilitate her image, she could have just disappeared from search results. Do we really need to create another way for public figures to more easily shape the truth?

A popular meme around elections is based on the Daniel Patrick Moynihan quote: you can have your own opinions, but not your own facts. Let’s not forget that having facts, having the truth means the unpleasant stuff too. That romantic gesture of 200 flowers? It freaked out the recipient – so while I remember it as a grand loving gesture, he remembers it differently. The truth? We’re both right and it should not be up to one of us to choose what is remembered.

Thursday, July 3, 2014

So sue me

I’m a musical theatre aficionado. It wasn’t always so. During my early years as a theatre student I looked down my nose at my MT brethren. I was focused on “serious” work. A few short years later – while still a student - I was directing and producing my first musical after realizing that performance halls only fill when audiences actually want to see something…and “important” and “serious” work isn’t so when nobody comes. “Guys & Dollsis a classic American musical. The 1950 Tony-award winning show with music and lyrics by Frank Loesser was selected as the winner of the 1951 Pulitzer Prize for Drama. Book writer Abe Burrows had troubles with the House Un-American Activities Committee (HUAC) so the Trustees of Columbia University vetoed the selection, and no Pulitzer for Drama was awarded that year. In between two show stoppers in Act II (“Luck Be a Lady” and “Sit Down, You’re Rockin’ the Boat”) is a lovely song “Sue Me” where Miss Adelaide and Nathan verbally joust, resulting in the lament, ‘so sue me.’ The phrase was picked up by Steve Jobs in his dispute with the Beatles Apple Corps. when in 1991 Apple Computer introduced a system sound into the Macintosh System 7 operating system - called 'Sosumi'.  In the past 20 years as society has become more litigious the phrase has become a gauntlet to an adversary challenging them to escalate a dispute. President Obama, in fact, used the expression this week – mocking the Speaker of the House’s threatened lawsuit.

House Speaker John Boehner suggested last week that he would use his authority as speaker to convene the Bipartisan Legal Advisory Group, a five-member legal panel appointed by GOP and Democratic House leaders. BLAG has authority to direct the U.S. House Office of General Counsel, to participate in litigation and represent the U.S. House itself. Boehner said: “The Constitution makes it clear that a president's job is to faithfully execute the laws. In my view, the president has not faithfully executed the laws."

Commenting on his frustration that Congress won’t take action on any legislation, the President responded: “Middle-class families can't wait for Republicans in Congress to do stuff. So sue me. As long as they’re doing nothing, I’m not going to apologize for trying to do something.”

It’s not the first time this President has publicly stated that he’d work around Congress. When running for re-election he said: “Where Republicans refuse to cooperate on things that I know are good for the American people, I will continue to look for ways to do it administratively and work around Congress.”  In his 2014 State of the Union address  – the entire speech was framed around his mantra: “I will act on my own.” Let us not be surprised that he is doing so.

This week we celebrate the 238th birthday of the United States. The balance of power envisioned by the founders is that the Executive, Legislative and Judicial branches would all be a ‘check and balance’ on each other. It’s cumbersome, messy...and it actually works.

The Supreme Court slapped the President this week on the three recess appointments he made to the National Labor Relations Board. It is rare for the Court in a high profile case to garner more than the bare 5-4 majority. Here it was unanimous: the President overstepped his authority by going around the Senate.

President Obama is an activist pro-government progressive who is anxious to do more. Congress has a vocal minority of anti-government, tea-party conservatives who have been elected to do less. This contingent has convinced other conservatives to side with them, making it a majority opinion to not take action. The political sides have been unable (or unwilling or uninterested) in finding a path towards a common ground. So be it. That means the system is working. All voices are being heard. Yes, it’s political paralysis, but that actually reflects the country. It doesn’t mean that one branch should do an end-run around the other.

There are 435 seats in Congress. During the 2014 primary season only 2 incumbents have lost. Two. Congress has a 7% approval rating, but a near unanimous re-election rate! This dichotomy shows why our electoral policies are in dire need of revision. But that’s the way it is. Come November the makeup of the Congress will remain as it has been: a true reflection of the country’s discord. If the country wanted government to do more it’d elect people to make that happen.

It’s childish, unproductive and an embarrassment that the leaders of the Executive Branch and the Legislative Branches can’t find a way of working together. But it’s our system and I’m proud to support it, even in its dysfunction. So sue me.