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A Pause In Israel’s Judicial Changes, But At What Price?

Friday, March 31st, 2023

Since Israel’s founding in 1948, the U.S. and it have created a bilateral relationship based on tangible, steadily increasing security and economic interests, not just shared values. Israel has become a lynchpin in our efforts to achieve stability in the middle east (Our success in that regard has been dubious, at best). In fact, at the final presidential debate of the 2012 campaign season, President Barack Obama and Governor Mitt Romney mentioned Israel some 30 times, more than any other country except Iran. Both candidates called the Jewish state “a true friend,” pledging to stand with it through thick and thin. And we’ve done that. Since the end of World War II, Israel has been the largest cumulative recipient of U.S. foreign assistance, assistance totaling more than $158 billion (non-inflation adjusted).

Unlike most democracies, Israel lacks a written Constitution, functioning, rather, under what are called “Basic Laws.”

The Basic Laws, enacted at various times between 1958 and 2018, number thirteen and are mostly rather vague. The 8th Basic Law, The Judiciary, enacted in 1984, lays out common sensible judicial requirements about honesty, transparency, judicial probity and process, and the like.

The Basic Laws place a heavy burden on the country’s judiciary and its Supreme Court, the High Court of Justice, making it the final arbiter. By nature, the Court is always involved in a tense relationship with its sister institution, the Knesset, Israel’s parliament. In this regard, both are critical pillars in Israel’s foundational house of democracy.

Four months ago, a coalition comprised of the conservative Likud Party and five other far right and ultra-orthodox Parties won a national election and returned Benjamin Netanyahu to power as Prime Minister for the sixth time, despite his standing trial in three current corruption cases for bribery, fraud and breach of trust. The coalition has a one vote majority with 61 seats out of 120 Knesset members.

Immediately upon taking control, the Coalition introduced a number of judicial law changes aimed at weakening the Supreme Court, chief among them one that would enable the Knesset to overrule Supreme Court decisions by a simple majority, which is currently what Netanyahu’s coalition enjoys. The reason for this seems to be that the Prime Minister’s coalition partners, without whom he cannot survive, blame the Court for stifling the establishment of new settlements in the West Bank and for being lackeys of the left. Their anger about this has been growing for years, but until now they have been unable to do anything about it. Entering a coalition with the weakened Netanyahu provides the opportunity they have long sought. If they are successful and this particular change were to become law, Israel’s Supreme Court would no longer be the “final arbiter.” Rather, it would serve at the pleasure of the Knesset.

This is a monumental change in the 8th Basic Law, in which Section 17 says,

“A verdict of a court in the first instance, may be appealed by right, save a verdict of the Supreme Court.” (emphasis added)

Further, Section 22, entitled, Stability of the law, reads,

“Emergency regulations do not have the power to change this law, to temporarily suspend its validity, or to subject it to conditions.”

Clearly, the authors of Basic Law 8 intended for the judiciary’s Supreme Court to be independent and unfettered.

The proposed judicial changes, like an oncoming train wreck, could be catastrophic for Israeli democracy.

Last week, the Knesset passed a portion of the proposed changes — a measure making it harder to remove Netanyahu, after which the prime minister announced his intention to take a more hands-on role in pushing the reforms, something he had guaranteed he would not do given the cited corruption charges and his ongoing Trials.¹

Hundreds of thousands of citizens have taken to the streets every weekend in protest. The Army, heavily dependent on highly-trained reservists, who have threatened not to obey orders if the judicial changes actually pass into law, has warned that national security is in serious jeopardy. All of Israel’s western allies have told Netanyahu he is making a terrible mistake by continuing to push for Knesset approval of the judicial changes.

Last Saturday, Defense Minister Yoav Gallant, who has become increasingly concerned that a growing number of reservists — including cyber warfare teams, pilots, and intelligence officers — have been skipping training duty in recent weeks because of the proposed changes, publicly urged Netanyahu to at least wait on the reforms until the Knesset returns from recess in a month, arguing pushing forward would make Israel vulnerable to attack. “This is a clear, immediate and tangible danger to the security of the state,” he said. “For the sake of our security, for the sake of our unity, it is our duty to return to the arena of dialogue.”

For this candid advice, Netanyahu promptly fired him.

The most vociferously far-right of his coalition partners, National Security Minister Itamar Ben-Gvir, vowed to resign from the government if Netanyahu halts the judicial change plan. If Ben-Gvir resigned, the coalition would collapse, which would leave Netanyahu less protected with respect to his corruption charges.

That may have been the one-too-many straws that broke the enervated camel’s back. On Monday, in an address to the nation, Netanyahu announced a pause in the judicial change agenda. Not a stop; a pause, and only until the Knesset returns from its April recess. In his speech, Netanyahu blasted protesters for urging Reservists to avoid reporting for duty and Reservists for heeding that advice, saying, “The State of Israel can’t exist without the Israel Defense Forces, and the IDF cannot exist if there’s refusal to serve. Such refusal will be the end of our country.”

It would appear that Netanyahu’s coalition partners have him right where they want him. Before Mondays “pause” speech Ben-Gvir announced he would not resign and that he had agreed to back Netanyahu’s call for a pause in exchange for the Prime Minister’s promise to create an Israeli “National Guard” under Ben-Givr’s control.

This was confirmed when Ben Gvir circulated a letter to media outlets, signed by Netanyahu, in which the prime minister promised to raise the issue of forming such a body within the National Security Ministry in the cabinet meeting two days from now. Achieved through nothing but extortion, what would a new National Guard mean when placed under the control of Israel’s most far-right cabinet extremist? It seems a terrible price Netanyahu is willing to pay to stay in power.

Left out of any of these discussions are the 1.6 million Arab citizens of Israel who make up 17.2% of the population. Whatever rules, compromises, or judicial changes come out of this mess will affect them in a tangible and meaningful way, which could be far more impactful than the current political hijinks.

My modest proposal is that Israel immediately get to work on writing a constitution, as most modern democracies have done. They could dust off the one John Adams wrote for Massachusetts in 1780. It’s the oldest in the world and the model for America’s. It has stood the test of time. If Netanyahu were to announce such a move, saying the judicial changes are on a longer pause pending completion of the draft constitution, the warring factions may see the benefit of open dialogue rather than polemical threats.

Call me Pollyanna.

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¹ Israel’s attorney general issued a sharp rebuke on Friday, warning that Netanyahu had broken the law by announcing his direct involvement in the overhaul while facing criminal charges — a stern statement that raised the specter of a constitutional crisis.

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Israel: A Democracy Facing A Judicial Disaster

Monday, February 13th, 2023

In Israel, the Knesset is the legislative branch of government. It is joined by the Executive, which forms the Cabinet, the Presidency, which is mostly ceremonial, but carries significant gravitas, and the Judicial, headed by the Supreme Court. As in America, the legislative branch passes laws, and, if challenged, the Supreme Court rules on their constitutionality. It’s democracy in action. Checks and balances just as in the USA.

That may be changing.

When Israel’s Bennett-Lapid government fell on 30 June 2022, a caretaker government took control until 1 November when the country held elections intending to install its 37th government since 1948. There are 120 seats in the Knesset. Consequently, to take control requires 61 seats, and through two rounds of elections a clear winner did not emerge.

That shifted on 29 December 2022, when the third round of elections created a coalition government, a government unlike any that came before it, a government that is threatening the very fabric of democracy in Israel.

The coalition government consists of six political parties—Likud, United Torah Judaism, Shas, Religious Zionist Party, Otzma Yehudit, and Noam—and is led by Likud’s Benjamin Netanyahu, who has taken office as the Prime Minister of Israel for the sixth time. With the exception of Likud, the other five parties are right-wing and religiously conservative, hugely influenced, perhaps dominated, by Israel’s ultra-Orthodox community, known as the Haredim.

The Haredim have long enjoyed benefits unavailable to other Israeli citizens: exemption from army service for Torah students, government stipends for those choosing full-time religious study over work and separate schools that receive state funds even though their curricula barely teach government-mandated subjects.

In the December election, Netanyahu’s Likud party corralled 32 seats, the other five parties another 32. The coalition, with 64 seats, took control of government and formed a Cabinet, a far right, autocratic Cabinet.

Nearly the first thing the new government did was to announce plans to limit the power of the Supreme Court.

Under the plans announced by Justice Minister Yariv Levin on 4 January, a simple majority in the Knesset, 61 votes, would have the power to effectively annul Supreme Court rulings. This would enable the government of the day to pass legislation without fear of it being struck down. It’s called the “override” provision, in that the Knesset could override a Supreme Court ruling. This would absolutely happen, because, unlike in the U.S., where legislators may vote their conscience (of course, they may pay for that later), Israeli Knesset members must vote as their coalition demands.

The new plan also seeks to end the Supreme Court’s ability to revoke administrative decisions by the government on the grounds of “reasonability” (what would a reasonable person say about this?), significantly decreasing judicial oversight. And it envisions giving the government and the coalition in parliament absolute control over appointing judges. Unlike the U.S., Israel’s Supreme Court has a say in appointing judges, at least for the moment.

The final spanner the new government threw into the judicial works is that for the Supreme Court to strike down a Knesset-passed law would require 80% of the judges voting for such a ruling. But even if that happens a simple Knesset majority could “override” the ruling.

There is another issue to deal with. The religiously conservative coalition members have long been fervent advocates for more Jewish settlements in the occupied West Bank. The proposed law could make it easier for the government to legislate in favor of such settlements without having to worry about challenges in the Supreme Court. To blunt international criticism of settlement construction, Israel has in the past pointed to the power of the court to rule against it. If the Override law passes, the country won’t be able to use that defense again, exposing it to even fiercer critiques.

This plan passed out of its Knesset Committee this morning, which is significant, and is now on the way to passage in the full Knesset (it will have go through three votes to cross the finish line—a matter of a week or two).*

The Biden administration, the American Jewish community and most of the European Union are dead set against this remaking of the Israeli judicial system. As is the Bank of Israel, whose governors opined the change will do significant harm to the nation’s economy. As are the CEOs of the country’s leading industries, especially technology and manufacturing.

American Secretary of State Antony Blinken publicly criticized the Israeli government when he met with Netanyahu on 2 February in Israel. The next day, Netanyahu flew to Paris where French President Emmanuel Macron told him to his face the plan would “hurt Israel’s place in the world economy.” Macron “expressed bluntly” that the proposed judicial shakeup “threatens to break the power of the Supreme Court, the only institutional counter-power in the government,” and that, “Paris should conclude that Israel has emerged from a common conception of democracy,” if the planned changes take effect. And yesterday, President Biden also politely suggested the plan is a bad idea when he said, “Israeli democracy is built on an independent judiciary.”

You can add the Israeli public to the naysayers. Yesterday, hundreds of thousands poured into streets around the country to protest, 80,000 of them outside the Knesset.

In this witch’s brew there exists a significant looming complication: the Three Trials of Benjamin Netanyahu, a long-delayed, 3-part felony corruption case.

Prime Minister Netanyahu faces bribery, fraud and breach of trust charges, each being tried separately at the same time in Jerusalem. He  has denied all accusations, vociferously attacking those who seek to prosecute him. Sound familiar?

Israel’s former Justice Minister brought the charges against Netanyahu in 2021, but circumstances, mostly pandemic-oriented, forced two delays. But that’s in the past, and the trials are ongoing now. Netanyahu has said that he will not use his new authority as Prime Minister to upend the legal process, he’ll be mindful of “conflicts of interest.” However, Netanyahu is the leader of the coalition carrying this foul-tasting, stink-producing, judicial bag of ten-day-old fish through the Knesset.

And here’s a question, a pretty big “what if.” What if the Knesset passes the override law as is and Israel’s Supreme Court rules it unconstitutional? In that event does the government simply say, “No, we’re overriding you?”

Amir Tibon, Senior Writer and Editor for Harretz, a leading Israeli liberal newspaper, has reported that as far back as a decade ago Netanyahu staunchly defended Israel’s judicial system and continued to do so right up until this latest government. To get along with his coalition partners that faith in the judiciary may be a thing of the past.

Last night, recognizing that this road ends with a long fall from a high cliff, Israel’s President Isaac Herzog in a surprise address to the nation stressed the importance of reaching a broad compromise and presented his own plan for Israel’s balance of powers. Harretz reported today that, in what might be a violation of Netanyahu’s “conflict of interest pledge,” following the President’s address he and Justice Minister Yariv Levin met late into the night to discuss it and plan a response.

Will any of the national and international criticism make any difference? The religious political parties are basing their passionate advocacy on deeply held religious beliefs. Netanyahu and Likud need them to stay in power. How does one ask people to temper their beliefs?

Israel and America are longstanding, dedicated partners. Despite meaningful differences in our approach to the middle east, our two countries aspire to similar values. Tearing apart Israel’s judiciary will remove an important, perhaps vital, brick in its house of justice, its house of democracy, a brick we each have long held dear.

The coalition government is doing its best to pound a square peg into a round hole. I know it can be done. I also know if it is, the peg will no longer be round, no longer be square, but it sure will be ugly.

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*Sorry, I could not resist a reference to Sunday’s Super Bowl, a game where, once again, I picked the losing side.

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Gun Violence: A Uniquely American Disease Devouring Our Soul

Thursday, January 26th, 2023

America suffered through 647 mass shootings in 2022, which is just a little better than the worst year on record, 2021, a year in which we saw 692 of them. In the last nine days, three mass shootings happened in California, killing 18 people. Thus far, in the first 26 days of 2023 there have been 40, which is more than any other January on record.

The 40 mass shootings in the the first 26 days of January resulted in 86 deaths. Although any death from gun violence is tragic, deaths from mass shootings make up a small percentage of all gun violence deaths. In 2022, there were more than 44,000 of them, 20,138 if you exclude suicides.  Through the first 26 days of January, there have already been 3,030 gun violence deaths nationally.   Here’s a map from the Gun Violence Archive* showing where all those deaths happened. Remember: It’s only 26 days.

If you extrapolate this for the full year, you’ll project more than 45,000 deaths. Now, mass shootings are not proxies for overall gun violence, but it could be instructive (and scary) to realize January is an historically low mass shooting month (relatively speaking).

How does America react to this continuing carnage? It yawns.

Oh, we hear from the politicians with their “thoughts and prayers” routine and go through the required few hours of television coverage (TV’s Mantra: “If it bleeds, it leads”), but after that we slip back into our desensitized cocoons. Most of the mass shootings go unnoticed. At 1.77 per day, who can keep up?

Beginning in 1959, and as it has every year since, the Gallup organization polled Americans with this question: “Do you think there should or should not be a law that would ban the possession of handguns, except by the police and other authorized persons?”  When Gallup asked that question in 1959, 60% of Americans said “Yes, there should be such a law.” Thirty-two years later, in 1991, the “Yes” group had decreased to 43%, and thirty years after that, in 2021, only 19% of Americans were still saying “Yes.” A whopping 80% now said “No.” Credit the NRA. It has done a magnificent marketing job.

Since 1959, when Gallup also reported 78% of Americans believed laws covering the sale of firearms should be made more strict, the decline in support for banning guns has been inversely proportional to the 63-year steady, linear rise in gun ownership and violence. The result is what we have today. Forty-five percent of all households now own at least one handgun. US gun owners possess 393.3 million weapons, according to a 2018 report by the Small Arms Survey, a Geneva-based organization. That is at least 60 million more guns than there are people. It is no surprise gun deaths routinely exceed the number of deaths due to auto accidents.

And it only got worse after Americans went on a gun buying spree beginning in 2020. The National Instant Criminal Background Check System, which the FBI collects, is a significant indicator of firearms purchases. It is noteworthy that background checks jumped 40% in 2020 from the previous year to 39.7 million checks. The frenzy only cooled slightly to 38.9 million checks in 2021.

Where do all those guns come from? Why, from the 71,600 federally licensed gun dealers operating nationwide, of course. That’s more than 1,400 per state.

It may interest you to know that the proposition reflected in Gallup’s question precisely mirrors the law in the UK. No one is allowed to own a gun except “police and other authorized persons.” Exceptions are made for hunting and target shooting, but these are highly regulated and controlled by government. There is very little handgun violence in the UK. To this, you may say, “Without guns, people will just find another way to kill.” To which I reply, “I’d rather try to outrun a knife than a bullet.”

I, like many others smarter than I, have written about this often. It almost seems as if it’s an annual requirement in which we fulfill Albert Einstein’s (possibly misattributed) definition of insanity: “Doing the same thing over and over again expecting different results.”

A University of Washington 2015 study found three million Americans carried a loaded handgun daily; nine million did so at least once a month. Since then, 19 states have passed permitless carry laws, which allow residents to carry concealed handguns in public without a license. There are now 25 states that allow this. If all this weren’t bad enough, only 18 states require “live-fire training” for people carrying concealed firearms.

Is gun violence evenly distributed around the country? Actually, no. It is far more prevalent in red states. These are the states with “stand your ground” statutes and permitless concealed carry laws. Once again, Mississippi leads the way with 28.6 gun violence deaths per 100,000 persons.

Firearm Mortality by State

Compared to the rest of the developed world, every one of our firearm statistics are staggeringly out of whack. As I reported in May of 2022, the US dwarfs the 28 most economically developed countries in the 38-member OECD** in deaths by firearms. Not only is our firearm death rate nearly 25 times higher than our OECD companions, our total homicide rate is eight times higher. Can’t get away from it. We are a violent society.

It’s not much, but there is one ever so tiny glimmer of light invading the darkness of firearm carnage in America. That would be the Bipartisan Safer Communities Act, signed into law by President Biden in June, 2022. This is the first major gun reform law in three decades. It includes $750 million in funding for states to improve or enact red flag laws and other crisis intervention programs, $250 million for community-based violence intervention initiatives, and $200 million for improving the national background check system. Millions more will go to school safety, police, and mental health programs.

Gun violence is a cancer eating away the heart and soul of America. It is amazing to realize that, despite the never-ending bloodbath, the country has managed to survive, prosper, thrive, and lead the world in so many areas.

Amazing, indeed.

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*The Gun Violence Archive is a nonprofit research group that tracks shootings and their characteristics in the United States. It defines a mass shooting as an incident in which four or more people, excluding the perpetrator(s), are shot in one location at roughly the same time.

**The Organization for Economic Co-operation and Development, founded by the US and it allies shortly after the close of the Second World War. Its members are the most economically developed countries.

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Florida’s Governor Ron DeSantis Builds His Educational Petrie Dish

Tuesday, January 24th, 2023

I know it’s masochistic, but I couldn’t help it. I found myself thinking about Florida Governor Ron DeSantis and his all-out assault on education, specifically education about racism, Wokism (if that’s a word), the LGBTQ+ community, and anything else he doesn’t agree with.

I began my long and winding journey down the DeSantis rabbit hole when I learned that yesterday was the day in 1964 when South Dakota became the deciding and 38th state to ratify the 24th amendment to the US Constitution.

The 24th Amendment prohibits making the right to vote conditional on paying a poll tax, or any other kind of tax. It reads:

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

The 24th Amendment applied to Presidential and Congressional elections. Two years later, in 1966, the U.S. Supreme Court ruled 6–3 in Harper v. Virginia Board of Elections that poll taxes for any level of elections were unconstitutional. It said these violated the Equal Protection Clause of the Fourteenth Amendment.

Seven states never held a vote to ratify the Amendment. They are Wyoming, Arizona, Arkansas, Oklahoma, Louisiana, South Carolina and Georgia. One state voted to reject the Amendment’s approval altogether. That was Mississippi. Mississippi again. The state seems to rejoice in being the bottom of the country’s bird cage.

Four states, Virginia, North Carolina, Alabama and Texas, waited years to ratify the Amendment, with Texas being the last, in 2009.

If you don’t count Virginia, which enacted a poll tax in 1876, but repealed it six years later in 1882, Florida was the first state to make a poll tax a condition of voting, enacting the legislation in 1885. It became effective in 1889. In 1941, 52 years later, Florida repealed its poll tax.

Florida did not repeal the poll tax because its legislators were conscience-stricken and knew they had to do the right thing. No. The state repealed the tax because too many white legislative candidates (they were all white) were buying votes by paying the tax for poor black and white constituents (disproportionately black, of course) who couldn’t afford it themselves. In essence, the tax was no longer doing what it was intended to do: suppress black votes.

Florida had two other legislatively approved ways to suppress black voting. The first was the Literacy test. According to the Tampa Bay Times:

In 1915, the Legislature enacted a literacy test along with a companion grandfather clause. The clause, common throughout the South, declared that any person who had a relative who voted prior to a certain date did not have to take the test.

According to the proposed Florida law, if you had a relative who was eligible to vote on Jan. 1, 1867, you were exempt from taking the test. Since no black Floridian was voting prior to that date, all of them had to pass the test.

Blacks were frequently asked more technical and legal questions than whites. When one black applicant was asked what “habeas corpus” meant, he responded: “Habeas corpus means this black man ain’t gonna register today.”

The final way the legislature held down, disenfranchised, the black vote in Florida was by means of the Criminal Disenfranchisement Law. This law, first enacted in 1868, reenacted in 1968, and in effect even today, bars anyone with a felony conviction from ever voting. Florida is one of seven states that still retain this disenfranchisement statute, which disproportionately affects blacks.*

Disproportionate imprisonment of blacks is not something peculiar to Florida. Nationwide, according to Bureau of Justice data, 18 and 19-year-old black men are 12.4 times more likely to be imprisoned than their white peers. And it doesn’t get much better as blacks age, as the chart below shows.

With this as background (and here are 24 more charts showing pervasive racism directed at blacks), Governor DeSantis insists there is no such thing as institutional racism, especially in Florida. And he’s gone to great lengths to make sure anyone in Florida who suggests otherwise will require divine intervention to escape punishment.

Ask Andrew Warren. Last August, DeSantis suspended Warren, the twice-elected Hillsborough County State Attorney, saying he violated his oath of office and has been soft on crime (Remarkably, Florida’s Governor has the legislative authority to do this). What had Warren done? Nothing, except for signing a group statement with other prosecutors saying “we decline to use our offices’ resources to criminalize reproductive health decisions.” In other words, Warren was suspended, not for something he did, but for something he said he might do at some time in the future.

Warren sued to get his job back. Yesterday, a federal judge ruled that, although DeSantis violated the Florida Constitution and the First Amendment, he lacked the power to reinstate Warren. In his 53-page ruling, U.S. District Judge Robert Hinkle, while grudgingly dismissing the case, excoriated DeSantis and his staff for attacking Warren for purely political reasons. Nonetheless, DeSantis won, which is usually the way things work in Florida.

And now, as we are smack dab in the second day of “Florida Literacy Week,” comes the Florida Department of Education’s new rules to enforce the Governor’s Parental Rights In Education Act, known by critics as “Don’t Say Gay” or the Stop WOKE Act and Florida law 1467, the Curriculum Transparency Law, which requires school districts to be transparent in the selection of instructional materials and library and reading materials.

Taken together, these two statutes limit what teachers can teach and what their students can read.

The two statutes are supposed to apply to what goes on in the classroom. Consequently, in federal court filings, lawyers representing DeSantis insist  the statutes do not apply to library books. In practice the opposite is true. A recent 23-slide librarian training program, approved by the Florida Department of Education, asserts: “There is some overlap between the selection criteria for instructional and library materials.” One slide says that library books and teacher instructional materials cannot include “unsolicited theories that may lead to student indoctrination.”

Good luck trying to understand what an “unsolicited theory” is, or what “student indoctrination” means. Indoctrination into what?

The rules are confusing for librarians, but they’re even murkier for classroom teachers, many of whom have created little classroom libraries over the years of their teaching. The Department of Education’s new rules require “media specialists” to vet every one of the non-curriculum  books teachers may have in their classrooms, as well as all the books in the school libraries. In Florida, some school librarians earn “media specialist certificates.” These are the “media specialists” tasked with vetting all the books in Florida’s 4,202 K-12 public schools. In Popular Information, Judd Legum reports that Kevin Chapman, the Chief of Staff for the Manatee County School District, told him that County principals told teachers last week they are subject to a third-class felony charge if unvetted books in their classrooms are deemed to violate the prohibitions contained in either of the two statutes.

Needless to say, those little classroom libraries are disappearing faster than the small piece of meat I dropped on the kitchen floor this morning right in front of my 80-pound dog, Lancelot (so named because he’s not Lance-a-little).

Florida law 1467 on Curriculum Transparency is particularly pernicious, because it prohibits teachers from exercising their own educated judgement regarding what is appropriate for their particular students. For Florida’s teachers, this is scary stuff. They are going to have to be very careful with what they say, or even suggest, in their classrooms.

Some teachers, perhaps many, will refuse to give up their intellectual freedom. It will be interesting to see how that plays out. As George Orwell said, “In a time of universal deceit, telling the truth becomes a revolutionary act.”

Nevertheless, it seems Governor Ron DeSantis has achieved in Florida what all autocrats crave. He has brazenly fastened iron bonds on what the next and future generations of Floridians are allowed to know. To my mind, he has also underestimated the youth of his state whose intelligence, curiosity, global involvement, and just plain desire to know and learn cannot and will not be inhibited by anything an autocratic governor, whose overarching goal in life is to rule the world, will ever do.

My money’s on the kids.

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*Angela Behrens, Christopher Uggen, and Jeff Manza, Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon Disenfranchisement in the United States, 1850-2002, 109 AMERICAN JOURNAL OF SOCIOLOGY 559 (2003).

 

 

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The Earth Is Moving Under Medicare And The Price Of Drugs ― But Slowly.

Friday, November 4th, 2022

Prologue

This is a story, 16 years in the making, of government-enabled corporate greed. It’s complicated and somewhat dense. It has to be to go on that long. It’s a story of how one industry, the Pharmaceutical industry, has done Olympian good while achieving Titanic profit, which has been surgically excised, Midas-like, from the hides of American taxpayers who never felt the touch. The story ends with a different way, a better way, but a way we common folk won’t likely see.

The story

Medicare Part D, a prescription drug benefit plan for Medicare beneficiaries, became law on 1 January 2006 under the George W. Bush administration and a Republican controlled Congress. The legislation was enacted with no funding provisions whatsoever. Since then, Washington politicians have been arguing over whether this government program should be allowed to negotiate with pharmaceutical companies the prices it pays for drugs its members need. Medicare beneficiaries, all 64 million of them, and the public at large, have overwhelmingly supported such a move. Over the years, pharmaceutical companies have spent a king’s ransom donating to politicians to secure―should we say “buy?”―their votes in opposition.

What’s been the result?

  • A study published recently in the Journal of the American Medical Association concluded more than a quarter (27.2%) of Medicare spending is now for prescription drugs;
  • That would be $180 billion, as reported by the Medicare Payment Advisory Commission for 2020;
  • According to the Kaiser Family Foundation, the total we in the US spent on prescription drugs in 2017 was $333 billion; and,
  • The Rand Corporation studied and compared US prices to 32 other OECD countries (The Organization for Economic Cooperation and Development – the most developed nations) and reported our prices are “nearly twice those of other countries after adjusting U.S. prices downward to account for rebates and other discounts paid by drug companies.”

And now, the gravy train may be slowing.

In August 2022, Congress finally passed―without a single Republican vote―and President Biden signed, the Inflation Reduction Act, which, among other things, allows Medicare to move forward with drug price negotiations―sort of. Right about now, you may be asking what prevented Medicare from doing that all along since 2006 as a normal part of its drug-purchasing process?

As the Kaiser Family Foundation explains:

Under the Medicare Part D program, which covers retail prescription drugs, Medicare contracts with private plan sponsors to provide a prescription drug benefit. The law that established the Part D benefit included a provision known as the “noninterference” clause, which stipulates that the HHS Secretary “may not interfere with the negotiations between drug manufacturers and pharmacies and PDP [prescription drug plan] sponsors, and may not require a particular formulary or institute a price structure for the reimbursement of covered part D drugs.”

In other words, although Medicare is buying drugs for its members, all 64 million of them, it has not been allowed to even hint that a lower price might be more fair and appropriate for the government to pay. That is the very definition of a “sweet deal” for drug manufacturers.

Giving the negotiation contrarians the benefit of a doubt they more than likely don’t deserve, their argument in opposition hangs on the slim thread that negotiations will lower the income of drug manufacturers, and that will, in turn, reduce the amount of money the companies invest in research and development to discover new life-saving drugs. My own opinion is that this argument is chock full of what makes the grass grow green and tall. And, by the way, the Congressional Budget Office agrees with me, although their analysists said it with a bit more eloquence.

And what does the aforementioned Inflation Reduction Act do, anyway?

It does a number of things, one of which is to lay down new rules for price negotiations. These are its major health care provisions, leaving out, for the moment, the negotiation issue. It will:

  • Require drug companies to pay rebates to Medicare if prices rise faster than inflation for drugs used by Medicare beneficiaries, beginning in 2023;
  • Cap out-of-pocket spending for Medicare Part D enrollees and make other Part D benefit design changes, beginning in 2024;
  • Limit monthly cost sharing for insulin to $35 for people with Medicare, beginning in 2023. This might be the most far reaching and important item in the entire legislation.
  • Eliminate cost sharing for adult vaccines covered under Medicare Part D and improve access to adult vaccines in Medicaid and CHIP, beginning in 2023;
  • Expand eligibility for full benefits under the Medicare Part D Low-Income Subsidy Program, beginning in 2024; and,
  • Further delay implementation of the Trump Administration’s drug rebate rule, beginning in 2027.

Notice the years in which these provisions take effect. In most cases, it’s 2023.

The negotiation provision of the Inflation Reduction Act:

  • Requires the federal government to negotiate prices for some drugs covered under Medicare Part D and Part B* with the highest total spending, beginning in 2026. Note the year.

This provision targets the most expensive drugs. Here’s how.

Under the new Drug Price Negotiation Program, Medicare will negotiate the price of 10 Part D drugs for 2026, another 15 for 2027, another 15 for 2028, and another 20 for 2029 and later years. The drugs to be chosen for negotiation will be selected from among the 50 drugs with the highest total Medicare spending. The number of drugs with negotiable prices  will accumulate over time.

So, beginning four years from now, the law goes after the most expensive Medicare drugs.

There are debatable reasons for delaying implementation until 2026, all dealing with operational processes. The period of negotiation between the Secretary of Health and Human Services and manufacturers of the selected drugs will occur between 1 October 2023 and 1 August 2024, and the negotiated “maximum fair prices” will be published no later than 1 September 2024 and will go into effect 1 January 2026.

This seems to me a rather long and drawn out negotiation process, but it is, after all, a political compromise.

The better way

And now for the better way.

There is another government health care organization that has never had a prohibition with respect to negotiating drug prices. It is the Department of Veterans Affairs. The VA.

In January, 2021, the Government Accountability Office released a study that concluded:

“the Department of Veterans Affairs (VA) paid, on average, 54 percent less per unit for a sample of 399 brand-name and generic prescription drugs in 2017 as did Medicare Part D, even after accounting for applicable rebates and price concessions in the Part D program.”

This means what the VA pays is in line with those other 32 OECD countries.

Moreover, the GAO found that 233 of the 399 drugs in the sample were at least 50% cheaper in the VA than in Medicare, and 106 drugs were at least 75% cheaper. Only 43 drugs were cheaper in Medicare than in the VA.

What are the operational differences between the two organizations?

For one thing, the programs pay for drugs differently. Medicare reimburses the Part D plan sponsors to pay pharmacies through the middlemen―Pharmacy benefit Managers, but the VA buys drugs directly from manufacturers. It cuts out the middlemen. The VA can get lower prices because it can:

  • Negotiate as a single health system with a unified list of covered drugs; and,
  • Use discounts defined by law that Medicare doesn’t have.

As in everything political, it all comes down to economics. The VA, with only nine million health care beneficiaries, as opposed to Medicare’s 64 million, could fly under the political radar and avoid congressional restraint. It was able to keep the congressional camel’s nose and, more to the point, its sticky fingers out of its tent.

Medicare is so big, it could never do that.

And here we are.

______________________

*Medicare will also negotiate in a similar manner the prices of Part B drugs. These are drugs administered in physicians’ offices or hospital outpatient departments.

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Cavalier Greed And Cruelty In Minnesota

Wednesday, September 21st, 2022

Yesterday, Federal authorities charged 47 people in Minnesota with conspiracy and other counts in what prosecutors said is, to date, the largest fraud scheme of the COVID-19 pandemic, a scheme that stole at least $250 million from a federal program that provides meals to low-income children.

According to the Justice Department, “The 47 defendants are charged across six separate indictments and three criminal informations with charges of conspiracy, wire fraud, money laundering, and bribery.”

Government prosecutors allege the defendants created companies that claimed to be offering food to tens of thousands of children across Minnesota — nearly all of whom did not exist, — then sought reimbursement for those meals through the U.S. Department of Agriculture’s food nutrition programs. Because the need was so great, some standards were waived and oversight was often minimal. The USDA allowed for-profit restaurants to participate, and allowed food to be distributed outside educational programs. The charging documents say the defendants exploited such changes “to enrich themselves.”

A non-profit called Feeding Our Future was central to the scheme.

The Federal Child Nutrition Program is used to feed low income children in daycare and afterschool organizations. It spends $4 billion a year to feed needy children across the country. Feeding Our Future received hundreds of millions of dollars from the program from 2019 through 2021.

Here’s how it worked.

The government alleges Feeding Our Future, a sponsor in the Federal Child Nutrition Program, established sponsorship contracts with nearly 200 federal child nutrition program sites throughout the state, knowing that the sites intended to submit fraudulent claims. The sites would submit the claims to Feeding Our Future, which would then submit them to the Minnesota Department of Education, which has historically administered the programs, primarily through school programs. With schools closed for the pandemic the rules of the nutrition programs were changed to allow for all of the new entrant providers and the relaxed rules.

Feeding Our Future became a sort of Third Party Administrator for the sham sites and collected 15% of the charges as its fee. It went from receiving and disbursing approximately $3.4 million in federal funds in 2019 to nearly $200 million in 2021.

According to the indictments, “The sites fraudulently claimed to be serving meals to thousands of children a day within just days or weeks of being formed and despite having few, if any, staff and little to no experience serving this volume of meals.”

The massive fraud was allegedly headed up by Aimee Bock, Feeding Our Future’s founder and executive director. The indictments also allege she and some of her employees received additional kickbacks, which were often disguised as “consulting fees” paid to shell companies Bock created.

Andy Luger, the U.S. Attorney for Minnesota, said the fraudsters billed the government for more than 125 million fake meals. He displayed one Form For Reimbursement that claimed a site served exactly 2,500 meals each day Monday through Friday — with no children ever getting sick or otherwise missing a meal.

Luger said, “These children were simply invented.”

Earlier this year, the U.S. Department of Justice made prosecuting pandemic-related fraud a priority. The department has already taken enforcement actions related to more than $8 billion in suspected pandemic fraud, including bringing charges in more than 1,000 criminal cases involving losses in excess of $1.1 billion.

In this case, one of the indictments offered a beyond-brazen example of the fraud. It described a small storefront restaurant in Willmar, in west-central Minnesota, that typically served only a few dozen people a day. Two defendants offered the owner $40,000 a month to use his restaurant, then billed the government for some 1.6 million meals through 11 months of 2021. They listed the names of around 2,000 children — nearly half of the local school district’s total enrollment — and only 33 names matched actual students. And where did the defendants get the names of the children they said the program fed? From a website that randomly provides the names of mythical children. That’s where.

As usual in these kinds of fraud schemes the defendants used the stolen money to buy homes, exotic cars, vacation junkets and expensive clothes and jewelry.

And what did Minnesota’s low income children get? They got hunger.

 

 

 

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Paid Sick Leave: Public Policy That Makes Ethical And Economic Sense

Tuesday, August 23rd, 2022

 

Errors like straws upon the surface flow
He who would search for pearls must dive below.
 All for Love, prologue (1678), by John Dryden (19 August 1631 – 12 May 1700)

Dryden could have been advising modern day humanity, especially the American variety. Here in the 21st century, with news cycles of about a minute and a half, many flimsy, insubstantial, error-filled straws float on the surface, and few of us get to see the pearls lying deep below. We no longer seem to have the time or the means to look deeply at anything.

Take sick leave, for example. Seems a simple concept. You get sick, you stay home from work to heal yourself and not contaminate others. Our  long COVID nightmare testifies to that. But if you do stay out of work to heal yourself, do you lose your job if you’re out too long? And what about money? Where do you get it? Are you one of those fortunate few whose employers provide paid sick leave? Or any sick leave?

You might be if you live in one of the sixteen states that mandate paid sick leave, or one of the four states in which some cities do the same. Or you may work in the public sector for the federal government, or for a state, or city, or town, or county, where paid sick leave, mostly negotiated by unions, has become the norm.

The most basic question, of course, is this: Does your employer even allow you to keep your job if you call in sick? In many states if you work for a company with fewer than 50 employees, there is no requirement for that. According to the Department of Labor:

Currently, there are no federal legal requirements for paid sick leave. For companies subject to the Family and Medical Leave Act (FMLA), the Act does require unpaid sick leave. FMLA provides for up to 12 weeks of unpaid leave for certain medical situations for either the employee or a member of the employee’s immediate family. In many instances paid leave may be substituted for unpaid FMLA leave.

Employees are eligible to take FMLA leave if they have worked for their employer for at least 12 months, and have worked for at least 1,250 hours over the previous 12 months, and work at a location where at least 50 employees are employed by the employer within 75 miles.

Sick leave, even unpaid and even if covered by the FLMA, comes with catches.

Sick leave in America, like so many other things, is an Irish stew thrown together by the individual states. The Society for Human Resource Management (SHRM) has a good state-by-state summary, but why should this be necessary? If a worker deserves sick leave, either paid or unpaid, in one state, why shouldn’t another worker in a different state deserve the same?

Consider my home state, the Commonwealth of Massachusetts, where, since 2015, most workers have the right to earn and use up to 40 hours of job-protected sick time per year to take care of themselves and certain family members. Workers must earn at least one hour of earned sick leave for every 30 hours worked.

Employers with 11 or more employees must provide paid sick time. Employers with fewer than 11 employees must provide earned sick time, but it does not need to be paid. So, every worker has sick time as a benefit, many, the paid variety. This is also pretty much the way it works in the other 15 states that mandate a version of paid sick time.

Although many will suffer their hair igniting when they read this, it’s better in the European Union, where all workers, regardless of where they work, or for whom, have a form of paid sick leave. According to the EU’s Sick pay and sickness benefit schemes in the European Union: 

A sickness benefit is provided by the social protection system and is paid as a fixed rate of previous earnings, or a flat-rate amount. All European Union (EU) Member States provide sick leave and sickness benefits.

But we live in America, where sick leave is a crap shoot at best. Can we take a minute to dive deeper and find a pearl or two below the surface?

There are numerous studies on the benefits of paid sick leave, these include lessening healthcare financial burdens, preventing the spread of illnesses (including COVID), increasing the use of preventive health care services, and reducing on-the-job injuries.

Now, University professors Yanlei Ma, Kenton J. Johnston, Hao Yu, J. Frank Wharam, and Hefei Wen have published a study in Health Affairs examining the economic benefits of paid sick leave through the lens of Emergency Department (ED) visits. Their conclusion?

We found that state implementation of paid sick leave mandates was associated with a 5.6 percent reduction in the total ED visit rate relative to the baseline, equivalent to 23 fewer visits per 1,000 population per year.

The point these latest researchers make is when people do not have a sick leave benefit they remain in the workplace practicing “presenteeism,” that is, being at work when they are not healthy (and probably less productive). Then, when their condition becomes worse they end up in the the most expensive health care setting in the world, their local Emergency Room.

The US stands out among other wealthy democracies for lacking nationally mandated paid sick leave. According to Ma, et al, this leaves 23 percent of the nation’s workforce without a single paid sick day.

Opponents of mandated paid sick time say most employers already provide paid sick leave, so mandating it is unnecessary. Tell that to the 23% without any.

Right now, given our polarized government, I don’t have great hope we’ll be seeing universal paid sick leave anytime soon. As an example, in 2018, Texas became one of those four states I cited above where three individual cities, Austin, Dallas and San Antonino, passed local paid sick leave mandates. In 2020, the Texas Supreme Court affirmed a state Appellate Court’s decision the mandates were unconstitutional. Now, regardless of where you live in Texas, although many employers offer a sick leave benefit, paid sick leave is not mandatory anywhere.

It seems to me this is really a question of equality. And for now, some workers are a lot less equal than others.

 

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Do Right To Carry Laws Make Us Safer?

Monday, August 15th, 2022

America is awash in guns.

According to a 2018 report by the Small Arms Survey, a Geneva-based organization, Americans in that year had in their possession 393.3 million weapons, which is 16% more than the country’s population of about 330 million people. And since that year, especially beginning in 2020, we  have been on a gun buying spree. The National Instant Criminal Background Check System, which the FBI collects and is widely used as a proxy for firearms purchases, jumped 40% in 2020 from 2019 to 39.7 million background checks. The frenzy only cooled slightly to 38.9 million checks in 2021.

With all those guns, it is only natural that people want to be able to take them with them when they leave their homes. Enter Right To Carry laws, RTCs.

In January of 2023, Alabama will become the 25th state that won’t require permits to carry a gun in public. In recent years, more and more states have enacted similar legislation. Indiana, Georgia and Ohio, did so this year. The change in Indiana made headlines as it happened just two weeks before a deadly mass shooting at a mall in an Indianapolis suburb, where a gunman killed three and wounded two more before being shot dead by a bystander who also carried a gun.

The rationale for RTC laws is always the same: They will keep us safer, because people will be able to defend themselves and their families from bad people with guns, a la the Indianapolis situation. But is that even remotely true?

To find out, John J. Donohue, Samuel V. Cai, Matthew V. Bondy, and Philip J. Cook, writing in the National Bureau of Economic Research Paper Series, in June of this year published their study, More Guns, More Unintended Consequences: The Effects Of Right To Carry On Criminal Behavior And Policing In US Cities.

The conclusion of their heavily researched, 36 page paper? “The rate of firearm violent crimes rises by 29 percent due to RTC, with the largest increases shown in firearm robberies.”

Consider this chart, which compares the incidence of violent crime in major cities in the year before  passage of Right To Carry laws and the year after.

From the Report:

The statistically significant estimates that RTC laws increase overall firearm violent crime as well as the component crimes of firearm robbery and firearm aggravated assault by remarkably large amounts with an attendant finding of no sign of any benefit from RTC laws represent a remarkable indictment of permissive gun carrying laws. Perhaps the most noteworthy and novel result is the finding that RTC laws increase firearm robbery by a striking 32 percent.

This study shoots a great big hole through the idea that Right To Carry laws keep us safer. In fact, the reverse is true.

Another consequence of RTC laws is the effect they have on the capacity and ability of police to solve crimes. That is, they cause crime to go up so much that police turn into the Ed Sullivan Plate Spinner.

 

The increasing firearm violence that RTC laws perpetuate is facilitated by a massive 35 percent increase in gun theft (p = 0.06), with further crime stimulus flowing from diminished police effectiveness, as reflected in a 13 percent decline in violent crime clearance rates.

The study authors say RTC laws may generate a host of demands on police time and resources that reduces the amount of time they have to fight crime. Processing complaints about the increased gun thefts, accidental discharges and injuries, processing RTC permit applications, and taking time to check for permit validity by those carrying guns will all encumber police resources.

For example, if the police only have the ability to solve 40 out of 100 crimes, and if crime rises by 20 percent and they still can only solve 40 crimes, the clearance rate would fall from 40 percent to 33 percent (40 out of 120).

Nonetheless, it appears we are stuck with at least half the states falling in love with Right To Carry laws. We are also stuck with the horrid consequences.

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Two Stories – Only One Of Them Good

Thursday, August 11th, 2022


Photo credit – The Economist, 2018

There are two major stories roiling America this week in August 2022. One concerns the major accomplishments of the Biden administration, and the other is the political cyclone that is anything having to do with Donald Trump.

By any basic measure, Joe Biden’s presidency is off to a rip-roaring start. Not even halfway through his term, Congress has passed the $1.9 trillion American Rescue Plan and devoted hundreds of billions of dollars to upgrading American infrastructure. It’s approved the first major piece of gun reform in decades and expanded health care benefits to millions of veterans. And once the House returns from its recess tomorrow, Congress will have authorized hundreds of billions of dollars in green energy and health care subsidies. While the first and last measures were enacted entirely along party lines, the others passed with large, bipartisan majorities.

And this week President Biden signed another bi-partisan major piece of legislation into law, the CHIPS and Science Act of 2022, boosting domestic semiconductor manufacturing, a stroke of the pen we desperately needed to compete globally with the Chinese. Following the signing, the Micron company announced a $40 billion investment in new chip-manufacturing facilities in the United States through the end of the decade, and Global Foundries and Qualcomm announced a $4 billion partnership to produce chips in the U.S. that would otherwise have gone overseas.

Also this week, we learned the price of gasoline has dropped below $4.00 per gallon and inflation has decreased from 9.1% to 8.5%.

I defy anyone to prove any administration in the last fifty years has done more in such short a time (I know, it feels like forever, but it’s only the first one and a half years of a four year term).

But while that story of accomplishment should be celebrated around the country, such is not the case. It’s the other story, the Trump crazyness, that continues to suck all the available oxygen out of everywhere. And it doesn’t help when Republican congressional legislators hypocritically put on the mantle of persecuted victimhood and defend their cult leader like Davy Crocket at the Alamo.

I won’t go into all the nausea-inducing idiocy delivered with intergalactic significance by those “patriots,” but I will point out that in a time crying out for calm, patience and legislative leadership, we are given nothing but disingenuous histrionics with all the honesty of a Potemkin Village.

Here is what we know: Donald Trump is being investigated by two agencies, the New York Attorney General and the Justice Department. We know the particulars of the first, but not the second. We know a federal judge authorized the FBI to execute a search warrant at Trump’s home at Mar-a-Lago (After firing James Comey, Trump appointed the current FBI Director Christopher Wray, a Republican). To do that, the FBI would have had to persuade the Judge it had probable cause that a crime had been committed. Second, we know the former President testified in New York on Wednesday of this week in the New York Attorney General’s long-running civil investigation into his business dealings. We know his testimony consisted entirely of his invoking his Fifth Amendment rights (we also know Trump has said in the past, “You see, the mob takes the Fifth. If you’re innocent, why are you taking the Fifth Amendment?”).*

That is all we know for sure. Everything else has been speculation and a hair-on-fire, Hellzapoppin horror show in which Republicans see the Four Horsemen of the Apocalypse galloping over the nearest hill to bring fire and destruction to them and their Dear Leader. They have also pledged massive vengeance if (they say “when”) they retake control of the House in November’s election.

While there is some excellent reporting happening, especially in long form, I blame the Washington media for much of this. Yes, it has to cover the swill that comes out of Trump’s mouth and the chaos that comes next, but it has given, and continues to give, every bombastic bloviator a national soapbox from which to spill their screed. There is a rampant and profound false equivalency going on, and, reporters covering this for the national and cable networks should know better. As someone I respect said, “They should be investigative reporters, not stenographers.”

Maybe at some point in the future Americans will stand back and take a hard look at all of this. Maybe they will come to appreciate the monumental legislation that’s come out of the Biden administration. Maybe they will realize the good it will do for our country and our neighbors. Maybe Republican leadership will instruct congressional members to stand down and let things play out. Maybe Joe Biden’s approval rating will rise. Maybe pigs will begin flying past my second floor window. Maybe…

We can be certain of one thing. The Trump drama will resolve eventually. The question is, will it right the ship of Democracy, or sink it?

 

*It is not the first time that Mr. Trump has taken the fifth in a civil case. During his divorce proceedings against Ivana Trump in 1990, he invoked his right against self-incrimination close to 100 times according to Wayne Barrett’s book “Trump: The Greatest Show on Earth.” Most of the questions he was avoiding concerned his infidelity. In Mr. Barrett’s words, “mostly in response to questions about ‘other women.’”

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From Watergate To Tonight’s Public Hearing: A Stark Contrast

Thursday, June 9th, 2022

On 17 June 1972, in what White House Press Secretary Ron Ziegler would later call, “a third-rate burglary,” five men, all former CIA operatives, broke into the Watergate Hotel headquarters of the Democratic National Committee to steal information relating to the upcoming presidential election.

Four months later, in a blockbuster story for the Washington Post on 10 October, Bob Woodward and Carl Bernstein reported,

“The Watergate bugging incident stemmed from a massive campaign of political spying and sabotage conducted on behalf of President Nixon’s re-election and directed by officials of the White House, as a basic strategy of the Nixon re-election effort.”

Five months after that, in early March, 1973, the US Senate, by a vote of 77 – 0, voted to convene the Select Committee on Presidential Campaign Activities. Four Democrats and three Republicans comprised the Committee, which was chaired by Senator Sam Ervin (D-NC) with Senator Howard Baker (R-TN) as his Vice Chair. The Committee began its public hearings on 17 May, 13 months after the break-in. They would go on every day for two weeks, and were carried live on all television networks. During his opening statement, Howard Baker said the job of the Committee was to answer the question, “What did the President know, and when did he know it?”

Watergate would prove the undoing of President Richard Nixon, who just one year earlier had won re-election in a massive landslide. Forty people would be indicted. Seven individuals associated with carrying out the actual burglary and five presidential advisors were convicted of various crimes, although the conviction of one of the advisors, Robert Mardian, was overturned on appeal.

Watergate produced heroes.

  1. First, there were the 77 patriotic senators who voted unanimously to form the Select Committee, many knowing their votes would come back to hurt them in future elections.
  2. Then there were Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus who, in what later came to be known as the Saturday Night Massacre, resigned rather than carry out Nixon’s venal order to fire Special Prosecutor Archibald Cox. Solicitor General Robert Bork, subsequently nominated to the Supreme Court by Ronald Reagan, did agree to carry out the order to get rid of Cox and wanted to resign immediately after, but was persuaded by Richardson and Ruckelshaus to stay for the good of the Justice Department.
  3. Senators Ervin and Baker and the other members of the Select Committee did their duty, all the while aware of the risks to their careers and the personal safety of themselves and their families.
  4. Following Watergate, investigators and journalists, layer by layer, unveiled the enormous corruption that was the Nixon presidency. Congress did what Congress should. The American people had an overwhelmingly favorable opinion of how the Senate, the House of Representatives, federal investigators and journalists did their jobs.

So, which was worse? The corruption riddled Nixon presidency with its utter disregard for the truth, the law, and basic morality, or the Trump presidency, with:

  1. Its four-year litany of lies;
  2. Its parade of misinformation about the Covid pandemic;
  3. Its asking  a state election official to “find” nearly 80,000 votes in order to “win” the state of Georgia;
  4. Its withholding of congressionally approved funding for Ukraine in an attempt to extort cooperation from its President as it sought to undermine the campaign of Joe Biden by targeting his son;
  5. Its presidential genuflection to Vladimir Putin;
  6. Its throwing log after log on the inferno that is white nationalism;
  7. And, biggest of all, its January 6th attack on the United States, which Donald Trump and his minions organized and directed and during which he stood idly by, smiling, as he watched it unfold on television while his troops tried to find Vice President Pence, screaming, “Hang Mike Pence.”

Following the Insurrection, we discovered there are some heroes, but very few, on the Republican side of the aisle.

First, the ten Representatives who voted in favor of the United States House Select Committee on the January 6 Attack, most of whom have announced they will not run for re-election; they’ve been driven from office by the Cult of Trump.

Second, Representatives Liz Cheney, of Wyoming, and Adam Kinzinger, of Illinois, the only two Republicans who defied party leadership to serve on the Select Committee. Kinzinger will not run for re-election, and Cheney has been stripped of her leadership role in the Party.

That’s it, folks. There aren’t any others. No Elliot Richardsons here

Tonight, eight days away from the third-rate burglary’s 50th anniversary, public hearings conducted by the Select Committee will begin. They bear about as much similarity to the Watergate Hearings as my tennis game does to that of Raphael Nadal’s. But they will be tremendously important. Those Americans who care to watch will witness the evil Genie emerge from his bottle. Even though, unlike the Watergate investigation, many officials have refused Committee subpoenas to testify, much will be revealed. What will happen afterwards is anybody’s guess. The Republicans seem to be playing a waiting game until after the midterm elections. If, as expected, they take control of the House, they will then be able to disband the Select Committee and act like the Insurrection never happened.

But who will tune in tonight? All the major networks, cable and otherwise, will broadcast the Hearing live, as they happen. All except one. That would be Fox, which will have its usual “all star lineup” of Carlson, Hannity and Ingraham commenting contemporaneously as tonight’s Hearing progresses. Wonderful.

One cannot help wondering if tonight’s Hearing will be a mostly preaching-to-the-choir exercise. If it’s true that nearly 70% of Republicans continue to believe the Biden presidency illegitimate and the 2020 election “stolen” from Donald Trump (apparently, some people really will believe anything), tonight’s event might well be nothing more than a lonely voice crying out in an empty desert.

There is one other thing that separates Watergate from the present Committee’s work. No one refused to testify, defying a subpoena, in the Watergate investigation. Chairman Ervin said loud and clear if anyone did that he would have them arrested. They all came to the Committee like lambs to the slaughter. In the present investigation, people, important witnesses, have blithely considered their subpoenas mere recommendations they can justifiably ignore.

What I have been forced to conclude is that January 6th, and what has happened since, are not the main event. They are symptoms of a disease that is cracking our democracy at its core. Unless the present Committee examines the disease, as well as its symptoms, they’ll miss their one chance to show America the deepening fissure.

Looking back, it almost seems as if Watergate happened on a different planet. How far we have fallen.

 

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